Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 28 (MAD)

V. Jeevarathinam v. Sudha

2015-01-06

M.SATHYANARAYANAN

body2015
Judgment 1. The respondent/husband in M.C.No.16 of 2011 is the revision petitioner. 2. The respondents herein, who are the wife, minor daughter and minor son had filed M.C.No.16 of 2011 on the file of the Court of the learned Judicial Magistrate, Aruppukkottai, claiming maintenance at the rate of Rs.10,000/- each for them. The said case, after hot contest, was ordered on 07.12.2014 by directing the petitioner herein to pay a monthly maintenance of Rs.3,000/- to the first respondent, Rs.6,500/- each per month to his daughter and son, aggregating a sum of Rs.16,000/- as maintenance directly or through money order or through demand draft before the 05th day of every English Calender Month, without default from the date of the petition. The arrears of maintenance excluding the maintenance already paid by the respondent should be paid within 3 months from the date of the order. 3. Mr.K.N.Thambi, the learned counsel appearing for the revision petitioner has drawn the attention of the Court to the impugned order and submitted that though the petition under Section 125 Cr.P.C in M.C.No.16 of 2011 was filed by the respondents herein, the trial Court has committed a grave error in directing the revision petitioner herein/respondent therein to enter into the witness box and give his evidence as R.W.1 and therefore, he has been put to grave prejudice, as he was not in a position to know the oral evidence of P.W.1/first petitioner in M.C.No.16 of 2011, as he has gone into the box subsequent to her. 4. On the merits of the impugned order passed in M.C.No.16 of 2011, it is submitted by the learned counsel appearing for the petitioner that he initially employed in the Central Office of Bahujan Samaj Party (BSP) at New Delhi and he was no longer in the said employment and for the good services rendered by him for the abovesaid party, a sum of Rs.14,00,000/- (Rupees fourteen lakhs only) was given to him as a gift and it was deposited in a Nationalised Bank and out of the same, he is getting a sum of Rs.6,500/- per month and that is his sole source of income and he is unable to pay the maintenance awarded by the trial court. 5. It is the further submissions of the learned counsel appearing for the revision petitioner that the first respondent herein/wife had also developed illicit intimacy with her own sister's husband. 5. It is the further submissions of the learned counsel appearing for the revision petitioner that the first respondent herein/wife had also developed illicit intimacy with her own sister's husband. On that ground, she is not entitled to get any maintenance. 6. The learned counsel has drawn the attention of this Court to the additional typed set of documents filed by him and submitted that the revision petitioner has filed a petition in H.M.O.P.No.33 of 2012 on the file of the Court of the learned Subordinate Judge, Aruppukkottai, praying for divorce on the ground of cruelty and adultery and the same is pending adjudication and as a counter blast to the said petition for divorce, the first respondent herein filed a petition for restitution of conjugal rights in H.M.O.P.No.64 of 2011 on the file of the same Court. 7. It is the further submission of the learned counsel appearing for the revision petitioner that out of the income earned, while he was working in the Central Office of the Bahujan Samaj Party at New Delhi, the revision petitioner has purchased two properties in the name of his wife and the first respondent/wife, taking advantage of the same started to deal with the properties and therefore, he was constrained to file O.S.No.97 of 2012 on the file of the Court of the learned Subordinate Judge, Aruppukkottai, praying for declaration and permanent injunction and the said suit is pending adjudication. 8. It is also contended by the learned counsel appearing for the revision petitioner that insofar as the award of maintenance at the rate of Rs.6,500/- each to the respondents 2 & 3/children, there is absolutely no evidence regarding the tuition fees and other fees being paid for educating the children and in the absence of the same, the award of Rs.6,500/- each to the respondents 2 & 3 per month, in any event is highly exorbitant and prays for interference. 9. Per contra, the learned counsel appearing for the respondents would submit that though it is claimed by the revision petitioner that he is no longer in employment in the Central Office of the Bahujan Samaj Party at New Delhi, the fact remains that he is continued to be employed. 