Madras High Court
Shyamala vs Boopathi on 21 December, 2024
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl. R.C. No. 1141 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 21.12.2024
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Revision Case No. 1141 of 2017
and
Crl.M.P.Nos.10837 and 10839 of 2017
--
1. Shyamala
2. Minor Karunya
3. Minor Mohanavel .. Petitioners
Versus
Boopathi .. Respondent
Criminal Revision Case is filed under Section 397 r/w. 401 of the
Criminal Procedure Code, 1973, seeking to call for the records relating to the
judgment passed by the Second Additional Sessions Judge, Erode in Criminal
Revision Petition No.15 of 2017, dated 16.06.2017 and set aside the same and
restore the order passed by the learned District Munsif-cum-Judicial
Magistrate, Kodumudi in M.C.No.15 of 2012, dated 08.12.2016.
For Petitioners : Mr. P. Kannan Kumar
For Respondent : Mr. A. Thiyagarajan
ORDER
This Criminal Revision Case is filed to set aside the judgment passed by the learned II Additional Sessions Judge, Erode in Criminal Revision Petition No.15 of 2017, dated 16.06.2017 and to restore the order passed by the learned District Munsif-cum-Judicial Magistrate, Kodumudi in M.C.No.15 of 2012, dated 08.12.2016.
https://www.mhc.tn.gov.in/judis 1/15 Crl. R.C. No. 1141 of 2017
2. The dispute involved in this Criminal Revision Case lies in a narrow compass. In M.C. No. 15 of 2012 filed by the Revision Petitioners herein, they prayed to direct the Respondent herein to pay a sum of Rs.30,000/- towards maintenance. The learned District Munsif cum Judicial Magistrate, Kodumudi, by the order dated 08.12.2016 directed the Respondent herein to pay a sum of Rs.15,000/- to the Revision Petitioners towards maintenance from the date of filing the M.C. No. 15 of 2012. Aggrieved by the fixation of quantum of compensation, the Respondent herein has filed Criminal Revision Petition No. 15 of 2017. The learned Second Additional Sessions Judge, Erode, by the order dated 16.06.2017 modified and reduced the quantum of maintenance payable by the Respondent herein from Rs.15,000/- per month to Rs.9,000/- per month from 08.12.2016 instead of the date of filing the M.C. No. 15 of 2012. Aggrieved by the order dated 16.06.2017, the present Criminal Revision Case is filed by the Revision Petitioners.
3. The first revision Petitioner is the wife of the Respondent. The second and third Revision Petitioners are the children born to the first Petitioner and the Respondent. The marriage between the first Petitioner and the Respondent was solemnised on 16.06.1999 at Kodumudi Arulmigu Magudeswarar Temple as per Hindu rites and customs. The marriage was an https://www.mhc.tn.gov.in/judis 2/15 Crl. R.C. No. 1141 of 2017 arranged marriage having been solemnised by the elders of both sides. Out of the wedlock between the first Petitioner and the Respondent, as mentioned above, the Petitioners 2 and 3 were born. Due to matrimonial discord, the first Petitioner, along with the Petitioners 2 and 3, left the matrimonial home on 18.10.2011. Thereafter, the Respondent-husband filed HMOP No. 11 of 2012 before the learned Subordinate Judge, Erode for dissolution of marriage. During the pendency of HMOP No. 11 of 2012, at the behest of the elders of both family, the Respondent withdrew HMOP No. 11 of 2012. After withdrawal of HMOP No. 11 of 2012, the Petitioners and the Respondent resided together for few days and thereafter, the Petitioners once again left the matrimonial company of the Respondent. Therefore, the Respondent filed HMOP No. 379 of 2014 before the Family Court, Erode under Section 9 of The Hindu Marriage Act for restitution of conjugal rights. During the pendency of the said Petition, the first Petitioner herein has filed HMOP No. 398 of 2014 before the very same Family Court, Erode for divorce. By order dated 05.08.2016, the Family Court dissolved the marriage solemnised between the first Petitioner and the Respondent. By reason of the dissolution of the marriage in HMOP No. 398 of 2014 dated 05.08.2016, by a separate order dated 05.08.2016, the Family Court, Erode, dismissed the Original Petition filed by the Respondent for restitution of conjugal rights. https://www.mhc.tn.gov.in/judis 3/15 Crl. R.C. No. 1141 of 2017
4. As far as the present Maintenance Case in M.C. No. 15 of 2012 filed before the learned District Munsif-cum-Judicial Magistrate, Kodumudi, it was filed by the Petitioners seeking maintenance from the Respondent. As per the maintenance petition, it was stated that the Husband/Respondent is drawing salary of Rs.30,000/- (Rupees Thirty Thousand only) per month as Pharmacist in the Institute of Road Transport Medical College, Perundurai. It was also stated that the Respondent is in possession of several movable and immovable properties of his own. Therefore, the Petitioners would contend that the Respondent is resourceful enough to pay maintenance to them. It is also stated that the first Petitioner is not employed and she is depending upon her parents for every trivial expenses to be incurred by her. Accordingly, the Revision Petitioners prayed to direct the Respondent to pay Rs.30,000/- per month as maintenance to the Petitioners.
