Madras High Court
Natarajan vs Amsaveni on 13 July, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 13.07.2012 Coram THE HON'BLE MR.JUSTICE C.S.KARNAN Crl.R.C.No.203 of 2010 & M.P.No.1 of 2010 Natarajan .. Petitioner Vs. Amsaveni .. Respondent Prayer :- Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., against the order made in M.C.No.5 of 2003, dated 05.01.2010, on the file of the learned Judicial Magistrate-II, Thiruvannamalai and set-aside the same. For Petitioner : Mr.S.Kumaradevan For Respondent : Mr.S.Sounthar - - - ORDER
The petitioner / respondent has preferred the present revision against the order made in M.C.No.5 of 2003, on the file of the learned Judicial Magistrate-II, Thiruvannamalai.
2. The short facts of the case are as follows:-
The petitioner / wife has filed the maintenance case in M.C.No.5 of 2003, claiming maintenance of a sum of Rs.1,500/- per month from the respondent / husband under Section 125(1)(A) of Cr.P.C. It was submitted that the petitioner married the respondent on 14.09.1978, as per Hindu Rites and Customs. Out of wedlock, two male children were born to them in the year 1981 and 1984, viz., Tamilarasan and Kalidasan. After a few years, the respondent started to beat the petitioner and her children without any reason. While so, the respondent married another woman named as Govindammal. As the petitioner feared danger to her life and that of her children, she left the respondent's place and is living separately for the past six years. It was submitted that the respondent was working as senior driver in TNSTC Corporation and earning Rs.10,000/- per month and he also owns a house and land at Thiruvannamalai District. Besides this, the respondent also has purchased a van and is getting an income of Rs.7,000/ through use of van. It was submitted that the petitioner's first son had married and is living separately and he is not in a position to help her financially. The petitioner's second son is pursuing a degree course and hence, the petitioner experiences hardship for maintaining herself and her son. It was submitted that a divorce petition has been filed for divorce in H.M.O.P.No.92 of 2002 and that it is pending for trial. Hence, the petitioner has filed the present maintenance claim against the respondent.
3. The respondent / husband in his counter had admitted that he had married the petitioner on 14.09.1978 and also admitted that Tamilarasan and Kalidasan are his children. The averments in the claim that the respondent had married one Govindammal and that the petitioner was living separately was not admitted. The averments in the claim regarding income of the respondent was also not admitted. It was submitted that the petitioner has arranged for marriage of her sister with this respondent's brother, viz., Shanmugam and subsequently a partition was made in the ancestral property causing lot of mental agony to this respondent. It was submitted that the petitioner, instigated by this respondent's brother and his wife, had treated the respondent with disrespect and picked quarrels with him frequently. It was submitted that this respondent, due to the torture inflicted on him by the petitioner, had left the Village three years ago and started to reside at Thiruvannamalai. It was submitted that the petitioner is enjoying his ancestral property and getting an income of Rs.30,000/- per month through this property. It was submitted that this respondent had also bought land in the name of the petitioner at Santhevasal Village for a sum of Rs.75,000/- on 22.09.1995 and that the petitioner had constructed three shops from out of the income derived from the agricultural land and is getting a monthly income of Rs.3,000/- through this source. It was submitted that the petitioner had stopped his second son from attending college and that a lawyer's notice was sent to the petitioner but in spite of it as the petitioner had refused to live with this respondent, this respondent was constrained to file a divorce petition in H.M.O.P.No.92 of 2002.
4. The petitioner was examined as P.W.1 and three documents were marked as Exs.P1 to P3, viz., Ex.P1-copy of marriage invitation, Ex.P2-copy of petition for divorce filed by the respondent at Thiruvannamalai Sub Court, Ex.P3-salary certificate of respondent. On the respondent's side, the respondent was examined as R.W.1 and eight documents were marked as Exs.R1 to R8, viz., Ex.R1-sale deed dated 22.09.1995, Ex.R2-patta for land purchased at Pushpagiri Village, Ex.R3-certificate issued by Village Administrative Officer showing details of property in the name of petitioner, Ex.R4-lawyer's notice dated 06.10.2001, Ex.R5-copy of partition deed dated 14.10.2003, Ex.R6-copy of judgment made in divorce petition No.92 of 2002, Ex.R7-marriage invitation of the son of the petitioner and respondent and Ex.R8-summons issued in C.C.No.26 of 2006, dated 12.04.2006.
5. P.W.1 had adduced evidence that her husband started to consume liquor and torture her only after the birth of her children and that he had an affair with one Govindammal and had married her.
6. R.W.1, in his evidence had stated that the petitioner did not treat him with respect right from the date of marriage and that she used abusive words while addressing him. He deposed that his brother had married the petitioner's sister and that his brother had instigated the petitioner and prevented her from living with him. He had however admitted that even prior to his marriage with the petitioner, he had loved and married another woman named as Govindammal and that as his parents had opposed the marriage, the marriage was annulled by the panchayat. He had further admitted that he is presently living with the said Govindammal. The Tribunal further observed that R.W.1 had obtained an ex-parte decree of divorce in the divorce petition filed before the Sub Court, Thiruvannamalai. Hence, the Magistrate, on scrutiny of oral and documentary evidence and on observing that the respondent had illicit relations with one Govindammal, prior to and even after his marriage with the petitioner and on observing that the petitioner had expressed her unwillingness to lead her life with the respondent and on observing that they are living separately, held that the petitioner, being the legally wedded wife of the respondent, is entitled to get maintenance from the respondent.
