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Madras High Court · body

2016 DIGILAW 213 (MAD)

U. Alaguraja v. A. Malaiammal

2016-01-20

M.VENUGOPAL

body2016
ORDER : 1. The Revision Petitioner/Husband has preferred the instant Criminal Revision Petition as against the order dated 17.03.2015 in M.C.No.67 of 2014 passed by the Learned Family Court Judge, Tirunelveli. 2. The Learned Family Court Judge, Tirunelveli, while passing the impugned order in M.C.No.67 of 2014 (filed by the respondent/wife) on 17.03.2015 had among other things observed at paragraph No.7 that "... considering the poverty status of the petitioner (respondent/wife) and also in view of the fact that the Husband/Revision Petitioner had himself admitted that the respondent is his wife" and held that the wife was to be maintained by the Husband (Revision Petitioner) and allowed the petition in part by directing the Revision Petitioner (Husband) to pay a sum of Rs.2,500/- per month to the respondent/wife towards maintenance before 10th of every month and the said amount was to be paid from the date of filing of petition (M.C.No.67 of 2014) viz., 20.09.2013 till date and further directed the Revision Petitioner (Husband) to pay the entire arrears (till the day of passing of the order) within a period of two months. 3. Being aggrieved against the order dated 17.03.2015 in M.C.No.67 of 2014 by the Learned Family Court Judge, Tirunelveli, the Revision Petitioner/Husband has filed the present Criminal Revision Petition primarily contending that the impugned order of the Family Court dated 17.03.2015 in M.C.No.67 of 2014 is against Law and facts and circumstances of the case. 4. The Learned Counsel for the Revision Petitioner/Husband urges before this Court that the trial court had failed to appreciate the scope and purview of Section 125 of Cr.P.C. 5. The Learned Counsel for the Revision Petitioner contends that the respondent/wife is having sufficient means to maintain herself and furthermore, she is receiving rental income from the house and also she is in receipt of income from the cattle given by the Government and in fact, the Revision Petitioner/Husband is only receiving a sum of Rs.2,000/- per month, after deductions. 6. The Learned Counsel for the Revision Petitioner/Husband brings it to the notice of this Court that the respondent/wife was already married to one Mupidathi and all the documents described 'Mupidathi' as husband and in fact, the present respondent/wife had already given her consent for divorce and withdrawal of the petition submitted by her before the District Legal Services Authority. 6. The Learned Counsel for the Revision Petitioner/Husband brings it to the notice of this Court that the respondent/wife was already married to one Mupidathi and all the documents described 'Mupidathi' as husband and in fact, the present respondent/wife had already given her consent for divorce and withdrawal of the petition submitted by her before the District Legal Services Authority. In fact, in the said withdrawal petition, she had affixed her thumb impression. 7. The prime plea taken on behalf of the Revision Petitioner is that the trial court had failed to take into consideration that the Revision Petitioner/Husband is maintaining himself from the meagre salary received by him. 8. Lastly, it is represented on behalf of the Revision Petitioner/Husband that the trial court in the impugned order had not stated from which date the respondent/wife is living separately from the Revision Petitioner etc. 9. Today, when the main Criminal Revision Petition has come up for hearing, there is no representation on the side of the respondent/wife either in person or through Learned Counsel. Furthermore, it comes to be known that the Respondent/wife was served of the notice in the present Criminal Revision Petition on 28.09.2015. 10. This Court has heard the Learned Counsel appearing for the Revision Petitioner/Husband and noticed his submissions. 11. At this stage, this Court very relevantly points out that in as much as the notice was served on 28.09.2015 on the respondent/wife in the present Criminal Revision Petition and in spite of the same, there being no representation on the side of the respondent/wife either in person or through Learned Counsel, this Court is perforced to pass the orders in the main Criminal Revision Petition on merits. 12. It transpires from the contents of M.C.No.39 of 2013 (filed by the Respondent/wife as petitioner before the Learned Chief Judicial Magistrate, Tirunelveli and later, the said case was transferred to the file of the Learned Family Court Judge, Tirunelveli in M.C.No.67 of 2014) that the respondent got married to one Mupidathi, S/o.Agnimadan of Pallamadai and later, her first husband Mupidathi expired on 20.04.1987 and that the Revision Petitioner/Husband's first wife, like her had expired and because of that her marriage on account of elders decision was finalised and got married to on 05.11.1990 at Kurukkuthurai Subramaniasamy Temple. 