Madras High Court
Venkatesh vs Indira on 1 August, 2024
Crl.R.C.(MD).No.198 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 10.04.2024
Pronounced On : 01.08.2024
CORAM:
THE HON'BLE Mr. JUSTICE K.K.RAMAKRISHNAN
Crl.RC(MD). No.198 of 2023
and
Crl.M.P(MD). No.425 of 2024
Venkatesh ... Petitioner/Petitioner
Vs.
Indira ... Respondent/Respondent
PRAYER: Criminal Revision Petition has been filed under Section 397 r/w
401 of Cr.P.C., to call for the records pertaining to the order passed by the
Court of the Judge, Family Court, Madurai District, in M.C.No.29 of 2014
vide order dated 04.01.2023 and quash the same.
For Petitioner : Mr.R.L.Dhilipan Pandian
For Respondent : Mrs.Indira
Party-in-person
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Crl.R.C.(MD).No.198 of 2023
ORDER
The petitioner/husband has filed this petition to set aside the order passed in M.C.No.29 of 2014 vide order dated 04.01.2023, on the file of the learned Judge, Family Court, Madurai District.
2.The respondent married the petitioner on 13.07.2005. The marriage did not last even for three months and they separated. The petitioner filed HMOP No.156 of 2006, seeking divorce and obtained ex-parte divorce and the same was set aside. The respondent filed the restoration petition and same was allowed by the trial court. Subsequently, she filed HMOP No. 357 of 2007 for the restitution of conjugal rights. Both the petitions were taken up together and the divorce petition was allowed by the trial court Restitution petition was dismissed by the trial court. Challenging the same, the CMA Nos. 418 and 419 of 2011 were filed before this court. Pending the same, the respondent filed the domestic violence application against the petitioner and others. Parallelly, the relative of the respondent laid a complaint against the petitioner and the petitioner was arrested and he was put in jail. Thereafter, the parties entered into a compromise before the 2/13 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.198 of 2023 mediation and as per the compromise, all the cases pending between the parties were agreed to be withdrawn and hence, as per the compromise memo, the case was closed. C.M.A.Nos.418 and 419 of 2011 were withdrawn and also the criminal case pending against the petitioner also was withdrawn. In view of that, in the compromise memo, there is a condition to pay a sum of Rs.1,00,000/- as a permanent alimony. The said permanent alimony was not paid and hence, the respondent continued the proceeding in M.C.No.29 of 2014. During the course of the hearing of the MC No. 29 of 2014, the petitioner/husband took a plea that she already remarried and he was working in Madurai corporation and hence, he cannot pay any maintenance to the respondent. In spite of that, the maintenance order was allowed and the learned Judge, Family Court, Madurai, granted a sum of Rs. 10,000/- as maintenance to the respondent. Challenging the same, the revision petitioner filed the revision before this Court in Crl.R.C.(MD).No. 635 of 2016.
3.This Court, after considering the evidence, specifically allowed the revision and remanded it back to consider the plea of the remarriage of the respondent and the specific plea of the petitioner whether the petitioner was 3/13 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.198 of 2023 working in the Madurai corporation or not. After the remand, the trial judge considered the entire evidence and found that the remarriage took place only in the year 2017. He held that the petitioner was liable to give maintenance from the date of the petition in 2014 till 2017. Challenging the same, he filed the present revision.
4.The learned counsel for the petitioner/husband made the following submission:-
4.1.The learned trial judge, without considering the order of this Court in Crl.R.C(MD).No.635 of 2016, went beyond the scope of the remand and decided the matter and granted compensation of Rs.10,000/- to the respondent/wife. The remand was ordered only for the purpose of determining the remarriage during the pendency of the proceedings. But the learned trial judge refixed the maintenance amount. Hence, there is apparent error in the decision of the learned trial Judge.
4.2.The learned trial judge has not considered the specific plea of the petitioner that he was working in Madurai corporation. To prove the same, he examined RW3 to show that he is earning. The same was not properly 4/13 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.198 of 2023 considered by the learned trial judge and erroneously awarded a sum of Rs.
10,000/- per month. The counsel also made a submission that as per the Ex.R17, which was a document relating to the compromise made between the parties, namely the petitioner and the respondent, stating that he only put the signature in blank papers. Ex.R17 is the original document and the contra document filed by the wife, namely Ex.P.7 is only a xerox copy of the document. The same was not admissible and the same was not properly considered by the learned trial judge and granted maintenance of Rs. 10,000/- per month. In the said circumstances, he seeks for the setting aside the maintenance award granted by the Court below.
5.Per contra, the respondent appeared party-in-person and made the following submissions:-
5.1.The remarriage took place only after the humiliation she suffered at the hands of the petitioner in the year 2017. But the maintenance claim was pending from the year 2014 onwards and hence, he is duty bound to maintain her up to the remarriage, as per the law laid down by the Honourable Supreme Court. She further submitted that even after the 5/13 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.198 of 2023 remarriage he interfered in her personal life and in result, the remarriage also ended in divorce. Only because of the interference of the petitioner, the second marriage was ended in divorce. Hence, she says that as on date, no marriage was subsisting and hence, he should continue to pay the maintenance.
5.2.The respondent further submitted that it is true that he was working in the corporation and earning only Rs.5,000/- and hence, the Court considered the cost of the living and the status of the parties, granted Rs.
10,000/- as a monthly maintenance. Further, she is residing in a rental house and hence, the amount was proportionate to the cost of living. Hence, she seeks for the confirmation of the maintenance award.
