Madras High Court
M.Jayanthi vs P.Mohan Raj on 12 July, 2022
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.R.C.Nos.1186 & 1031 of 2019
and Crl.M.P.No.14241 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.07.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.Nos.1186 & 1031 of 2019
and
Crl.M.P.No.14241 of 2019
M.Jayanthi .. Petitioner in
Crl.R.C.No.1186 of 2019
P.Mohan Raj .. Petitioner in
Crl.R.C.No.1031 of 2019
Vs
P.Mohan Raj .. Respondent in
Crl.R.C.No.1186 of 2019
M.Jayanthi .. Respondent in
Crl.R.C.No.1031 of 2019
Prayer in Crl.R.C.No.1186 of 2019: Criminal Revision Case filed under
Section 397 read with 401 Cr.P.C, to call for records and enhance the
maintenance awarded in the fair and decretal order passed in M.P.532/2012
in MC 171/2012 dated 19.08.2019 pending on the file of the learned I
Additional Family Court, Chennai;
https://www.mhc.tn.gov.in/judis
1/10
Crl.R.C.Nos.1186 & 1031 of 2019
and Crl.M.P.No.14241 of 2019
Prayer in Crl.R.C.No.1186 of 2019: Criminal Revision Case filed under
Section 397 read with 401 Cr.P.C, to set aside the order in M.P.No.532 of
2012 in M.C.No.171 of 2012 dated 19.08.2019 passed by learned I
Additional Family Court, Chennai.
For Petitioner : Ms.V.Chethana
in Crl.R.C.No.1186 of 2019
Mr.J.Pothiraj
in Crl.R.C.No.1031 of 2019
For Respondent : Mr.J.Pothiraj
in Crl.R.C.No.1186 of 2019
Ms.V.Chethana
in Crl.R.C.No.1031 of 2019
COMMON ORDER
This revision is filed against the order of the learned I Additional Family Court, Chennai dated 19.08.2019 in MP.No.532 of 2012 in MC.No.171 of 2012, in and by which the learned Family Court had allowed the prayer of the respondent / wife with interim maintenance and fixing the quantum of interim maintenance as Rs.50,000/- per month from the date of https://www.mhc.tn.gov.in/judis 2/10 Crl.R.C.Nos.1186 & 1031 of 2019 and Crl.M.P.No.14241 of 2019 petition, that is, from 01.07.2012 till 31.12.2018 and thereafter, as Rs.1,00,000/- from 01.01.2019 until further orders.
2. Learned counsel for the petitioner submitted that firstly, there was no justification in awarding an interim maintenance because of two reasons, firstly, the respondent wife is living separately on account of her living in adultery with her paramour and therefore, she is not entitled to maintenance as per Section 125 of the Code of Criminal Procedure. Secondly, learned counsel would submit that she was earning by having a construction business. Therefore, she is in a position to maintain herself and therefore, there was no necessity to order maintenance. Learned counsel would further submit that even though they were separated long time back, that is before the year 2000 itself, the maintenance was filed only in the year 2012 and that again would demonstrate that the respondent / wife was able to sustain herself and therefore, the learned Family court ought to have taken into account of the same and ought to have denied the interim maintenance.
3. Alternatively, making his submission on quantum of maintenance, learned counsel would submit that in this case, the respondent / wife is https://www.mhc.tn.gov.in/judis 3/10 Crl.R.C.Nos.1186 & 1031 of 2019 and Crl.M.P.No.14241 of 2019 residing in a flat, belonging to the petitioner. Therefore, only the other living expenses alone can be paid to her by way of interim maintenance. In that view of the matter, the award of sum of Rs.50,000/- and thereafter Rs.1,00,000/- is on extremely higher side. Further, the learned Family Court did not take into account the actual income of the petitioner but, however, got carried away by the photographs and averments relating to the BMW car etc, and therefore awarded the said sum. Learned counsel would finally submit that currently, the position of the petitioner had become more vulnerable since, business itself had ran into loss and the proceedings under the Insolvency and Bankruptcy Code has been initiated and a resolution professional has taken over the company. The petitioner has got absolutely no source of income whatsoever to pay the maintenance.
4. Per contra, Ms.V.Chethana, learned counsel appearing on behalf of the respondent would submit that this is a case where the petitioner owns a multi-crore turnover business and leads a kind of lifestyle which is aristocratic in nature. The respondent, being the wife of the petitioner, is entitled to the same quality of life, however, considering the background of the parties, only an amount of Rs.50,000/- and Rs.1,00,000/- is awarded. https://www.mhc.tn.gov.in/judis 4/10 Crl.R.C.Nos.1186 & 1031 of 2019 and Crl.M.P.No.14241 of 2019 The same itself is on the lower side. The respondent has also filed a petition to enhance the same. She had, as a matter of fact, claimed Rs.30,00,000/- per month. As a matter of fact, the petitioner's income runs to several crores per year and therefore, following the ratio of the Hon'ble Supreme Court of India being 25% of the income as per Reethadevi Chaudary1, more amount ought to have been awarded by the Family Court. She would take this Court through the various annexures filed along with the typed-set of papers to prove her contention that the petitioner's company is doing well and also the petitioner is living a quality of life which is very rich in nature. She would also submit that the allegation of adultery on the face of it is, false and it is only the petitioner who is married for the second time and a complaint regarding the same is also pending before the Court.