13. 13. The specific averment/allegation of the respondent/wife in M.C.No.39 of 2013 (later M.C.No.67 of 2014) is that after marriage, the Revision Petitioner/Husband lived with the respondent/wife during a short period of time and later, came drunk daily and habitually, beat her. Further, the Revision Petitioner/Husband had developed a connection with one Lakshmi, an Arack Seller from Pallamadai and also beat the respondent/wife and because of the said beating, she lost hearing in one ear. Apart from that, the respondent/wife had averred in M.C.No.67 of 2014 that the Revision Petitioner/Husband joining with the aforesaid Lakshmi had taken a separate house and stayed there. As a matter of fact, the Revision Petitioner/Husband had not visited the matrimonial house and also not paid money to the respondent/wife for expenses. 14. The grievance of the Respondent/wife is that she is living separately and not in a position to maintain herself and suffers much, but the Revision Petitioner/Husband had constructed a house at Shivaji Nagar and had let out the same and further, he is serving as Village Assistant and earning a sum of Rs.15,000/- per month. But in spite of the same, he is not maintaining her etc.,. As such, the respondent/wife has claimed a monthly sum of Rs.5,000/- towards maintenance and the same was to be paid by the Revision Petitioner/Husband from the date of filing of the petition (M.C.No.67 of 2014). 15. Before the trial court, the Revision Petitioner/Husband had filed a detailed a counter, whereby and whereunder, he had stated that the respondent/wife, after separation, without any reason, is living separately from the Revision Petitioner/Husband for long number of years. Further, he had denied his relationship with one Lakshmi and the allegation of the respondent/wife that he had taken separate house for her and stayed there and also not visiting the respondent/wife's house. 16. The Revision Petitioner/Husband in his counter to M.C.No. 67 of 2014 had also stated that the respondent/wife got married to one Mupidathi and lived as wife for a short period and on 26.03.2000 at Pallamadai village, the respondent/wife was given a plot by the Government in plot No.19 bearing Survey No.742. 16. The Revision Petitioner/Husband in his counter to M.C.No. 67 of 2014 had also stated that the respondent/wife got married to one Mupidathi and lived as wife for a short period and on 26.03.2000 at Pallamadai village, the respondent/wife was given a plot by the Government in plot No.19 bearing Survey No.742. In the said record, the respondent/wife's husband's name was clearly mentioned as 'Mupidathi' and added further, even for the group house construction, the Manur Panchayat Circle Development Officer, on 03.08.2000, had granted fund and even in the said fund, the name of the respondent/wife's husband was mentioned as 'Mupidathi'. 17. Besides the above, even in the petition No.423/2001, submitted by the Respondent/wife before the Tirunelveli District Legal Services Authority, the Respondent/wife had mentioned that she got married to one Mupidathi and for him, a free Indira Ninaivu House was given, in which, she along with her husband was residing and since she had married Mupidathi, she had given withdrawal petition Nos.423/2001 and 189/2001 and ultimately, affixed her finger print on 20.12.2001 and accordingly, her petition was closed. 18. It is the stand of the Revision Petitioner/Husband that the respondent/wife never at any point of time lived depending on the Revision Petitioner/Husband and presently, he is residing in a rented house and for running a family, minimum sum of Rs.5,000/- is required and after deductions, he received only monthly salary of Rs. 2,000/-. 19. Before the trial court, the respondent (petitioner in M.C.No.67/2014)-wife was examined as P.W.1 and Exs.P.1 to P.4 were marked on the side of the Revision Petitioner (Respondent/Husband). Witnesses R.W.1 and R.W.2 were examined and Exs.R.1 to R.4 were marked. 20. After contest, the trial court on an appreciation of entire oral and documentary evidence available on record, came to the resultant conclusion that the Revision Petitioner/Husband was to pay maintenance to the respondent/wife (petitioner in M.C.No.67 of 2014) and accordingly allowed the petition in part by directing the Revision Petitioner/Husband to pay a sum of Rs.2,500/-per month towards maintenance and the same was to be paid before 10th of every month and the said amount was to be paid from the date of filing of the petition viz., 20.09.2013 and also etc., and further directed the payment of entire arrears (till the date of passing of the order) within a period of two months. 