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2008 DIGILAW 2040 (MAD)

Duraisamy v. Masilamani

2008-06-27

T.SUDANTHIRAM

body2008
Judgment :- The revision petitioner herein is the husband of the respondent herein and he had preferred this revision against the order passed by the Judicial Magistrate-II, Pollachi, in Crl.M.P.No.6 of 2004, granting maintenance of a sum of Rs.1000/- per month to be paid to the respondent herein by the petitioner. 2. The case of the respondent herein is that she got married to the petitioner herein on 09.07.1989 and she was living with her husband. After few months, her husband demanded a sum of Rs.25,000/- and also a Bullet motor cycle for which she was beaten and ill-treated her. Her husband continued to ill treat her and three years back, she was brought to her parents house by her husband and she was left there. She was staying with her parents only for the past three years. After six years of filing the application for maintenance, as she was invited by her husband, she went to his place. At that time, she saw a lady by name Maheswari along with two children residing in that house. As she questioned about it, she was threatened by her husband. She was driven out of the house. Then she filed the application for maintenance and she had no means of income and also stated that her husband was having 20 acres of land and she was getting a income of Rs.25,000/- per month. 3. The respondent herein examined her as P.W.1 and the petitioner herein also examined himself as R.W.1. According to the petitioner herein after the marriage his wife was living with him only for a period of three years and left the matrimonial home in the year 1988. Though an attempt was made to bring her, she refused to live with him. All her jewels and other belongings were returned to her. In the year 1999, he received a notice from his wife which is marked as Ex.D.1 and also sent a reply Ex.D.2. 4. The learned counsel for the petitioner herein submitted that the learned Magistrate without analysing properly the evidence of D.W.1 and Exhibits marked by him as Exs.D.1 and D.2 had ordered maintenance. In the year 1999, he received a notice from his wife which is marked as Ex.D.1 and also sent a reply Ex.D.2. 4. The learned counsel for the petitioner herein submitted that the learned Magistrate without analysing properly the evidence of D.W.1 and Exhibits marked by him as Exs.D.1 and D.2 had ordered maintenance. The learned counsel for the petitioner further submitted that the wife filed the petition only fourteen years after the marriage, though she was living separately from the year 1988, she had willfully deserted her husband and though several steps were taken by the husband, she had not agreed to join him. The learned counsel for the petitioner further pointed out that it is the consistent version of the husband that after leaving the matrimonial home in the year 1988, she never came back to her husbands place, but the present version of the respondent herein is that she has not left the matrimonial home, but she was sent out of the matrimonial home only three years back which is false. In the notice sent by her marked as Ex.D.1, she had stated that she was living in the matrimonial home for the period of seventeen years, but she has not stated in her evidence when she again came back to the matrimonial home, and in her evidence, she has not stated anything in detail. The present evidence of P.W.1 that six month prior to the filing of this application, she was invited by her husband and therefore, she went to the husbands place and there she saw one Maheswari who is the friend of her husband, is only an afterthought and there is no material to support her version. After fourteen years, it is only an invented version to claim maintenance. As there is a willful desertion by the respondent herein, she is not entitled for maintenance. 5. The learned counsel for the respondent herein submitted that merely because that respondent herein did not claim maintenance for a long period may not be a ground for rejecting the maintenance amount. 6. As there is a willful desertion by the respondent herein, she is not entitled for maintenance. 5. The learned counsel for the respondent herein submitted that merely because that respondent herein did not claim maintenance for a long period may not be a ground for rejecting the maintenance amount. 6. The learned counsel for the respondent also relied on the decision of the Honourable Supreme Court rendered in Chaturbhuj vs. Sita bai (2008) 1 MLJ (Crl.) 1400(SC)), wherein it has been observed as follows: "5.The object of the maintenance proceedings is not to punish a person for his neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support." 7. The learned counsel for the respondent further submitted that according to the respondent, she was forcibly sent out of the matrimonial home only three years back and earlier to that often she was driven out from the matrimonial home. 8. The learned counsel fur the respondent further submitted that though the petitioner herein has stated in his counter that he is ready to take his wife back, he has not stated so in his evidence. Even otherwise the offer is not a bona fide offer. As the petitioner herein has married another lady, the respondent herein is entitled for maintenance. 9. This Court considered the submission made by both parties and perused the evidence and other records. It is the consistent version of the petitioner herein that the marriage took place in the year 1984 and thereafter only for few years, they were living together and thereafter from 1988, she was living separately. After the separation, her jewels and other belongings have been returned to her. Whereas the respondent had stated only about three years back she was left in her parents house by her husband, but this version is quite contrary to the notice sent by her to the husband which is marked as Ex.D.1. As per Ex.D.1 both the husband and wife were leading the matrimonial life only about seven years and it was not peaceful. Notice also sent in the year 210. 1999 and the maintenance application was filed in the year 2004. If that be so, admittedly as per Ex.D.1, in the year 1999, she was living separately. As per Ex.D.1 both the husband and wife were leading the matrimonial life only about seven years and it was not peaceful. Notice also sent in the year 210. 1999 and the maintenance application was filed in the year 2004. If that be so, admittedly as per Ex.D.1, in the year 1999, she was living separately. If so, when again re-joined her husband and why she left the matrimonial home is not known. It is also not known why she had not given evidence that after living for seven years together why she left in the year 1991 from the matrimonial home and from the year 1991 till the year 1999 what was she doing. Even in Ex.D.1, she had not stated about her husband residing with Maheswari and two children. As per Ex.D.1, she was not knowing about the said Maheswari. The only allegation made is that her husband was planning to get second marriage. The evidence that six months prior to filing of the application, she was invited by her husband and therefore she went to the house and there she had seen one Maheswari and two children, seems to be quite unacceptable and she is also not giving any particulars of date and time that she had visited the house of the accused. The evidence of the respondent herein is not consistent and it is not known why she is giving so many versions with regard to the period of which she was living separately. Under the said circumstance, it is not possible to conclude that she left the matrimonial home with sufficient cause. Her willful desertion cannot be ruled out. In view of the above findings, this Court does not want to go into the fact whether the respondent herein has sufficient means to maintain herself or not. 10. As the respondent herein on filing application after fourteen years of separation, not coming with the true particulars, the order passed by the learned Judicial Magistrate is set aside. The revision petition is allowed.