5. On notice, the Respondent filed counter before the learned District Munsif-cum-Judicial Magistrate, Kodumudi and disputed the claim of maintenance of Rs.30,000/- per month stating that his wife/first Petitioner is employed in a private School and earning Rs.10,000/- per month. Taking note of the rival contentions, the learned District Munsif-cum-Judicial Magistrate, Kodumudi in M.C.No.15 of 2012 directed the Respondent to pay maintenance of Rs.5,000/- to the wife/first Petitioner and Rs.5,000/- each to the minor https://www.mhc.tn.gov.in/judis 4/15 Crl. R.C. No. 1141 of 2017 children/Petitioners 2 and 3 totalling Rs.15,000/- as maintenance per month. Aggrieved by the same, the Respondent preferred Criminal Revision Petition No. 15 of 2017 before the learned II Additional Sessions Judge, Erode. The learned II Additional Sessions Judge, Erode, after hearing the arguments of the Counsel for both sides, modified the maintenance amount by reducing it from Rs.15,000/- to Rs.9,000/-. The Appellate Court also modified the order of the learned District Munsif-cum-Judicial Magistrate by directing the Respondent to pay maintenance from the date of the order passed in M.C. No. 15 of 2012 and not from the date of filing M.C. No. 15 of 2012. Aggrieved by the same, the present Criminal Revision Case is filed.
6. When the present Criminal Revision Case was taken up for hearing, this Court, taking note of the fact that the second Petitioner/daughter has attained marriageable age, passed the order dated 06.04.2023 directing the Respondent to deposit a sum of Rs.2,50,000/- before the learned District Munsif cum Judicial Magistrate, Kodumudi in MC No. 15 of 2012 on or before 07.05.2023. Subsequently, when the present Criminal Revision Case was taken up for hearing on 20.06.2023, it was informed by the counsel for the Respondent that the sum of Rs.2,50,000/- has been deposited as directed by this Court and produced a receipt evidencing the same and it was also recorded by this Court in the order dated 20.06.2023.
https://www.mhc.tn.gov.in/judis 5/15 Crl. R.C. No. 1141 of 2017
7. The learned counsel for the Revision Petitioners submitted that the Respondent has the wherewithal and is resourceful enough to pay the maintenance amount, as has been directed by the learned District Munsif-cum- Judicial Magistrate, Kodumudi. It is stated that the Respondent is presently drawing a salary of Rs.97,288/- per month as Pharmacist in Government Medical College, Perundurai. The learned counsel for the Revision Petitioners also submitted that the Respondent, during the pendency of the present proceedings, inherited family properties including agricultural lands situated within Kodumudi Town. Furthermore, the Respondent, after dissolution of the marriage solemnised with the first Petitioner, married one Sumathi who is a holder of Diploma in Nursing and she is also employed. The learned counsel for the Petitioners also submitted that the second Petitioner-daughter is pursuing B.E., at Kongu Engineering College, Erode by availing educational loan. The third Petitioner/son is studying XII at Cheran Matriculation Higher Secondary School, Karur. According to the learned counsel for the Petitioners, the educational expenses required to be incurred for the children is excessive and the first Petitioner finds it very difficult to meet it. The first Petitioner is only depending on the pension received by her father. Therefore, the learned counsel earnestly prayed this Court to restore the order dated 08.12.2016 passed by the learned District Munsif cum Judicial Magistrate, Kodumudi in https://www.mhc.tn.gov.in/judis 6/15 Crl. R.C. No. 1141 of 2017 M.C. No. 15 of 2012, directing the Respondent to pay Rs.5,000/- per month to the Petitioners, totalling Rs.15,000/- per month. According to the learned counsel for the Petitioners, even the sum of Rs.15,000/- may not be sufficient for the Petitioners to lead a decent life considering the present day cost of living. Further, the second Petitioner is aged 21 years and she has to be given in marriage. For performing her marriage, the first Petitioner is not having any savings amount. The first Petitioner was heavily indebted by borrowing amount from her friends and family members to meet the day to day family expenditure. Therefore, the learned counsel for the Petitioners, prayed for restoring the order dated 08.12.2016 passed in M.C. No. 15 of 2012.