5.3. The petitioner and her relative preferred a complaint with the false allegation and he was arrested and confined in prison, therefore, they entered into an execution of document under Ex.R.17 dated 23.06.2012. Therefore, the same was executed under duress. As per the said document, there was no agreement relating to the permanent alimony. Hence, she is entitled to adjudicate. Even if permanent alimony is granted, there is no bar 6/13 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.198 of 2023 claim the maintenance considering the cost of the living. Hence, she seeks for the confirmation of the maintenance award granted by the Court below.
6.This Court considered the rival submissions made by the learned counsel appearing on either side and the records and also the impugned order.
6.1.Whether the Court below has correctly considered the remand order of this Court in Crl.R.C.No.635 of 2016 and granted the monthly maintenance to the respondent?
7. This Court remanded the matter to consider the matter. As per the remand, this Court passed the remand order. The relevant paragraph No.10 and 11 are as follows;
10.A perusal of the records reveals that the revision petitioner/husband failed to mark any document to prove the second marriage of the wife. Genuineness of document/Ex.R17 and the second marriage of the respondent are to be proved by the revision petitioner/husband.
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11.In view of the same, this court feels that the case is to be remitted back to the trial Court for deciding the issue afresh in accordance with law. Both the parties are permitted to mark additional document and to adduce further evidence. Hence, this Criminal Revision Case is disposed of and the case is remitted back to the trial Court for fresh disposal in accordance with law.
8.This Court remanded the matter to consider the maintenance claim of the petitioner, to decide the defence of the petitioner, namely, the genuineness of Ex.R.17. During the course of the hearing, the husband produced the evidence to show that the respondent had remarried. The respondent got remarried only in the year 2017. Hence, the petitioner is duty bound to maintain the respondent upto the remarriage. As per the provision under Section 125 of Cr.P.C., the respondent is entitled to claim maintenance till the remarriage. From the sequence of events that happened between the parties relating to the rival allegations against each parties and the pendency of criminal cases and proceeding against them, the parties entered into a compromise as per Ex.R.17. Ex.R17 was disputed by the 8/13 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.198 of 2023 respondent on the ground that there was no agreement for the payment of the permanent alimony and the same was incorporated in the document.
9.This Court considered the submission. Even though the petitioner denied the said documents, but the same was acted upon by the conduct of the parties. The criminal case registered against the petitioner was withdrawn and CMA Nos. 418 and 419 of 2011 pending before this Court were withdrawn and all the proceedings except maintenance proceedings was withdrawn. The husband is duty bound to maintain her, by making the monthly payments. Even though Ex.R17 is containing the signature of wife/respondent, as pleaded by the respondent, her mind did not accompany her signature for the terms of the contents. She was under duress. According to her, she was wrongly, prosecuted by the investigating agency on the basis of the complaint given by the petitioner's side. She was put in the jail and hence, due to the registration of two cases and she was confined in prison and since prosecution was hanging over her, she agreed for the withdrawal of the C.M.A.(MD).Nos.418 and 419 of 2011 pending before this court and also other proceedings initiated by her, except the maintenance. The said submission of the case is acceptable one and hence, this court is inclined to 9/13 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.198 of 2023 accept the explanation of the respondent and entertain her explanation by admitting the oral evidence to contradict the contents of the documents. Therefore, it is permissible under Section 90 and 91 of the Indian Evidence Act to give the explanation to the contents of the documents, as she was not intended to the same.In view of that, this Court is not inclined to accept the contention of the petitioner that she was fully aware of the terms of Exhibit R-17.
10.Admittedly, the respondent has entered into the second marriage on 27.08.2017. Hence, even though the petitioner got divorce, the respondent has preferred an appeal in C.M.A.(MD).Nos.418 and 419 of 2011 before this Court and withdrew only in the above stated circumstances. Hence, as per Section 125 of Cr.P.C., he is liable to maintain her even after the divorce up to her remarriage. The same is clearly stipulated under Section 125 of Cr.P.C. Apart from that, in this case, as admitted by the respondent, the husband received, Rs.5,000/- as monthly incomes. Hence, this court considering the income of the husband of Rs. 5,000/- in the Corporation and his responsibility to maintain his parents, this Court is inclined to reduce the quantum amount of Rs.10,000/- into Rs. 4,000/-.
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11.Accordingly, this Criminal Revision is partly allowed and the maintenance amount granted by the Family Court, Madurai, of Rs.10,000/-is reduced to Rs.4,000/- is liable to pay the petitioner from the date of the filing the MC.No. 29 of 2014 to the remarriage of the respondent ie., upto 27.08.2017. The petitioner shall calculate and deposit amount at the rate of Rs.4,000/- from the date of filing of M.C.No.29 of 2014 to 27.08.2017 within a period of one month from the date of receipt of a copy of this order, excluding the amount, if he had already been deposited. Consequently, the connected criminal miscellaneous petition is closed.
01.08.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
vsg
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Crl.R.C.(MD).No.198 of 2023
To
1.The learned Judge,
Family Court,
Madurai District.
2. The Section Officer,
Criminal Records,
Madurai Bench of Madras High Court,
Madurai.
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Crl.R.C.(MD).No.198 of 2023
K.K.RAMAKRISHNAN, J.
vsg
Pre-delivery order made in
Crl.RC(MD). No.198 of 2023
and
Crl.M.P(MD). No.425 of 2024
Dated:01.08.2024
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