G.Thangarajan v. Selva Priya alias Selvambal & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:23.6.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.Nos.301 and 183 of 2006andCr.M.P.No.1705 of 2006G.Thangarajan... Petitioner in Crl.R.C.No.301 of 2006 respondent in Crl.R.C.No.183/06vs.1. Selva Priya alias Selvambal... Petitioner in Crl.R.C.No.183 of 20062.Minor Preethi D.o.Thangarajan rep.by her mother/next friend.... Respondents in Crl.R.C.No.301 of 2006 Petitions filed under Section 397 r/w 401 of Cr.P.C. seeking toset aside the order dated 9.12.2005 passed by the Family Court,Salem, in M.C.No.42 of 2004.For Petitioner : Mr.P.Subramanian in Crl.R.C.No.301 of 2006 Mr.G.Pugazhenthi in Crl.R.C.No.183 of 2006For Respondent : Mr.G.Pugazhenthi in Crl.R.C.No.301 of 2006 Mr..Subramanian in Crl.R.C.No.183 of 2006 COMMON ORDER Challenging and impugning the order dated 9.12.2005 passedby the Family Court, Salem, in M.C.No.42 of 2004, these revisioncases are focussed.2. Concisely and compendiously, pithily and precisely, therelevant facts, which are absolutely necessary and germane for thedisposal of both these revisions would run thus:-(a) The revision petitioner in Crl.R.C.No.183 of 2006,namely, Selvapriya @ Selvambal (hereinafter referred to as the https://hcservices.ecourts.gov.in/hcservices/ 'wife' for short) along with her minor child filed the M.C.No.42of 2004 before the Family Court, Salem under Section 125 ofCr.P.C. seeking maintenance at the rate of Rs.2000/- per month infavour of each of them, payable by the revision petitioner inCrl.R.C.No.301 of 2006, namely, G.Thangarajan (hereinafterreferred to as the 'husband' for short). The said Thangarajanresisted the claim. Whereupon, enquiry was conducted.(b) During enquiry, on the side of the wife, Selvapriyaexamined herself as P.W.1 along with P.W.2 and Exs.P1 to P5 weremarked. On the husband's side three witnesses were examined asR.W.1 to R.W.3 and Exs.R1 to R7 were marked.(c) Ultimately, the Family Court passed the award directingthe husband to pay a sum of Rs.2000/-per month to the minor childand rejected the claim of the wife. Whereupon, the wife preferredthe revision, namely, Crl.R.C.No.183 of 2006 and the husbandpreferred the Crl.R.C.No.301 of 2006 as against the awarding ofmaintenance in favour of minor child, on various grounds.3. Heard both sides.4. The learned counsel for the husband would develop hisargument to the effect that this case is having a chequeredcarrier of its own for the reason that earlier the husband filedthe H.M.O.P. and in that, interim maintenance order was passed, asagainst which, C.R.P.was filed and at that stage, before the HighCourt, both of them informed this Court that they compromised thematter and they are for reunion. However, it is the case of thehusband that the wife resiled from her commitment. Whereas, thewife would accuse the husband that it was he who never took anysteps for reunion, even though she took steps for resumingcohabitation. 5. At this juncture, I would like to observe that the husbandand wife are living apart from each other. For this rift in theirrelationship, each one is blaming the other. I am of theconsidered opinion that in a summary proceeding under Section 125Cr.P.C., these contentious issues cannot be decided and should notbe decided finally, as it would amount to converting the summaryproceedings into one of regular elaborate proceedings. It is openfor either of the parties to seek remedy before the Family Courtconcerned by filing appropriate application for reunion orotherwise, which they might deem fit and proper. As of now, theawarding of maintenance in favour of the child in a sum ofRs.2000/- per month payable by Thangarajan, the husband ofSelvapriya, cannot be found fault with.6. Whether the minor child is with the father or the mother,the father is primarily liable to maintain the child. Here,Thangarajan is admittedly working as Conductor in the GovernmentTransport Corporation. According to the wife, he was earning, https://hcservices.ecourts.gov.in/hcservices/ even as on the date of filing of the M.C., a sum of Rs.7000/-p.m.as salary, in addition to getting Rs.1500/- as batta p.m.. TheFamily Court, at paragraph No.16 of its order, had drawn adverseinference correctly that even though the husband was capable ofproducing the pay slip, he had not chosen to produce it and assuch, the Family Court accepted the version of the wife that thehusband was earning a sum of Rs.7000/- per month and also gettinga batta of Rs.1500/-. 7. The question arises as to whether such a man could pay asum of Rs.2000/- as monthly maintenance to the minor child. It isanybody's guess that such an amount could rightly be paid by thefather in favour of his child and no interference with such anorder is warranted. 8. Next, the question arises as to whether the wife, who isadmittedly earning, as evidenced by Ex.R1 a salary of Rs.2,625/-per month, by working as Tamil Teacher, having a M.A.B.Ed.,qualification, in Mahendra Matriculation Higher Secondary School,Mallasamudhram, Salem, could claim maintenance from her husband.9. The learned counsel for the wife could cite the decisionof this Court reported in 1997-2-L.W.