Senthamaraj2 v. Selvaraj

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 30.03.2012CoramTHE HON'BLE MR.JUSTICE C.S.KARNANCrl.R.C.No.271 of 20071.Senthamaraj2.Minor Suvetha...PetitionersVs.Selvaraj...RespondentPrayer :-Criminal Revision is filed under Section 397 r/w 401 ofCr.P.C., against the order dated 26.09.2006 made in Crl.R.C.No.13 of2005 on the file of the Court of the District and Sessions Judge, Perambalur, modifying the order in M.C.No.40 of 2003 dated 30.11.2005on the file of the Chief Judicial Magistrate, Perambalur, to pay asum of Rs.750/- per month to the 1st Appellant and to pay Rs.1,250/-per month to the second appellant and the District and Sessions Courtwas pleased to modify the order to pay the first appellant Rs.500/-per month and pay Rs.1,000/- per month to the second appellant. For Petitioners: Mr.A.Arasu GanesanFor Respondent : Mr.T.SeenivasanORDERThe petitioners / respondents have preferred the present revision against the order dated 26.09.2006 made in Crl.R.C.No.13 of2005 on the file of the Court of the District and Sessions Judge, Perambalur, modifying the order in M.C.No.40 of 2003 dated 30.11.2005on the file of the Chief Judicial Magistrate, Perambalur, to pay asum of Rs.750/- per month to the 1st Appellant and to pay Rs.1,250/-per month to the second appellant and the District and Sessions Courtwas pleased to modify the order to pay the first appellant Rs.500/-per month and pay Rs.1,000/- per month to the second appellant.

The short facts of the case are as follows:-The 1st revision petitioner namely Senthamarai had married the respondent herein on 30.10.2000 at Padalur Madura Kalyana Mandapam ona special marriage after following the Hindu Rites and Customs. Thesaid marriage was an arranged one. At the time of marriage, the parents of the 1st petitioner had given gold jewelleries, house hold articles, etc. Immediately after the marriage, both the spouses led https://hcservices.ecourts.gov.in/hcservices/ their marital life at the matrimonial home at Kolakanatham Village. During this period, difference of opinion arose between them as the respondent and his mother had demanded more dowry. Hence, the 1stpetitioner had levelled a complaint before the All Women PoliceStation, Perambalur, wherein an enquiry was conducted and the matter was settled amicably among themselves and both started to lead their life as husband and wife. Out of wedlock, the 1st petitioner gave birth to a female child on 25.12.2001. The respondent herein and his mother had continuously tortured the 1st petitioner herein demanding dowry and hence another complaint was lodged against them before AllWomen Police Station. The Inspectress of Police has registered acriminal case in Cr.No.5 of 2013, for the alleged offence under Section 498(a) and 406 of I.P.C. After investigation, charge sheet has been filed and now the case is pending on the file of the Judicial Magistrate, Perambalur in C.C.No.100 of 2003. Further, the1st respondent had driven the 1st petitioner and her minor daughterSuvetha from the matrimonial home. Hence, the petitioners have fileda Maintenance Case in M.C.No.40 of 2003 on the file of the JudicialMagistrate, Perambalur and claimed a sum of Rs.2,000/- as monthly maintenance to the 1st petitioner and Rs.1,000/- as monthly maintenance for the 2nd petitioner, from the respondents herein.

The respondent / husband had filed a counter statement and resisted the maintenance case. The respondent admits the date of marriage, kind of marriage and place of marriage. It was submitted that after the marriage, the 1st petitioner insisted on this respondent to set up a separate family and the same was refused by this respondent. Hence, a difference of opinion had arisen between them. Further, the 1st petitioner led a wayward life. Further, her conduct and character was questionable in nature. She frequently used to meet one Jaishankar and Chinnasami and developed illicit relations with them. The same was witnessed by the village people. On one occasion, the 1st petitioner stayed along with the saidJaishankar at the house of Shanthi, who is the wife of Krishnan, at Turaimangalam. Likewise as in above instance, one Chinnasami of Peelvadi Village, came at midnight to the house and the 1stpetitioner went along with him and returned home after one hour. Assuch her character is dubious in nature. Further, her brothers arewell off and she also belongs to a middle class family and having sufficient sources of income to lead their life without others support. The respondent received a sum of Rs.1,000/- as net salary, after statutory deductions and out of this amount, he has to look after his aged parents. Hence, the respondent entreats the Court to dismiss the said maintenance case.

