N. Jayakanthan v. K. Akila

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:14.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.921 of 2006and 685 of 2009N.Jayakanthan... Petitioner in Crl.R.C.No.921/06... Respondent in Crl.R.C.No.685/09vs.K.Akila... Respondent in Crl.R.C.No.921/06... Petitioner in Crl.R.C.No.685/09 Petitions are filed under Section 397 r/w 401 of Cr.P.C.against the order dated 22.3.2005 passed by the Judicial MagistrateNo,2, Sangagiri, in M.C.No.2/2004.For Petitioner : Mr.C.K.M.Appaji in Crl.R.C.No.921/06 Mr.N.Manokaran in Crl.R.C.No.685 of 2009For Respondent : Mr.N.Manokaran in Crl.R.C.No.921 of 2006 Mr.C.K.M.Appaji in Crl.R.C.No.685 of 2009 COMMON ORDER Challenging and impugning the order dated 22.3.2005 passedby the Judicial Magistrate No,2, Sangagiri, in M.C.No.2/2004, thesecriminal revision cases are focussed.2. Compendiously and concisely, the facts which are absolutelynecessary and germane for the disposal of this case would runthus:-(a) The revision petitioner in Crl.R.C.No.921 of 2006, namely,Jeyakanthan, and the revision petitioner in Crl.R.C.No.685 of 2009,namely, Akila, got married on 7.5.2003 as per the Hindu Customs andRites. It is the contention of Akila that there were dowryharassments etc., at the matrimonial home, thereby she was not made https://hcservices.ecourts.gov.in/hcservices/ to live peacefully there and rift also resulted in the matrimonialrelationship. Accordingly, she filed the application under Section125 of Cr.P.C. claiming maintenance from her husband-Jeyakanthan.(b) Whereas, Jeyakanthan would resist the claim of Akila onthe main ground that there was no consummation of the marriage; thewife was not looking after his parents and it was she who isresponsible for the separation between the two. It is also thecontention of Jeyakanthan that the wife is having enough source ofincome; her father is well off; she is capable of earning hugeamount, as she is having M.A.,H.D.C. Qualification and whereas, heis jobless and having no means to pay maintenance. (c) Before the Magistrate enquiry was conducted. Duringenquiry, the revision petitioner in Crl.R.C.No.685 of 2009 examinedherself as P.W.1 and Ex.P1 was marked. The husband was examinedhimself as R.W.1 and Ex.R1 was marked. (d) Ultimately, the Magistrate awarded monthly maintenance ofRs.400/- payable by the husband in favour of the wife. 3. Animadverting upon such order of the Magistrate, the wifeas well as the husband filed separately these revision cases.4. It is the grievance of the wife that the awarding ofRs.400/- per month is too meagre and she will not be able to livewith that amount. 5. However, it is the contention of the husband that the wifeis not at all entitled to get any maintenance and in such a case,her claim for enhanced maintenance is totally untenable.6. The point for consideration is as to whether there is anyperversity or illegality in the order passed by the Court below.7. A plain reading of the order of the lower Court, coupledwith the records available, would demonstrate and display that thelower Court, after considering the pros and cons of the matter,arrived at the conclusion that the father of the wife is well offand the wife also is capable of earning sufficiently. However,taking into consideration the fact that as on the date of passingof the order, the husband was not proved to be having any job, theMagistrate awarded only a meagre maintenance of Rs.400/- per monthpayable by the husband in favour of the wife.8. The learned counsel for the husband would submit that thewife was not at all co-operative with the husband for consummatingthe marriage; from day one of the marriage, she was not cordialwith the husband; and it was she, who is responsible for the riftin the matrimonial relationship, for which, the husband cannot befound fault with for having allegedly neglected to maintain her. https://hcservices.ecourts.gov.in/hcservices/

