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2013 DIGILAW 2593 (MAD)

Tamilselvi v. K. Viswanathan

2013-07-22

C.S.KARNAN

body2013
Judgment :- 1. The brief facts of the case are as follows:-The revision petitioners in Crl.R.C.No.894 of 2011 / wife and minor child has filed a maintenance case in M.C.No.43 of 2006 against the respondent herein / husband and claimed a sum of Rs.15,000/- as monthly maintenance for her minor son, V.Sabarinath and herself stating that the respondent had married her on 23.02.1994 at Salem as per Hindu Rites and Customs. Out of their wedlock, a minor son, Sabarinath was born on 28.06.1995. After the marriage, the respondent did not care about the petitioner and had not provided the basic requirements for her. As such, difference of opinion had arisen between them and hence, the respondent deserted her without providing her any maintenance to take care of herself and her minor son. Under these circumstances, the respondent had filed a divorce petition in F.C.O.P.No.166 of 2002, on the file of Family Court, Salem and the same was dismissed on merits. The respondent is the owner of 8 items of immovable properties at various place and besides this, he is maintaining a cattle farm through which, he is deriving income by selling milk. Further, he is running a telephone booth, oil store and also a lodging house and as such, he is earning multiple income amounting to Rs.45,000/- per month, hence, the maintenance petition. 2. The respondent / husband had filed a counter statement and rebutted the maintenance case. The respondent stated that the first petitioner herself had deserted him since the year 1998 without assigning any reason and left the matrimonial home. Further, he is willing to lead his marital life with his wife. The petitioner behaved with him in a cruel manner and therefore, the divorce petition has been filed on the ground of cruelty and the same was dismissed. Thereafter, the respondent had tried for a reunion with the petitioner but in vain. Further, he is not receiving multiple income through various sources as alleged and hence, the respondent prays to dismiss the said maintenance case. 3. The learned trial Judge, after framing necessary issues had conducted a trial. On the side of the petitioner/wife, four witnesses were examined and six documents were marked all relating to the immovable property of the respondent and judgment copy of the divorce petition. On the side of the respondent, the respondent was examined as R.W.1. 4. 3. The learned trial Judge, after framing necessary issues had conducted a trial. On the side of the petitioner/wife, four witnesses were examined and six documents were marked all relating to the immovable property of the respondent and judgment copy of the divorce petition. On the side of the respondent, the respondent was examined as R.W.1. 4. P.W.1 had adduced evidence that the marriage was solemnized between the spouses on 23.02.1994 and out of their wedlock, she gave birth to a male child on 28.06.1995. She further stated that after the birth of the child, the respondent did not take care of her and had not provided nutritious food and as such, her husband caused mental cruelty. Therefore, she had lived separately from the month of February 2001 along with her minor son. She further stated that her husband owned 7 acres of fertile land and owned a building consisting of 7 rooms which has been let out to various tenants. Besides this, her husband receives income by maintaining a cattle farm and selling milk and also gets an income by running a STD booth. P.W.2, P.W.3 and P.W.4 have spoken about the assets and income of the respondent. 5. R.W.1 had adduced evidence that the petitioner compelled him to live with her in her mother's house ever since their marriage. Without any reason, she left the matrimonial home and started living with her parents. Further, he is willing to lead his marital life with the petitioner for which he made efforts for a reunion, but the same was in vain. Further, he denied the averments made by the petitioner/wife that he was receiving an income of Rs.45,000/- per month from various sources. 6. On considering the evidence of witnesses and on perusing the documents marked by the petitioners and on hearing the arguments of both sides, the learned Family Court judge was pleased to allow the maintenance case partly and directed the respondent to pay a monthly maintenance of a sum of Rs.3,000/- to his wife with effect from 02.11.2006 until her lifetime and further directed him to pay a monthly maintenance of a sum of Rs.2,000/-to his son till he attains the age of a major, with effect from 02.11.2006. 7. 7. Not being satisfied with the quantum of compensation, the petitioners /wife and minor child have filed a revision in Crl.R.C.No.894 of 2011, entreating this Court to award each of the petitioners, the originally claimed maintenance amount of a sum of Rs.7,500/- per month. 8. Aggrieved by the said order and decreetal order, the respondent/husband has filed revision in Crl.R.C.No.1239 of 2010. 