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R.Kalarani vs Jeeva Ashok on 22 December, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 22.12.2017

Date of Reserving the Order
Date of Pronouncing the Order
19.12.2017
22.12.2017

CORAM

THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

Crl.R.C.(MD). Nos.246 of 2017
694 of 2017

Crl.R.C.(MD). No.246 of 2017:

1.R.Kalarani
2.Minor.Laksya … Petitioners/Petitioners/Petitioners
(Minor 2nd Petitioner
through his mother
and guardian 1st Petitioner)
-vs-

Jeeva Ashok … Respondent/Respondent/Respondent

PRAYER : Criminal Revision Petition filed under Sections 397 and 401 of
Criminal Procedure Code, to call for the records relating to the order, dated
24.08.2016, made in Cr.M.P.No.75 of 2014 in M.C.No.63 of 2008, on the file of
the Family Court, Dindigul and to set aside the same.

!For Petitioners : Mr.A.Jayaramachandran

^For Respondent : Mr.R.R.Kannan

Crl.R.C.(MD). No.694 of 2017:

Jeeva Ashok … Petitioner / Respondent / Respondent

-vs-

1.R.Kalarani
2.Minor.Laksya … Respondents / Petitioners /
Petitioners
(Minor 2nd Respondent through his
mother and guardian 2nd Respondent)

PRAYER : Criminal Revision Petition filed under Sections 397 and 401 of
Criminal Procedure Code, to call for the records relating to the order, dated
24.08.2016, made in Cr.M.P.No.75 of 2014 in M.C.No.63 of 2008, on the file of
the Family Court, Dindigul and to set aside the same.

For Petitioner : Mr.R.R.Kannan

For Respondents : Mr.A.Jayaramachandran

:COMMON ORDER

Since both the criminal revision petitions have been filed challenging the
very same order and the parties being one and the same, they have been
clubbed, heard together and are being disposed of by this common order.

2. Being aggrieved by the order of the Family Court Dindigul dated
24.08.2016, made in Cr.M.P.No.75 of 2014 in M.C.No.63 of 2008, stating that
the amount of maintenance awarded is not sufficient, the wife had filed a
petition in Crl.R.C (MD) No.246 of 2017 for enhancement of maintenance for
herself and her daughter.

3. Being aggrieved by the above order of the Family Court Dindigul,
contending that the maintenance awarded to the wife and daughter was
exorbitant the husband had filed a petition in Crl.R.C (MD) No.694 of 2017
seeking reduction of monthly maintenance.

4. For the sake of convenience the parties are referred as per the
ranking in Criminal M.P.No.75 of 2014 in M.C.No.63 of 2008 on the file of the
Family Court, Dindigul as 1st petitioner/wife,2nd petitioner/daughter and
respondent/husband.

5. The brief facts of the case are: The marriage between the first
petitioner /wife and the respondent/husband was solemnized on 26.04.2004 at
Dindigul and thereafter the same got to be registered at the Office of the
Territorial Sub-Registrar, Dindigul, Dindigul District. Out of the wedlock a
female child/second petitioner was born and the child is now in the custody
of the first petitioner. Due to marital discord the respondent filed a case
for grant of divorce in H.M.O.P.No.236 of 2008 before the Sub Court concerned
on the ground of adultery. However, the H.M.O.P., was dismissed and the
respondent had filed C.M.A.No.35 of 2011 before the District Court, Dindigul
challenging the order of dismissal of the petition for divorce and that the
C.M.A., had also been dismissed. The petitioner/wife had originally filed a
petition before the learned Judicial Magistrate, Dindigul claiming
maintenance for herself and her minor daughter during 2008 and the court by
order dated 31.08.2010 directed the respondent to pay a sum of Rs.1,000/-
per month to each petitioners. Challenging the order of maintenance the
respondent/husband filed Crl.R.P 36/2010 and the petitioner/wife filed
Crl.R.P 1/2011 before the Prl. Sessions Court Dindigul and by common order
dated 21.04.2011, the Principal Sessions Court, Dindigul dismissed Crl.R.P.36
of 2010 and partly allowed Crl.R.P.No.1 of 2011 and enhanced the monthly
maintenance of the first petitioner/wife to Rs.2,500/- and the monthly
maintenance of the second petitioner/daughter to Rs.3,500/-. Against the said
order the respondent had filed Crl.R.C.(MD) No.459 of 2011 before this Court
and this Court by order dated 30.07.2013 disposed the revision with the
direction to both parties to produce documents and adduce evidence before the
trial Court regarding their respective incomes and thereby directed the Court
below to refix the quantum of maintenance after hearing both sides.
Thereafter, petitioner/wife had filed Crl.M.P.No.75 of 2014 before the Family
Court, Dindigul, under Section 127 Cr.P.C., claiming Rs.10,000/- per month
towards maintenance each for herself and the second petitioner/daughter. In
the petition, the petitioner/wife had stated that she was working as an
Account in Surva Siksha Abiyan for consolidated pay of Rs.6,000/- and that
her job was temporary one which was subjected to be terminated any time and
that her husband the respondent was working as a Government Teacher earning
Rs.34,875/- and that she being unable to maintain herself and her daughter,
prayed for enhancing the maintenance at the rate of Rs.10,000/- each for
herself and her daughter. The respondent/husband filed a counter starting
that the petitioner/wife was earning an amount of Rs.6,000/- and that she
being able to maintain herself was disqualified from claiming maintenance
under Section 125 Cr.P.C. Further, he had stated that his take home income
was only Rs.33,565/- and that since the Hon’ble High Court in Crl.R.C., had
not altered the maintenance amount and that the High Court had directed both
parties to produce documents towards proof of income and decide the quantum
of maintenance and thereby submitted that the petition filed under Section
127 Cr.P.C., for enhancement of maintenance amount is not maintainable.