On the side of the petitioner, 5 witnesses were examined and 6documents were marked. On the side of the respondent / husband, 3witnesses were examined and no document was marked. The petitioner had marked the following documents namely F.I.R.; Copy of advocate notice issued to respondent; Reply notice issued by respondent; Acknowledgment card, Salary certificate of respondent and copy of the petition in H.M.O.P.No.18 of 2004. PW1, had adduced evidence that on30.10.2000, she had married the respondent at Padalur Madura MarriageHall in the presence of Hon'ble Minister A.Raja. After the marriage, https://hcservices.ecourts.gov.in/hcservices/ she gave birth to a female child. She further adduced evidence thather husband demanded dowry of a sum of Rs.15,000/- and a TVS 50motorcycle, on the instigation of his mother. She deposed that acomplaint had been levelled against her husband and his mother before the All Women Police Station, Perambalur on one occasion and compromise was effected thereafter but in spite of it the respondent and his mother had confirmed to demand dowry and tortured her on various occasions and hence a second complaint had been levelled against her husband and his mother and the same was registered as Crime No.5 of 2003 for the alleged offence under Sections 498(A) and406 of I.P.C. Now, the said case in C.C.No.100 of 2003 is pending on the file of the Judicial Magistrate, Perambalur. She further stated that her husband has filed H.M.O.P.No.76 of 2004, on the file of Sub-Court, Ariyalur for dissolution of their marriage. She had also filed H.M.O.P.No.18 of 2004, for restitution of conjugal rights. Shefurther stated that her husband is a Government Employee and earningRs.6,000/- per month as Junior Mechanic attached to the StateTransport Corporation, Perambalur. Besides this, he has two acres ofcultivable land and has one tiled house and one roof house and also has a cattle farm and gets an additional income of Rs.20,000/- per month. PW2, PW3 and PW4 have spoken on the same lines of PW1regarding the Conduction of marriage, dowry demand and sources of income of the respondent.

RW1 had adduced evidence and he had admitted the marriage. Further, he had stated that the petitioner gave birth to a female child on 25.12.2001. He further stated that on 12.03.2001, the petitioner left the matrimonial home, while she was five months pregnant. After some time, when he went to the petitioner's mother place and requested the petitioner to join with him, the petitioner'sbrother had beaten him. Immediately he had been admitted at the hospital and the same was witnessed by the village public. On one occasion, at about midnight, one Chinnasami had knocked the door of their house while he and his wife were staying in the house. Immediately, the petitioner had opened the door and went along with Chinnasamy and returned home only after an hour. When he questioned her, the petitioner's brothers had beaten him questioning him as to why he had doubted his wife's character. Further, on 08.12.2002, the petitioner had lodged a complaint against his mother and himself. Further, the petitioner had developed illicit relationship with oneJaishankar, who is a Supervisor attached to the Education DevelopmentDepartment and he had also stayed along with her at Shanthi's house at Turaimangalam. On 13.08.2013, he had filed a complaint before the Maruvathur Police Station regarding illicit relationship of his wife with the said Jaishankar. The said Jaishankar had given an undertaking that he would not have any affair with the petitioner but in spite of it both of them had carried on with their illicit relationship in a house near eye hospital, Turaimangalam. Under the circumstances, he had caused a legal notice for divorce. He furterstated that he had never demanded any dowry from his wife. Theproblem had arisen due to the immoral activities of the petitioner with the said Jaishankar and one Chinnasamy. He further stated that the brothers of the petitioner are getting sufficient income. Besides this, the family of the petitioner are fairly well off and do https://hcservices.ecourts.gov.in/hcservices/ not need any financial support. He also denied that he was earningRs.6,000/- per month and also denied that he had income through land.RW2 and RW3 have spoken on the same line of RW1.

After recording the evidence of both sides and on perusing the exhibits marked by the petitioner, the trial Court directed the respondent herein to pay a sum of Rs.750/- and Rs.1,250/- to the 1stand 2nd petitioners respectively, as monthly maintenance, from the date of filing the maintenance case.

