Madras High Court
Dr.S.Narayanan vs Minor N.Muthulakshmi on 1 October, 2015
Author: S.Vimala
Bench: S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.10.2015
CORAM
THE HONOURABLE MRS.JUSTICE S.VIMALA
Crl.R.C.(MD)No.467 of 2015
and
M.P.(MD)No.1 of 2015
Dr.S.Narayanan ... Petitioner
-vs-
Minor N.Muthulakshmi
rep.by her natural guardian, mother
namely Tmt.Bhagavathi ... Respondent
Petition filed under Section 397 r/w 401 of the Criminal Procedure
Code, against the order passed by the learned Family Court, Tirunelveli in
M.C.No.7 of 2015 dated 01.09.2015.
!For petitioner : Mr.Veera Kathiravan
^For Respondent :
:O R D E R
The Constitution of India in Article 51A speaks about fundamental duties and it reads as under:
?51A. Fundamental duties It shall be the duty of every citizen of India
(a) to abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem;
(b) to (j) ... ... ...
(k)who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.?
2.Unmindful of Article 51A(k) of the fundamental duties, the revision petitioner has filed this revision petition.
3.The Family Court, Tirunelveli, by the order dated 01.09.2015 in M.C.No.7 of 2015 has ordered a sum of Rs.12,000/- in favour of his child, the respondent herein, as maintenance. This order is under challenge in this revision petition.
4.The learned counsel for the revision petitioner would submit that the quantum of maintenance as ordered by the Court below is exorbitant having regard to the requirement of the child and the financial status of the father.
5.In order to appreciate this contention, it is necessary to look into the details of the impugned order dated 01.09.2015.
6.A perusal of the order only would go to show that the embitterment between the husband and wife was immeasurable and on account of the same, the maintenance ordered to the child also has been brought under challenge, and not on account of the fact that the father is not able to provide maintenance to the daughter.
7.The first contention of the learned counsel for the revision petitioner is that the liability to maintain the child is also with the mother and the maintenance amount of Rs.12,000/- has to be shared equally between the father and mother of the child. Whether this contention based on equal responsibility deserves acceptance, is the main issue to be considered.
8.Yet another contention is that the application is belated and this claim is a ruse to cause harassment to the revision petitioner and therefore, the application for maintenance should have been dismissed as barred by limitation. The contention of the other side is the liability of the father to maintain the daughter, extends not only up to the attainment of majority and it is up to marriage and as the liability is a continuing liability, there is no question of limitation in respect of claim for maintenance till the marriage of the daughter. In order to appreciate the contentions raised, it is necessary to look into the provisions of Section 125 of Cr.PC providing for maintenance.
9.Section 125 of Cr.PC is about maintenance of wife, children and parents, and the provision reads as under:
?125. Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain-
(a)his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
1.Subs. by Act 45 of 1978, s. 12, for" Chief Judicial Magistrate" (w.
e. f, 18- 12- 1978 ).
(c)his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d)his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-
(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;?
10.The liability to maintain the son is only up to the attainment of majority. But the liability to maintain the daughter is up to marriage. The revision petitioner did not even have a mind to maintain his daughter, though not he has the mind to maintain the wife either. This is the observation of the Family Court with reference to the doctor/father.
11.This is a case where the father, who is a specialist, a reputed doctor visiting various hospitals using varieties of car with vast extent of properties at his disposal, has come forward to say that, may be it is possible, to pay a sum of Rs.2,000/- per month to his daughter.
12.This is a case where the father has chosen to obtain the income certificate of the mother from the Village Administrative Officer stating that his wife as a doctor, will examine approximately 10 to 50 patients per day and for each patient, the consultation fee is Rs.50/-. The Village Administrative Officer has also issued the certificate as if he had worked as the accountant of that hospital. Even though the husband has filed the income certificate of the wife, but he has not produced any certificate showing his income.
