Madras High Court
Mr.G.S.Sreenath vs Mrs.Chaithra R.Jadhav on 17 July, 2023
Author: V.Sivagnanam
Bench: V.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 17.07.2023
Coram:
The Hon'ble Mr.Justice V.SIVAGNANAM
Crl.O.P.No.7651 of 2021
and Crl.M.P.Nos.5072 & 5073 of 2021
Mr.G.S.Sreenath
...Petitioner
Versus
Mrs.Chaithra R.Jadhav
...Respondent
This Criminal Original Petition is filed under Section 482 of Cr.P.C
praying to call for the records and quash the proceedings in M.C.No.7 of
2021 pending on the file of the Family Court, Cuddalore.
For Petitioner : Mr.Gururaj
for Mr.D.Baskar
For Respondent : Mr.M.Sanathkumar
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ORDER
This Criminal Original Petition has been filed by the petitioner
seeking to quash the proceedings in M.C.No.7 of 2021 pending on the file
of Family Court, Cuddalore.
2. The brief facts of the case are as follows:
The petitioner and respondent are husband and wife. They got
married on 14.12.2005 as per the Hindu rites and customs. They have two
children viz., Varchas (son) and Samhita (daughter). Due to
misunderstanding arose between the parties, they were separated and the
respondent/wife filed a petition in O.P.No.294 of 2020 before the Family
Court, Cuddalore seeking divorce. While the said O.P is pending, the
respondent/wife filed a petition in M.C.No.7 of 2021 under Section 125 of
Cr.P.C seeking to direct the petitioner/husband to provide a sum of
Rs.1,25,000/- every month towards welfare and maintenance viz., shelter
and food to her as well as her children. The said M.C.No.7 of 2021 is also
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pending before the Family Court, Cuddalore. Now, the petitioner/husband
has filed the present original petition for the relief stated supra.
3. The learned counsel for the petitioner/husband submitted that
since the petitioner/husband is working as a Senior Surgeon at JIPMER
Hospital, Pudhucherry, he is unable to attend the court proceedings
regularly. However, the petitioner/husband is ready to proceed with the
case in O.P.No.294 of 2020 as well as M.C.No.7 of 2021 pending before the
Family Court, Cuddalore. He further submitted that the respondent/wife is
entitled for permanent alimony under Section 25 of the Hindu Marriage Act,
1955 (hereinafter referred to as 'HM Act'), but, she cannot claim permanent
alimony from the petitioner/husband under Section 125 of Cr.P.C.
Therefore, the learned counsel prayed this Court to quash the proceedings
initiated by the respondent/wife in M.C.No.7 of 2021 before the Family
Court, Cuddalore. In support of his submissions, he has relied on the
judgments viz., Rakesh Malhotra Vs. Krishna Malhotra reported in 2020
14 SCC 150 and Gomathi & Anr. Vs. Sacraties reported in 2020 5
L.W.196.
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4. Per Contra, the learned counsel appearing for the respondent/wife
submitted that the respondent/wife is entitled to file a petition under Section
125 of Cr.P.C for maintenance. The respondent/wife has a statutory right to
claim maintenance from the petitioner/husband. Hence, the learned counsel
prayed for dismissal of this criminal original petition.
5. Heard the learned counsel on either side and perused the materials
available on record.
6. On perusal of the records, the fact reveals that the respondent/wife
moved a petition in O.P.No.294 of 2020 before the Family Court, Cuddalore
seeking divorce from the petitioner/husband. During the pendency of
O.P.No.294 of 2020, she had filed a petition in M.C.No.7 of 2021 under
Section 125 of Cr.P.C seeking to direct the petitioner/husband to provide a
sum of Rs.1,25,000/- towards the monthly maintenance and welfare of
herself and her children.
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7. Section 7(2)(a) of the Family Courts Act, 1984 enables a Family
Court to exercise its jurisdiction relating to order for maintenance of wife,
children and parents. Therefore, the petition filed by the respondent/wife in
M.C.No.7 of 2021 under Section 125 of Cr.P.C before the Family Court,
Cuddalore seeking maintenance for herself and her children is legally
maintainable.
8. At this juncture, it is pertinent to discuss about the judgments
relied by the learned counsel for the petitioner/husband. In the case of
Rakesh Malhotra Vs. Krishna Malhotra reported in 2020 14 SCC 150,
after obtaining the permanent alimony under Section 25 of the Act, the wife
filed an application under Section 125 of Cr.P.C for maintenance. Hence,
the Hon'ble Supreme Court has held that the Maintenance Application
preferred under Section 125 of Cr.P.C shall be treated and considered as
application preferred under Section 25(2) of the HM Act. Similarly, in the
case of Gomathi & Anr. Vs. Sacraties reported in 2020 5 L.W.196, the wife
filed an application under Section 12 of the Domestic Violence Act, 2005
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(for brevity, 'DV Act') seeking reliefs including maintenance under Sections
18, 19 & 20 of the DV Act for herself and her two minor sons. The said
application was allowed and interim maintenance was also granted to the
wife and her two minor sons. Thereafter, the wife filed a petition before the
Family Court by invoking the provision under Section 26(1) of the DV Act
seeking interim maintenance, however, the same was dismissed by the
Family Court. Hence, the wife preferred a Civil Miscellaneous Appeal
before this Court, but, this Court has dismissed the appeal by holding that
the learned Family Court Judge has rightly dismissed the petition filed
under Section 26(1) of the DV Act. So, the judgments relied by the learned
counsel for petitioner are factually not supportive to the case of
petitioner/husband.
9. Considering the facts and circumstances of the case and also,
having regard to the submissions made by the learned counsel on either
side, this Court is of the opinion that the petition filed by the
respondent/wife in M.C.No.7 of 2021 before the Family Court, Cuddalore
seeking maintenance for herself and her children is maintainable in law.
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10. In the result, this criminal original petition is dismissed and the
learned Family Court Judge, Cuddalore is directed to dispose O.P.No.294 of
2020 and M.C.No.7 of 2021 simultaneously, within a period of three
months from the date of receipt of a copy of this order. It is also made clear
that while deciding O.P.No.294 of 2020 & M.C.No.7 of 2021, the learned
Family Court Judge, Cuddalore may grant maintenance to the
respondent/wife and her children, either under Section 25 of the HM Act or
under Section 125 of Cr.P.C. Consequently, connected miscellaneous
petitions are closed.
17.07.2023
mrr
To
The Public Prosecutor,
High Court, Madras.
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V.SIVAGNANAM, J.
mrr Crl.O.P.No.7651 of 2021 17.07.2023 8/8 https://www.mhc.tn.gov.in/judis