Zahir Hussain v. J.Taj & Ors.

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDated: 08.09.2011Coram:THE HONOURABLE MR.JUSTICE S.PALANIVELUCrl.R.C.(MD).No.479 of 2011andM.P.(MD).No.1 of 2011Zahir Hussain ... Petitioner/RespondentVs1. J.Taj2. Minor Barsheed Ahmed3. Minor Farook Mohammed(minor respondents representedthrough their motherfirst respondent herein) ... RespondentsPrayer: Criminal Revision Petition filed under Section 397 r/w. 401 ofCriminal Procedure Code against the order dated 19.04.2011 passed inM.C.No.35 of 2008 on the file of the Family Court, Madurai. For Petitioner : M/s. P.VeerabakuFor Respondent: Mr.R.Suriya NarayananO R D E RThis Criminal Revision is preferred against the order, dated19.04.2011 passed in M.C.No.35 of 2008, on the file of the Family Court,Madurai.2. The allegations contained in the maintenance case is as follows:The marriage of the petitioner and the first respondent was solemnizedon 13.11.2005 in Madurai. At the time of marriage, 50 sovereigns of goldjewels and Rs.50,000/- of cash, besides house-hold utensils were also givento the respondent by the first petitioner's parents. The respondent isworking as junior bailiff in Ilayankudi Court and he is getting a sum ofRs.10,000/- per month. From the date of marriage, the first petitioner cameto know about the bad activities of the respondent. He used to take liquorevery day and to use ganja and he was also having illicit intimacy withanother woman. Hence, the first petitioner suffered from mental agony. Therespondent used to come to the house in intoxication, due to which, thefirst petitioner has to tolerate the above said harassments. The firstpetitioner was pregnant by 5 months. The respondent attempted to set fireon her by pouring kerosene. Hence, she left the matrimonial home and wentto her mother's house. On 10.11.2008, she delivered twin male babies. Whenthe junior paternal uncle of the respondent was asked by the firstpetitioner, he demanded further gold jewels of 30 sovereigns and a cash ofRs.30,000/- and in default, they would not allow the first petitioner tolive with respondent. In the above said circumstances, the first petitionercontinued to stay in the house of her parents from 05.05.2006. 3. The respondent knowing that the first petitioner is going to prefera complaint against him, lodged a complaint against her. He took the firstpetitioner to her house to perform valaikappu and he also took Rs.5,000/-obtained by the first petitioner in valaikappu ceremony. Further, in an https://hcservices.ecourts.gov.in/hcservices/ 2intoxicated condition, he demanded Rs.50,000/- stating that Rs.30,000/- wasnot enough. He further threatened her that he would terminate herpregnancy, if complaint was lodged against him. Hence, getting afraid ofthe situation, the first petitioner came to her mother's house on05.05.2006. Even in the enquiry before All Women Police Station, the firstpetitioner refused to go with her husband herein on his activities. Aftercomplaint was given by the first petitioner on 29.05.2007, the respondentwas arrested and came out on bail. 4. The first petitioner delivered twin babies with great difficultiesin her parents' house. The respondent without maintaining the petitioners,is residing with his junior paternal uncle. Hence, a sum of Rs.2,000/-each, may be granted to the petitioners as maintenance by the respondent. 5. The contentions raised in the counter are as follows:It is incorrect to say that the respondent demanded Rs.50,000/- and 50sovereigns of gold jewels. On 04.07.2005, the uncle of the respondent byname Abdul Kadhar and father of the first petitioner entered into anagreement and accordingly, the father of the first petitioner agreed togive jewels weighing about 28 sovereigns and Rs.30,000/- cash. Accordingly,they were given. A case was registered under Sections 498(A) and 506(i)I.P.C. and Section 4 of Dowry Prohibition Act by All Women Police Station,Tallakulam against the respondent, on the complaint preferred by the firstpetitioner. It is incorrect to say that the respondent used to drink andtake ganja and having illicit intimacy with other ladies and he used tobeat and harass the first petitioner in drunken mood. The first petitionersold her jewels for Rs.90,000/- and got Rs.1,10,000/- from her parents andshe got a house for othi. For the valaikappu function, the respondent spentRs.7,000/- and he did not take Rs.5,000/- as pleaded. 6. It is incorrect to say that the respondent attempted to burn hiswife with kerosene. It is also incorrect to say that out of fear, the firstpetitioner left the house (which was obtained by her on othi) to hermother's house. The respondent and his relatives requested to send thefirst petitioner and children with the respondent during December 2006, thefirst petitioner and her parents dictated terms to the respondent that heshould stay at Madurai and attend the office at Ilayankudi daily fromMadurai. They further stated that the respondent should give his entiresalary to them, but he has not accepted for those demands. The respondentgave Rs.2,500/- per month during the months of June, July and August 2006to the first petitioner. He also sent by M.O. Rs.1,000/- to the firstpetitioner for the months of January to March 2007. He requested the firstpetitioner to return to the matrimonial home, but it was rejected by herand her parents. 7. In the enquiry before the All Women Police Station, Tallakulam, shestated that the matter would be settled at Muslim Jamath. After 2007, shedid not visit the house of the respondent. There was no criminalintimidation on the part of the respondent. On her own accord, she has beenstaying with her parents from 05.05.2006. She also disposed 28 sovereignsof jewels on her own accord. The first petitioner has failed to dischargethe marital obligation in spite of the efforts taken by the respondent forthe past one year, by staying with her parents and deserted therespondent. Therefore, she is not entitled to any maintenance. Hence, thepetition may be dismissed. https://hcservices.ecourts.gov.in/hcservices/

