Madras High Court
Anbalagan vs Minor.Renukadevi on 28 June, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 28.06.2012
Coram
THE HON'BLE MR.JUSTICE C.S.KARNAN
Crl.R.C.No.198 of 2008 &
M.P.No.1 of 2008
Anbalagan .. Petitioner
Vs.
1.Minor.Renukadevi
2.Minor.Subashini
3.Minor.Ganesh
4.Krishnaveni W/o.Anbalagan
(The minor respondents rep. by their
Mother Krishnaveni 4th respondent
All are residing at
No.1, Mariamman Koil Street,
Sooramangalam, Salem-5) .. Respondents
Prayer :- Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., to call for the records and examine the correctness, legality and propriety relating to the orders passed in M.C.No.19 of 2004, dated 23.09.2005, on the file of Family Court, Salem and set-aside the order.
For Petitioner : Mr.R.Margabandhu
For Respondents : No appearance
- - -
ORDER
The petitioner / respondent has preferred the present revision against the order passed in M.C.No.19 of 2004, on the file of Family Court, Salem.
2. The short facts of the case are as follows:-
The petitioners, who are the wife and minor children of the respondent have filed the maintenance claim in M.C.No.19 of 2004, claiming maintenance of a sum of Rs.1,500/- for each of them from the respondent. It was submitted that the marriage between the fourth petitioner and the respondent was solemnized on 31.08.1994 at Tamilsangam Thirumana Mandapam, Salem. Out of wedlock, three children viz., Renukadevi, Subashini and Gokulnath were born to them and they are the petitioners 1 to 3 herein. After one year of the marriage, the respondent demanded dowry from the parents of the fourth petitioner. It was submitted that two years prior to filing of this petition, the respondent assaulted the fourth petitioner and drove her away with her children. Subsequently, the respondent sent an advocate notice to the fourth petitioner making false allegations. After that the respondent filed H.M.O.P.No.57 of 2003 before the Sub Court, Mettur against the petitioners for restitution of conjugal rights which is still pending. It was submitted that the father of the fourth petitioner incurred heavy loss in business. It was submitted that the parents of the fourth petitioner have been spending Rs.1,500/- per month on each of the petitioners 1 to 4 towards food, clothes and shelter. It was submitted that the respondent is an engineering graduate and working in Tamil Nadu Agricultural Engineering Co-operative Central Bank and earning Rs.20,000/- per month and also owns a house. Hence, it was prayed for direction to the respondent to pay Rs.1,500/- per month as monthly maintenance to each of the petitioners from the date of petition till the date of first and second minor petitioners get married and the third petitioner attaining the age of a major and till the fourth petitioner's life time for food, clothes, education and shelter.
3. The respondent, in his counter had denied the averments in the petition regarding dowry demand, driving of petitioners from his house, sending notice to the fourth petitioner and filing of HMOP. It was submitted that even though this respondent is working in Tamil Nadu Agricultural Engineering Co-operative Centre, he is suffering much due to non-payment of salary since the company incurred heavy loss. It was submitted that the marriage expenses of Rs.1,50,000/- was spent only by the parents of this respondent and that after the marriage, the fourth petitioner did not give respect to this respondent and his parents. It was submitted that the fourth petitioner was always living with her parents since the respondent was working in various places. It was submitted that the fourth petitioner harassed this respondent with the help of her brothers, viz., Srinivasan, Sathyanarayanan and Balaji and she has given Rs.1,50,000/- to her parents, without the knowledge of this respondent, to enable her parents for constructing a house. It was submitted that the parents and brothers of the fourth petitioner are arrack sellers and the fourth petitioner is living in her parents house since the respondent was not paid salary by his company. It was submitted that as this respondent did not have any other option, he started to reside in the house of the fourth petitioner's parents. It was submitted that the fourth petitioner always quarreled with him and used abusive language against him and also went to other houses and stayed for more than hours together. When this respondent questioned her about this, the fourth petitioner and her family members beat this respondent and drove him away from the house. Therefore, the respondent made a complaint to the Saramangalam Police. But the police people without conducting enquiry told him to make a compromise. The fourth petitioner expressed before the panchayat convened that she did not like to live with the respondent. Further, the fourth petitioner made a complaint before the Mettur Police on 04.03.2003 against the respondent and on the basis of the complaint, it was decided that the respondent must give 12 sovereigns of gold and Rs.1,00,000/- by cash to the fourth petitioner. After that on 30.07.2003, the respondent sent a notice through his advocate to the fourth petitioner. Since no reply was received by the respondent from the fourth petitioner, the respondent filed H.M.O.P.No.57 of 2003, against the fourth petitioner before the Sub Court, Mettur, which is pending. At that time also, the petitioner filed a complaint before the Deputy Superintendent of Police, Omalur stating that this respondent was not intimated about the death of the father of the fourth petitioner. It was submitted that the petitioners have deserted this respondent and that this respondent has no avocation. It was submitted that the fourth petitioner is working as a Radiologist Assistant in Salem Sundaram Nursing Home and getting Rs.3,000/- as monthly income and that she owns four-terraced house at Suramangalam. Hence, it was prayed to dismiss the petition.
