THE HONOURABLE MR v. Palaniswamy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 30.03.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.R.C.No.311 of 2003Suseela.. Revision Petitioner/PetitionerVs.Palaniswamy.. Respondent/RespondentPrayer: This Criminal Revision has been preferred under Section 397 and401 of Cr.P.C., against the order dated 28.11.2002 in M.C.No.64 of 1999 onthe file of the learned Judge of the Family Court, Salem. For Appellant : Mr.M.Devaraj For Respondent : Mr.M.SathyanarayananORDERThis revision petition has been preferred against the order passed inM.C.No.64 of 1999 on the file of the Family Court, Salem, dated28.11.2002. The wife, the first petitioner in M.C.No.64/99, is therevision petitioner herein and the petitioners had filed M.C.No.62/99under Section 125 of Cr.P.C., claiming maintenance from therespondent/husband at the rate of Rs.1000/- per month each for herself andher minor daughter Gowri.2. The brief facts in the said petition relevant for the purpose ofdeciding this revision are as follows:-The marriage between the first petitioner Suseela and therespondent Palanisamy took place on 9.3.1986 at Sri.Eswaran Temple ofVeppilaipatty as per the Hindu Customary rites. The respondent wasemployed in Railway department and he was posted at Villupuram at the timeof the marriage between the 1st petitioner and the respondent. After themarriage both the 1st petitioner and the respondent lived together atVillupuram and the 1st petitioner gave birth to the 2nd petitioner. Thematrimonial life between the 1st petitioner and the respondent went onhappily only for six months. Thereafter the respondent had developedillicit intimacy with another girl at Villupuram and also addicted todrinks. On 18.09.1989 for the 'Seemantham' function also the respondentdid not turn up. The respondent has failed to maintain the 1st petitionerand her minor daughter the 2nd petitioner. Subsequently, the respondent https://hcservices.ecourts.gov.in/hcservices/ has been transferred from Villupuram to Thiruvannamalai. Under thepretext of non-availability of residence the respondent did not take the1st petitioner along with him to Thiruvannamalai. Again therespondent/husband was transferred to Trichy. Out of compulsion therespondent took the petitioners to Trichy and they lived together for fewmonths there. After wards the respondent had driven the petitioners outof the matrimonial home and now the petitioners took asylum in the houseof the 1st petitioner's parents. In spite of the advice given by thepanchayators and the parents of the 1st petitioner, the respondent failedto maintain the petitioners'. The 1st petitioner now find it verydifficult to meet the educational expenses of the 2nd petitioner. There isnot separate income for the 1st petitioner to maintain the petitioners.To provide medical assistance, food, shelter and education to the 2ndpetitioner, the 1st petitioner requires at least Rs.1000/- per month eachtowards maintenance. The respondent is getting a monthly salary ofRs.5000/-, besides his monthly salary the respondent is also running afinance business and out of the said business he is getting Rs.4000/- permonth by way of interest. The respondent is having house and land throughwhich he gets an income of Rs.2000/- per month. 3. The respondent in his counter would admit the marriage between the1st petitioner and the respondent. He would state that after the marriagethey lived together at Villupuram till 1999. According to the respondent,6 months after the marriage out of her own volition the 1st petitioner hadleft the matrimonial home and now she is residing with her parents.Whenever the respondent approaches the 1st petitioner to come and live withhim, the same was rejected, by her by alleging that the respondent isliving with another woman and on the ground of cruelty, the 1st petitionerfiled a false complaint against the respondent with Mallur Police in theyear 1998 and also another complaint on 16.12.1987. But no action wastaken by the police on those complaints. A panchayat took place betweenthe 1st petitioner and the respondent, in which an agreement was enteredinto between the 1st petitioner and the respondent and as per the terms ofthe agreement the respondent has to deposit Rs.25,000/- for a period of 5¼ years in the Agricultural Co-operative Bank, Euralnatham, and a libertywas given to the 2nd petitioner to withdraw the said amount after shebecame major. For the said arrangement the 1st petitioner has also agreedto and signed in the agreement. The 1st petitioner's father has got 7acres of land and the 1st petitioner is the only daughter to her parentsand she is in a very affluent situation and she does not require anymaintenance from this respondent. This respondent is drawing a monthlysalary of Rs.3000/- only and he has to maintain his aged parents. 