9. Per contra, the learned counsel appearing for the respondents would submit that though it is claimed by the revision petitioner that he is no longer in employment in the Central Office of the Bahujan Samaj Party at New Delhi, the fact remains that he is continued to be employed. Even on his own admission, he has got a sum of Rs.14,00,000/- as a gift for the services rendered by him and therefore, it does not open to him to contend that he is not a man of means. 10. It is the further submission of the learned counsel appearing for the respondents that considering the present inflation trend, a sum of Rs.3,000/- ordered to the first respondent and a sum of Rs.6,500/- ordered to the respondents 2 and 3 each cannot be said to be exorbitant and therefore, prays for dismissal of the Criminal Revision Petition. 11. The learned counsel appearing for the respondents, in support of his contentions placed reliance upon a judgment rendered by a Single Bench of the Delhi High Court, reported in 140 (2007) DLT 16, equivalent to (2007) Divorce and Matrimonial Cases, page 815. 12. This Court heard the rival submissions and perused the materials produced in the form of additional typed set of papers. 13. The revision petitioner, pending disposal of this criminal revision case has sought for stay of the impugned order awarding maintenance. 14. This Court, vide interim order dated 17.04.2014, has directed the petitioner to pay a monthly maintenance of Rs.10,000/- from the date of the order of the learned Magistrate until further orders of this Court and adjourned the matter for a period of six weeks and directed listing of the matter after six weeks for reporting compliance. This petition came up for further hearing on 02.07.2014 and on that day, this Court had extended the interim order on condition that the petitioner shall continue to pay Rs.10,000/- per month to the respondents and also deposit 50% of the past arrears from the date of the petition till the date of filing of the petition. The arrears amount shall be paid within a period of four weeks from the date of receipt of a copy of this order, after deducting the amount already credited. 15. The arrears amount shall be paid within a period of four weeks from the date of receipt of a copy of this order, after deducting the amount already credited. 15. Section 125 Cr.P.C is in the nature of beneficial provision to measure the social justice and it is specially enacted to protect the women and children. The analogue under Section 24 of the Hindu Marriage Act came for reference in the decision reported in 140 (2007) DLT 16, wherein, the Delhi High Court held that right to maintenance is an incident of the status from an estate of matrimony and further that maintenance awarded cannot be punitive. It should aid the applicant to live in a similar life style she/he enjoyed in the matrimonial home. It should not expose the non applicant to unjust contempt or other coercive proceedings. On the other hand, maintenance should not be so law so as to make the order meaningless. 16. This Court, keeping in mind, the said decision coupled with the fact that Section 125 Cr.P.C is in the nature of beneficial provision, carefully scanned and analysed the materials produced before it. 17. Insofar as the submissions made by the learned counsel appearing for the revision petitioner that though the petition for maintenance was filed by the respondents, instead of directing them to enter into the box to give evidence in support of their contentions, the trial Court has committed a grave error in directing the revision petitioner/respondent to enter into the witness box and he has been put to prejudice, this Court is of the view that the said submission lacks merits. 18. It is relevant to extract Section 465 of the Criminal Procedure Code. “465: Finding or sentence when reversible by reason of error, omission or irregularity:- (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Under Section 465(1) Cr.P.C, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings....., unless in the opinion of that Court, a failure of justice has in fact occasioned thereby. Sub-Section (2) says that in determining whether any error, omission .... has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. 19. Admittedly, the petitioner did not raise any objection in ordering him to enter into the witness box. No such ground has been raised in the grounds of revision also. Therefore, the contention raised in this regard by the learned counsel appearing for the revision petitioner is liable to be rejected. 20. On the merits of the case, this Court, on going through the impugned judgment, finds that in support of the averments made in the petition, the first respondent herein/first petitioner in the petition has entered into the box and she did not mark any document. On the other hand, the revision petitioner has deposed as R.W.1 and also examined R.W.2-one Veerappan, R.W.3- one Nirmala, with regard to the complaint made by him in regard to the perjury in Cr.No.10 of 2012. Apart from examining himself, he has also marked Exs.R.1 to R.10. Those exhibits are the complaints and other materials pertaining to Cr.No.10 of 2012 lodged by him alleging adultery on the part of the first respondent. 