Raghavan v. Dhanam @ Dhanalakshmi

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 25.04.2012CoramTHE HON'BLE MR.JUSTICE C.S.KARNANCrl.R.C.No.1266 of 2009Raghavan.. Petitioner /Respondent Vs.Dhanam @ Dhanalakshmi.. Respondent/PetitionerPrayer :-Criminal Revision is filed under Section 397 r/w 401 ofCr.P.C., to set-aside the order dated 05.08.2008 made in M.C.No.12of 2006, on the file of the Family Court, Salem. For Petitioner : Mr.T.MurugamanikkamFor Respondent : No appearance- - -ORDERThe petitioner / respondent has preferred the presentrevision against the order made in M.C.No.12 of 2006, on the fileof the Family Court, Salem.2. The short facts of the case are as follows:-The petitioner / wife has filed the maintenance claim inM.C.No.12 of 2006, claiming monthly maintenance of a sum ofRs.3,000/- from the respondent till her life time. It was submittedthat the petitioner married the respondent on 16.04.1989 at KrishnaPal Marriage Hall at Ammapettai, Salem. After the marriage, thepetitioner lived with the respondent along with his family membersfor 11 months. At the time of marriage, the parents of thepetitioner had given 13 sovereigns of gold jewelleries as dowryalong with household articles. Subsequently, the petitioner livedwith the respondent as a separate family. Out of wedlock, thepetitioner gave birth to a male child on 05.02.1990. After the birthof the child, the respondent started drinking liquor and developedbad habits and started to beat and torture the petitioner. When thepetitioner's parents came to know about this, they questioned therespondent, but he used abusive language towards them. Subsequently,in the end of the year 1994, the respondent left her and her child https://hcservices.ecourts.gov.in/hcservices/ at her parents house stating that she should live there for sometime as he was going through a bad phase in his life. Subsequently,the respondent, without informing her got a transfer in his job toMettur. When the petitioner, after a lot of effort traced thewhereabouts of the respondent and asked him to take her and herchild and lead his life with them, the respondent got angry and beather up and forcibly took the male child along with him. Though thepetitioner submitted petitions regarding conduct of the respondent,before the higher officials of the respondent and before the ChiefMinister and Salem District Officers, it was of no avail.Subsequently, the petitioner gave a complaint before the All WomenWing Police Station on 17.02.2003. Hence, the petitioner filed apetition in F.C.O.P.No.85 of 2004 and also filed an interlocutoryapplication in I.A.No.175 of 2005 for interim maintenance. Therespondent, in order to escape from the proceedings, endorsed in thepetition that he would lead his married life with her, butsubsequently did not do so. The petitioner then sent a lawyer'snotice to the respondent on 31.12.2005 but the respondent did notgive any reply and continued to ignore the petitioner. Therespondent is working as a waterman at Mettur Government Hospitaland earning Rs.10,000/- per month. The petitioner is unable tomaintain herself as she has no income, she has filed the presentmaintenance case to direct the respondent to pay her a monthlymaintenance of a sum of Rs.3,000/- to take care of her food, clothesand medical expenses till her life time.3. The respondent in his counter has admitted his marriagewith the petitioner and also admitted that he lived with thepetitioner as joint family for 11 months after marriage. It wassubmitted that out of wedlock the petitioner gave birth to a malechild named as Kirubakaran on 05.02.1990. It was submitted thatright from the time of marriage, the petitioner did not carry outher duties as a Hindu married woman to her husband and parents-in-law and did not give them due respect and frequently used to go toher parents house. It was submitted that the petitioner used tospeak in an ill-manner about the respondent and his family membersin public places and before their relatives. It was submitted thatthe petitioner had left the matrimonial home out of her own accordand also taken the 10 sovereigns gold thali which he had given. Itwas submitted that the petitioner left him and their child at a veryearly stage and that his son is aged 18 years and studying in Xstandard. It was submitted that the child would not even rememberthe face of his mother. It was submitted that after four months ofmarriage, this respondent got employment for the petitioner as anOrganizer in the Nutritious Food Scheme. Subsequently, therespondent entreated the petitioner to come and live with him butthe petitioner did not do so. It was submitted that the petitionerhad filed this petition after a lapse of 15 years only with someulterior motives. It was submitted that the petitioner had filedcomplaint against this respondent before the Salem, Mettur andKaripatti Police Stations and that the police after enquiry had