Madras High Court
Tekepat Satish Chandra Menon vs Asha Panickar on 16 September, 2022
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.R.C.Nos.743, 1273 and 1274 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on : 01.09.2022
Orders Pronounced on : 16.09.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.Nos.743, 1273 and 1274 of 2022
Crl.R.C.No.743 of 2022:
Tekepat Satish Chandra Menon .. Petitioner
Versus
1. Asha Panickar
2. Uday Krishnan Menon
Rep. by his mother & natural guardian
Asha Panickar .. Respondents
Crl.R.C.Nos.1273 and 1274 of 2022:
1. Asha Panickar
2. Uday Menon
Represented by his mother and natural guardian
Asha Panickar (first petitioner) .. Petitioners
(in both the cases)
Versus
Tekepat Satish Chandra Menon .. Respondent
(in both the cases)
https://www.mhc.tn.gov.in/judis
1/27
Crl.R.C.Nos.743, 1273 and 1274 of 2022
Prayer in Crl.R.C.No.743 of 2022: Criminal Revision Case is filed under
Section 397 and 401 of Cr.P.C., to call for the records and set aside the
order, dated 24.01.2022 made in M.C.No.90 of 2012 on the file of the First
Additional Family Court, Chennai by allowing this Criminal Revision
Petition.
Prayer in Crl.R.C.No.1273 of 2022: Criminal Revision Case is filed under
Section 397 and 401 of Cr.P.C., to set aside the dismissal of the claim in
respect of directing the respondent to pay a sum of Rs.5.80 crores for
medical treatment, surgery in Cleveland Clinic USA made in M.P.No.495 of
2021 in M.C.No.90 of 2012, dated 24.01.2022 passed by the I Additional
Family Court at Chennai and thereby allow the Criminal Revision Petition.
Prayer in Crl.R.C.No.1274 of 2022: Criminal Revision Case is filed under
Section 397 and 401 of Cr.P.C., to set aside the order passed in M.C.No.90
of 2012 dated 24.01.2022 passed by the I Additional Family Court, Chennai
and allow the prayer sought for in the M.C.No.90 of 2012 and thereby allow
this Criminal revision Petition.
Crl.R.C.No.743 of 2022
For Petitioner : Mr.N.Manoharan
For Respondents : Mrs.Asha Panickar
Party-in-person
Crl.R.C.Nos.1273 and 1274 of 2022
For Petitioners : Mrs.Asha Panickar
https://www.mhc.tn.gov.in/judis
2/27
Crl.R.C.Nos.743, 1273 and 1274 of 2022
(in both the cases) Party-in-person
For Respondent : Mr.N.Manoharan
(in both the cases)
COMMON ORDER
Crl.R.C.No.743 of 2022 is filed by Tekepat Satish Chandra Menon, former husband of the first respondent and the father of the second respondent, aggrieved by the order of the learned I Additional Family Court, dated 24.01.2022 in M.C.No.90 of 2012, in and by which, while denying two reliefs i.e., the relief of payment of monthly maintenance to the first respondent and the relief of payment of a sum of Rs.5.8 crores for medical treatment, surgery in Cleveland Clinic, USA to the second respondent, the Trial Court had ordered a monthly maintenance of a sum of Rs.80,000/- to the second respondent, son of the petitioner herein.
2. Aggrieved by the denial of the two reliefs as stated above, the first respondent in Crl.R.C.No.743 of 2022, namely Asha Panickar, had filed Crl.R.C.Nos.1273 and 1274 of 2022 respectively. As such, all the three Revision Cases are taken up together and disposed off by this common judgment. To avoid any confusion, the parties, namely Tekepat Satish https://www.mhc.tn.gov.in/judis 3/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022 Chandra Menon, is referred to as 'the father'; Asha Panickar is referred to as 'the mother'; Uday Krishnan Menon, represented by his mother and natural guardian, is referred to as 'the son'.