21. It is also not in dispute that the revision petitioner herein has filed a petition for divorce in H.M.O.P.No.33 of 2012 on the file of the Court of the learned Subordinate Judge, Aruppukkottai against the first respondent herein alleging cruelty and adultery and it is pending and that the first respondent also filed H.M.O.P.No.64 of 2011 and the same is also pending on the file of the same Court. It is the claim of the revision petitioner herein that he was employed in the Central Office of the Bahujan Samaj Party at New Delhi and he was based in Delhi and taking advantage of this, the first respondent has developed illicit intimacy with her own sister's husband. Out of love and affection, the petitioner has purchased two properties in the name of his wife and the first respondent/wife, taking advantage of the same, has started to deal with the properties and therefore, he was constrained to file O.S.No.97 of 2012 on the file of the Court of the learned Subordinate Judge, Aruppukkottai, praying for declaration and permanent injunction and the same is pending adjudication. 22. It is an admitted fact that the first respondent, on account of the services rendered by him in the Central Office of Bahujan Samaj Party at New Delhi was gifted with a sum of Rs.14,00,000/- and he has also deposited the same. It is also his further claim that out of the said amount, he is getting Rs.6,500/- by way of interest and that is his sole income. 23. The primordial submission of the revision petitioner is that though the first respondent entered into the witness box, she did not file any document regarding the meeting out of educational expenses for her children, who are studying in +2 and 7th standard and in any event, a sum of Rs.6,500/- each ordered to be paid to the children by way of maintenance at any rate is on the higher side. 24. In the considered opinion of this Court, the said submission lacks merits, for the reason that admittedly, the children are in the custody of the first respondent. Though it is the vehement submission of the learned counsel appearing for the revision petitioner that the revision petitioner is willing to take care of them, he has not moved the competent Court seeking of either the interim custody or the permanent custody and therefore, the children are in the custody of the first respondent/wife. 25. With regard to the status of the first respondent/wife, though it is alleged by the revision petitioner that she is living an adulterous life in the petition for divorce, the revision petitioner did not dispute the parentage of the children, who are arrayed as R-2 and R-3. 26. 25. With regard to the status of the first respondent/wife, though it is alleged by the revision petitioner that she is living an adulterous life in the petition for divorce, the revision petitioner did not dispute the parentage of the children, who are arrayed as R-2 and R-3. 26. The Trial Court, after considering the materials placed before it and also taking into consideration of the fact that the revision petitioner has received Rs.14,00,000/- by way of gift during the year 2005 for the services rendered by him in the Central Office of Bahujan Samaj party at Delhi, fixed the quantum of maintenance at Rs.3,000/- per month for the first respondent, Rs.6,500/- each for respondents 2 and 3, who are studying in the school. This Court, taking into consideration of the present inflation trend, cost of living and also the fact that the first respondent is maintaining the children and they have to be educated further, is of the considered opinion that the award of Rs.3,000/- to the first respondent and Rs.6,500/- each to the respondents 2 and 3 cannot be termed as exorbitant or on the higher side. 27. It is the submission of the learned counsel appearing for the revision petitioner that the revision petitioner is strictly complying with the interim orders passed by this Court. 28. This Court, taking into consideration of the overall facts and circumstances, on a careful scrutiny and on independent application of mind on the materials placed before it in the form of additional typed set of papers, is of the considered opinion that the quantum of maintenance awarded by the trial court cannot be said to be exorbitant, which does not warrant interference in this revision case. 29. In the result, this Criminal Revision Case is dismissed, confirming the judgment passed, in M.C.No.16 of 2011, dated 07.02.2014, by the learned Judicial Magistrate, Arupukkottai. Consequently, connected miscellaneous petitions M.P.(MD).Nos.1 & 2 of 2014 are closed.