4. On the side of the petitioners, two witnesses were examined and 5 documents were marked as Exs.P1 to P5, viz., Ex.P1-copy of marriage invitation, Ex.P2-copy of birth certificate of A.Renukadevi, Ex.P3-copy of birth certificate of A.Gokulnath, Ex.P4-copy of birth certificate of A.Subbashini, Ex.P5-copy of petition in H.M.O.P.No.57 of 2003. On the side of the respondents two witnesses were examined and three documents were marked as Exs.R1 to R3, viz., Ex.R1-termination order, Ex.R2-copy of petition in H.M.O.P.No.57 of 2003, Ex.R3-copy of reply notice sent by the respondent's advocate to the petitioner.
5. The learned Family Court Judge framed an issue, viz., "(i) Whether the petitioners are entitled to get maintenance amount as prayed for?"
6. P.W.1, the petitioner had adduced evidence that she married the respondent on 31.08.1994 at Salem and out of wedlock, she gave birth to the petitioners 1 to 3. She deposed that the respondent ill treated her and neglected to maintain the petitioners. She deposed that she does not have any avocation and that she depends upon her brothers and mother. She further deposed that the respondent had filed H.M.O.P.No.57 of 2003 before the Sub Court, Mettur with false allegations for restitution of conjugal rights with an intention to deprive her of the legitimate right to claim maintenance. She deposed that the respondent is a B.E. graduate and working at Tamil Nadu Agricultural Engineering Co-operative Centre and earning Rs.20,000/- per month. In support of her evidence, she had marked Exs.P1 to P5. P.W.2 had also adduced evidence which is supportive of the case of the petitioners.
7. R.W.1, the respondent had deposed that his in-laws are arrack sellers and due to the bad advice given by them, the fourth petitioner had treated him with cruelty and deserted him. He deposed that the fourth petitioner used abusive language against him and never respected him. He deposed that he had issued a lawyer's notice to the fourth petitioner (Ex.R3) and called upon her to come and lead her life with him at the matrimonial home but in spite of it, the fourth petitioner had not chosen to join him and hence, he was constrained to file H.M.O.P.No.57 of 2003 before the Sub Court, Mettur for restitution of conjugal rights against the fourth petitioner. He deposed that he had been terminated from service as per Ex.R1 and stated that he does not have any avocation. He deposed that he depends upon his parents to lead his life and in support of his evidence, he had marked Exs.R1 to R3.
8. The learned Family Court Judge, on scrutiny of Ex.P5 and Ex.R2 observed that the respondent had spoken ill about the fourth petitioner and opined that being so, it was not correct on the part of the respondent to expect the fourth petitioner to accept reunion with him. It is also seen from Ex.R2, that the respondent had suspected the modesty of the fourth petitioner. The learned Judge further observed that the respondent has not put-forth any independent witness or materials to show reasons as to why he doubted the modesty of the petitioner. The learned Judge further observed that the respondent is a BE graduate and also observed that the respondent had stated that he worked in TSRM Steel Plant at Trichy, Tamil Nadu Agricultural Engineering Co-operative Central Branch at Vazhapadi, Rasipuram and Thirukovilur and that he owns a house. On scrutiny of Ex.R1, it is seen that the respondent was terminated from the service of the federation. The learned Judge observed that no other document has been filed by the respondent to show the termination benefits which was given to the respondent. Hence, the learned Judge on observing that the respondent is a BE graduate and that he has professional experience and also considering his age, status, qualification and experience held that the respondent could earn a sum of Rs.15,000/- per month. Hence, the learned Judge on holding that the respondent being the husband of the fourth petitioner and father of the petitioners 1 to 3 is duty bound to maintain them directed the respondent to pay a sum of Rs.500/- to each of the petitioners 1 to 3 towards food, shelter and education from the date of petition till date when the first and second minor petitioners get married and till the date the third minor petitioner attains the age of a major. The learned Judge further directed the respondent to pay a sum of Rs.750/- per month as monthly maintenance to the fourth petitioner from the date of petition till her life time.