3. A perusal of the records of this case, the marriage took place on 11.02.1985. On 21.12.1984, the son was born. However, the son is a special child, suffering from epilepsy/refractory seizure disorder. He is a slow learner and has adjustmental difficulties and has temper tantrums etc. While so, on account of the differences that have arisen in the marital life of the parties, they filed F.C.O.P.No.1821 of 2004 under Section 13B of the Hindu Marriage Act, 1955 and by a judgment, dated 10.02.2005, the Principal Family Court, Chennai granted a decree of divorce. The relevant portion of the said judgment is extracted hereunder:-
"The 1st Petitioner is permitted to have the custody of son Udaya Krishna Menon. The 2nd petitioner is permitted to visit the son. If she desires to have the custody of son in future, he has agreed to give the son's custody and shall pay Rs.20,000/- per month as maintenance. The 1st petitioner has entrusted the Life Insurance Corporation Policies (360266170, 360266171, 360266172, 360266173 and 710173329) to the 2nd petitioner and she shall receive the amount on maturity of the said policies. The 2nd petitioner shall pay the premium if there is any https://www.mhc.tn.gov.in/judis 4/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022 default. Both the petitioners have agreed that they will not make any claim including maintenance against each other in future. Both the petitioners have already exchanged their articles given at the time of their marriage.
I hold that the marriage was solemnized according to Hindu rites and customs and the statements made in the petition are true and this petition for divorce by mutual consent has to be allowed.
In the result, this petition is allowed and the marriage solemnized between the petitioners on 11.2.85 is ordered to be dissolved by a decree of divorce from today."
4. Thereafter, when the son was in the custody of the father, it is the case of the father that in the best interest of the son, during the year 2011, he had admitted the son in an institution known as Cadambam at Banglore by paying a sum of Rs.70,000/- per month. It is the case of the mother that in order to avoid taking personal care, the son was simply dumped in the above said Cadambam centre, which is only a rehabilitation centre which is ill equipped to take care or treat a person as the son. According to her, the son was locked up in a room and was severely ill-treated and ill-managed which would have resulted in the death of the son and therefore, she had rescued the son and she has also given a complaint in this regard for an offence under Section 308 of the Indian Penal Code. According to the father, the https://www.mhc.tn.gov.in/judis 5/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022 center had Doctors and facilities for psychiatric treatment and when the treatment was going in the right direction, suddenly the mother has taken away the child.
5. Be that as it may, after the mother took over the custody of the child, the present petition for maintenance under Section 125 of the Code of Criminal Procedure was filed on 15.02.2012 praying a sum of Rs.2,00,000/- as maintenance for the mother and a sum of Rs.1,00,000/- as maintenance for the son. The said petition was contested by the father by filing counter statement on 06.11.2013. His contentions were that in view of the categorical decision in the mutual consent petition that the mother will not claim any maintenance in future, she is not entitled to maintenance. As far as the son is concerned, it is the case of the father that as agreed by him in the mutual consent judgment, from the date of custody, he is liable to pay and is paying a sum of Rs.20,000/- per month as agreed between the parties and therefore, the petition should be dismissed.
6. Pending the above petition, the mother had also filed M.P.No.495 of 2021 for a direction to pay a sum of Rs.5.8 crores for medical https://www.mhc.tn.gov.in/judis 6/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022 treatment/surgery in Cleveland Clinic, USA. It is her case that from the beginning, the father has been promising the treatment to the son. The Doctors have opined that a surgery, which is commonly known as epilepsy surgery, has to be done to him. It is her case that the hospitals in India are not that competent to perform the surgery and considering the socio economic status of the parties, it is in the fitness of things that the son is taken to the U.S and the surgery is performed. The total expenses for the same is Rs.5.8 crores and therefore, the father should be directed to pay the same.
7. In the maintenance case, the mother was examined as P.W.1 and Exs.P-1 to P-10 were marked. The father was examined as R.W.1 and Exs.R-1 to R-7 were marked. The Trial Court proceeded to hear the parties and by two separate orders in the miscellaneous case and in the main maintenance case, dated 24.01.2022 passed the orders aforementioned against which the Revision Cases are laid before this Court.
