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2012 DIGILAW 4934 (MAD)

P. Ramesh v. Kalayarasi

2012-12-10

M.Venugopal

body2012
ORDER 1. The petitioner/husband has filed the present Criminal Revision Petition as against the judgment in M.C. No. 3 of 2009 dated 10.10.2011 passed by the Learned District Munsif-cum-Judicial Magistrate, Papanasam. 2. The Learned District Munsif-cum-Judicial Magistrate, Papanasam, while passing the impugned judgment in M.C. No. 3 of 2009 on 10.12.2011 has inter alia observed that for Second Respondent/Second Petitioner, Food, Clothing, Residence and Medical Expenses per month, the Respondent/Husband has to pay a sum of Rs. 1,000/- on or before 6/7/2009 and allowed the case in part and in so far as the First Respondent/First Petitioner is concerned, it dismissed the claim for maintenance. 3. Assailing the correctness of the judgment dated 10.12.2011 in M.C. No. 3 of 2009 passed by the Learned District Munsif-cum-Judicial Magistrate, Papanasam, the petitioner/husband as an aggrieved person has filed the present Criminal Revision Petition before this Court. 4. According to the Learned counsel for the petitioner/husband, the judgment of the trial Court in M.C. No. 3 of 2009 dated 10.12.2011 is against law and well established legal principles. 5. The Learned counsel for the petitioner/husband urges before this Court that the trial Court should have discarded Exhibit P-2 Certified Copy of the deposition in S.C. No. 361 of 2008 and further, Criminal Appeal No. 568 of 2008 is pending on the file of this Court as against the conviction and sentence imposed by the Learned District and Sessions Judge (FTC), Tanjore in S.C. No. 361 of 2008. 6. Expatiating her submissions, the Learned counsel for the petitioner submits that paternity of the child has not been proved in the manner known to law and also that Exhibit P-2 certified copy of the deposition in S.C. No. 361 of 2008 has been marked through an incompetent person and therefore, much reliance could not be placed on the same. 7. The Learned counsel for the petitioner/husband strenuously contends that the factum of marriage between the petitioner/husband and the First Respondent has been disputed by the petitioner/husband and in fact, the trial Court has held that the marriage between the petitioner and the First Respondent has not been proved. 8. Lastly, the Learned counsel for the petitioner/husband contends that the maintenance award granted in favour of the Second Respondent in any event, is on the higher side. 9. 8. Lastly, the Learned counsel for the petitioner/husband contends that the maintenance award granted in favour of the Second Respondent in any event, is on the higher side. 9. Per contra, it is the submission of the Learned counsel for the respondents that the trial Court has considered the entire oral and documentary evidence available on record and has come to a resultant conclusion that the Revision Petitioner is to pay a sum of Rs. 1,000/- to the Second Respondent/Daughter towards Food, Clothing and Residence and Medical Expenses and the said award of Rs. 1,000/- towards maintenance is not an excessive or capricious one. 10. In M.C. Petition No. 3 of 2009, the First Respondent has alleged that on 21.9.2002, at Valarthamangalam Kaliaman Temple, on the compulsion of the Revision Petitioner, she married him secretly and as a result of the said wedlock, on 14.6.2003, the Second Respondent/Daughter has born at Thanjavur Raja Mirazdhar Government Hospital and there is a birth certificate for the Second Respondent’s daughter’s birth. 11. It is also further averred in the petition that she lived with the Revision Petitioner for few weeks only and later, he neglected her in not fulfilling her basic needs and also refused to live with her which fact is known to the entire Village and by cheating her, he made her pregnant for which before the Learned Additional Sessions Judge (FTC), Thanjavur in S.C. No. 361 of 2008 was filed and after contest, on 19.12.2008, the Revision Petitioner was awarded with a simple imprisonment of one year for the proved offence under Section 417 of the Indian Penal Code. However, the Revision Petitioner was acquitted in respect of the charges under Sections 493 and 376 IPC and also that the petitioner is a man of means, owning 3 acres of land etc. Therefore, the grant of maintenance by the trial Court at the rate of Rs. 1,000/- p.m., to the Second Respondent/Daughter may not be interfered with by this Court in Revision. 12. This Court has heard the Learned counsel appearing for the Revision Petitioner and the Learned counsel appearing for the respondents and noticed their contentions. 13. Therefore, the grant of maintenance by the trial Court at the rate of Rs. 1,000/- p.m., to the Second Respondent/Daughter may not be interfered with by this Court in Revision. 12. This Court has heard the Learned counsel appearing for the Revision Petitioner and the Learned counsel appearing for the respondents and noticed their contentions. 