5. I have considered the rival submissions made on behalf of either side and perused the material records of this case.
6. Finding that in this case, the petitioner had not filed any proof for his own income before the Trial Court, this Court requested learned counsel for the petitioner to submit an income tax returns of the petitioner before 1 2017 14 https://www.mhc.tn.gov.in/judis SCC 200 5/10 Crl.R.C.Nos.1186 & 1031 of 2019 and Crl.M.P.No.14241 of 2019 this Court. In response thereof, learned counsel for the petitioner had also submitted an income tax returns for three years from 2019-2020 to 2021- 2022.
7. Be that as it may, first considering the objection of the learned counsel regarding the entitlement of the award, firstly, the contention that the respondent / wife is living in adultery, has to be proved by the petitioner in the manner known to law, after adducing due evidence in the main MC. For the purpose of prima facie case of grant of interim maintenance, the Trial Court has given the reasons that, mere pictures produced by him, does not conclusively prove the adultery and therefore, such finding cannot be faulted with at this stage of grant of interim maintenance. The second contention regarding the income of the wife also can to be taken into account while disposing the main MC case, as the parties are now required to file the affidavit of assets and liabilities as per the judgment of the Hon'ble Supreme Court in Rajnesh vs Neha2 and therefore, the same can also be taken care of only at the time of Trial and disposal of the main MC case, as the pleading of one respondent / wife, that she had closed down the business, has been considered by the Trial Court. 2 2021 2 https://www.mhc.tn.gov.in/judis SCC 368 6/10 Crl.R.C.Nos.1186 & 1031 of 2019 and Crl.M.P.No.14241 of 2019
8. Now, coming back to the quantum, even though the petitioner will be running a multi-crore business, the company and the petitioner are different persons and the income of the petitioner as an individual alone, has to be taken into account as far as the grant of maintenance is concerned. In this case, the petitioner now for the first time producing the income tax returns which were not there before the Trial Court. In any event, it can be seen that on an average, the petitioner is earning a sum of Rs.85 lakhs and above per year. Even discounting 50% of the sum in whatever manner, which is for the sake of prima facie case for the grant of interim maintenance, it can be easily said that the petitioner would be earning a sum of Rs.40 lakhs per year. Therefore, considering the same and considering the status of parties, I am of the view that the order of the Trial Court fixing the maintenance of Rs.50,000/- per month untill the year 2018 cannot be faulted with. The fixation of interim maintenance is more on the needs of the respondent / wife than in the other material concerns. Considering the fact that the respondent wife is residing in the flat owned by the petitioner, considering the status of the parties, no fault can be found of the finding of the learned Family Court that she will need monthly expense of Rs.50,000/- https://www.mhc.tn.gov.in/judis 7/10 Crl.R.C.Nos.1186 & 1031 of 2019 and Crl.M.P.No.14241 of 2019 per month which shall be the barest minimum to sustain herself from the date of the petition, that is, from 01.07.2012 untill 31.12.2018. As far as the enhancement from the month of January 2019 is concerned, I am of the view that instead of enhancing straight away from Rs.50,000/- to Rs.1,00,000/- untill further orders, the interest of justice would be met if the said quantum of Rs.1,00,000/- is reduced to Rs.80,000/- per month.
9. But, it can be seen that the petitioner is praying that now his business has come to stand still and he is not in a position to pay prolonged interim maintenance. In that view of the matter, as rightly pointed out by the learned Family Court, the time expected of the Trial Court to dispose off a maintenance case is only sixty days. But, however in this case, the main MC is pending from the year 2012. It is given to the understanding that the MC is also clubbed with other OPs, pending between the parties and therefore, it is taking a little time. Considering the same, both parties are requested to file their respective affidavit of assests / income as mandated by the Hon'ble Supreme Court of India in Rajnesh vs Neha2 within a period of twenty days from the date of receipt of copy of this order.
2 2021 2 https://www.mhc.tn.gov.in/judis SCC 368 8/10 Crl.R.C.Nos.1186 & 1031 of 2019 and Crl.M.P.No.14241 of 2019
10. Learned Trial Court shall receive the said affidavits. Since the MC is already clubbed along with other OPs, the Trial Court is directed to consider the same as expeditiously as possible in any event, not later than a period of three months from the date of receipt of copy of this order. The revision is disposed of accordingly. It would be open for the respondent / wife to take appropriate proceedings if the arrears are not paid.
12.07.2022 Index : yes/no Speaking/Non-speaking order drm To
1. The I Additional Family Court, Chennai.
2. The Public Prosecutor, High Court of Madras.
https://www.mhc.tn.gov.in/judis 9/10 Crl.R.C.Nos.1186 & 1031 of 2019 and Crl.M.P.No.14241 of 2019 D.BHARATHA CHAKRAVARTHY, J.
drm Crl.R.C.Nos.1186 & 1031 of 2019 and Crl.M.P.No.14241 of 2019 12.07.2022 https://www.mhc.tn.gov.in/judis 10/10