13.The marriage between the parties had taken place on 29.04.1998. The petitioner/minor daughter for whom maintenance is claimed, is born on 04.02.1999. In H.M.O.P.No.54 of 2013, filed by the husband, at the time of completion of enquiry, I.e., on the case when the case was posted for judgment, I.A.No.33 of 2014 has been filed seeking interim maintenance for the wife and child. That was dismissed on 17.07.2014.
14.This dismissal order was challenged by the wife in C.R.P.(PD)(MD)No.556 of 2015 before this Court and this Court has held that just because the Judge has posted the matter for judgment, the petition for maintenance would not become, not maintainable and this Court is concerned with the legality and the correctness of the order passed by the trial Court. The dismissal order was set aside.
15.Thereafter, this application under Section 125 Cr.P.C. has been filed. The husband has raised a contention contending that the application for maintenance filed after twelve years is an attempt to harass the husband. On this contention, the Court held that when the liability to maintain the daughter would be until marriage, the claim made when she is studying +1 will not be barred by limitation.
16.This is a case where the father was not willing to submit his income tax returns; this is a case where the father has stated that his income tax details would be available only with auditor and not with him; this is a case where the father admitted his share in the property after the death of his mother, but still refused to produce documents relating to payment of house tax and other details.
17.This is a case where the Court has to adopt all strategies to excavate and explore to bring out the suppressed truth and to make the truth surface. The sensitivity with which this case has been handled by the Family Court Judge deserves appreciation. The Court has chosen to exercise the power under Section 165 of the Indian Evidence Act and has found out the real face of the father. The doctor has chosen to say that excepting stethoscope, he has nothing in his hospital and when the Court has asked the doctor, whether a Commissioner can be appointed to find out the availability of articles, then the doctor has admitted that he has costly equipments in the hospital.
18.He had been a visiting doctor to various hospitals in Tirunelveli District and Thoothukudi District. Pointing out this, the Court below has not only calculated the probable income of the doctor, but also the skill and reputation of the doctor and ultimately wondered whether all these evidence is for the purpose of not paying maintenance to his own daughter.
19.The cost of living and the cost of education coupled with other requirements of the growing child cannot be said that it would be only Rs.12,000/- per month. Even a single dress for a girl child nowadays costs Rs.12,000/-.
20.It is not in dispute that mother is in physical custody of the child. Nurturing and mentoring is her responsibility. Raising the daughter as a professional and then making her fit to be a daughter-in-law in some other family are all undoubtedly in the hands of the mother. In case of ill health, untoward incident or any mishap, it is for the mother to attend. Forgetting everything, the husband has made a claim that mother also should pay a sum of Rs.6,000/- towards the maintenance of the daughter so that his liability to pay is reduced to Rs.6,000/-.
21.The next contention is that even though originally the financial position of the father was very good, later on, on account of the dispute between the parties, it is being reduced and as on date, he is not having the financial ability to pay maintenance at Rs.12,000/- per month. Admittedly, the father is a Doctor having specialised in Urology. He is also running a clinic at his own disposal. Apart from that, the details of the means possessed by the father has been discussed at length in the order of the Lower Court. Therefore, it is needless to state that he is having sufficient means to pay a sum of Rs.12,000/- as maintenance to the child.
22.The next contention is that out of uncontrollable anger towards his wife, the petitioner has stated certain things during the course of evidence and therefore a direction can be given to the Family Court to the effect that the evidence shall not cause prejudice in the mind of the Family Court while deciding the issue on merits. This contention can be accepted only to the extent permissible. The statement of the father in evidence is admissible subject to the provisions of the Indian Evidence Act. Any order passed directing the Family Court to ignore the evidence would be illegal. The only thing that could be said is that while analysing the evidence, as is done in every case, the circumstances under which the evidence is given, should be carefully scanned by the Court below, before acceptance.
23.With the above observation, the Criminal Revision Case is dismissed. Consequently, the connected miscellaneous petition is closed.
To:
The Judge, Family Court, Tirunelveli. .