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2014 DIGILAW 2836 (MAD)

P. Raja v. K. C. Sudha

2014-08-25

P.R.SHIVAKUMAR

body2014
Judgment : 1. The arguments advanced by Mr.M.Ajmal Khan, learned Senior Counsel on behalf of the learned counsel on record appearing for the revision petitioner and Mr.P.Muthuvijayapandian, learned counsel for the respondent are heard. Copies of the orders of the Courts below and the materials available on record are also perused. This Court paid its consideration to the same. 2. The revision petitioner was the husband of the respondent herein. Both of them are Hindus and due to misunderstanding the couple were living separately and the petitioner herein (husband) was driven to seek dissolution of marriage by filing H.M.O.P.No.101 of 2008 on the file of the Principal Sub Judge, Karur on the ground of desertion and also on the ground that the respondent was suffering from intermittent mental disorder of such a kind and extent that the petitioner could not reasonably be expected to live with the respondent. 3. Subsequent to the filing of the divorce O.P, the respondent herein (wife) chose to prefer a petition under Section 125 Cr.P.C on the file of the learned Chief Judicial Magistrate, Karur claiming maintenance at the rate of Rs.25,000/- per month. 4. The said petition was resisted by the revision petitioner herein contending that the petition was filed as a counter blast for the divorce O.P and also on the ground that the respondent (wife), having voluntarily withdrawn from the company of the revision petitioner (husband) and refusing to come and live with him was not entitled to claim maintenance. A further ground was also alleged that the respondent (wife) was more qualified compared with the petitioner (husband) and she could not be construed to be a person incapable of maintaining herself or construed to be a person not having sufficient means to maintain herself. 5. The learned Chief Judicial Magistrate conducted enquiry in the petition, in which the respondent (wife), besides examining herself as P.W.1, examined one Thirumoorthi as P.W.2, whereas including the revision petitioner (husband), three witnesses were examined on the side of the revision petitioner as R.Ws.1 to 3. The other two witnesses examined on his side are medical officers. As many as 5 documents were produced on the side of the respondent (wife) and 18 documents were produced on the side of the revision petitioner (husband). 6. The other two witnesses examined on his side are medical officers. As many as 5 documents were produced on the side of the respondent (wife) and 18 documents were produced on the side of the revision petitioner (husband). 6. The learned Chief Judicial Magistrate, on an appreciation of evidence accepted the contention of the revision petitioner and dismissed the petition filed by the respondent herein (wife) holding that she was not entitled to get any kind of maintenance from the revision petitioner (husband). 7. As against the order of the learned Chief Judicial Magistrate dated 08.11.2010 made in M.C.No.11 of 2009 on the file of the trial Court, the respondent herein (wife) preferred a revision in Crl.R.C.No.5 of 2011 on the file of the Sessions Court, Karur. The learned Sessions Judge, Karur, after hearing, reversed the finding of the learned Chief Judicial Magistrate and allowed the claim of the respondent herein (wife) for maintenance. The learned Sessions Judge fixed a sum of Rs.7,000/- per month as the amount of maintenance to which the respondent (wife) was entitled to get from the revision petitioner herein and accordingly issued a direction by the impugned order dated 17.12.2011. As against the same and questioning the correctness and legality of the same, the revision petitioner (husband) has preferred the present Criminal Revision Case, by invoking the revisional powers of this Court under Section 397 read with Section 401 Cr.P.C. 8. Mr.M.Ajmal Khan, learned Senior Counsel appearing for the revision petitioner, would contend that the well considered order of the learned Chief Judicial Magistrate, Karur holding the respondent herein (wife) not entitled to claim maintenance ought not to have been interfered with by the learned Sessions Judge, Karur, without there being any material to show that the respondent herein (wife) had not withdrawn her company voluntarily from the revision petitioner (husband) and to show that the respondent was not having any source of income to maintain herself. 