Madras High Court
Iyyapan @ Kumar vs I.Mageswari on 27 September, 2019
Author: V. Parthiban
Bench: V. Parthiban
Crl. R.C.(MD)Nos.223 and 570 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.09.2019
CORAM
THE HONOURABLE MR. JUSTICE V. PARTHIBAN
Crl. R.C.(MD)Nos.223 and 570 of 2019
and
Crl.M.P.(MD)No.3380of 2019
Crl. R.C.(MD)No.223 of 2019
Iyyapan @ Kumar ... Petitioner
Vs.
1. I.Mageswari
2. Minor.Anusha Sharma ...Respondents
Prayer : Criminal Revision Case is filed under Section 397 and 401 of
the Code of Criminal Procedure, to call for the records in M.C.No.13 of
2018, dated 30.08.2018 on the file of the Family Court, Kanyakumari
Division at Nagercoil, and set aside the same by allowing the Revision
Case.
For Petitioner : Mr.K.Prabhu
For Respondents : Mr.RM.Sivakumar
Crl. R.C.(MD)No.570 of 2019
1. I.Mageswari
2. Minor.Anusha Sharma ... Petitioners
Vs.
http://www.judis.nic.in
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Crl. R.C.(MD)Nos.223 and 570 of 2019
Iyyapan @ Kumar ...Respondent
Prayer : Criminal Revision Case is filed under Section 397 and 401 of
the Code of Criminal Procedure, to call for the records in M.C.No.13 of
2018, dated 30.08.2018 on the file of the Family Court, Kanyakumari
Division at Nagercoil, and set aside the same by allowing the Revision
Case.
For Petitioner : Mr.K.Prabhu
For Respondent : Mr.RM.Sivakumar
COMMON ORDER
While Crl.R.C.(MD)No.223 of 2019 is filed by the husband against the order passed in M.C.No.13 of 2018, by the District Judge, Family Court, Kanyakumari Division at Nagercoil, dated 30.08.2018, granting Rs.4,500/- per month to the first petitioner and Rs.3,000/- to the second petitioner, totalling to Rs.7,500/- per month towards maintenance from the date of filing of the petition, Crl.R.C.(MD)No.579 of 2019 is filed by the wife seeking an enhancement of maintenance to Rs.20,000/- per month to the first petitioner and Rs.15,000/- per month to the second petitioner from the respondent / husband. Since the dispute in both the petitions are one and same, they are heard together and disposed of by this common order.
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2.The facts, which lead to the filing of the Criminal Revisions are stated hereunder :-
The petitioner in Crl.R.C.(MD)No.223 of 2019, is the husband and the first petitioner in Crl.R.C.(MD)No.570 of 2019 is the wife. The marriage of the petitioner/husband and the respondent/wife was solemnized on 27.08.2006 as per the Hindu Rites and Customs. The marriage invitation is marked as Ex.P1 and the marriage photo is marked as Ex.P.2 From the wedlock, the couple were blessed with one female child by name K.Anushka Sarma born on 02.06.2012. The birth certificate of the female child/Anushka Sarma is marked as Ex.P4. The family card of the husband and wife is marked as EX.P3.
3.Sometime after the marriage, there arose difference of opinion between the husband and wife and, therefore, the husband filed H.M.O.P.No.140 of 2015 on the file of the I Additional Sub Court, Nagercoil against the wife and obtained an exparte divorce and thereafter, the petitioner/husband remarried on 07.12.2017. Both the husband and wife have traded allegations and counter allegations against each other for the said separation. The respondent/wife appears to have filed a complaint against the petitioner/husband and vice versa before the All women Police Station, Nagercoil. http://www.judis.nic.in 3/12 Crl. R.C.(MD)Nos.223 and 570 of 2019
4.Since the respondent/wife is living separately since 2014, she was constrained to file a petition under Section 125 Cr.P.C. for maintenance for herself and the minor child from the petitioner/husband. The Family court, which heard the parties on the question of maintenance, allowed the petition. Accordingly, the petitioner/husband was directed to pay a sum of Rs.4,500/- per month to the respondent/wife and Rs.3,000/- per month to the minor child, totalling to sum of Rs.7,500/- per month towards maintenance from the date of filing of the petition, though at the time of filing of the maintenance petition, a sum of Rs.25,000/- was claimed as maintenance by the wife for herself and an amount of Rs.15,000/- per month to the minor child. However, considering the overall facts and circumstances, the above award was passed by the Family Court, Nagercoil. The lower court, while passing the award for maintenance has taken into account the various documentary evidence and the other evidence adduced on behalf of the parties.
5.It is the case of the wife that though since the time the husband and wife started living separately, no genuine effort was made on behalf of the husband for reunion. However, it was the case of the husband that a false complaint was lodged by his wife before the All http://www.judis.nic.in 4/12 Crl. R.C.(MD)Nos.223 and 570 of 2019 Women Police Station, Nagercoil, which forced the wife to move away from her matrimonial home with the child on 03.02.2014. In fact, the wife lodged a complaint before the Sucindrum Police Station on 27.08.2012 and with All Women Police Station, Nagercoil on 30.09.2012 against the husband. On behalf of the petitioner/husband, a complaint was lodged with Police station for re-union on 05.08.2014.
6.The Maintenance Case was resisted by the husband on the ground that his wife left the matrimonial home on her own accord and therefore, as per Section 125(4) Cr.P.C. respondent/wife was not entitled to receive any amount towards maintenance or even interim maintenance from her husband. The Family Court, found that the husband failed to prove that the wife left the matrimonial home without any reasonable cause or any sufficient reason and ultimately, found that she was entitled to compensation under Section 125 Cr.P.C.