21. 21. The trial court in impugned order in M.C.No.67 of 2014 at paragraph No.6 had categorically observed that the Revision Petitioner (Husband) had admitted that the respondent was his wife and that his marriage with the respondent took place on 05.11.1990 at Kurukkuthurai Subramaniyasamy Temple. The trial court had also opined in the impugned order that one cannot lead a luxurious life with the free goats given by the Government and accordingly, it cannot be decided like that. 22. Moreover, R.W.2 in his evidence had deposed that the Revision Petitioner/Husband is serving as Village Assistant and that he had also spoken about the two houses and the goats. Indeed, he had stated in his evidence that out of the two residential houses, one was owned by the respondent/wife and the another house was a group house and since the respondent /wife is residing in her own house, the trial court had categorically observed that there is no scope to receive any income. Ultimately, the trial court, by considering the poverty status of the respondent/wife and also taking into account of a fact that the Revision Petitioner/Husband had admitted that the respondent is his wife and also he is to maintain her, granted the monthly maintenance sum of Rs.2,500/- to the respondent/wife as stated earlier. 23. At this point of time, it is to be pointed out that after marriage, it is the duty of the Husband to maintain his wife and children. The Revision Petitioner/Husband cannot wilfully refuse or neglect to maintain the respondent/wife. To prevent vagrancy, a separated spouse (wife) can claim maintenance from her house. In the present case, the respondent/wife before the trial court, had categorically came out with a plea that she was unable to maintain herself and consequently, the onus fell on the Revision Petitioner/Husband to establish that she has sufficient means to maintain herself. 24. In the instant case on hand, the Revision Petitioner/Husband had not proved to the subjective satisfaction of this Court that the respondent/wife has sufficient means to maintain her. It is true that a wife for a good cause or sufficient cause can stay away from her husband, in case, she was ill-treated or her husband has failed or refused to maintain her, besides neglecting her also. It is true that a wife for a good cause or sufficient cause can stay away from her husband, in case, she was ill-treated or her husband has failed or refused to maintain her, besides neglecting her also. Ordinarily from and out of the total monthly salary of a husband, one third amount can be awarded as maintenance to be paid by him to his wife. 25. Be that as it may, as far as the present case is concerned, in view of the fact that the Revision Petitioner/Husband had admitted before the trial court that the respondent is his wife, then, this Court is of the considered view that he is to maintain her and from this responsibility, he cannot avoid or evade and also this Court, taking note of the present day spiralling rise of essential commodities, cost of inflation etc., and also taking note of the whole gamut of the present facts and circumstances of the case in an encircling manner, comes to a resultant conclusion that the impugned order passed by the trial court in M.C.No.67 of 2014 dated 17.03.2015, whereby and whereunder, the Revision Petitioner/Husband was directed to pay a monthly sum of Rs.2,500/- towards maintenance etc., does not suffer from any material irregularities or patent illegalities in the eye of Law, per contra, the said order is a valid and tenable one in the eye of Law. Consequently, the Criminal Revision Petition fails. 26. In fine, the Criminal Revision Petition is dismissed. Consequently, the order dated 17.03.2015 in M.C.No.67 of 2014 passed by the Learned Family Court Judge, Tirunelveli is affirmed by this Court, for the reasons assigned in the Criminal Revision Petition. The Revision Petitioner/Husband is hereby directed to pay the entire arrears of maintenance amount (less amount/amounts paid, if any) to the respondent/wife within a period of one month from the date of receipt of copy of this order. In case of non-payment of arrears of the maintenance amount in question by the Revision Petitioner/Husband, the respondent/wife is at liberty to initiate appropriate further proceedings before the competent forum in the manner known to Law and in accordance with Law. Consequently, connected miscellaneous petition is closed.