8. Heard Mr.N.Manoharan, the learned Counsel for the father and the mother, appearing for herself and the son, in person. https://www.mhc.tn.gov.in/judis 7/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022
9. According to the learned Counsel for the petitioner, he would submit that this is a case where the wife is living separately on account of the dissolution of marriage by mutual consent between the parties. Once the wife is living separately on mutual consent and it has been specifically agreed by her in the mutual consent petition that she will not claim any maintenance in future, she is not entitled to maintenance under Section 125 of the Code of Criminal Procedure. As far as the expenses relating to surgery are concerned, even though the surgery was advisable, considering the risk involved in the surgery, no surgery was performed, even though the surgery was recommended in the year 2005 itself. Therefore, he would submit that it has been decided not to go for surgery and as a matter of fact, the disease of the son was attempted to be cured by putting him as mentioned in the appropriate hospital and when the mother has unilaterally derailed the same, claiming of such exorbitant amount by way of surgery expenses that too insisting that will be done in the United States of America, is unsustainable.
https://www.mhc.tn.gov.in/judis 8/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022
10. The learned Counsel would further submit that as far as the maintenance of the child is concerned, since the child is a special child, it is the duty of the father to maintain. Therefore, the father was having custody of the child right from the date of separation of the parties from the year 2003 onwards and he continued to have the custody of the son even after the mutual consent divorce in the year 2005. Only in the year 2011, the mother forcefully took away the child. He would further submit that the said event is also taken care of by the judgment in the mutual consent divorce petition. According to the same, if the son is in the custody of the mother, the father has to pay a sum of Rs.20,000/- per month and therefore, any claim beyond that is impermissible. Alternatively, he would submit that in this case, the justification given for claim of sum of Rs.1,00,000/-, even in the proof affidavit, is exorbitant and would draw the attention of this Court to the tabular column given in paragraph No.67 of the proof affidavit which is reproduced as hereunder:-
67. Approximate monthly expenses which I have been spending on my son, Uday Menon. I humbly state in the last 2-3 months, I've not been able to send my son, Uday Menon to all the classes because of shortage of funds.
Rent 30,000
Flat maintenance 2,900
https://www.mhc.tn.gov.in/judis
9/27
Crl.R.C.Nos.743, 1273 and 1274 of 2022
Maids 9,000
Driver / escort 15,000
Petrol 10,000
Speech therapy(175 Rs per 2,000
class)
Movement therapy (1000 Rs 5,000
per class)
Special education thinking 6,000
skills (500 Rs per class)
Personal Physical Trainer 7,000
Computer teacher(600 Rs per 2,400
class)
Chess teacher(Rs 500 per 4,000
class)
Hotel training/ Personality 20,000
development (Rs. 176,000 for
year)
Electricity( Rs 7500 for 2 3,700
months)
Provisions, vegetables, fruits 20,000
etc
Medicines 6,000
Doctors / Emergencies 5,000
Clothes, misc 5,000
Total 1,53,000
Additional Major Expenses
upto date
Homeopathy doctor, Chennai 28,500
Mumbai Neurologist for 70,000
ketogenic diet, Dr. Nathan,
including tests, 2 days
consultation, airfare and hotel,
April - May 2013
Other medical specialists and 20,000
https://www.mhc.tn.gov.in/judis
10/27
Crl.R.C.Nos.743, 1273 and 1274 of 2022
treatments
Gym membership 13,000
Total 1,31,500
11. He would further submit that even though the father being liable, and had undertaken to maintain the son, the mother is also liable to do her part and she had admitted running of many businesses in the cross-
examination. She also ran a School in Thiruvananthapuram. She also published a book and is earning royalty. Therefore, he would contend that the mother is not only having a very affluent background, she is well educated and running so many businesses and is able to maintain herself and she can also definitely and necessarily contribute to the maintenance of the son also. He would submit that in any event, the Trial Court has not given any justification for the sum of Rs.80,000/- which was ordered by it and has suddenly mentioned the amount in paragraph No.46 of the order on a presumptive basis. Maintenance, being a relief which has to be granted only for the necessity, cannot be granted in such a manner. He would further submit that in this case, the father has filed his income tax returns and even his gross total income for the year 2019-2020 is only Rs.4,42,082/- as he is not doing very well in the business. Therefore, he would submit that this https://www.mhc.tn.gov.in/judis 11/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022 Court should interfere even in the maintenance amount awarded to the son and should dismiss the Revision Case filed by the mother in respect of the other two reliefs.