Aggrieved by the said order, the respondents herein / husband has filed the revision in Crl.R.C.No.13 of 2005, on the file of Sessions Judge, Perambalur. The learned Judge, after perusing the trial Court judgment and on hearing the arguments of the learned counsel on both sides, had modified the impugned order and directed the respondent herein / husband to pay a sum of Rs.500/- as monthly maintenance to the 1st petitioner and Rs.1,000/- as monthly maintenance to the 2nd petitioner from the date of filing the maintenance petition. The learned Judge, had assigned the reason that the revision petitioner herein has no source of income except his monthly salary. Further, the learned Judge had observed that therespondent's brother and parents are well off. Aggrieved by the said order, the revision petitioner herein has filed the above revision.

The highly competent counsel Mr.Arasu Ganesan submits that the respondent herein had married the 1st petitioner on 30.10.2000, in the presence of parents and relatives. Out of wedlock, the 1stpetitioner had given birth to a female child on 25.12.2001. Therespondent herein is a junior mechanic and he is earning Rs.7,000/-per month. Further, the respondent possesses movable and immovable properties and is earning Rs.20,000/- per month as additional income. The same was well established before the trial Court through documentary evidence namely Salary certificate of respondent. Therespondent and his mother had tortured the 1st petitioner herein and demanded dowry and hence a criminal case had been levelled against them under Section 498(A) and 406 of I.P.C. The said case inC.C.No.100 of 2003 is pending on the file of Judicial Magistrate, Perambalur. As per the Hon'ble Apex Court's judgments, both petitioners are entitled to receive 1/3rd of the income of the respondent. In the instant case, the respondent is working as aJunior mechanic attached to the State Transport Corporation. Inorder to prove the income of the 1st respondent, the salary certificate was marked as Ex.P5 before the trial Court. On the basis of this vital document, the maintenance amount has been properly assessed by the trial Court. As such, the modified order passed by the learned District Judge, Perambalur is not sustainable under law. The allegation regarding the character of the petitioner had not been proved before any Court of law or any other findings. As such, the main allegation cannot be taken into consideration for awarding the maintenance. https://hcservices.ecourts.gov.in/hcservices/

The very competent counsel Mr.T.Srinivasan for the respondent submits that the petitioner lead a wayward life and spoiled the reputation of the family of the respondent. On one occasion, the respondent had lodged a complaint against the petitioner and oneJaishankar, who had developed illicit relations with the petitioner, before the Maruvathur Police Station, wherein an enquiry was conducted and the said Jaishankar had given an undertaking that he would not have illegal affair with the petitioner. Further, the respondent receives only a sum of Rs.1,000/- as net salary after statutory deductions. Out of this amount, he has to maintain his aged parents and himself. The 1st petitioner's brother is an Engineer and her parents are well-off and as such there is sufficient source of income to maintain himself and her minor child. Therespondent also has filed a petition for divorce on the ground of adultery. The paramour of the 1st petitioner namely Jaishankar had given an undertaking before the Maruvathur Police station, on therespondent's complaint, stating that he would not carry on his illegal extramarital affair with the petitioner. This is aconclusive finding which is available on the file of the MaruvathurPolice station. Therefore, the 1st petitioner is not entitled to receive any maintenance from the respondent.

Per contra, the very competent counsel Mr.Arasu Ganesansubmits that as of now, there is no judicial finding or discussion regarding illicit relationship of the 1st petitioner with any other person. The respondent's allegation has been ill-founded and not based on any substantial documentary evidence.

In the result, the above revision is allowed. Consequently, the order passed in Crl.R.C.No.13 of 2005, on the file of DistrictSessions Judge, Perambalur dated 26.09.2001 is set aside and the order passed in M.C.No.40 of 2003, on the file of the Chief JudicialMagistrate, Perambalur, dated 30.11.2005 is confirmed. Accordinglyordered. Sd/-Assistant Registrar(CS-V)Dated: 11.06.2014//True Copy//Sub Assistant RegistrarvsTo1. The District and Sessions Judge, Perambalur.2. The Chief Judicial Magistrate, Perambalur. Crl.R.C.No.271 of 2007KV (CO)PSI (11.06.2014)