9. Aggrieved by the order passed by the Family Court, the respondent has preferred the present revision.
10. The learned counsel for the revision petitioner has contended in his revision that the lower Court failed to note that cruelty and demand of dowry had not been established. It was contended that the evidence given by P.W.1 was of a general nature, without any specific allegation with reference to date and nature of cruelty. It was contended that the lower Court ought to have noted that the fourth respondent of her own accord is living away without wearing "thali and metti" for the past four years prior to 2004 and this itself proves that she had deserted the revision petitioner and has no inclination to live with her husband. It was contended that the lower Court failed to note that the fourth respondent had not issued any notice or given any complaint before the police station against the revision petitioner. On the other hand, the revision petitioner issued notice calling upon the fourth respondent to live with him which had been marked as Ex.R3. The revision petitioner also filed H.M.O.P.No.57 of 2003 for restitution of conjugal rights. It was contended that the learned Judge failed to note that the revision petitioner also gave evidence that he is willing to live with his wife. It was also contended that the lower Court failed to note that P.W.1 herself had admitted that she is willing to live with the respondent. Thereby, the fourth petitioner had given up her case of dowry harassment and cruelty and as such, she is not entitled to maintenance, but has to come and live with her husband. It was also contended that the lower Court ought to have noted that P.W.2 herself admitted that P.W.1 is not wearing "thali and metti" for the past four years prior to 2004. It was also contended that the lower Court failed to note that the revision petitioner was terminated from service on 30.11.2004, subsequent to the closing of the private company. Consequently, the revision petitioner is without job and without any source of income and as such, the maintenance order, at the rate of Rs.500/- fro the respondents 1 to 3 and Rs.750/- for the fourth respondent has been passed without any basis. It was contended that the lower Court failed to note that as the revision petitioner is willing to live with the fourth respondent along with the respondents 1 to 3, there is no necessity of payment of maintenance. Hence, it was prayed to set-aside the order passed by the Family Court.
11. Even though notice had been served on the respondents, no one appeared. Hence, this Court is constrained to pass final orders on the basis of available records.
12. On considering the facts and circumstances of the case and arguments advanced by the learned counsel for the petitioner, this Court does not find any discrepancy in the conclusions arrived at for granting monthly maintenance. The learned counsel's contention is that the fourth respondent, viz., the wife of the petitioner is working as a nurse at Sudarashan hospital, Salem and that she is not entitled to receive any maintenance. However, in order to prove the same no authenticated documentary evidence had been produced, viz., the salary particulars and further no employer evidence had been recorded. Hence, this Court is unable to accept the learned counsel's contentions. However, the maintenance amount of a sum of Rs.750/- awarded to the fourth respondent is slightly on the higher side and therefore this Court reduces the maintenance amount awarded to the fourth respondent from Rs.750/- to Rs.500/-, as it is found to be appropriate. Accordingly, the maintenance awarded has been modified in so far as the fourth respondent is concerned. However, as per the order of trial Court, each of the minor children are entitled to receive a sum of Rs.500/- as monthly maintenance. Hence, this Court directs the revision petitioner to pay the entire arrears of maintenance, as per this Court's modified order, within a period of two months from the date of receipt of a copy of this order, subject to deduction of deposits made, if any. This arrears amount should be calculated from the date of filing the maintenance case. Thereafter, the revision petitioner is directed to pay the monthly maintenance to the respondents regularly, on or before the 10th of every English calendar month, before the trial Court. After such deposit has been made, it is open to the fourth respondent to withdraw the entire deposited amount, including the minors share amount, after filing a Memo, along with a copy of this order.
13. In the result, the above revision is partly allowed. Consequently, the order passed in M.C.No.19 of 2004, on the file of Family Court, Salem, dated 23.09.2005, is modified. Consequently, connected miscellaneous petition is closed.
28.06.2012
r n s
Index : Yes.
Internet : Yes.
C.S.KARNAN, J
r n s
To
The Family Court,
Salem.
Crl.R.C.No.198 of 2008 &
M.P.No.1 of 2008
28.06.2012