9. Learned Senior Counsel also pointed out the averment made by the respondent (wife) herein in her petition filed under Section 125 Cr.P.C wherein she had stated that she had been cheated by the revision petitioner by falsely projecting himself to be a B.C.A graduate which would give rise to an inference that the misconception was the root cause for her withdrawing from the company of the revision petitioner (husband). Learned Senior Counsel also pointed out the fact that the respondent (wife) did have a superiority complex as she was a post graduate and also possessed a research degree namely, Master of Philosophy whereas the revision petitioner was only a graduate possessing a B.C.A degree and that even such a qualification was not recognised by the respondent herein. Pointing out the above said facts, learned Senior Counsel for the revision petitioner has submitted that the educational qualifications of the parties would give a clear picture as to who, among the two, was in a better position to earn more and this aspect was not at all considered by the learned Sessions Judge while reversing the order of the learned Chief Judicial Magistrate negativing the claim of the respondent herein (wife). 10. It is also the contention of the learned Senior Counsel that the other grounds alleged by the revision petitioner (husband), in his counter affidavit filed in the maintenance case as well as the averments made in the divorce O.P, were not adverted to by the learned Sessions Judge in arriving at a conclusion that the respondent (wife) was entitled to claim maintenance from the revision petitioner (husband). The further contention of the learned Senior counsel for the revision petitioner (husband) is that even if it can be assumed that the respondent (wife) shall be entitled to claim maintenance from the revision petitioner (husband), the learned Sessions Judge committed a blunder in not adverting to the principles to be followed in fixing the quantum of maintenance to be awarded against the respondent (wife). In support of his contention, learned Senior Counsel for the revision petitioner drew the attention of the Court to a judgment of a Division Bench of Allahabad High Court in Smt.Veena Panda Vs. Devendra Kishore Panda (http://indiankanoon.org/1616696/). In the said judgment, the Division Bench of the Allahabad High Court, after referring to a number of judgments, held that the following factors should be taken into account for the fixation of the quantum of maintenance:- (1) Position and status of the parties, (2) Reasonable wants of the claimant towards food, clothing, shelter, medical attendance with treatment, education and the like, (3) Income of the claimant, (4) Income of the opposite party, and (5) Number of persons, the opposite party is obliged to maintain 11. After enumerating the factors to be taken into consideration, the Division Bench also made elaborate discussions as to what are the amounts that are deductable from the income of the husband and what are all the amounts which are to be disregarded while working out the take home salary of the respondent in a maintenance case. In short, the Division Bench held that involuntary deductions alone could be allowed, whereas voluntary deductions either direct or indirect should not be allowed to be deducted from the income of the respondent in a maintenance case for the fixation of the quantum of maintenance. It has also been mentioned therein that the quantum of maintenance would depend upon the number of persons to be maintained by the respondent in such maintenance cases. 12. Taking the Court through the various observations made in the said judgment of the Division Bench, learned Senior counsel has contended that the order of the learned Sessions Judge in the case on hand is the outcome of an arbitrary exercise of power, without applying the well known principles governing the fixation of quantum of maintenance. The learned Senior Counsel would contend that without assigning any reason, much less a valid and acceptable reason, the learned Sessions Judge has arbitrarily fixed a sum of Rs.7,000/-to be the monthly maintenance to which the respondent (wife) would be entitled to get from the revision petitioner (husband). 13. On the other hand, Mr.P.Muthuvijayapandian, learned counsel for the respondent (wife) would contend that in the absence of any proof by the revision petitioner (husband) regarding the income of the respondent/wife, the learned Sessions Judge was right in interfering with the order of the learned Chief Judicial Magistrate and the learned Sessions Judge did commit no mistake in fixing the quantum based on the income of the revision petitioner herein (husband). Learned counsel for the respondent would also contend that the respondent has filed a Criminal Original Petition under Section 482 Cr.P.C before this Court seeking enhancement of the quantum of maintenance and that the same is pending. The Criminal Original Petition filed under Section 482 Cr.P.C referred to by the learned counsel for the respondent is Crl.O.P.(MD)No.14984 of 2014. The said petition admittedly came to be filed on 01.08.2014. The impugned order of the learned Sessions Judge came to be passed on 17.11.2011. The Criminal Original Petition filed under Section 482 Cr.P.C referred to by the learned counsel for the respondent is Crl.O.P.