8. With respect to the directions issued by the first Appellate Court, directing the Respondent to pay the modified maintenance amount of Rs.9,000/- from the date on which the order dated 08.12.2016 was passed in M.C. No. 15 of 2012, the learned counsel for the Revision Petitioners submitted that such a direction is erroneous and legally not sustainable. The direction to pay maintenance must be from the date on which M.C. No. 15 of 2012 was filed and not from 08.12.2016, when maintenance petition in M.C. No. 15 of 2012 was ordered. In this regard, the learned counsel for the Petitioners placed reliance on the decision of the Hon'ble Supreme Court in (2021) SCC 324 [Rajnesh vs. Neha and another] in which guidelines have https://www.mhc.tn.gov.in/judis 7/15 Crl. R.C. No. 1141 of 2017 been issued to the trial Courts for issuing appropriate direction to pay maintenance from the date of the filing of the application for maintenance. Further, in the decision of this Court in 2021 SCC OnLine Mad 6299 [Vimal vs. S.Venkatesan] it was held as follows:
“8 (v). Accordingly, the order of the Trial Court in M.C.No.38 of 2006 is modified to the effect that the wife is entitled for a maintenance of Rs.2,000/- per month, from the date of petition, till September, 2013 and from the month of October, 20133, it shall be a sum of Rs.3,000/-;”
9. Per contra, the learned Counsel for the Respondent/Husband submitted that the first Petitioner said to have obtained information regarding the salary particulars of the Respondent/Husband under Right to Information Act however, no document was marked to substantiate the same. It is further submitted that the Respondent is not earning Rs.97,288/- per month as alleged by the Petitioners. It is his further submission that this Court in exercise of revisional jurisdiction cannot re-appreciate the evidence. It is also his submission that the learned District Munsif-cum-Judicial Magistrate, Kodumudi had not assigned any reason for granting maintenance from the date of petition and therefore, the learned II Additional Sessions Judge, Erode, rightly modified the quantum of compensation. It was observed in paragraphs 14 and 15 by the Appellate Court as follows:
“14. On perusal of the case records, it can be seen that the wife did https://www.mhc.tn.gov.in/judis not appear before the trial Court for most of the hearings and the 8/15 Crl. R.C. No. 1141 of 2017 enquiry before the trial Court was delayed due to the act of the wife also. Both the husband and wife are responsible for delay in disposal of this petition, grant of maintenance from the date of order and not from the date of the application is proper in the judgment laid down in Bhubendar Singh Valuya vs. Varindar Kaur [1993 Criminal Law Journal 1128 (P&H)].
15. In this case from the perusal of the case records it can be seen that both the husband and wife were not regular in appearing before the trial Court. The maintenance case was filed in the year 2012., It came to be concluded only in the year 2016. As the wife is also responsible for the delay, the order of payment of maintenance from the date of application does not appear to be proper in the light of the above said reported judgment. As such this Court considers that the order of the learned Magistrate deserves to be modified accordingly.”
10. Therefore, the order granting maintenance from the date of application cannot be proper and it is proper to direct the Respondent to pay the maintenance from the date of the order. It is the further submission of the learned Counsel for the Respondent that the wife filed a maintenance case in the year 2012 and it was disposed of by the learned District Munsif-cum- Judicial Magistrate, Kodumudi, in the year 2016. Therefore, the order of modification passed by the learned II Additional Sessions Judge, Erode from the date of order is justified and it does not warrant any interference. Also, it is the submission of the learned Counsel for the Respondent that the wife in her application stated the she completed B.Ed., and was employed in a private School. Therefore, it cannot be said that the first Petitioner is not resourceful enough to maintain herself and the Petitioners 2 and 3. On the other hand, the Respondent has to take care of her aged mother at her advanced age. After the https://www.mhc.tn.gov.in/judis 9/15 Crl. R.C. No. 1141 of 2017 marriage with the first Petitioner was dissolved, he has contracted second marriage and he has to support his family. Therefore, it is submitted that the order passed by the learned II Additional Sessions Judge, Erode, is a well reasoned order it does not warrant any interference by this Court.
11. The learned counsel for the Respondent also submitted that as per the order passed by this Court dated 06.04.2023, the Respondent deposited Rs.2,50,000/- to the credit of M.C. No. 15 of 2012. The sum of Rs.2,50,000/- was deposited by the Respondent by borrowing money as this Court directed the amount to be deposited on or before 05.05.2023. It is also submitted that the third Petitioner attained majority and he is not eligible for payment of maintenance. Thus, it is submitted that this Criminal Revision Case lacks merits and it has to be dismissed.
Point for consideration:
Whether the order passed by the learned II Additional District and Session Judge, Erode, in Crl.R.C.No.15 of 2017, dated 16.06.2017 is to be set aside as perverse?
