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2018 DIGILAW 4364 (MAD)

Mahalingam v. Neelavathi

2018-11-27

M.V.MURALIDARAN

body2018
JUDGMENT : 1. This criminal revision petition is filed against the order passed in Criminal Appeal No.51 of 2017 dated 01.11.2017 by the file of the learned Principal Sessions Judge, Erode confirming the order passed by the learned Judicial Magistrate, Bhavani in C.M.P.No.3036 of 2016 in M.C.No.12 of 2015 dated 27.01.2017. 2. The Revision Petitioner was arrayed as the first respondent before the learned Judicial Magistrate, Bhavani, in C.M.P.No.3036 of 2016 in M.C.No.12 of 2015. The first Petitioner in M.C.No.12 of 2015 is the wife of the Revision Petitioner. The 2nd and 3rd petitioners are their children. The second and third respondents are the parents of the Revision Petitioner before the learned Trial Court. 3. The marriage between the Revision petitioner and the Respondent was solemnized in the year of 1994. At the time of marriage, on the request made by parents of the Revision Petitioner, the parents of the 1st Respondent’s family gave 45 sovereign gold ornaments, Bullet Motorcycle about Rs.75,000/- and cash Rs.50,000/- as dowry. Apart from that they gave house-hold articles value at Rs.1,00,000/-. In the year 2014 onwards, the respondent quarreled with the Revision Petitioner and left the matrimonial home with her children and living separately. The Revision Petitioner is having 15 acres of land and through it, he earned Rs.5,00,000/- per annum. He also had a Tempo van and ply it for hire and earned a sum of Rs.15,000/- per month. The 2nd Respondent is studying 2nd year B.Com (CA) and the 3rd respondent is studying 9th standard. The 1st Respondent needs a sum of Rs.1,00,000/- per year for their educational expenses. Therefore, in order to meet out their educational expenses, the 1st respondent borrowed money from her relatives and meet out the educational expenses of her children. Hence, the respondent have filed the petition in M.C.No.12 of 2015 praying to direct the revision petitioner to pay a total sum of Rs.15,000/- per month as interim maintenance and to pay a sum of Rs1,00,000/- for the educational expenses of his children. 4. The marriage was not disputed. The matrimonial life between the Revision Petitioner and the respondent was not well due to the cruel act of the petitioner and unable to tolerate, the respondent did not care for him and she is supported by her relatives. 4. The marriage was not disputed. The matrimonial life between the Revision Petitioner and the respondent was not well due to the cruel act of the petitioner and unable to tolerate, the respondent did not care for him and she is supported by her relatives. The 1st respondent was frequently tortured by the Revision petitioner and she used to visit their parents and stayed there in a month time. Out of serious indifferences, the 1st respondent herself deserted the petitioner and remove the Thalikodi and left from the matrimonial home. The 1st Respondent is doing agricultural work in the lands belonged to her parents and earned money. Apart from that she is having 15 buffaloes and doing milk vending business and earned money. The Respondent did not take care of the Revision Petitioner at any point of time. She failed in her responsibilities to the Revision Petitioner as a wedded wife. The efforts taken by the revision petitioner for reunion went in vain. The previous petition in Crl.M.P.No.5430 of 2015 filed by the 1st Petitioner praying for interim maintenance was not pressed by her. The 2nd respondent is having a portion joint family property, over which O.S.No.244 of 2013 and O.S.No.243 of 2013 have been filed by South Indian Bank, Ennamangalam Branch for recovery of money. The petitioner has filed H.M.O.P.No.85 of 2015 for restitution of conjugal rights. The 1st Respondent herself voluntarily deserted the revision petitioner and living separately. The house-hold articles sought by the 1st respondent are more than 22 years old and many of the articles have been replaced by the petitioner. The few articles that have been still used are not fit for transportation and are not of much value. The revision petitioner is unable to pay maintenance to the respondents. 5. The house-hold articles sought by the 1st respondent are more than 22 years old and many of the articles have been replaced by the petitioner. The few articles that have been still used are not fit for transportation and are not of much value. The revision petitioner is unable to pay maintenance to the respondents. 5. After hearing both sides, the learned Judicial Magistrate, Bhavani had come to the conclusion and partly allowed the petition by directing the Revision Petitioner/1st respondent to pay the interim maintenance of Rs.5,000/- each to the respondents 2 and 3 per month from the date of petition on or before 10th day of every month and a sum of Rs.15,000/- each to the educational expenses of respondents 2 and 3 per annum on or before 10th day of April every year and has further directed the appellant to return back the home need utensils and appliances within one month from the date of order and dismissed the petition in respect of respondents 2 and 3 therein. 6. Aggrieved by the said order, the Revision Petitioner/1st respondent has filed the Criminal Appeal on various grounds are as follows: (i) The appellant has filed a petition for restitution of conjugal rights in HMOP.No.85 of 2015 before the Sub Court Bhavani. The separation between the petitioner and respondent is not his doing and cause for the matrimonial crimes alleged by the respondent is yet to be determined in M.C.No.12 of 2015. (ii) The appellant cannot afford financially to pay the interim maintenance ordered. The trial Court has ignored the claim that the appellant derives only a meager amount of Rs.6,000/- from running a Tempo van for hire without any reasonable or documentary basis. (iii) The trial Court has also not considered the fact though the appellant’s family own agricultural property , the preset drought condition extending for the past 2 to 3 years has made all agricultural operations unprofitable and the appellant is now in a position to maintain even his parents. (iv) The trial Court has also not considered the defense of the appellant that the rift in matrimony was caused by the 1st respondent. The same has not been specifically denied by the respondents. Also the fact that the respondent’s father is financially well to do and is financially supporting his daughter and grandchildren has been ignored by the learned trial Court. 