https://hcservices.ecourts.gov.in/hcservices/ advised the petitioner to lead her marital life with thisrespondent. The averments in the petition that this respondent was adrug addict and gambler was also not admitted. It was submitted thatin the petition filed by the petitioner in F.C.O.P.No.85 of 2004,the petitioner was asked to lead her marital life with him and asshe had refused to follow the orders, the petition was dismissed. Itwas submitted that this respondent is prepared to lead his maritallife with the petitioner, if she repents for what she has done andagrees to live with him. The averments in the petition that thisrespondent is earning Rs.10,000/- per month, who also not admitted.It was submitted that this respondent is struggling to pay the houserent, expenses, on food and educational expenses of his son from hisincome. It was submitted that the petitioner was having her ownhouse and agricultural lands at Baghanpatti Village, Omalur Districtand derives income through these assets. It was also submitted thatthe petitioner was working as an organizer at a Nutritious MealCentre and also lends money. Hence, it was prayed to dismiss themaintenance petition.4. The Family Court, Salem framed an issue, viz.,"Is the petitioner entitled to get monthlymaintenance from the respondent? If so, what is thequantum of maintenance payable to the petitioner?"5. On the petitioner's side, two witnesses were examinedand 5 documents were marked as Exs.P1 to P5, viz., Ex.P1-copy ofreport in petition filed by petitioner in M.C.O.P.No.85 of 2004,Ex.P2-copy of notice sent to respondent, Ex.P3-acknowledgment cardand Ex.P4-copy of petition filed in F.C.O.P.No.85 of 2004. On therespondent's side, two witnesses were examined and no documents weremarked.6. P.W.1, the petitioner had adduced evidence that she hadmarried the respondent and out of wedlock, a male child was born tothem viz., R.W.2. She deposed that after the birth of her child, therespondent developed bad habits viz., addiction to drinking andgambling and started to torture her. She deposed that in the end ofthe year 1994, the respondent left her and her male child at herparents home stating that he is undergoing a bad phase in his lifeand subsequently, he had got a transfer of his job to Mettur. Shedeposed that after lot of efforts, she had traced the respondent'swhereabouts and insisted on him to take her and her child with himto lead their marital life. She deposed that the respondent gotfurious with her and beat her up and forcibly took her child withhim and subsequently had neglected to maintain her. Hence, she hasprayed for a direction to the respondent to pay her monthlymaintenance. P.W.2 had also adduced evidence which is supportive ofthe evidence of P.W.1.7. R.W.1, the respondent had also adduced evidence which https://hcservices.ecourts.gov.in/hcservices/ is corroborative of the statements made by him in his counter. Hedeposed that the petitioner had left him of her own accord and assuch, he is not liable to pay any maintenance. R.W.2 had deposed inhis evidence that he had never seen his mother and that she had notbrought him up. He deposed that he was brought up by his father andgrandmother and living with them.8. The learned Family Court Judge observed that R.W.1 inhis cross-examination had admitted that he had not sent any noticeto the petitioner entreating her to come and lead her married lifewith him and that he had not filed any case in the Court in thisregard. He had also admitted that he had not given police complaintin this regard. The learned Family Court Judge however observed thatthe petitioner had entreated the respondent to lead his marital lifewith her through her complaints, given on 11.02.2003 before theChief Minister of Tamil Nadu and Salem District Collector and thatas they did not take action, she had given a complaint dated17.02.2003, to the higher officer of the respondent, the Mettur AllWomen Wing Police Station and at the Salem Town Women Wing PoliceStation. Hence, the learned Family Court Judge observed that therespondent, without any valid reasons had deserted the petitioner.Further, the learned Family Court Judge, on scrutiny of Exs.P4 andP5 observed that the petitioner had filed a petition inF.C.O.P.No.85 of 2004 seeking restitution of conjugal rights andthat the respondent had refused to accept her and filed a counter toit. It is also seen that the respondent had admitted in his cross-examination that he had endorsed in the F.C.O.P.No.85 of 2004petition that he had agreed to live with the petitioner. The learnedFamily Court Judge further observed that P.W.1 in her evidence hadstated that she had filed petition in F.C.O.P.No.85 of 2004 forrestitution of conjugal rights on 25.02.2004 and subsequently filedinterim maintenance petition in I.A.No.175 of 2005 and that duringthe enquiry of the petition, the respondent had agreed to live withthe petitioner and that based on that the case was