7. P.W.1 had further adduced evidence that her husband was earning Rs.9,904/- per month and in support of her evidence, she had marked Ex.P3. She deposed that in addition to this, her husband owned a house and 10 cows and that he gets income from these sources and that he gets a total income of Rs.30,000/- per month. She deposed that she is working as a coolie and is struggling to make ends meet.
8. R.W.1 had deposed that he gets a monthly income of Rs.11,000/- and that as he had a brain infection, two surgical operations had been performed and that he is incurring huge medical expenses. He deposed that he is staying in a rented place at Thiruvannamalai and that on 22.09.1995, he had bought 10 cents of land at Rs.1,00,000/- and that he had bought the same in the name of his wife and in support of his evidence, he had marked Ex.R1, sale deed. He deposed that his wife had constructed three houses in the land and getting an income of Rs.6,000/- per month and in addition to it, she is also enjoying possession of 2 1/2 acres of land and the house built in it and getting an income of Rs.30,000/- per month through this source.
9. The learned Magistrate, on scrutiny of Ex.R1, observed that the sale deed has been made out in the name of the petitioner and the land value was Rs.75,000/-. The learned Magistrate however observed that no mention has been made to show that it had been purchased by the respondent and his signature has also not been affixed to show that he is a witness. The learned Magistrate on observing that no documentary evidence had been let in to show that the petitioner gets an income of Rs.30,000/- per month and on observing that the petitioner is living in the respondent's house, directed the respondent to pay a sum of Rs.1,000/- as monthly maintenance to the petitioner on or before 5th of every English calendar month from the date of filing of the petition.
10. Aggrieved by the order passed by the Judicial Magistrate, the respondent has preferred the present revision.
11. The learned counsel for the revision petitioner has contended in his revision that the Magistrate erred in holding that the petitioner is living with his earlier divorced wife, viz., one Govindammal. It was also contended that one Shanmugam, who is the brother of the petitioner and the respondent's sister's husband instigated the respondent and her two children against the petitioner and forcibly sent out the petitioner from his house after taking all his properties. It was contended that the respondent is living comfortably in the petitioner's house under the protection of the said Shanmugam and her two sons. It was also contended that the landed properties were purchased by the petitioner in the name of the respondent and the respondent did not prove that she has sreethana property given by her mother. It was contended that the sons of the petitioner got the petitioner's property and as such, only the sons of the petitioner have to maintain their mother. It was also contended that the trial Court ought to have considered that the petition for maintenance filed by the respondent against the petitioner in M.C.No.5 of 2002 was already dismissed and hence, the respondent has no right to file subsequent petition for the same cause of action. It was also contended that the Court below failed to note that the respondent clearly admitted in her deposition that the ancestral property of the petitioner is under her possession and enjoyment and further admitted that she was alone doing cultivation in the said land. Hence, it was prayed to set-aside the order passed by the trial Court.
12. The very competent counsel, Mr.S.Sounthar, for the respondent submits that the revision petitioner is having illicit relation with one Govindammal and hence, he deserted the respondent and her two children. The respondent has to maintain her children by providing food, accommodation, dress, medical expenses, transport, entertainment and educational expenses, out of the maintenance amount. The revision petitioner never cared about the welfare of the respondent and his two male children. As such, he has not been a dutiful husband and father of the children. Further, the revision petitioner is a senior driver and earning Rs.10,000/- per month. Besides this, he gets additional income by selling milk. Therefore, the maintenance amount is not on the higher side.
13. On considering the factual position of the case and arguments advanced by the learned counsels on either side and on perusing the impugned order of the trial Court, this Court does not find any discrepancy in the conclusions arrived at regarding the status of respondent as a legally wedded wife. It is also seen that the revision petitioner is a Senior driver with the State Transport Corporation and is also a permanent employee and getting a monthly salary. Further, the maintenance amount is not on the higher side, considering the cost of living index. It is seen that this Court had already directed the revision petitioner herein to deposit 50% of the arrears of maintenance and also directed him to pay 50% of the monthly maintenance amount, regularly on or before 5th of every English calendar month. Now, this Court directs the revision petitioner herein to pay the balance arrears amount, as per trial Court's order, within a period of three months from the date of receipt of this order. Thereafter, this Court directs the revision petitioner to pay the balance arrears of monthly maintenance within a period of three months. Subsequently, the revision petitioner shall pay a sum of Rs.1,000/- per month, as per trial Court's order, on or before 5th of very English calendar month directly to the respondent or by way of deposit before the trial Court. After such a deposit has been made, the respondent herein / wife is at liberty to withdraw the arrears of monthly maintenance lying in the credit of M.C.No.5 of 2003, on the file of the learned Judicial Magistrate-II, Thiruvannamalai, after filing a Memo.
14. In the result, the above revision is dismissed. Consequently, the order passed in M.C.No.5 of 2003, on the file of the learned Judicial Magistrate-II, Thiruvannamalai, dated 05.01.2010, is confirmed. Connected miscellaneous petition is closed.
13.07.2012
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Index : Yes.
Internet : Yes.
C.S.KARNAN, J
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To
The Judicial Magistrate-II,
Thiruvannamalai.
Crl.R.C.No.203 of 2010 &
M.P.No.1 of 2010
13.07.2012