12. Per contra, Mrs.Asha Panickar, appearing in person and filed all the relevant papers and also producing a pen-drive containing the videos/pictures of the son depicting how seizures occur and affect the child, would submit that when the parties were together, the status of both the parties were very high and the child was given extraordinary care befitting the financial capacity of the parties. She would submit that only because of an extra marital affair developed by the father, she walked out of the marriage with great pains. She wholeheartedly believed that atleast as a father, her husband would continue to shower the love and affection on the son. Therefore, she walked out of the marriage and agreed for mutual divorce by mutual consent without even asking for any alimony only on the fond hope that the child will be taken care. She had forgone all her rights in respect of alimony/maintenance only on the fond hope and trust that the father will continue to maintain the child properly. But, to her shock and dismay, the father had dumped the son in the above said institution, namely https://www.mhc.tn.gov.in/judis 12/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022 Cadambam. She had even filed a criminal complaint under Section 307 of the Indian Penal Code, but, the Police had registered it only under Section 308 of the Indian Penal Code only upon the influence wielded by the father.
13. She would submit that therefore, her innocent undertaking in the mutual consent petition should not be taken as fatal to the claim for maintenance. Now, the condition of the child has worsen. She would demonstrate in vivid detail as to what is her every day routine in taking absolute care of the special child and the ordeals which she undergoes everyday and that she lives only for the son who has become the purpose of her life. Because she has to take 24x7 care, she could not concentrate on any other thing and even though she ran a school for a while, she ran into loss and therefore, given up the same towards third party. She has been periodically involving herself in small time businesses like selling furniture etc., but, not as regular phenomenon or source of income. She admits that she has written a book and as royalty, she gets a very meagre amount. Therefore, she submits that she does not have any other avocation and therefore, is not able to maintain herself and this is only because she has to take car of the son.
https://www.mhc.tn.gov.in/judis 13/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022
14. She further submitted that from the records, even from the e- mails, the father has been promising to take the son to the U.S for the surgery. She would submit that even though institution like NIMHANS, Banglore are equipped to perform the surgery, the success rate when compared to the United States of America is not as good. She would submit that it is a very complex surgery requiring highest specialization and experience and therefore, submits that the child has to be taken to the United States and since the father has promised the same, he must be directed to afford the said treatment. She would submit that even though she had claimed only Rs.1,00,000/- for the child, she had claimed Rs.2,00,000/- for herself which is also, if the nature of claim is looked into, is only for the son. Therefore, she would submit that she should not be bogged down to the claim of Rs.1,00,000/- alone towards the claim of the son. Either towards herself or towards the claim of the son, she will be satisfied if entire claim of Rs.3,00,000/- per month is awarded. She would submit that Ayurvedic Therapy in a proper hospital is costing very high now-a-days and therefore, since the same is necessary for the child, this Court should allow the Revision Cases filed by her by ordering maintenance https://www.mhc.tn.gov.in/judis 14/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022 to herself or in the alternative, enhancing the maintenance for the child and also ordering the respondent to pay for the medical/surgical expenses.
15. By way of reply, the learned Counsel for the father, Mr.N.Manoharan, by producing an additional typed set of papers, would submit that in this case, the mother also filed a Domestic Violence Petition in C.C.No.29 of 2014 which was quashed by this Court in Crl.O.P.No.13949 of 2014. The learned Counsel would rely upon the judgment of this Court in Krishnappa Chettiar Vs. Sivagami Achi1, more specifically paragraph No.6 for the proposition that once the parties agreed between themselves by way of compromise regarding maintenance, thereafter, the Magistrate cannot award maintenance. The learned Counsel would rely upon the judgment of Punjab and Haryana High Court in Saroj Bala Vs. Ashok Kumar Kalyan2, more specifically paragraph Nos.5 and 6 for the proposition to contend that once the wife waives the right in the mutual consent petition filed under Section 13-B of the Hindu Marriage Act, 1955 by virtue of Section 125(4) of the Code of Criminal Procedure, she cannot, thereafter, claim maintenance.
