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2012 DIGILAW 2688 (MAD)

C. P. Chitra v. K. Myilsamy

2012-06-27

C.S.KARNAN

body2012
ORDER 1. The revision petitioner herein/petitioner has preferred the present revision against the order passed in M.C. No. 20 of 2007, on the file of the Chief Judicial Magistrate, Erode District, dated 20.11.2008, dismissing her petition for monthly maintenance and has prayed to set-aside the said order. 2. The petitioner/wife’s case is as follows: The petitioner/wife married the respondent/husband on 11.4.1984 at Gopi Seetha Marriage Hall as per Hindu Rites and Customs. After the marriage, both of them lived in their matrimonial home at the husband’s place situated at Punchai Pulliampatti, Kanuvukarai Village. Out of wedlock, a male child was born to them, who was named as Karthikeyan. At the time of marriage, the wife’s parents had given 23 sovereigns of gold and Rs. 50,000/- cash and other articles as “seethana” to her husband. The husband was employed in real estate business and finance. Subsequent to the marriage, her husband had begun to beat and torture her. He had also pestered her to bring a further dowry of Rs. 75,000/- from her parents. She had also acceded to all his demands. Her husband also had the habits of drinking liquor and playing cards. During such periods, when he was in a drunken mood, he used to beat her, frequently. He also did not provide her with even the basic household amenities, needs like rice, pulses etc. In spite of his torture, she stayed at the matrimonial home taking into account the welfare of her son and herself. Subsequent to this, in the year 2003, her husband had married one Sumathi, at Punchai Pulliampatti Adhiparasakthi Manram. On questioning her husband about this marriage, he had turned her and her son out of the house. The wife had further stated that she and her son were living at her relative place at Erode for the last four years. It is further stated that a complaint regarding her husband’s marriage with the said Sumathi was lodged before the Avinashi Police Station. She had further stated that a case regarding the illegal wedding of her husband was filed before the Sathyamangalam Sessions Court. The petitioner has therefore claimed a monthly maintenance of a sum of Rs. 5,000/- from the respondent/husband, for her basic needs of food, clothes, accommodation and medical expenses. 3. The respondent/husband in his counter has admitted the marriage with the petitioner/wife and that the male child, Karthikeyan was born to them. The petitioner has therefore claimed a monthly maintenance of a sum of Rs. 5,000/- from the respondent/husband, for her basic needs of food, clothes, accommodation and medical expenses. 3. The respondent/husband in his counter has admitted the marriage with the petitioner/wife and that the male child, Karthikeyan was born to them. He has denied the allegation regarding torture of his wife as well as the demand of dowry. He has also denied the allegation regarding his marriage with one Sumathi. It has been stated that his wife, of her own will, had left the house, taking his son along with her and started to lead her life separately. It was stated that she had insisted on a mutual divorce and had received the letter to this effect, and subsequently taken all her belongings with her. It was stated that she had married one Sennimalai and started to lead her life with him. The husband had also stated that after the demise of the said Sennimalai, the petitioner, in order to harass him had filed the petition claiming monthly maintenance from him. It was further stated that Sennimalai had left her 10 acres of land and the said property is being enjoyed by his wife. It was further stated that as his wife had married again, the petition for maintenance is not sustainable in law. It has been stated by the husband that he has been affected by mental depression, nervous disorder and dislocation of spinal cord, and he does not have the financial capacity even for taking treatment for the said ailments. He has therefore prayed to set-aside the petition for maintenance. 4. The learned Chief Judicial Magistrate, Erode had taken the said case in the file as M.C. No. 20 of 2007. On the petitioner’s side, the petitioner, Chitra was examined as P.W.1 and one document viz., i.e., the marriage invitation card dated 11.4.1984 was marked as Exhibit P-1. On the respondent’s side, Mayilsami, the husband of the petitioner was examined as R.W.1 and one Gurusami was examined as R.W.2 and no document was marked. 5. On the averments of both parties, the learned Magistrate framed an issue viz., “Whether the petitioner is entitled to get Rs. 5,000/- as monthly maintenance from her husband?” 6. On the respondent’s side, Mayilsami, the husband of the petitioner was examined as R.W.1 and one Gurusami was examined as R.W.2 and no document was marked. 5. On the averments of both parties, the learned Magistrate framed an issue viz., “Whether the petitioner is entitled to get Rs. 5,000/- as monthly maintenance from her husband?” 6. P.W.1 had stated in her evidence that the marriage between her and the respondent took place in the year 1984; that the respondent had demanded dowry of Rs. 75,000/- and was addicted to drinking and playing cards; that he had married another woman, Sumathi in the year 2003; that on questioning her husband, he had driven her and her son out of the house. 