4. Before the trial Court P.W.1 and P.W.2 were examined and Ex.P.1and Ex.P.2 were marked on the side of the petitioners. R.W.1 to R.W.4were examined and Ex.R.1 was marked on the side of the respondent. Aftergoing through the oral and documentary evidence let in before the trialCourt, the learned trial judge has held that the 1st petitioner is notentitled to get any maintenance, but awarded Rs.750/- per month towards https://hcservices.ecourts.gov.in/hcservices/ maintenance for the 2nd petitioner. Aggrieved by the findings of thelearned trial judge, the 1st petitioner has preferred this revision asagainst the dismissal of her claim for maintenance.5. Now the point for determination in this revision is whether thereis any substantial ground for rejecting the claim of the 1st petitioner formaintenance by the trial Court?6. The Point:- Only on the ground that the 1st petitioner is livingseparately from the matrimonial home, the learned trial judge hasnegatived her claim for maintenance, which in my opinion is against theprovisions of law. The factum of marriage between the 1st petitioner andthe respondent has been admitted by the respondent. It is furtheradmitted that still the 1st petitioner is living only with her minordaughter, the 2nd petitioner, and she has not married any one else. Thereasoning given by the 1st petitioner for her separate living is that therespondent had developed illicit intimacy with another woman while he wasworking at Thiruvanamalai and that he is addicted to drinks and very oftenhe use to beat her for no reason. Section 125 Cr.P.C., is an enablingprovision of law which is a boon for the uncared, abandoned wives,destitute children and uncared parents. As per the explanation tosection 125 (3) Cr.P.C., if any husband has contracted marriage withanother woman or keeps a mistress, it shall be considered to be justground for his wife's refusal to live with him. As per sub-clause 4 toSection 125 of Cr.P.C., unless it is proved that the wife is living inadultery and without sufficient reason she refused to live with herhusband and if both the husband and wife are living separately by mutualconsent then only the wife will not be entitled to receive anymaintenance. In this case, there is no allegation that the 1st petitioneris living in adultery and there is no ground made out by the respondentthat without any sufficient reason she is living away from the respondentand there is also no proof that both the husband and wife are livingseparately by mutual consent. Under such circumstances, as a legallywedded wife, the 1st petitioner is entitled to get an order of maintenanceas per section 125 of Cr.P.C. Without any rhyme or reason the learnedtrial judge has rejected the claim of maintenance for the 1st petitioner.The learned counsel appearing for the respondent would contend that as perthe decision taken in the panchayat as spoken to by R.W.2 to R.W.4, a sumof Rs.25,000/- has been deposited. The evidence of R.W.3 & 4 will go toshow that the respondent has deposited Rs.25,000/- in the name of one ofthe panchayators (R.W.3) and also in the name of VAO. But that is not theterms of the agreement before the panchayators. A reading of Ex.R.1, themarriage cancellation agreement, dated 30.3.1999, as per the terms of thesaid agreement, the respondent had agreed to deposit Rs.25,000/- in thename of the minor 2nd petitioner in Primary Agricultural Co-operative Bank,Kuralnatham for a period of 5 ¼ years and that the 2nd petitioner ispermitted to withdraw the said amount at the time of her marriage. But itis not in evidence that as per the terms of the agreement the respondenthad deposited Rs.25,000/- in the name of the 2nd petitioner. Under such https://hcservices.ecourts.gov.in/hcservices/ circumstances, it cannot be said that under Ex.R.1 both the 1st petitionerand the respondent have divorced their marriage. To show his bonafidesthe respondent has not filed any petition for restitution of conjugalrights. The reasoning given by the 1st petitioner in her petition and inher evidence as P.W.1 is that since the respondent had developed illicitintimacy with another woman and also that she was subjected to cruelty bybeating her after consuming liquor, she is living in her parents' housewith the minor child. So the reasoning given by the learned trial judgefor rejecting the claim of the 1st petitioner for maintenance, in myopinion cannot be sustainable. The 1st petitioner has claimed onlyRs.1000/- towards here maintenance. In Today's cost of living, it will bevery difficult to meet the expenses with the meagre amount of Rs.1000/-.She has to provide education to the child, wearing apparels to the childand for herself and rent for the house and also to meet day to day sundryexpenses, medical expenses besides food. The trial Court has awarded onlyRs.750/- towards maintenance of the minor 2nd petitioner, as against itthere is no dispute. Under such circumstances, I am of the view that itwill be appropriate to direct the respondent to give Rs.1000/- per monthtowards maintenance of the 1st petitioner too. Point is answeredaccordingly. 7. In the result, the revision is allowed and the order of the trialCourt in M.C.No.64 of 1999 on the file of the Family Court, Salem, asagainst the 1st petitioner is set aside and the 1st petitioner is entitledto get Rs.1000/- per month towards her maintenance from the date offiling of the petition till she gets married with costs. At thisjuncture the learned counsel for the respondent would contend that therespondent has deposited Rs.25,000/- with the panchayator and the saidamount may be adjusted towards the arrears of maintenance. I am afraidthat this court cannot pass such an order without any material. If a thirdparty has the amount, it is for the respondent to get back the same and topay the maintenance to the 1st petitioner. ssvSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo, 1.The Judge,Family Court, Salem. + One cc to Mr. M. Devaraj, Advocate SR 20814NG (co)sg 8/5/07Crl.R.C.No.311 of 2003