13. It is not in dispute that the Revision Petitioner/accused was convicted by the Learned Additional Sessions Judge (FTC), Thanjavur in S.C. No. 361 of 2008 by virtue of the judgment dated 19.12.2008 and awarded simple imprisonment of one year in respect of an offence under Section 417 of the Indian Penal Code. Also, the Revision Petitioner was acquitted in respect of the charges under Sections 493 and 376 of the Indian Penal Code. It is true that before this Court, the Revision Petitioner had filed Criminal Appeal No. 568 of 2008 and the same is pending as on date. 14. Even though the charges levelled against the Revision Petitioner viz., under Sections 493 and 376 of the Indian Penal Code have not been proved before the Sessions Court in S.C. No. 361 of 2008, yet the Petitioner was found guilty under Section 417 of the Indian Penal Code and he was awarded with a punishment as referred to earlier. 15. The Revision Petitioner is an able bodied person, aged about 30 years. The Revision Petitioner in his evidence had denied that he owns the agricultural lands. Also, he had deposed in his evidence as R.W.1 that he used to go for coolie work for 25 days in a month. However, the First Respondent in her evidence had deposed that R.W.1 (Revision Petitioner) is getting an income of Rs. 10,000/- p.m., through agricultural works and also he is in possession of agricultural lands. The trial Court in M.C. No. 3 of 2009 had rendered a categorical finding that the Second Respondent was born to the petitioner and the First Respondent. It rendered/recorded a finding that the marriage between the petitioner and the First Respondent was not proved. Always, it is desirable for the trial Court to determine the monthly income of the respective parties, when the case comes up before it. The First Respondent had claimed a sum of Rs. 2,500/- p.m., to be awarded to her as maintenance by the Revision Petitioner. For the Second Respondent/Daughter, she had claimed a sum of Rs. Always, it is desirable for the trial Court to determine the monthly income of the respective parties, when the case comes up before it. The First Respondent had claimed a sum of Rs. 2,500/- p.m., to be awarded to her as maintenance by the Revision Petitioner. For the Second Respondent/Daughter, she had claimed a sum of Rs. 1,000/- to be paid to her per month towards maintenance. Through the Forensic Science Department, DNA test was conducted and the result of the test was that it was conclusively confirmed that the Second Respondent/Daughter was born to the Petitioner and the First Respondent because of their relationship between them. 16. On behalf of the respondents, a plea was taken before the trial Court that the Revision Petitioner has share in undivided landed properties of the family and also he is getting an income of Rs. 10,000/- per month through agricultural operations. 17. It is the duty of the petitioner/husband to maintain the Wife. Strangely, in the present case, the Revision Petitioner takes a plea that the First Respondent is not his Wife and the Second Respondent has not been born to him. But the fact remains that in Sessions Case in S.C. No. 361 of 2008 it has been proved conclusively in the D.N.A test that the Second Respondent/Daughter has been born to the Revision Petitioner and the First Respondent. The marriage between the Revision Petitioner and the First Respondent was not proved and therefore, the Sessions Court acquitted the Petitioner in respect of charges under Sections 493 and 376 of the Indian Penal Code. Only it punished the Petitioner by imposing a sentence of one year simple imprisonment in respect of the offence under Section 417 of the Code of Criminal Procedure. 18. It is to be pointed out that even an illegitimate minor child is entitled to maintenance as per decision in Sumitra Devi v. Bhikan Choudhary AIR 1987 SC 765 : (1985) 1 SCC 637 . Further the paternity of a child is a question of fact and the same will not be interfered with in revision as per decision of the Honourable Supreme Court in Pathumma and Another. v. Muhammad AIR 1986 SC 1436 : (1986) 2 SCC 585 . Also in the decision of the Honourable Supreme Court in Ms. Further the paternity of a child is a question of fact and the same will not be interfered with in revision as per decision of the Honourable Supreme Court in Pathumma and Another. v. Muhammad AIR 1986 SC 1436 : (1986) 2 SCC 585 . Also in the decision of the Honourable Supreme Court in Ms. Abha Hasthavans v. Suresh Hasthavans (1983) SCC (Cri.) 426 , the Supreme Court raised the maintenance amount for the education of the child. 