7. The learned Magistrate observed that it is seen from the evidence of P.W.1 that she had left her husband and started to lead her life separately only from in the year 2003. The learned Magistrate also observed that the petitioner had also stated in her evidence that due to difference of opinion between her and her husband in the year 1989 itself, a panchayat was convened at the petitioner’s house, wherein it was decided that both of them would lead their life separately and a letter to this effect, jointly signed by both of them had been written and that the original letter was in her possession. As such, the learned Magistrate opined that the allegation of the petitioner that she had left her husband in the year 2003 was false and also opined that her husband’s allegation that they had started to live separately from the year 1989 was correct. As such the contention of the petitioner that she had led her marital life with her husband till the year 2003 was rejected by the learned Magistrate. Further, the Magistrate observed that the petitioner had not given any reasons in her evidence, about how she was constrained to file the petition for maintenance after having managed to live without the support of her husband from the year 1989 onwards upto filing the petition in the year 2007. 8. R.W.1 in his evidence had adduced evidence that after his wife left him in the year 1989, she had married a person named Sennimalai and as such the petitioner herein i.e, his wife does not have the legal rights to claim maintenance from him. 9. 8. R.W.1 in his evidence had adduced evidence that after his wife left him in the year 1989, she had married a person named Sennimalai and as such the petitioner herein i.e, his wife does not have the legal rights to claim maintenance from him. 9. The learned Magistrate on scrutiny of Exhibit R-1, i.e., voter list, observed that the petitioner herein i.e, Chitra had been mentioned in the said list as the wife of Sennimalai and that their address has been mentioned as 1/5, Pariyur Main Road, Gopichettipalayam. From Exhibit R-2, the copy of the case sheet which had been filed for return of Rs. 10,000/- lent out on promissory note executed by R.W.2, it is seen that the petitioner herein has been mentioned as wife of the said Sennimalai. The learned counsel for the respondent had marked Exhibits R-1 and R-2 and argued that these documents clearly prove that the petitioner herein, had married the said Sennimalai. 10. The learned Magistrate opined on scrutinizing Exhibits R-2 and R-3, that these documentary evidences cannot be taken as conclusive proof that the petitioner had married, the said Sennimalai Gounder, it is evident that the petitioner had lived with the said Sennimalai, as the petitioner herself had stated so in the case marked as documentary Exhibit R-2. As such, the learned Magistrate on considering the Exhibits R-2 and R-3 and from the evidence of R.W.2 held that the petitioner had illicit relations with the said Senniamalai after she had left the respondent and as such was not entitled to get maintenance as per Section 125(4) of I.P.C. Further, it was seen from cross-examination of P.W.1, that at the time of separation from her husband in the year 1989, a deed of mutual consent for separation was written and that both she and her husband had signed in the said consent letter. The petitioner however states that she had not received any settlement of money as per the letter. Further, the petitioner has also not stated anything about the settlement amount which should be paid by the respondent herein. The learned Magistrate opined that if the respondent had not settled the amount as stated in the consent letter, which had been executed in front of a panchayat, the petitioner should have taken steps to get this amount which had not been done. The learned Magistrate opined that if the respondent had not settled the amount as stated in the consent letter, which had been executed in front of a panchayat, the petitioner should have taken steps to get this amount which had not been done. As such the Magistrate opined that the contentions of the petitioner that no settlement amount was paid by the respondent to her was not true. Considering the oral and documentary evidence, the learned Magistrate held that the petitioner is not entitled to receive maintenance from her husband and hence dismissed the petition as not maintainable. 11. Aggrieved by the dismissal of her petition, the petitioner has preferred the present revision. 12. The learned counsel for the revision petitioner has contended that the Court below erred in dismissing the petition without considering the fact that the marriage between the petitioner and the respondent was subsistent on the date of the petition. It was pointed out that the Court below erred in dismissing the petition on the ground that the petitioner and the respondent lived separately on consent and hence not entitled for maintenance. It was also contended that the Court below erred in dismissing the petition on the ground that the petitioner got married to one Sennimalai and hence she was livng in adultery based on voters list and other documents which were not the conclusive proof for marriage especially when the same was denied by the petitioner. As such, it was prayed for allowing the revision and to direct the respondent to pay monthly maintenance to the petitioner. 13. The learned counsel for the husband argued that there was a village panchayat which was conducted in the presence of both parties and an agreement was made. As per agreement both had separated and started leading their lives separately. The strong dispute had arisen between the parties since the wife had developed illicit relations with one Sennimalai Gounder. 14. On considering the facts and circumstances of the case and submissions made by the learned counsels on either side and on perusing the impugned order passed in M.C. No. 20 of 2007, on the file of the Chief Judicial Magistrate, Erode, dated 20.11.2008, this Court does not find any infirmity regarding the maintenance liability. Therefore, the revision is dismissed. 15. Resultantly, the above revision is dismissed. Therefore, the revision is dismissed. 15. Resultantly, the above revision is dismissed. Consequently, the order passed in M.C. No. 20 of 2007, on the file of the Chief Judicial Magistrate, Erode, dated 20.11.2008, is confirmed. Revision dismissed.