Kalimuthu v. Saraswathy & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:30.07.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.268 of 2007andM.P.Nos.1 & 3 of 2007Kalimuthu... Petitioner/Respondent vs.1. Saraswathy2. Minor Parthipan minor rep.by his mother and next friend Saraswathy... Respondents/ PetitionerPrayer: Petition filed under Section 397 r/w 401 of Cr.P.C. againstthe order dated 09.11.2006 passed by the learned District Munsif cumJudicial Magistrate, Perundurai in M.C.No.5 of 2005.For Petitioner : No appearanceFor Respondents : Mr.C.Kulanthaivelu O R D E R Animadverting upon the order dated 09.11.2006 passed by thelearned District Munsif cum Judicial Magistrate, Perundurai inM.C.No.5 of 2005, this criminal revision is focussed.2. An epitome and the long and short of the relevant facts,which are absolutely necessary for the disposal of this criminalrevision could succinctly and precisely be set out thus:(i) The respondents herein filed M.C.No.5 of 2005before the learned District Munsif cum Judicial Magistrate,Perundurai seeking maintenance as against the revisionpetitioner under Section 125 of the Code of CriminalProcedure. Inasmuch as the revision petitioner resistedthe claim, the enquiry was conducted.(ii) During enquiry, on the side of the petitioner,the petitioner/wife examined herself as P.W.1 and Exs.P1to P4 were marked. On the respondent's side, R.Ws.1 and 2were examined and Exs.R1 and R2 were marked. https://hcservices.ecourts.gov.in/hcservices/ (iii) Ultimately, the lower court awarded maintenancein a sum of Rs.500/- per month payable by the revisionpetitioner in favour of each of the respondents herein.(iv) Challenging and impugning, such awarding ofmaintenance in favour of the respondents herein, thisrevision has been filed on various grounds, the pith andmarrow of them would run thus:(a) The HMOP filed by the revision petitioner asagainst the first respondent would indicate and displaythat the revision petitioner was not at fault; but it wasthe first respondent/wife who failed to resume co-habitation with him. As such the learned Magistratemisunderstood the entire facts and simply awardedmaintenance. (b) There is no reason spelt out in the judgment forhaving fixed such quantum of maintenance.3. Despite printing the name of the learned counsel for thepetitioner, no one appeared and this is coming before this court forthe fifth time. Hence, I proceed to decide the matter on merits fromthe available materials on record.4. Heard the learned counsel appearing for the respondents.5. The points for consideration are as to:-1. Whether, there is any perversity or non-application of law in awarding maintenance by thelower court, in favour of the respondents hereinpayable by the revision petitioner and 2. Whether the quantum of maintenanceawarded is reasonable or not?6. Admittedly, the relationship between the revision petitionerand the respondent is an admitted one. The revision petitioner andR1 got married and during the wedlock, R2 was born. The very factthat the revision petitioner has chosen to file HMOP for restitutionof conjugal rights would speak volumes that the first respondent wasnot at fault. If really, the first respondent was having blameworthy conduct, the revision petitioner would not have gone to theextent of filing such an application for restitution of conjugalrights. The trial court after considering the pro et contra andalso the oral evidence on either side, arrived at the conclusion thatinasmuch as the wife was tortured by the husband, the rift in thematrimonial relationship crept in. The Magistrate court iscompetent to arrive at a conclusion based on factual evidence. https://hcservices.ecourts.gov.in/hcservices/

7. At this juncture, I would like to recollect and call-upthe following decisions of the Hon'ble Apex Court.(i) 2002(6) SCC 650- Bindeshwari Prasad Singh aliasB.P.Singh and Others vs. State of Bihar (now Jharkhand) andanother; an excerpt from it would run thus:"13. The instant case is not one where any suchillegality was committed by the trial court. In the absence ofany legal infirmity either in the procedure or in the conductof the trial, there was no justification for the High Court tointerfere in exercise of its revisional jurisdiction. It hasrepeatedly been held that the High Court should notreappreciate the evidence to reach a finding different fromthe trial court. In the absence of manifest illegalityresulting in grave miscarriage of justice, exercise ofrevisional jurisdiction in such cases is not warranted.14. We are, therefore, satisfied that the High Court wasnot justified in interfering with the order of acquittal inexercise of its revisional jurisdiction at the instance of theinformant. It may be that the High Court on appreciation ofthe evidence on record may reach a conclusion different fromthat of the trial court. But that by itself is nojustification for exercise of revisional jurisdiction underSection 401 of the Code of Criminal Procedure against ajudgment of acquittal. We cannot say that the judgment of thetrial court in the instant case was perverse. No defect ofprocedure has been pointed out. There was also no improperacceptance or rejection of evidence nor was there any defectof procedure or illegality in the conduct of the trialvitiating the trial itself."(ii) 2005 Supreme Court Cases (cri) 276 – SathyajitBanerjee and Others vs. State of W.B.and others, an excerptfrom it would run thus:"22. The cases cited by the learned counsel show thesettled legal position that the revisional jurisdiction, atthe instance of the complainant, has to be exercised by theHigh Court only in very exceptional cases where the High Courtfinds defect of procedure or manifest error of law resultingin flagrant miscarriage of justice."As such, I could see no perversity or non-application of law ininterpreting the evidence analysed by the learned Magistrate as he inhis judgment elaborately discussed the factual position and believedthe version of PW1, warranting no interference by this court. I amalso of the firm view that under Section 125 Code of Criminal https://hcservices.ecourts.gov.in/hcservices/ Procedure, only summary proceeding is contemplated and in that largerissues relating to responsibility of one individual in one way orother in respect of rift in matrimonial relationship, cannot beadjudged and it is for the matrimonial court to take a decision onthat.8. Accordingly, no interference by this court, with the findingof fact, is warranted in this revision.9. I am surprised to see that even in the year 2006 the learnedMagistrate thought that a sum of Rs.500/- per month would besufficient maintenance for each of the respondents herein to maintainthemselves and one cannot expect the seekers of maintenance to runfrom pillar to post to gather evidence about the financialwherewithal of the person liable to pay maintenance. 10. It is a common or garden principle that a male is expectedto toil and moil like anything and also to strain every nerve tosee that he is earning and providing succor in the form ofmaintenance to his wife and child. Accordingly, the awarding ofa sum of Rs.500/- per month each in favour of the respondents hereineven by phantasmagorical thoughts cannot be described as excessive orexorbitant.11. In the result, I could see no perversity or non-applicationof mind on the part of the lower court in awarding maintenance,warranting interference by this Court. Accordingly, the revisionfails and the same is dismissed. Consequently, the connectedmiscellaneous petitions are closed.vj2 Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarToThe District Munsif cum Judicial Magistrate, Perundurai+ 1 cc to C. Kulanthaivel, ADvocate, 33476.Crl.R.C.No.268 of 2007 KS(CO)EU 26.8.2009.