1 MANU/TN/0261/1953 2 MANU/PH/0316/2013 https://www.mhc.tn.gov.in/judis 15/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022
16. The learned Counsel, relying upon the judgment of the High Court of Delhi in Minni Chaudhary Vs. Iqbal Singh @ Iqbal Ahmed3, morefully relying upon the paragraph Nos.12, 13 and 16, would submit that under Section 127(3)(b) of the Code of Criminal Procedure, if the wife surrenders the right to maintenance, she cannot, thereafter, claim. The learned Counsel would rely upon the paragraph Nos.14 and 17 of the judgment of the Hon'ble Supreme Court of India in Galada Power and Telecommunication Limited Vs. United India Insurance Company Limited and Anr.4 whereunder the waiver of rights has been dealt with by the Hon'ble Supreme Court of India and he would submit that if there is a conscious waiver, thereafter, such rights cannot be claimed. The learned Counsel also relied upon by the judgment of this Court in G.Nagaiyan & Anr. Vs. K.Palanivel5 for the same proposition. So as to press home that the petitioner is not entitled to maintenance after her waiver of such a right under Section 13-B of the Hindu Marraige Act, 1955, the learned Counsel rely upon the judgment of the High Court of Calcutta in Prasenjit Mukherjee Vs. State of West Bengal and Ors.6.
3 2018 SCC OnLine Del 11458 4 (2016) 14 SCC 161 5 CDJ 2022 MHC 1682 6 2021 SCC OnLine Cal 2394 https://www.mhc.tn.gov.in/judis 16/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022
17. I have considered the rival submissions made on behalf of either side and perused the material records of this case. Upon perusal, the following questions arise for consideration of this Court:-
(i) Whether or not Mrs. Asha Panicker is entitled for maintenance under Section 125 of the Code of Criminal Procedure and if so, what is the quantum?
(ii) Whether or not the son is entitled for maintenance from the father and if so, what should be the quantum?
(iii) Whether or not the father should be directed to pay the sum of Rs.5.8 crores being the proposed hospital/surgical expenses ?
Question No.I:-
18. Under section 125 of the Code of Criminal Procedure, it is now very well settled that a divorced wife is also entitled to claim maintenance. Section 125 of the Code of Criminal Procedure itself makes that clear. However, a wife or a divorced wife shall not be entitled to maintenance if she suffers any of the disqualifications as contained in the said provision itself. If the wife is residing separately without any justifiable reason or if https://www.mhc.tn.gov.in/judis 17/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022 the wife is living separately on account of the mutual consent between the parties, then she is not entitled for maintenance. In this regard, it is useful to extract Section 125(4) of the Code of Criminal Procedure, which reads as follows:-
"125. Order for maintenance of wives, children and parents.
.
.
.
.
(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent."
19. From the judgment of the Family Court between the parties under Section 13-B of the Hindu Marriage Act, 1955, which is extracted above, it would not only be clear that the father and the mother are living separately by mutual consent, but, it is also very clear and categorical that the mother has also waived the right of claiming any maintenance in future. Therefore, the judgments relied upon by the learned Counsel for the petitioner shall apply in all force to the case on hand. The mother, appearing as party-in- person, would vehemently argue that only considering the fact that the https://www.mhc.tn.gov.in/judis 18/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022 father will take care of the son, she had only trusted the father and forgone the maintenance is unacceptable for two reasons. Firstly, when the rights are crystalised between the parties by a judgment inter-parties and when there is a express disqualification in law for the wife living separately by way of mutual consent, then, mere pleading of indiscretion or trust cannot aid the petitioner and she is also estopped from doing so. Secondly, even in the judgment of mutual consent petition, the default situation is also taken care of. If the father has not taken care of the son and if the mother takes custody of the child, then the maintenance is payable only to the child and therefore, in that view of the matter also, which is also the own doing of the mother herself in agreeing for such arrangements, the contention cannot be accepted. It must also be borne in mind that the said arrangement in the mutual consent petition was also running smoothly for a period of almost six years from the date of judgment. The father was taking care of the son upto the year 2011. Therefore, I am unable to persuade myself to hold that the mother will be entitled for maintenance in this case from the father. Therefore, I answered the question No.1 holding that the mother is not entitled for any maintenance.