38. After analysing the evidence on record, the learned Family CourtJudge, Madurai found that the first petitioner was having sufficient causeto live separately from the respondent and directed payment of maintenanceat Rs.1,500/- to the first petitioner and Rs.750/- each to the respondents2 and 3, totaling Rs.3,000/- per month. This is the order, which is underchallenge before this Court.9. The contention of the learned counsel for the petitionerMr.P.Veerabaku is that the materials and evidence available in this casewould candidly indicate that the first petitioner has been livingseparately leaving the respondent without sufficient cause and that theallegation as to the alleged harassment purported by him in intoxicatedcondition is false. It is his further submission that for demand of dowryin the form of gold jewels and cash, there is no convincing evidence fromher. In view of the above said circumstances, it is his contention that sheis not entitled for maintenance. 10. Contending on the other side of the coin, Mr.Suryanarayanan,learned counsel for the respondent would submit that satisfactory evidenceare available on record on the side of the first respondent/wife to showthat only out of fear she refused to live with her husband and she has beenliving separately, that preferring of police complaint would show theharassment and cruelty experienced by the first respondent by the behaviourof the petitioner and that the grounds for claiming maintenance have beenproved by the first respondent. It is the version of the first respondentthat in addition to the dowry offered at the time of marriage, thepetitioner was demanding further cash of Rs.30,000/- and gold jewelsweighing 30 sovereigns. It is also her statement in the proof affidavitthat he used to take and consume liquor and ganja every day and he was alsohaving illicit intimacy with another lady. In the complaint laid by herbefore the police which was registered in Crime No.9 of 2008 before AllWomen Police Station, she has stated that when she was not in the house,the petitioner used to take ladies to his house and he used to stay withthem in the house for one or two days.11. The petitioner filed O.S.No.21 of 2008, on the file of FamilyCourt, Madurai for restitution of conjugal rights, in which, the firstrespondent/wife filed a counter stating that if she was living with thepetitioner herein there is danger to her life and hence, she had lodged acomplaint with the police. It is further pleaded therein that with anintention of refusing maintenance, the petitioner filed a suit and he didnot stop the habit of consuming liquor. The petitioner had produced thecopies of the letters given by Marurai Karimedu Jamath, in which thePresident of the Jamath have stated that in spite of talks for settlement,the first respondent refused to live with her husband. However, they cameto existence in the month of November 2010. 12. The learned Family Court judge has observed in his order thatsince the criminal case was pending and on the basis of the complaintlodged by her, the husband was arrested and in these circumstances, it wasnot conducive for the respondent to live with the first petitioner. It isfurther observed that after separation, the petitioner has not taken anysteps nor send any notice to the respondent to come back with the children.On 08.05.2007, she has given a statement before the police that she was notwilling to live with her husband. https://hcservices.ecourts.gov.in/hcservices/ 4 13. When the above said circumstances are carefully scrutinized, ittranspires that the first respondent was fearing danger at the hands of thepetitioner, that there was a dowry demand on the part of the petitioner. Asper her statement, he was in the habit of consuming liquor and ganja andthat he was having bad habits. To prove the above said aspects, therespondent has not examined anybody else. However, the Court has toascertain whether her contention contains truth. In the considered view ofthis Court, the respondent has been living separately with sufficient causesince she is having fear to live with the petitioner. 14. The respondent has stated that she was earning Rs.1,500/- byworking in xerox shop for about four months. She was also qualified withcomputer operations. But whether she has been continuously working as suchis not known and there is no material to show that she has been earningcontinuously after the above said four months. Hence, this Court is of theview that there is sufficient cause on the part of the respondent to liveseparately and hence, she is entitled for the maintenance.15. Coming to the quantum of maintenance as fixed by the Court below,this Court does not find any wrong. He has produced his pay certificatebefore this Court for the month of February 2008, in which it is statedthat he is getting gross salary of Rs.7,180/- per month in which deductionsof Rs.2,910/- have been made. Hence, net salary was Rs.4,270/-. But he hastaken G.P.F loan and he has been paying Rs.1,800/- as refund. That couldnot be considered as a deduction. If it is so, he would have drawn morethan Rs.6,000/- per month. Further, after the pay revision by theGovernment, he might be getting much more salary mentioned in the abovesaid pay certificate. In these circumstances, there are materials to fixthe quantum at Rs.3,000/- per month payable to the respondents is correct. 16. In the light of the above said discussion, the order challengedbefore this Court deserves to be confirmed and accordingly, it isconfirmed. There is no valid ground made out to interfere with the orderpassed by the Court below. 17. In the result, the Criminal Revision Petition is dismissed.Consequently, the connected Miscellaneous Petition is closed.SD/-Assistant Registrar (T & P)/True copy/ Sub Assistant Registrar(C.S) ToThe Presiding Officer, Family Court, Madurai.akvCrl.R.C.(MD).No.479 of 201108.09.2011TR :11.11.2011: 4p/2c