19. It is the moral duty of the husband to pay maintenance and not to refuse on mere technicalities. It is not proved that the First Respondent is not the wife of the Revision Petitioner, then, she is not entitled to claim maintenance because it is for the First Respondent to establish that her marriage with the petitioner is a lawful one. Furthermore, the deaf and dumb child is entitled to claim maintenance as per decision 26 CR.L.J – 732. It is an axiomatic principle of Law that if the wife is neglected to be maintained by the Husband, then she is entitled to claim the maintenance amount and also other amounts (like Food, Clothing and Medical Expenses etc) so as to keep her body and soul together. It is to be noted that ordinarily, a woman having no independent means of income is entitled to 1/5th or 1/3rd of her husband income. Admittedly, the Revision Petitioner is an able body person aged about 30 years. The First Respondent is reportedly aged about 27 years. The Second Respondent is aged about 7 years as on date and he is a deaf and dumb person, studying in First Standard. As a matter of fact, the Revision Petitioner in his evidence and also in his counter before the Magistrate Court in M.C. No. 3 of 2009 had accepted that the Second Respondent was born to him and also he admitted that he was awarded with an imprisonment in S.C. No. 361 of 2008. Therefore, the trial Court had come to a clear conclusion that the Second Respondent was born to the petitioner and the First Respondent, based on a report of the Forensic Science Research and Assistant Directors’ Report. No doubt, as against the judgment dated 19.12.2008 in S.C. No. 361 of 2008, the Revision Petitioner had filed Criminal Appeal before this Court and the same is pending. No doubt, as against the judgment dated 19.12.2008 in S.C. No. 361 of 2008, the Revision Petitioner had filed Criminal Appeal before this Court and the same is pending. Even though the Appeal is a continuation of the original proceedings of S.C. No. 361 of 2008, yet the fact remains as on date, there is a clear finding recorded by the Court concerned that the Second Respondent was born to the Revision Petitioner and the First Respondent. As such, this Court is in complete agreement with a view taken by the trial Court in this regard viz., that the Second Respondent was born to the First Petitioner and the First Respondent. Though the Revision Petitioner was convicted in S.C. No. 361 of 2008 in respect of an offence under Section 417 of the Indian Penal Code, the Magistrate Court had rendered a finding in paragraph No. 7 of the M.C judgment that it was not proved that the Revision Petitioner had married the First Respondent in a proper manner and lived as Husband and Wife and consequently, came to the conclusion that the First Respondent was not a legally wedded wife of the petitioner. Moreover, pendency of Criminal Appeal No. 568 of 2008 is no bar for the petitioner to pay maintenance to the Second Respondent (child). Only a legally married wife is entitled to claim maintenance. Here again, this Court is in agreement with the view taken by the trial Court in this regard. 20. Coming to the aspect of the exact quantum of maintenance to be awarded to the Second Respondent, it is to be pointed out that the trial Court had pellucidly opined that the Petitioner is aged about 30 years, able bodied and he has right in undivided lands belonging to the family and also he is getting an income through agricultural operations. However, on the side of the Revision Petitioner, it was repudiated to the effect that the petitioner/husband was not owning agricultural lands and he is only working as a coolie. 21. Be that as it may, the fact remains that he is a able bodied person in law. However, on the side of the Revision Petitioner, it was repudiated to the effect that the petitioner/husband was not owning agricultural lands and he is only working as a coolie. 21. Be that as it may, the fact remains that he is a able bodied person in law. In view of the fact that he is responsible for the birth of the Second Respondent, which has since been proved as per Forensic Science Report and as on date, the punishment awarded by the Sessions Court in S.C. No. 361 of 2008 in respect of the offence under Section 417 of IPC is subsisting and also this Court by taking note of the spiraling cost of rise in prices, considering the inflation and the stagflation and also, the money value etc., directs the Revision Petitioner to pay a sum of Rs. 1,000/- p.m., towards maintenance in respect of the Second Respondent and he is directed to pay the entire arrears as on date to the Second Respondent viz., to the First Respondent, representing the Second Respondent within a period of six weeks from the date of receipt of the copy of this order, failing which it is open to the Respondents to take appropriate proceedings before the competent Court in the manner known to law and in accordance with law, if so advised. Consequently, this Criminal Revision fails. 22. In the result, the criminal Revision petition is dismissed. Consequently, the order passed in M.C. No. 3 of 2009 by the Learned District Munsif-cum-Judicial Magistrate, Papanasam is confirmed. Consequently, the connected Miscellaneous Petition (MD) No. 3 of 2012 is also dismissed. Petition dismissed.