https://www.mhc.tn.gov.in/judis 19/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022 Question No.2:-
20. Admittedly, the child is a special child, he has serious medical ailments requiring extraordinary care. By virtue of the mandate under Section 125 of the Code of Criminal Procedure, the father is duty bound to maintain the son. The right of the parties is also crystalised by the judgment extracted above in the mutual consent petition, whereunder, the father has agreed to pay maintenance, in case, the mother takes custody. Even though the quantum is mentioned as sum of Rs.20,000/-, it is settled law that merely because the parties agree on a particular quantum of maintenance, even by efflux of time or on account of other circumstances if the said amount is grossly inadequate and the parties will not be bound simply by the said agreed amount. In this case, a sum of Rs.20,000/- is agreed in the year 2005. But, however, the necessity for maintenance arose in the year 2012. It is agreed case between both the parties that even in the year 2011, when the father admitted his son to the institution called Cadambam, the father had paid a sum of Rs.70,000/- per month towards food, shelter care and medical expenses all put together. Therefore, the father's claim that he will https://www.mhc.tn.gov.in/judis 20/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022 continue to pay only a sum of Rs.20,000/- cannot be accepted. Therefore, this Court has to determine the quantum.
21. The first aspect is the necessity of the child and the second aspect is the capacity of the father. As far as the necessity of the child is concerned, the various items of expenditure are contained in the tabular column (extracted supra). Of the said amount, even the rent and flat maintenance etc., cannot be put in the name of maintenance of the child as the mother has agreed to take custody of the child. Even as pointed out by the learned Counsel appearing on behalf of the father, some of the entries can be considered on the higher side. In any event, the expenses like driver/escort, vehicle, petrol for the vehicle, speech therapy, movement therapy, special education thinking skills, physical trainer, teachers maintenance, clothes, medical insurance, Ayurvedic therapy, Homeopathy therapy and other special needs such as gym membership etc., has to be there for the special child and since the parties belong to affluent strata of the society, these needs are justifiable and these things can be held as basic necessities of the child. Therefore, even calculating item wise, a sum of https://www.mhc.tn.gov.in/judis 21/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022 Rs.80,000/- awarded by the Trial Court cannot be said to be exorbitant or excessive.
22. There is also yet another factor that even in the year 2011, when the father was taking care of the child, he was taking care of the child by putting him in the institution for the monthly sum of Rs.70,000/- per month. That also adds to the justification for the sum of Rs.80,000/- awarded by the Trial Court.
23. Now, the second limb of the issue is the capacity of the father to pay. The learned Counsel appearing on behalf of the father would submit that in this case, the income tax records are marked as Ex.R-1. Even as per the same, the total income itself is roughly Rs.4,50,000/- and therefore, the sum awarded is exorbitant. He would further submit that the father has also moved on in life and has married after the divorce and has to take care of his family also. Under the circumstances, without any basis and without following the guidelines of Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury Nee Nandy7 as held by the Hon'ble Supreme Court of India, the award of sum of Rs.80,000/- is unsustainable. By reply arguments, the 7 (1970) 3 SCC 129 https://www.mhc.tn.gov.in/judis 22/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022 mother, party-in-person would submit that she has presented huge evidence in the form of the photographs, the kind of the house in which the petitioner is living, the trips undertaken to foreign countries, the cars driven by him, the very high nature of quality of life being led by the father, one can come to the irresistible conclusion that he would cannot live with the said paltry sum of Rs.4,50,000/-. She would submit that in any event, he did not produce the proper income tax returns of the year 2012 as on the date of the petition.
