N.Sampath v. Rajkumari @ Lalli

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:6.8.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.654 of 2007N.Sampath... Petitioner vs.Rajkumari @ Lalli... Respondent Petition filed under Section 397 r/w 401 of Cr.P.C. against theorder dated 12.12.2006 passed by the First Additional Family Court,Chennai, in M.C.No.206 of 2004.For Petitioner : Mr.S.Kasirajan for Mr.C.VijayakumarFor Respondent : Mr.C.Sundarapandian for Mr.G.R.Swaminathan O R D E R Animadverting upon the order dated 12.12.2006 passed by theFirst Additional Family Court, Chennai, in M.C.No.206 of 2004, thiscriminal revision case is focussed.2. Pithily and precisely, the facts absolutely necessary andgermane for the disposal of this criminal revision case would runthus:(a) The respondent herein filed the M.C.No.206 of 2004 beforethe First Additional Family Court, Chennai, seeking maintenance asagainst the revision petitioner herein, who is her husband.Inasmuch as the revision petitioner resisted the claim, the trialwas conducted.(b) During trial, the respondent herein examined herself asP.W.1 and Exs.P1 to P5 were marked. The revision petitioner hereinexamined himself as R.W.1 and Exs.R1 to R3 were marked.(c) Ultimately, the Family Court awarded maintenance in a sumof Rs.2000/- per month in favour of the respondent herein, payableby the revision petitioner herein.3. Being dissatisfied and disconcerted with such awarding ofmaintenance, this revision is focussed on various grounds, the warpand woof of them would run thus: https://hcservices.ecourts.gov.in/hcservices/ The Family Court failed to consider Ex.R2, which would showthat the respondent was living in adultery and that she was notentitled to any maintenance. The respondent herein of her ownaccord left the matrimonial home, for which the revision petitionercannot be held liable. The respondent is receiving rental incomefrom the immovable properties, however the revision petitioner is apoor farmer, having no property or income and as such, he could notpay Rs.2000/- per month towards maintenance.4. The point for consideration is as to whether there is anyperversity or non-application of law in ordering maintenance.5. The learned counsel for the revision petitioner, byinviting the attention of this Court to the various portions of theevidence of P.W.1 as well as R.W.1 and also various documents,would set forth and put forth his argument to the effect that therespondent herein was caught red handed, while she was in the actof adultery; even thereafter, the revision petitioner did notinsist upon the respondent to leave the matrimonial home, butindubitably and indisputably, admittedly and unassailably, it wasshe who left the matrimonial home, for which, the revisionpetitioner may not be held responsible; even then, the revisionpetitioner, being an exceptional personality, wanted to resumecohabitation with the respondent, but it was she who is adamant innot accepting to the request of the revision petitioner. 6. However, the learned counsel for the respondent wouldsubmit that if really the imputation of adultery was true,certainly no husband would ever come forward to resume cohabitationwith the wife. But in this case, the very fact that the husbandhas come forward to resume cohabitation would speak volumes thatthe wife was not at all at fault and the imputation of adulterywas false and frivolous. 7. At this juncture, I would like to point out that in theproceeding under Section 125 of Cr.P.C., which is summary innature, the larger issue relating to adultery and desertion cannotbe conclusively decided. The preponderance of probabilities wouldgovern the adjudication even in proceedings under Section 125 ofCr.P.C., as the Honourable Apex Court clearly held that theproceedings under Section 125 of Cr.P.C. should be treated likecivil proceedings, even though it is quasi criminal in nature. 8. The very fact that the husband did choose to withdraw thedivorce petition and file one other petition for restitution ofconjugal rights, bespeaks that the husband himself was not seriousabout the imputation of adultery as against the wife and once againit is a common or garden principle of law that if a husband imputesbaselessly or lightheartedly adultery on the part of the wife, thelater is entitled to live apart from the husband.9. Once again to the risk of repetition and pleonasm, but https://hcservices.ecourts.gov.in/hcservices/ without being tautalogous, I would like to point out that all theseissues should be got thrashed out before the matrimonial forum andnot in the summary proceedings under Section 125 of Cr.P.C.However, prima facie it is clear that no fault can be fastened onthe wife so as to deprive her of her right to claim maintenance.10. The learned counsel for the revision petitioner wouldsubmit that subsequent to the filing of the M.C., all the lands ofthe revision petitioner were sold to LD Bank, as he was heavilyindebted.11. I am of the view that the alienation of the immovableproperties by the husband, subsequent to the filing of the M.C.,would not be taken note of. Be that as it may the law is clear thatthe husband cannot shirk his responsibility by pleading that he isin a cash strapped, penurious and impecunious circumstance and thathe would not pay maintenance to his wife. The husband is expectedto toil and moil like anything and strain his every nerve to seethat he is earning and providing maintenance to his wife.12. It is seen that the only daughter of the revisionpetitioner and the respondent, was already given in marriage and itis stated that she is in foreign country. Now the revisionpetitioner's only commitment and primary commitment is to maintainhis wife. Ofcourse it is in evident that his aged mother is withhim. Even then the primary responsibility of the revisionpetitioner is to maintain his wife and he cannot shirk hisresponsibility. 13. The learned counsel for the revision petitioner wouldsubmit that as on date, the respondent is living in her father'shouse without paying any rent. This aspect I can take intoaccount, but however, in view of the trite proposition that thewife is entitled to live in commensurate wit the status of herhusband, at least she would require a sum of Rs.50/- per day tokeep the wolf from the door, to keep the pot boiling and to makeboth ends meet. Accordingly, if worked out, it comes to Rs.1,500/-per month. Awarding any amount less than Rs.1,500/-(one thousandfive hundred), in a case of this nature, would lead to travesty ofjustice. Accordingly, in the peculiar facts and circumstances ofthis case, I would like to reduce the maintenance from Rs.2000/- toRs.1,500/- per month, payable by the revision petitioner in favourof the respondent from the date of M.C.Accordingly, this criminal revision case is partly allowed.Sd/Assistant Registrar/True Copy/Sub Assistant Registrarmsk https://hcservices.ecourts.gov.in/hcservices/ ToThe Presiding OfficerFirst Additional Family Court, Chennai+1 CC to Mr.G.R.Swaminathan, Advocate (Sr.No.36399) Crl.R.C.No.654 of 2007KK (CO)BMD 28/08/2009