9. It is also the contention of the learned counsel for thehusband that if at all the husband is having means and the wife isnot having any means, the question of invoking Section 125 ofCr.P.C. would arise, at the instance of the wife, however, in thiscase, the wife had wrongly invoked it and the Magistrate also haswrongly passed such an order.10. Whereas, the learned counsel for the wife, drawing theattention of this Court to the various portions of the evidence,would develop his argument to the effect that the wife even thoughis having educational qualification, nevertheless, she is notworking and in such a case, the husband cannot compel her to go forsome job and earn; on the other hand, as on the date of filing ofthe M.C., the husband was working in Vinayaga MissionKirubanandhavariyar Medical College and earning a sum ofRs.15,000/- per month; however deliberately for the purpose ofwriggling out of his liability to pay maintenance, he resigned hispost; however, but he started working in some other institution.11. At this juncture, my mind is reminiscent and redolent ofthe common or garden principle that a hale and healthy husband isexpected to strain his every nerve to see that he is earning andpaying maintenance to his wife. Simply because the wife is havingeducational qualification, the husband would not be justified intaking a plea that the wife should work and earn her livelihoodand that he would not pay any maintenance to his wife.12. Here admittedly, the husband was working as lecturer inVinayaga Mission Kirubanandha Variyar Medical College at the timeof filing of the M.C. However, it is the finding of the lowerCourt that subsequently, he was terminated from service. Still lawenjoins the husband to toil and moil like anything and earn and paymaintenance to his wife. No doubt, the core question arises as towhether a wife can deliberately refrain from working and eking outher livelihood. 13. It is really a ticklish problem and social problem too.It is sheer common sense that normally a wife, who is not in thecompany of her husband, for her own livelihood she could work andearn. But she cannot be compelled to work and earn her livelihoodand that would amount to coercing her to do something, which shedoes not incline to do. The lower Court also, from the depositionof the wife, observed that even though the wife is havingeducational qualifications, so to say, M.A., H.D.C., she is notwilling to work and that at a later point of time she might chooseto work. When such is the stand of the wife, the Court cannot drawany adverse inference as against her and reject her prayer forgetting maintenance.14. There is nothing to indicate that the husaband took anyaction under Section 12 of the Hindu Marriage Act, whichcontemplates that if a marriage is not consummated, it is open for https://hcservices.ecourts.gov.in/hcservices/ the husband to approach the matrimonial forum, so as to get themarriage declared as void. But, he has not chosen to do so. Itappears that there is one criminal case also pending relating todowry harassment as against the husband, initiated by the wife. 15. It is a well settled proposition that only in the regularproceedings, it has to be decided as to who is actually responsiblefor the rift in the matrimonial relationship and in a summaryproceedings like the one under Section 125 of Cr.P.C, such broadbased rowing enquiry cannot be conducted. 16. Here, the lower Court also correctly viewed that thehusband is liable to pay maintenance to the wife, but it wouldaward only a meagre sum of Rs.400/- per month, which, in my opinioncould have been something more. According to the formula adoptedby the lower Court, per day it comes to Rs.13/- or so, which, by nostandard, can be taken to be appropriate and apposite. A lady isentitled to live in commensurate with the status of her husband.Since at present, there is nothing to indicate that the husband gotreemployment somewhere and earning and there is a finding by theMagistrate that his income could be Rs.1200/- per month, I am ofthe view that awarding a maintenance at the rate of Rs.20/- per daywould meet the ends of justice. 17. It is quite obvious that in this present day cost ofliving, even with that amount, a lady cannot keep the wolf from thedoor; keep the pot boiling and make both ends meet. Even then, inthe absence of any clinching evidence about the monthly salary ofthe husband, awarding marginal increase in maintenance by enhancingthe maintenance from Rs.400/- to Rs.600/-per month would meet theends of justice. Accordingly, Crl.R.C.No.685 of 2009 is allowed andCrl.R.C.No.921 of 2006 is dismissed. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarMskTo1.The Judicial Magistrate No,2, Sangagiri.2.-do- Thro' The Chief Judicial Magistrate, Salem+1 cc to Mr.N.Manokaran, Advocate, SR.No.31138 Crl.R.C.Nos.921 of 2006 and 685 of 2009NTK {CO}TP/29.7.2009.