24. It can be seen that he could afford and undertook to pay a sum of Rs.20,000/- even in the year 2005. He could afford a sum of Rs.70,000/- per month in the year 2011. Considering the above, I am of the view that in this case, father had not clearly established his income. The mother had produced various documents in Exs.P-14, P-57, P-58, P-59, P-60, P-61, P- 67, P-73, P-81, P-82, P-87 etc., from which, this Court could gather that the father is affluent enough so as to pay the sum of Rs.80,000/- as monthly maintenance. The law laid down by the Hon'ble Supreme Court of India in Kalyan Dey Chowdhury (cited supra) the generally broad parameters that the Court should follow. This case, being a special case, involving a special https://www.mhc.tn.gov.in/judis 23/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022 child, it requires deviation from the principle of 25% of the income of the father. In any event, the father has not categorically and clearly proved that his total income is very low. I do not find the the evidence of R.W.1 in respect of his income agreeable in view of the above exhibits marked and in view of the clear and categorical evidence relating to his income for the entire period. Therefore, I hold that the quantum of maintenance, as ordered by the Trial Court, is fully justifiable and would be enough to meet all the needs of the child and that the father has the capacity to pay the same. It is represented that the father is already paying a sum of Rs.20,000/- per month and therefore, the same has to be taken into account and the balance of Rs.60,000/- per month is payable. In any event, the total amount paid can be adjusted in the total arrears payable. Therefore, I answer this question that the son is entitled to maintenance from the father and the quantum of the maintenance as fixed by the Trial Court as Rs.80,000/- per month is in order.
Question No.III:-
25. On consideration of the petition filed by the mother, the counter filed and the reasonings given by the Trial Court, I am unable to persuade https://www.mhc.tn.gov.in/judis 24/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022 myself to grant the relief of medical expenses to the tune of Rs.5.8 crores as ordered by the Trial Court for the following reasons:-
(i) Firstly, the surgery was recommended in the year 2005 and now, we are in the year 2022, the child was not taken to the U.S for so long;
(ii) Even currently when the Doctors are recommending, it is not specifically recommended that the child has to be taken only to the U.S;
(iii) The mother has not produced any document so as to prove that the father is capable of affording a sum of Rs.5.8 crores as medical expenses;
(iv) The stand that the surgery will only be conducted in America, even though may be the wish of the mother cannot be considered as an essential need given the fact that such surgeries can be done in India itself;
(v) Just because the expertise is more and the risk factor is lesser, treatment in the U.S.A cannot be held by this Court as an essential need when the same is available with proper experts in India itself, though not of the same degree as in the United States of America as per the perception of the mother;
(vi) Finally, only of the said belief, the child's surgery has been unfortunately postponed and now he is aged 35 years and had survived https://www.mhc.tn.gov.in/judis 25/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022 without surgery. Therefore, I am of the view that the Trial Court has rightly rejected the prayer in M.P.No.495 of 2021 even while ordering the litigation expenses of Rs.1,00,000/-. There is no Revision Case filed against the said sum of Rs.1,00,000/- by the father and as such, the same stands.
In view of the above findings, I answer the question that the prayer of the mother to direct the father to pay a sum of Rs.5.8 crores towards the medical/surgical expenses is unsustainable and has rightly been rejected by the Family Court.
26. In the result, in view of the answers to all the three questions above, all the three Revision Cases fail and are dismissed accordingly.
16.09.2022 Index : yes/no Speaking order/Non-speaking order grs To The I Additional Family Court, Chennai.
https://www.mhc.tn.gov.in/judis 26/27 Crl.R.C.Nos.743, 1273 and 1274 of 2022 D.BHARATHA CHAKRAVARTHY, J., grs Pre-Delivery Order in Crl.R.C.Nos.743, 1273 and 1274 of 2022 16.09.2022 https://www.mhc.tn.gov.in/judis 27/27