12. Heard the learned Counsel for the Petitioners, the learned Counsel for the Respondent and perused the documents and also the order passed by the https://www.mhc.tn.gov.in/judis 10/15 Crl. R.C. No. 1141 of 2017 learned II Additional District and Session Judge, Erode, in Crl.R.C.No.15 of 2017, dated 16.06.2017 and the order dated 08.12.2016 passed in M.C. No. 15 of 2012.
13. On perusal of the documents, particularly M.C. No. 15 of 2012 that the Respondent/ Husband was earning Rs.30,000/- per month and in the course of the enquiry/trial, it was found that he was earning Rs.47,000/- per month. Therefore, the learned District Munsif-cum-Judicial Magistrate, Kodumudi, arrived at a conclusion that the claim of Rs.10,000/- each cannot be sustained and granted Rs.5,000/- each to the Petitioners out of the claimed amount of Rs.30,000/-. In the revision, the learned II Additional Sessions Judge, Erode considered the documents furnished by the Respondent/Wife stating that the husband was earning Rs.47,000/- per month and the carry home salary was Rs.18,000/- per month after deduction. The Appellate Court, instead of confirming the order granting maintenance amount of Rs.15,000/- per month, taking note of the enhanced salary of the Respondent, modified the amount of Rs.15,000/- per month to Rs.9,000/- per month.
14. When this Revision Petition came up for hearing, the learned Judge of this Court, by order dated 06.04.2023, directed the Respondent/Husband to deposit Rs.2.5 Lakhs purportedly to meet the marriage https://www.mhc.tn.gov.in/judis 11/15 Crl. R.C. No. 1141 of 2017 expenses of his daughter. The amount was also deposited by the Respondent.
15. It is to be noted that the son attained age of majority and the daughter availed educational loan of Rs.4,00,000/- for her B.E. Course. In such circumstances, the demand of the first Petitioner that the educational expenses are sky-rocketing and the order of maintenance at Rs.5,000/- each has to be restored, is wholly justifiable.
16. From the material documents perused, it could be seen that the case was repeatedly adjourned for arriving at an amicable settlement but it is stated that the Respondent thwarted all the attempts for resolution of the dispute. Considering the fact that the Respondent is in Government service and the wife is employed in a private School, this Court feels that the award of Rs.15,000/- per month towards maintenance passed by the learned District Munsif-cum-Judicial Magistrate, Kodumudi, is wholly justified. It is also to be stated that the obligation of the Respondent to pay maintenance to the Petitioners is not only legal but also moral. In such view of the matter, the order dated 16.06.2017 passed by the Appellate Court in Criminal Revision Petition No. 15 of 2017 is set aside. As the entire order dated 16.06.2017 passed in Criminal Revision Petition No. 15 of 2017 is set aside, this Court is not dealing with the submissions that the Appellate Court ought to have https://www.mhc.tn.gov.in/judis 12/15 Crl. R.C. No. 1141 of 2017 directed payment of the maintenance amount from the date of filing M.C. No. 15 of 2012 and not from 08.12.2016. It is needless to mention that the order dated 08.12.2016 passed in M.C. No. 15 of 2012 is restored and the Respondent has to pay the sum of Rs.15,000/- per month from the date of filing M.C. No. 15 of 2012.
In the result, this Criminal Revision Case is allowed. The order passed by the learned II Additional Sessions Judge, Erode, in Crl.R.C.No.15 of 2017, dated 16.06.2017 is set aside and the order passed by the learned District Munsif-cum-Judicial Magistrate, Kodumudi in M.C.No.15 of 2012, dated 08.12.2016 is restored. The Respondent is directed to pay the arrears as per the order passed by the learned District Munsif-cum-Judicial Magistrate, Kodumudi. The third Petitioner-son, who had attained the age of majority now, is entitled to the maintenance from the date of filing of the petition till he attained the age of majority. The Respondent shall accordingly calculate and pay the arrears of maintenance payable to the third Petitioner-son. Consequently, the connected miscellaneous petitions are closed.
21.12.2024 srm Internet:Yes/No Index:Yes/No Speaking/Non-speaking order https://www.mhc.tn.gov.in/judis 13/15 Crl. R.C. No. 1141 of 2017 To
1.The II Additional Sessions Judge, Erode.
2.The District Munsif-cum-Judicial Magistrate, Kodumudi.
https://www.mhc.tn.gov.in/judis 14/15 Crl. R.C. No. 1141 of 2017 SATHI KUMAR SUKUMARA KURUP. J srm Order made in Criminal Revision Case No. 1141 of 2017 21.12.2024 https://www.mhc.tn.gov.in/judis 15/15