J.Shakila Banu... v. M.Mohammed Rafi...

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:24.6.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.1139 of 2006J.Shakila Banu... Petitioner /Petitionervs.M.Mohammed Rafi... Respondent/Respondent Petition filed under Section 397 r/w 401 of Cr.P.C. against theorder dated 27.6.2006, passed by the Family Court(First AdditionalDistrict Judge), Salem, in M.C.No.42 of 2005.For Petitioner : Mr.K.K.Ananthapadmanaban for Mr.R.NalliyappanFor Respondent : Mr.N.S.Sivakumar O R D E R Challenging and impugning the order dated 27.6.2006, passedby the Family Court(First Additional District Judge), Salem, inM.C.No.42 of 2005, this criminal revision case is focussed.2. Compendiously and concisely the relevant facts, which areabsolutely necessary and germane for the disposal of this civilrevision petition would run thus: (a) The revision petitioner herein filed the M.C.No.42 of2005 before the Family Court, Salem, seeking maintenance as againsther husband-the respondent herein, claiming Rs.5000/- per month asmaintenance as per Section 125 of Cr.P.C., on the ground that thehusband neglected to maintain her and also failed to providemaintenance to her, even though she was not at fault and she washaving no source of income to maintain herself.(b) The respondent resisted the claim that he pronounced'taluq' and as such, as per the Muslim Law, he divorced his wifeand she was not entitled to any maintenance. Admittedly, theFamily Court dismissed the petition. Being aggrieved by and dis-satisifed with the said order, this revision has been focussed onvarious grounds, the gist and kernal of them would run thus:-The Family Court even though gave a finding to theeffect that there was no proper pronouncement of 'taluq' https://hcservices.ecourts.gov.in/hcservices/ and consequently there was no divorce between the husbandand wife, it fell into error in simply rejecting the claimof the petitioner/wife on the ground that it was she whorefused to resume cohabitation with the husband.Accordingly, the petitioner prays for setting aside theorder of the lower Court and for awarding maintenance.3. Heard both sides.4. The point for consideration is as to whether the lowerCourt was perverse in dismissing the claim of the petitioner formaintenance on the ground that it was she who declined to resumecohabitation with the husband, even though the husband wasallegedly ready and willing to resume cohabitation with her.5. The learned counsel for the revision petitioner, byinviting the attention of this Court to the various documents aswell as the judgement of the lower Court would develop his argumentto the effect that the lower Court misunderstood the purport of thecorrespondence and held as though the husband was willing to resumecohabitation with the wife and that the wife was not willing torejoin the husband.6. The learned counsel for the respondent would submit thatthe order of the lower Court was correct and no interference withthe said order is required; after taking into account the pros andconsequence of the matter, the lower Court adjudged the petitionfiled under Section 125 of Cr.P.C.and ultimately dismissed itcorrectly.7. A bare poring over and perusal of the judgement of thelower Court would reveal and exemplify that the Family Courtmisunderstood the purport of the correspondences filed on the sideof the petitioner. In fact, Ex.P2-notice itself would speakvolumes that even before the issuance of advocate notice by therespondent, he made himself clear before the Islam Panchayadarsthat he was intending to marry one other girl and for that hesought permission. Ex.P2 is the communication dated 19.4.2004 sentby Salem Mettu Street Masjid Trust Board to the revisionpetitioner's father Janab Jailabhudheen Sahib to the effect thatthe respondent already sought permission from the said Masjit TrustBoard to marry one other girl. 8. This is a crucial fact, which the lower Court failed totake into account. It is not as though the respondent sincerelyand fervently longed for reunion with his wife. In fact, heplanned to marry one other girl. In such a case, the lower Courtwas wrong in understanding as though the husband was having an openheart for resumption of cohabitation and that the revisionpetitioner only snapped her relationship with her husband andrefused to cohabit with him. https://hcservices.ecourts.gov.in/hcservices/

9. The way in which the respondent approached the panchatdarsare for the purpose of some how or other getting his relationshipwith the petitioner snapped by projecting as though he was on theright side and the wife already decided to desert him even thoughhe had the desire for reunion. In such a case, the Family Court,while disbelieving the pronouncement of 'Taluq' by the husbandshould have driven the parties to settle their dispute in thematrimonial proceedings and in the meanwhile he should have awardedmaintenance under Section 125 of Cr.P.C.10. It is a trite proposition of law that proceedings underSection 125 C.P.C. are summary in nature, where complicatedmatrimonial questions cannot be looked into.11. Here it is very clear that the revision petitionercontinues to be the wife of the respondent and in such a case, thehusband is bound to maintain her and that too, in view of the factthat she is not having any source of income to maintain herself, soto keep the wolf from the door, to keep the pot boiling and tomake both the ends meet. In order to constitute desertion theremust be 'animus deserendi' on the part of the wife. Here it is inevidence that as suggested by the Muslim Trust, the father of therevision petitioner made arrangements for setting up a nucleusfamily and in fact, the revision petitioner and the respondent wereliving in the rented premises for some time and thereafter onceagain rift crept in their relationship. According to therespondent, in fact, it was the husband who is responsible for suchrift. 12. To the risk of repetition, without being tautologies, Iwould like to point out that in a proceeding under Section 125Cr.P.C., the Family Court was not expected to delve deep into theevidence relating to 'animus deserendi' and the lower Court oughtto have driven the parties to initiate matrimonial proceedings inappropriate forum and get it adjudged; till then, the Family Courtshould have awarded maintenance in favour of the wife, as perSection 125 of Cr.P.C. Hence, I am of the considered opinion thatthe revision petitioner is entitled to maintenance from thehusband. One cannot expect the wife to run from pillar to post togather evidence and precisely adduce evidence before the Courtabout the financial wherewithal of the husband. In this case, thecounter filed by the husband would display and demonstrate that heis a coolie, earning a sum of Rs.2,500/- per month. 13. Be that as it may. It is a settled proposition of lawthat a hale and healthy male is expected to maintain his wife bystraining his every nerve to see that he is earning and providingmaintenance to his wife, who is unable to maintain herself. Inthis case, there is no shard or shred, iota or miniscule, molecularor scintilla extent of evidence to show that the wife is havingsuch means to maintain herself. Hence, in such a case, the husbandshould pay maintenance to her. https://hcservices.ecourts.gov.in/hcservices/

14. In the present day cost of living, a lady cannot livewithout having at least a sum of Rs.30/- per day. Accordingly ifworked out, per month it comes to Rs.900/- p.m. For her medicalexpenses, traveling expenses and other unforeseen expenses,additionally she would require at least a sum of Rs.100/-. Assuch, the maintenance comes to Rs.1000/- per month, which thehusband the respondent herein is directed to pay to the wife-thepetitioner herein from the date of filing of the maintenancepetition. 15. Accordingly, the revision is allowed, setting aside theorder of the lower Court. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarMskTo1. The Family Court, (First Additional District Judge), Salem.2. -Do- Thro' The Principal District Judge, Salem.3. The Section Officer, Criminal Section, High Court, Madras.+1 cc to Mr.N.S.Sivakumar, Advocate, SR.No.25960+1 cc to Mr.R.Nalliyappan, Advocate, SR.No.25978 Crl.R.C.No.1139 of 2006CU {CO}TP/17.7.2009.