9. The learned counsel for the petitioners in Crl.R.C.No.894 of 2011 and the respondents in Crl.R.C.No.1239 of 2010 vehemently argued that the respondent/husband is receiving income from multiple sources viz., by cultivation, by running of cattle farm, rental income, by running a STD booth and also running an oil store and the same has been proved by oral evidence and by marking authenticated documents. The second petitioner, viz., Sabarainath is studying in IX standard at a reputed school at Salem. Therefore, the quantum of maintenance awarded by the trial Court is not sufficient to maintain the petitioners expenses, viz., food, accommodation, clothes, cosmetics, transport, medical expenses, school fees and uniform, communication etc. 10. The learned counsel for the respondent/husband in Crl.R.C.No.894 of 2011 and petitioner in Crl.R.C.No.1239 of 2010, contended in his revision that the husband is willing to lead his life with the petitioner, and hence he has filed a petition seeking restitution of conjugal rights. Further, the trial Court failed to see that the monthly income of the petitioner/husband is Rs.1,500/- per month and also failed to see that the petitioner/husband does not have any other business of his own. He further contended that the trial Court failed to see that the entire lands stand in name of the petitioner's/husband's father. He furthermore submitted that the respondent/wife is running a cable TV business and earning Rs.1,00,000/- per year and as such, she is an earning member and can maintain herself. The highly competent counsel further contended that the petitioner/husband made several attempts for leading his life with his wife, but it was in vain. The petitioner has closed the STD booth. Moreover, as the irrigation facilities are not presently available, the petitioner/husband is unable to cultivate the land. Further, it was contended that he does not have cattle farm or oil business as alleged by the respondent/wife and as such, he is finding it extremely difficult even to maintain himself. He further contended that the petitioner/husband's wife left the matrimonial home without assigning any reason. Further, it was contended that he does not have cattle farm or oil business as alleged by the respondent/wife and as such, he is finding it extremely difficult even to maintain himself. He further contended that the petitioner/husband's wife left the matrimonial home without assigning any reason. Hence, the learned competent counsel entreats the Court to dismiss the revision filed by the wife and minor child and to allow the revision filed by the husband. 11. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on scrutinizing the trial Court judgment, this Court is of the view that the husband is in possession of 8 items of immovable properties and the same was proved on scrutiny of the documents marked as Exs.P1 to P6. Further, the second petitioner is a minor and is studying at a reputed school and as such, the education of the minor, is of a paramount importance and therefore, sufficient monthly maintenance is required by both the wife and minor child. Hence, this Court directs the revision petitioner / husband in Crl.R.C.No.1239 of 2010 and respondent in Crl.R.C.No.894 of 2011, to pay a monthly maintenance of a sum of Rs.3,500/- to the first petitioner instead of Rs.3,000/- as per trial Court order. Further, this Court directs the revision petitioner / husband in Crl.R.C.No.1239 of 2010 and respondent in Crl.R.C.No.894 of 2011, to pay a sum of Rs.3,500/- per month to the second petitioner, viz., Sabarinath, till he attains the age of a major instead of Rs.2,000/- as per trial Court's order. This order is with effect from02.11.2006. Therefore, this Court directs the respondent / husband in Crl.R.C.No.894 of 2001, to pay the arrears of monthly maintenance as per this Court's findings within a period of three months from the date of receipt of a copy of this order, by way of depositing the said arrears through demand draft in favour of the first petitioner before the trial Court. The arrears of monthly maintenance payable to the second petitioner, viz., Sabarinath is to be paid through demand draft in favour of the guardian of the minor, viz., the first petitioner herein until such time, he attains the age of a major. The husband shall pay the monthly maintenance to his wife and minor son on or before 5th of every succeeding English calendar month. The husband shall pay the monthly maintenance to his wife and minor son on or before 5th of every succeeding English calendar month. After the minor attains the age of a major, the husband shall pay the monthly maintenance to his wife alone on or before 5th of every succeeding English calendar month. 12. In the result, the revision in Crl.R.C.No.894 of 2011 filed by the wife and son is partly allowed and the revision in Crl.R.C.No.1239 of 2010 filed by the husband is dismissed. Consequently, the order and decreetal order passed in M.C.No.43 of 2006, on the file of Family Court, Salem, dated 13.04.2010 is modified. Accordingly ordered. Connected miscellaneous petition is closed.