Easwari2.Minor Vanaja v. V.Kanagaraj

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:10.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.83 of 20061.Easwari2.Minor Vanaja... Petitioners/Petitioners vs.V.Kanagaraj... Respondent /Respondent Petition filed under Section 397 r/w 401 of Cr.P.C. againstthe judgement dated 25.7.2005 passed by the Family Court,Coimbatore, in M.C.No.58 of 2004.For Petitioners : Mr.A.K.KumaraswamyFor Respondent : Mr.V.Nicholos O R D E R Challenging and impugning the judgement dated 25.7.2005passed by the Family Court, Coimbatore, in M.C.No.58 of 2004 thiscriminal revision case is focussed.2. Compendiously and concisely, the facts which areabsolutely necessary and germane for the disposal of this casewould run thus:-(a) The revision petitioners herein filed the M.C.No.58 of2004 before the Family Court, Coimbatore, as against therespondent seeking maintenance. The respondent resisted thepetition. (b) In fact, the Family Court did choose to conduct jointtrial/enquiry relating to three matters (i) M.C.No.58 of 2004,which was filed by the revision petitioners herein seekingmaintenance, (ii) H.M.O.P.No.429 of 1998 filed by the husband fordivorce as against the wife-the first petitioner herein and (iii)O.S.No.14 of 1998-the partition suit filed by the husband asagainst the wife. (c) I would like to observe that the Family Court could havedone well by separately conducting the enquiry under Section 125Cr.P.C. relating to the M.C.No.58 of 2004 is concerned. (d) Be that as it may, in his wisdom the learned Judge https://hcservices.ecourts.gov.in/hcservices/ thought fit to conduct joint trial/enquiry of all the threematters and rendered common judgement. The M.C. filed by therevision petitioners herein was dismissed. 3. Being disconcerted and dissatisfied with the judgement ofthe Family Court, this revision has been filed on various grounds,the gist and kernal of them would run thus:The Family Court failed to take into consideration theresponsibility of the respondent herein to maintain his wife andchild. The Family Court, after giving a finding in favour of therevision petitioners on certain aspects simply refrained fromawarding maintenance on untenable grounds.4. Heard both sides.5. The point for consideration is as to whether there is anyperversity or non-application of law in dismissing the claim ofthe revision petitioners herein for maintenance as against therespondent herein.6. The learned counsel for the revision petitioners, by wayof reiterating the grounds of revision would set forth and putforth his argument to the effect that the Family Court gave acategorical finding to the effect that the respondent is living inadultery and he gave birth to an illegitimate child also and inthe meanwhile, the lower Court also held that the allegation asagainst the wife, namely, the first revision petitioner hereinthat she has been living in adultery, has not been proved. In sucha case, instead of awarding maintenance in favour of the revisionpetitioners, the Family Court simply observed that the revisionpetitioners should somehow or other meet their requirements fromand out of the half share of immovable property allotted in favourof the first revision petitioner, in the suit O.S.No.14 of 1998.7. Whereas, the learned counsel for the respondent, by way oftorpedoing and pulverising the arguments as put forth on the sideof the revision petitioners, would advance and develop hisargument to the effect that when the wife is affluent and capableof maintaining herself and the child, she is not justified inseeking maintenance as against the respondent herein for herselfand the child. According to the revision petitioners, therespondent was a nonentity and that he was provided with someassistance by her, so as to eke out his living.8. A plain reading of the judgement of the lower Court wouldat once display and evince that there is a categorical finding tothe effect that the husband, so to say, the respondent herein, isliving in adultery and he gave birth to a child also and that theaccusation as against the first petitioner herein, that she isliving in adultery was not proved. The Family Court alsorecognised the basic right on the part of the revision petitioners https://hcservices.ecourts.gov.in/hcservices/ to claim maintenance. However, it simply refrained from awardingmaintenance on the ground that half of the suit property involvedin O.S.No.14 of 1998 was allotted in favour of the first revisionpetitioner and that they could derive their maintenance from it. 9. The ratiocination adhered to by the Family Court inrefraining from awarding maintenance in favour of the child, tosay the least, is far from satisfactory. 10. It is a trite proposition of law that a father isexpected to maintain his child irrespective of the fact whether heis earning or not. In catena of precedents, the Honourable ApexCourt pointed out that a father is expected to toil and moil likeanything and also strain his every nerve to see that he is earningand maintaining his wife and child. Simply because, in theconnected original suit half a portion was decreed in favour ofthe first revision petitioner herein, the Family Court was notjustified in simply driving the minor child, who is hapless andhelpless, to seek maintenance from her mother. 11. Admittedly, the husband is doing tailoring business. Itis a common or garden principle that a child is entitled to liveincommensurate with the status of his father. According to therevision petitioners, the respondent is earning a sum of Rs.3000/-p.m. It is common knowledge that a tailor, in these days ,couldvery well earn more than Rs.100/- per day as correctly put forthby the revision petitioners. At the time of filing the M.C. thesecond petitioner being the female minor child was 15 years oldand this Court, while disposing of the criminal revision caseshould take into account the situation prevailing as on the dateof filing of the M.C. The female child of 15 years old cannot livewithout even a sum of Rs.40/- per day. Accordingly, if calculated,it comes to Rs.1200/- per month, which includes the child'srequirement for food, clothing, education, medical expenses,travelling expenses and other unforeseen expenses.12. However, the learned counsel for the respondent wouldpoint out that in the M.C. the claim itself was only for Rs.500/-per month in favour of each of the petitioners. Since the prayeritself on behalf of the second petitioner was restricted toRs.500/-, I would like to award the same.13. The learned counsel for the revision petitioners wouldsubmit that owing to some misconception of law, such prayer wasmade as they were labouring under the wrong notion that the oldlaw prescribing the limit of Rs.500/- p.m. was in prevalence, eventhough that was amended. 14. Be that as it may, it is for the second petitioner towork out her remedy for enhancement under Section 127 of Cr.P.C.in the way known to law. https://hcservices.ecourts.gov.in/hcservices/

15. Regarding the claim of maintenance by the wife isconcerned, the evidence is somewhat murky. Even as per theadmission of the wife, she is getting a rental income of Rs.1000/-(One thousand) per month and it is her contention that her husbandwas a nonentity and she only helped him to establish himself inlife. Hence, in such a case, I am of the view that if at all sheis in need of maintenance, she has to take appropriate civilproceedings in the way known to law, by producing clinchingevidence and the dismissal of her claim herein shall not be a barfor her to claim maintenance by instituting a regular suit.16. Taking into consideration the status of the husband, soto say the respondent, I am of the view that in the summaryproceedings under Section 125 of Cr.P.C. he cannot be directed topay maintenance in favour of the wife. 17. Accordingly, the revision is partly allowed. Therespondent herein is directed to pay a sum of Rs.500/-(Rupees fivehundred only) per month in favour of the second petitioner hereinfrom the date of filing of the M.C. petition.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarMskTo1.The Presiding Officer,Family Court, Coimbatore.+1cc to Mr.A.K.Kumarasamy, Advocate Sr 30193+1cc to Mr.V.Nicholas, Advocate Sr 30369RSI(CO)km/21.7.Crl.R.C.No.83 of 2006