7.On behalf of the wife, it was pleaded that her husband was earning a sum Rs.2,00,000/- per month, his avocation being a gold smith, but the same was denied by the husband. Though the amount of monthly earning has been denied by the husband, however, no material has been placed before the Family Court to establish the same. However, he filed a divorce petition and obtained exparte order and http://www.judis.nic.in 5/12 Crl. R.C.(MD)Nos.223 and 570 of 2019 thereafter, he had re-married. According to the husband, after obtaining Court order for dissolution of marriage with the respondent/ wife herein, the husband deposited some monthly amount in the name of his minor child with Tamil Nadu Rural Women Development Society and as on 31.04.2018, an amount of Rs.27,000/- is available as is evidenced through Ex.R1. Further he deposited Rs.200/- per month in the name of his minor child, which is evidenced through Ex.R2 and deposited a further sum of Rs.1,00,000/- in the name of the minor child with Pandian Grama Bank, Nagercoil as evidenced through Ex.R3. Although, his plea is that, since his wife had left the matrimonial home and refused to live with him, but the fact of the matter was immediately after obtaining exparte decree of divorce, the petitioner/husband remarried on 07.12.2017. Therefore, the Family Court, found that the plea that the wife was not ready to live in her matrimonial home was factually not correct and had not been established.
8.While coming to the conclusion that the wife was entitled to maintenance under Section 125 Cr.P.C., the learned Judge, has relied on the decision by Hon'ble Apex Court in Chaturbhuj V. Sita Bai reported in 2008 (2) SCC 316 and also extracted the observations as under:-
Section 125 Cr.P.C., a measure of social justice http://www.judis.nic.in 6/12 Crl. R.C.(MD)Nos.223 and 570 of 2019 and is specially enacted to protect women and children as noted by this Court in Captain Ramesh Chander Kaushal V. Veena Kaushal reported in 1978 (4) SCC 70 falls within Constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India.
9.The learned trial Judge also relied on yet another decision by the Hon'ble Apex Court in Shamima Farooqui V. Shahid Khan reported in 2015 (3) CTC 80, paragraph No.18 extracted in the order as under:-
"...When the women leave the Matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes the faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the Husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of Maintenance Allowance."
10.While determining the amount of compensation payable to the wife of the minor child, the trial Court relied on yet another decision http://www.judis.nic.in 7/12 Crl. R.C.(MD)Nos.223 and 570 of 2019 by the Hon'ble Apex Court in Jabsir Kaur Sehgal V. District Judge Dehradun & Others. reported in 1997 (7) SCC 7 has held as under:
"The Court has to consider the status of the parties, their respective needs, the capacity of the Husband to pay having regard to his reasonable expenses for his own Maintenance and of those he is obliged under the law and statutory but involuntary payments and deductions. The amount of Maintenance fixed for the wife would be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she live with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or inordinate."
11.Therefore, on the basis of factual appreciation of evidence and also applying the principle laid down in the above decisions, the Family Court directed the petitioner/husband to pay compensation for a sum of Rs.4,500/- per month to the respondent/wife and Rs.3,000/- per month to the minor child, totalling to Rs.7,500/- per month.
12.This Court after considering the detailed order passed by the Family court, does not find any infirmity in the said order. At the http://www.judis.nic.in 8/12 Crl. R.C.(MD)Nos.223 and 570 of 2019 same time, considering the cost of living and the monthly earning of the petitioner/husband, which was alleged to be around Rs.2,00,000/- per month, though the same was disputed before the Family Court and taking into consideration his avocation as a Gold Smith, though his earnings has not been established by means of any documentary proof by both the sides, and further taking into account the fact that the petitioner/ husband had immediately got married on 07.12.2017, after exparte dissolution of marriage on 21.10.2016, which decree has been sought to be set aside by the wife by filing necessary petition, this Court, taking into account the fact that the husband being a skilled worker, cannot resist any reasonable maintenance claimed by the wife / respondent herein.
13.Taking into account the above facts cumulatively, this Court is of the considered view that the monthly maintenance granted to the respondent/wife and the minor child is on the lower side and is liable to be enhanced. Considering the overall factual matrix and the further fact that the petitioner/husband has remarried and the present status of the parties, this Court is of the view that enhancement of monthly maintenance to Rs.6,000/- to the respondent/wife and Rs.4,000/- to the minor child, totalling to Rs.10,000/- would meet the ends of justice. http://www.judis.nic.in 9/12 Crl. R.C.(MD)Nos.223 and 570 of 2019
14.In the above circumstances, the Criminal Revision Case in Crl.R.C.(MD)No.223 of 2019 filed by the husband is dismissed and Crl.R.C.(MD)No.570 of 2019 filed by the wife for enhancement of maintenance amount is partly allowed. However, there shall be no order as to costs. The petitioner / husband in Crl.R.C.(MD)No.223 of 2019 is directed to pay monthly maintenance of Rs.6,000/- per month to the first petitioner/wife and Rs.4,000/- per month to the minor child from the date of filing of petition and arrears of enhanced maintenance shall be calculated and shall be paid within a period of four weeks from the date of receipt of a copy of this order and the petitioner/husband shall continue to pay the future monthly maintenance as ordered above. Consequently, connected Miscellaneous Petition is closed.
Index : Yes/No 27.09.2019
Internet : Yes/No
Ls
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Crl. R.C.(MD)Nos.223 and 570 of 2019
To
1.The Family Court,
Kanyakumari Division
at Nagercoil.
2.The Section Officer,
Criminal Section,
Madurai Bench of Madras High Court,
Madurai.
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Crl. R.C.(MD)Nos.223 and 570 of 2019
V. PARTHIBAN, J.
Ls
Crl. R.C.(MD)Nos.223 and 570 of 2019
27.09.2019
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