closed on thatday. She deposed that she had informed the respondent after the casewas closed that she would inform her parents in her house and meetthe respondent in the Court, but when she come back to Court, therespondent was not present in the Court. She had further deposedthat she had come to the Court the next day and waited for therespondent to take her back but the respondent did not turn up. Shehad further stated that she had informed about the matter through apetition given at the Court and that the copy of it has been markedas Ex.P1. She had stated that she had sent a lawyer's notice to therespondent on 31.12.2005 listing out the details mentioned above andthe copy of the notice was marked as Ex.P2 and acknowledgment cardshowing receipt of notice had been marked as Ex.P3.9. Hence, the learned Family Court Judge on scrutiny ofdocuments marked as Exs.P1 to P3, observed that the petitioner hadtaken efforts to lead her life with the respondent and that it was https://hcservices.ecourts.gov.in/hcservices/ the respondent who had neglected to maintain the petitioner andhence, held the respondent liable to pay monthly maintenance to thepetitioner. The learned Family Court Judge, observed that therespondent in his evidence had stated that he was getting a grossincome of Rs.6,400/- per month and that his nett income, afterdeductions were Rs.2,200/- per month. The learned Family CourtJudge, however observed that the respondent had not marked hissalary certificate to prove his contentions. Hence the learnedFamily Court Judge, on considering that the respondent was workingas a waterman at a Government Hospital, and on considering that nodocumentary evidence had been let in on the respondent's side toprove that the petitioner was employed and has source of income,directed the respondent to pay a monthly maintenance of a sum ofRs.1,500/- to the petitioner from the date of filing the petitiontill her life time.10. Aggrieved by the order passed by the Family Court, therespondent/husband has preferred the present revision.11. The learned counsel for the revision petitioner hascontended in his revision that the Court below acted in excess ofthe jurisdiction vested in it by granting maintenance in favour ofthe respondent herein, instead of drawing adverse remarks againstthe respondent, through the respondent herein in her evidenceadmitted that the minor child was under the custody of thepetitioner herein. It was contended that the learned Judge ought tohave seen that it is the respondent herein, who on her own violationvoluntarily deserted the petitioner and it is not the petitioner whohas neglected or refused to maintain the respondent. It wascontended that the Court below failed to see that in the evidence ofR.W.2, the son of the petitioner and respondent herein, he hascategorically stated that he does not know the respondent herself,which would show that the respondent has not even bothered about herown child and should have held adverse inference against therespondent herein. It was contended that the Court below failed tosee that the petitioner cannot afford to pay such a huge amount asmaintenance, when the son is being taken care of by the petitioner.Hence, it was prayed to set-aside the order of the Family Court,Salem. 12. Even though this Court's notice had been served on therespondent, no one appeared. Hence, this Court is constrained topass final orders on the materials available on record.13. On verifying the facts and circumstances of the caseand arguments advanced by the learned counsel for the petitioner andon perusing the impugned order of the trial Court, this Court is ofthe view that the petitioner is living with his son and he has toprovide for all his educational and other expenses. Hence, thisCourt modifies the maintenance amount as fixed by the Family Courtfrom Rs.1,500/- to Rs.1,000/- as it is found to be appropriate in https://hcservices.ecourts.gov.in/hcservices/ the instant case. This Court directs the petitioner herein to paythe entire monthly arrears amount, as per this Court's modifiedorder, within a period of two months from the date of receipt ofthis order. Therefore, the revision petitioner has to pay themaintenance of a sum of Rs.1,000/- as per this Court's modifiedorder, regularly on or before 10th of every English calendar month,by way of deposit before the trial Court. After such deposit hasbeen made, the respondent/wife is at liberty to withdraw the saidamount from the trial Court, after filing a Memo.14. In the result, the above revision is partly allowed.Consequently, the order passed in M.C.No.12 of 2006, on the file ofthe Family Court, Salem, dated 05.08.2008 is modified. Sd/-Assistant Registrar(LA)Dated: 12.08.2014//True Copy//Sub Assistant Registrarr n sToThe Family Court,Salem.Copy to : The Section Officer, Criminal Section, High Court,Madras.+1cc to Mr.T.Murugamanikkam, Advocate Sr 27919AK(CO)km/14.8.Crl.R.C.No.1266 of 2009