(MD)No.14984 of 2014. The said petition admittedly came to be filed on 01.08.2014. The impugned order of the learned Sessions Judge came to be passed on 17.11.2011. After a lapse of 2 years and 7 months, the said Original Petition came to be filed. The respondent (wife) did not choose to file such Criminal Original Petition immediately after the passing of the order of the learned Sessions Judge. Only as a counter blast for the present Criminal Revision Case filed by the revision petitioner (husband), the same seems to have been preferred. It transpires that the respondent herein, being the revision petitioner before the Sessions Court, could not have filed a revision against the order and that was the reason why the respondent (wife) has adopted the method of filing a Criminal Original Petition invoking the inherent powers of High Court under Section 482 Cr.P.C. As the said Criminal Original Petition is not before me, I restrain myself from expressing any opinion regarding its maintainability or merits. However, learned counsel appearing for the respondent would submit that the disposal of the Criminal Revision Case will make the said Criminal Original Petition infructuous and in case of disposal of the Criminal Revision Case, he would be inclined to withdraw the said Criminal Original Petition. 14. With the above facts in the background, this Court shall deal with the revision on its merit. Of course, a perusal of the order of the learned Chief Judicial Magistrate will show that considered only the conduct of the respondent herein (wife), in accusing the revision petitioner (husband) to have cheated her by projecting to be a B.C.A graduate whereas he had completed only 10th standard as alleged by the revision petitioner and also the allegation that due to the intermittent mental disorder with which she was suffering from as the grounds for holding the respondent (wife) ineligible to claim maintenance. Learned counsel for the respondent would submit that though the divorce O.P came to be filed on the ground of desertion and mental disorder under section 13(1)(iii) of the Hindu Marriage Act, 1955, the wife could not be denied the benefit of maintenance for no fault on her part and for the mental or physical disability she was suffering from. Learned counsel for the respondent would submit that though the divorce O.P came to be filed on the ground of desertion and mental disorder under section 13(1)(iii) of the Hindu Marriage Act, 1955, the wife could not be denied the benefit of maintenance for no fault on her part and for the mental or physical disability she was suffering from. The said contention of the learned counsel for the respondent (wife) cannot be brushed aside as untenable. On the other hand, it is a fact that can be ascertained on a perusal of the order of the Chief Judicial Magistrate that the learned Chief Judicial Magistrate did not advert to the income of either the revision petitioner or the respondent and that the learned Chief Judicial Magistrate also failed to consider the other factors influencing the decision on the quantum of maintenance. 15. Though the learned Sessions Judge has rightly interfered with the order of the learned Chief Judicial Magistrate totally disallowing the claim for maintenance without considering the relative financial positions of the revision petitioner and the respondent, the learned Sessions Judge has also committed a similar mistake by not adverting to the facts influencing the decision on the quantum of maintenance. The learned Sessions Judge has not given any clear finding regarding the income of the revision petitioner, deductions and take home salary. Similarly, the learned Sessions Judge did not advert to the capacity of the respondent (wife) who is educationally more qualified, to earn for herself. As the learned Sessions Judge has failed to advert to the said aspects, this Court comes to the conclusion that it is a fit case in which this Court has to interfere with the judgment of the learned Sessions Judge and set aside the same. At the same time, the Maintenance Case No.11 of 2009 deserves to be remitted back to the learned Chief Judicial Magistrate for fresh disposal after considering the relative income of the parties, the capacities of the parties to earn and the number of persons to be supported by the parties and if necessary, after permitting both the parties to adduce further evidence in this regard. 16. In the result, the Criminal Revision Case is allowed. The order of the learned Sessions Judge, Karur, dated 17.11.2011 made in Crl.R.C.No.5 of 2011 is set aside. 16. In the result, the Criminal Revision Case is allowed. The order of the learned Sessions Judge, Karur, dated 17.11.2011 made in Crl.R.C.No.5 of 2011 is set aside. M.C.No.11 of 2009 is remitted back to the trial Court namely, Chief Judicial Magistrate, Karur for fresh disposal, after considering the relative income of the parties, their capacities to earn and the number of persons to be supported by them with such income. If necessary, the learned Chief Judicial Magistrate shall permit the parties to adduce further evidence and the Chief Judicial Magistrate shall pass orders, as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order.