K.Easwaramoorthy v. E.Thilagamani

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:28.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.418 of 2007andM.P.No.1 of 2006K.Easwaramoorthy... Petitioner vs.1.E.Thilagamani2.E.Gowrishankar (Minor)the 2nd respondent is rep.byhis mother E.Thilagamani... Respondents Petition filed under Section 397 r/w 401 of Cr.P.C. against theorder dated 7.2.2007 passed by the Judicial Magistrate No.I,Gobichettipalayam, in M.C.No.1 of 2005.For Petitioner : Mr.S.N.ThangarajFor Respondents : Mr.M.A.P.Thangavel ORDER Challenging and impugning the order dated 7.2.2007passed by the Judicial Magistrate No.I, Gobichettipalayam, inM.C.No.1 of 2005, this criminal revision case is focussed.2. Compendiously and concisely, the facts absolutelynecessary and germane for the disposal of this criminal revisioncase would run thus:-The respondents herein filed the M.C.1 of 2005 under Section125 of Cr.P.C. before the Judicial Magistrate No.I,Gobichettipalayam, claiming maintenance from the revisionpetitioner herein. Inasmuch as the revision petitioner resistedthe claim the enquiry was conducted. (b) During enquiry, the first respondent herein examinedherself as P.W.1 along with P.W.2 and no documentary evidence wasmarked. The revision petitioner herein examined himself as R.W.1and Exs.R1 and R2 were marked.(c) Ultimately, the Magistrate awarded a sum of Rs.1000/-p.m. in favour of the first respondent and Rs.750/- p.m. in https://hcservices.ecourts.gov.in/hcservices/ favour of the second respondent herein, payable by the revisionpetitioner herein.3. Being aggrieved by and disconcerted with such awarding ofmaintenance by the Magistrate, this revision is filed disputingthe order directing the revision petitioner herein to paymaintenance to R1-Thilagamani and so far as the order of theMagistrate directing the revision petitioner to pay maintenancein favour of the minor child/R2 is not challenged in thisrevision. The gist and kernal, the pith and marrow of thegrounds of the revision would run thus: The first respondent herein was at fault in not respondingto the request of the petitioner, in resuming cohabitation withhim, which alone necessitated him to file H.M.O.P.191 of 2003 fordivorce and accordingly, ex-parte decree of divorce was passed.The Magistrate Court failed to take into consideration that R1because of her own conduct caused rift in the matrimonialrelationship and consequently she is not entitled to anymaintenance. The revision petitioner is having no sufficientfinancial wherewithal to pay such huge maintenance awarded by theMagistrate concerned. 4. Heard both sides.5. The point for consideration is as to whether there is anyperversity or non-application of law in awarding maintenance infavour of R1, payable by the revision petitioner.6. The learned counsel for the revision petitioner,reiterating the grounds of revision, would submit that the wholetrouble erupted because of the contumacious and rebelliousconduct on the part of the first respondent herein, in notwilling to live with the husband for no fault of him and that thehusband also is having no job, which could fetch any income.7. The learned counsel for the revision petitioner, insupport of his contention, would cite the decision of this Courtreported in 2007(1) T.N.L.R.5(Mad) – NATARAJAN VS. PALANIAMMAL,an excerpt from it would run thus:"9. Learned counsel for the petitioner would contendthat the respondent is well-off and her father is tobaccomerchant and an agriculturist and therefore she is not inneed of money. In fact after deserting her husband in1992, the respondent filed petition for maintenance onlyin 1998, six years thereafter, which will show that therespondent has sufficient means to maintain herself andthat too when a sum of Rs.60,000/- has been paid towardsmaintenance. However, the learned counsel appearing forthe revision petitioner would concede that inspite ofEx.B-1, he is willing to continue to pay maintenance to https://hcservices.ecourts.gov.in/hcservices/ his son. Therefore, maintenance claimed by the wife isnot justifiable and the order of the learned I Addl.Sessions Judge granting Rs.300/- as maintenance everymonth from 13.7.1999 to the respondent is set aside.However, the petitioner shall continue to pay maintenanceto the minor son as ordered earlier by the learnedJudicial Magistrate."8. Placing reliance on the above judgement of this Court,the learned counsel for the revision petitioner would advance andset forth his argument that R1, who showed no soft corner towardsthe revision petitioner and consciously deserted the husband, isnot entitled to maintenance.9. Whereas, the learned counsel for R1 would submit that atpresent the revision petitioner is not entitled to questionanything about the R1's conduct and it was he who was responsiblefor the rift in the matrimonial relationship; he indulged in wifebattering; he also failed to take care of her and arrange evenfor her medical treatment. The wife is not having sufficientmeans to maintain herself and hence there is nothing wrong in theorder passed by the lower Court.10. At this juncture, I would like to point out that therevision petitioner, as revealed by Ex.R2-the xerox copy of theex-parte judgement of divorce granted by the Sub-Court, Thiruppurin H.M.O.P.No.191 of 2003 dated 14.10.2004, got divorce asagainst R1 and in such a case, it is not open for him to nowfallback and rake up the issue as to whether he was at fault orshe was at fault. The only questions now to be decided are as to(i)whether the wife remarried or not and (ii) whether she ishaving financial wherewithal to maintain herself or not. 11. It is quite obvious and axiomatic that the firstrespondent has not got remarried. The finding of the lower Courtis that she is reeling under cash strapped, penurious andimpecunious circumstances in life and that she could not eke outher livelihood by her own earnings. In order to keep the wolffrom the door, to keep the pot boiling and to meet both ends meetshe would require at least a sum of Rs.30/- per day andaccordingly, if worked out, it comes to Rs.900/- per month. Tomeet her travelling expenses, medical expenses and otherunforeseen expenses, she would require at least a sum of Rs.100/-per month. As such, the total comes to Rs.1000/-. TheMagistrate, taking into consideration the cost of livingprevailing during the year 2007, awarded such sum, warranting nointerference by this Court. 12. It is also a trite proposition of law that a lady isentitled to live in commensurate with the status of her husband.Here even though the revision petitioner would contend that he isjobless, nevertheless he admitted that his father is owning lands https://hcservices.ecourts.gov.in/hcservices/ and he is assisting his father in the agricultural operation.Over and above that he is also helping his father in the moneylending business and in such a case, he has to maintain hiswife. Even de hors that, as per the trite proposition of law, ahale and healthy male is expected to toil and moil like anythingand to strain his every nerve to see that he is providingmaintenance to his wife or divorced wife. When such is theposition, I could see no reason to interfere with the orderpassed by the lower Court.13. The learned counsel for the revision petitioner wouldmake an extemporary submission to the effect that the revisionpetitioner would prefer to deposit the monthly maintenancerelating to R1 as well as R2 herein straight away in the bankaccount, which could be opened by R1 herein, for which, thelearned counsel for R1 also agrees. Hence, that arrangementshall be resorted to by them. In the result, the criminal revision case is dismissed.Consequently, connected miscellaneous petition is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarmskToThe Judicial Magistrate No.I, Gobichettipalayam+1cc to Mr.N.Domodaran, Advocate Sr 32625+1cc to Mr.Ma.P.Thangavel, Advocate Sr 33006MRD(CO)km/14.8.Crl.R.C.No.418 of 2007