7. The same has not been specifically denied by the respondents. Also the fact that the respondent’s father is financially well to do and is financially supporting his daughter and grandchildren has been ignored by the learned trial Court. 7. The learned Counsel for the revision petitioner contends that the Lower Appellate Court had failed to consider the various reasons stated in the Appeal and, therefore, the order dismissing the Appeal by stating that there is no ground found to interfere with the findings of the Trial Court is a perverse finding. 8. The learned Counsel for the revision petitioner contends that the Lower Appellate Court had failed to note that the Appellant had filed a petition for restitution of conjugal rights in HM.OP.No.85 of 2015 on the file of the learned Sub Court, Bhavani and, therefore, there is no need to file the petition for interim maintenance which was confirmed by the Lower Appellate Court. The 1st respondent is contesting the same which shows that the 1st respondent has no intention to live with the Appellant and only in order to harass the Appellant, all the mischief’s had been initiated by her. 9. The learned Counsel for the revision petitioner contends that the Lower Appellate Court had failed to note that the Appellant is not financially sound to pay the interim maintenance ordered by the Trial Court since the Appellant is running a Tempo van for Hire and earned only a meager amount of Rs.6000/- p.m. 10. The learned counsel for the revision petitioner contends that the Lower Appellate Court had failed to consider the fact that though the Appellant’s family own agricultural property, the present drought condition extending for the past 2 to 3 years, has made all agricultural operations unprofitable and the Appellant is now not in a position to maintain even his aged parents. 11. The learned counsel for the revision petitioner contends that the Lower Appellate Court had failed to note that the Appellant’s case is that the dispute in the matrimonial life is caused by the 1st respondent which has not been denied by her. Further the 1st respondent’s father is a well-off and he is financially supporting the respondents since they are the daughter and grandchildren. 12. Further the 1st respondent’s father is a well-off and he is financially supporting the respondents since they are the daughter and grandchildren. 12. The learned counsel for the revision petitioner contends that the Lower Appellate Court had failed to note that the respondents had not filed any documents to show that the Appellant is having the income to pay the maintenance. 13. The learned counsel for the revision petitioner contends that the Lower Appellate Court had failed to note that the agricultural lands owned by the Appellant’s family is a joint family property and the South Indian Bank, Ernamangalam Branch had filed a suit in O.S.No.244 of 2013 for the recovery of loan amount for which, lands are mortgaged. This shows that the Appellant has no source to repay the loan amount which was not considered by the Lower Appellate Court. 14. The learned counsel for the respondents supported the findings of the Courts below and contended that the revision Court should not interfere in the findings of the lower Courts. 15. I have heard Mr.K.Soundara Rajan, learned counsel appearing for the revision petitioner and Mr. S.P. Yuvaraj, learned counsel appearing for the respondents and perused the entire materials available on record. 16. Coming to the facts of this case, so far as the liability of the husband/father to pay maintenance to the wife/children is concerned, the defense open to the revision petitioner is very limited. So far as the liability to maintain the wife is concerned, the justifiability of the wife to live away from her husband is the main issue to be decided by the Court. It is pointed out that the husband has also filed an application before the Sub-Court, Bhavani for restitution of conjugal rights. Just because, a petition for restitution of conjugal rights is filed, it cannot be said that wife has no justifiable ground to live away from the husband. The only inference that the husband has taken steps to bring back his wife thereby implying that he would not have intended to neglect the wife. This inference is once again subject to the evidence, which have to be adduced on both sides. 17. The only inference that the husband has taken steps to bring back his wife thereby implying that he would not have intended to neglect the wife. This inference is once again subject to the evidence, which have to be adduced on both sides. 17. The learned lower appellate judge held that the husband has not taken any effective steps to take back the wife except filing the petition for restitution of conjugal rights and therefore, the order of interim maintenance is not liable to be set aside. Therefore, the order passed by both the Courts not required for any interference and accordingly the Criminal Revision Case is liable to be dismissed. 18. In the result : (a) this Criminal Revision Case is dismissed by confirming the order passed in CMP.No.3036 of 2016 in M.C.No.12 of 2015 dated 27.01.2017, on the file of the learned Judicial Magistrate Court, Bhavani; (b) the trial Court is directed to take up the main case in M.C.No.12 of 2015 on day-to-day basis without giving any adjournment to either parties and to dispose the same within a period of three months from the date of receipt of a copy of this order. Both the parties are directed to co-operate for early disposal of the case. Consequently, connected miscellaneous petitions are closed.