(Crl.) 572- R.Sivakumar v.Manimegalai, an excerpt from it would run thus:"11. No doubt, it is true that the petitioner, to acertain extent had established through R.W.2, that therespondent was working in a Noon-meal centre. However,this may not be taken as a ground for rejecting the claimof maintenance, for the reason, that R.W.2 herself wouldsay that the said job was not a permanent one, and therespondent/wife could be terminated from the said projectwork at any time. Therefore, it could not be said, thatshe would be able to maintain herself with the said sum,which she gets from the noon-meal centre. As rightlypointed out by the trial Court, it could be very wellconsidered, for fixing the quantum of maintenance, and itwould not make the claim of maintenance by therespondent/wife, invalid."10. However, the learned counsel for the husband would citethe decision of this Court reported in The Madras Law Journal(Criminal) (Vol.XLI) 740 – K.KASTHURI VS. C.ALAVUTHEEN RAVUTHAR.11. It is quite obvious that one and the same HonourableJudge of this Court passed both the judgements and we have to takethe gist and kernal of those judgements.12. A wife, who deliberately deserts the husband's company,obviously would not be entitled to any maintenance. If 'animusdeserendi' is there on the part of the wife in living away fromthe husband for no good reason, certainly she should not be https://hcservices.ecourts.gov.in/hcservices/ encouraged by providing her with maintenance, by any order of thisCourt. However, in this case the wife would contend that shestrained every nerve to see that reunion took place between thehusband and the wife, even by approaching the police. However,the husband would submit that after the compromise before thisCourt, in the earlier C.R.P. proceedings, the wife abruptly leftthe Court premises and never acceded to the request of the husbandfor reunion; furthermore, she also imposed condition precedent forreunion that the husband should leave his mother and sister.13. The learned counsel for the husband also would narrateand delineate that the husband, namely, Thangarajan, is duty boundto maintain his aged mother and his sister and in such a case, hecannot leave them in the lurch and live with the wife separately.14. Certainly it is a serious problem, which has to be dealtwith separately in appropriate proceedings and not in the summaryproceedings under Section 125 Cr.P.C.15. The question arises as to whether the wife, because sheis earning a sum of Rs.2,625/- per month by working in theaforesaid school, is dis-entitled to claim maintenance. 16. It is trite proposition of law that if wife is earningseparately, then in order to make both ends meet, the wolf fromthe door, keep the pot boiling and meet her creature comforts, sheis not entitled to claim from her husband any maintenance. But,on the other hand, when her earning is not sufficient enough tomeet her needs, naturally, proportionately, for the deficit, sheis entitled to axiomatically obtain maintenance from her husband. 17. It is a common or garden principle of law that a wife isentitled to live in commensurate with her husband's status. Herethe status of the husband is that of a Conductor in a GovernmentTransport Corporation and according to the learned counsel for thewife, he was earning Rs.7000/- per month in addition to getting asum of Rs.1,500/- per month as batta. In such a case, to theextent of half of his income, he could pay for the maintenance ofhis wife and child. Here already he has been directed to pay asum of Rs.2000/- per month as maintenance to the child and he canbe further directed to pay a sum of Rs.500/- per month asmaintenance in favour of his wife, as the wife is already earningRs.2625/- per month. In other words, the wife would be requiringat least a sum of Rs.100/- per day to meet her requirements,including travelling expenses, medical expenses etc. Inasmuch as,she is earning a sum of Rs.2625/- per month, awarding a sum ofRs.500/- per month in her favour payable by the husband, in myopinion, would meet the ends of justice. Accordingly, the orderof the Family Court, Salem, is reversed to the limited extent thatthe husband shall pay a sum of Rs.500/- per month towardsmaintenance to the wife from the date of the M.C. https://hcservices.ecourts.gov.in/hcservices/

18. It appears, in the order dated 18.12.2003 passed by mypredecessor in C.R.P.(PD).No.2075 of 2003, the memo of compromisedated 18.12.2003 filed by the parties was extracted and paragraphNo.5 of the said memo of compromise would run thus:"5. It is further agreed that a sum of Rs.29,750/-lying in the credit of F.C.O.P.No.23 of 2001 on the fileof the Family Court, Salem, shall be withdrawn andutilised for the common welfare of the family."As such, there could be no embargo for enforcing that paragraphNo.5 of the said order by the wife and the child. I would like todispel the doubt in the mind of each side that such withdrawal ofamount by Selvapriya and her child, is having nothing to do withthe maintenance order passed by the Family Court as well as bythis Court and they are capable of being executed independently.These criminal revision cases are ordered accordingly.Consequently, connected miscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarMskToThe Judge,Family Court,Salem.+1cc to Mr.A.Nagarathinam, Advocate Sr 25492+1cc to Mr.P.Subramanian, Advocate Sr 25644RSI(CO)km/10.7.Crl.R.C.Nos.301 and 183 of2006