6. During the proceedings the first petitioner/wife examined herself as
P.W.1 and she had marked Exs.P1 to P11 on her side. The respondent had
examined himself as R.W.1, his father Selvam as R.W.2 and the Office staff of
the Addl. C.E.O as R.W.3. The authorisation given to R.W-2 was marked as
Exs.X1 and the consolidated pay details of the petitioner / wife for the
month of May 2016 was marked as Ex X2.

7. The court below after hearing both sides and taking into
consideration the consolidated monthly income of Rs.6,000/- received by the
first petitioner and the amount of Rs.47,709/- as the income of the
respondent/husband as per Ex.P11 and passed an order fixing the amount of
maintenance at Rs.2,500/- for the first petitioner/wife and Rs.6,000/- for
the second petitioner/daughter and the respondent/husband was directed to pay
the arrears within three months and he was also directed to pay the arrears
of maintenance and future maintenance of the second petitioner to her mother
first petitioner. This is order which is now challenged by both parties
before this Hon’ble Court.

8. Heard Mr.A.Jayaramachandran, learned counsel for the wife and
Mr.R.R.Kannan, learned counsel for the husband.

9. The learned counsel for the petitioner/wife contended that the
Family Court erred in not enhancing the maintenance of the wife and daughter
taking into consideration the status of the husband and the income earned by
him. He further contended that as on date the husband is earning the amount
of Rs.53,459/- per month that that he is a teacher working in Government
School and that having neglected to maintain his wife and daughter the Family
Court ought to have awarded enhanced maintenance as prayed for and contended
that the wife besides taking care of herself was also taking care of her
daughter and that the present job in Surva Shiksha Abiyan is only a
temporary job and it is only on a consolidated pay and that she may be
terminated from the above work at any time and thereby contended that the
Family Court erred in not awarding the enhanced amount. The counsel contended
that the Family Court failed to take into consideration the Judgments of the
Apex Court with regard to the maintenance and submitted that the Family Court
erred in taking into consideration the income of the wife and thereby
refusing to enhance the maintenance to the wife. The test to be decided is
whether the wife was in a position to maintain herself in the way she was
used to be in the place of her husband and thereby the court ought to have
taken note of the income and status of the husband and comparatively
considered the status of the wife which was not on par with the status of her
husband and thereby ought to have enhanced the maintenance amount. The
counsel for the petitioner contended that as per the salary drawn on July
2017, the income of the husband was Rs.52,806/- and that the Family Court
ought to have enhanced the amount in commensurate with the monthly income of
the respondent/husband rather than considering the income of the wife which
was only on a temporary basis.

10. In support of his contention the learned counsel for the petitioner
relied on the decisions of the Hon’ble Apex Court in Chaturbhuj vs. Sita Bai
reported in (AIR 2008 SC 530) and in Sunita Kachwaha Ors. vs. Anil Kachwaha
reported in (AIR 2015 SC 554) contending that merely because the wife was
earning something it would not be a ground to reject her claim for
maintenance and that the test to be decided by the court is whether the wife
is in a position to maintain herself in the way she used to be in the place
of her husband.

11. The learned counsel for the respondent vehemently opposed the plea
of the first petitioner stating that she is not entitled to any maintenance
for the reason that she has refused to live with her husband without any
reasonable cause and thereby she is not entitled to maintenance as per
Section 125 (4) Cr.P.C. He further contended that the wife is getting
consolidated pay of Rs.6000/- per month and that the salary of the husband is
only Rs.52,806/- as on July 2017 and that his take home salary after
deduction towards loans is only Rs.32,393/-. and that the husband is taking
care of his aged parents and the Family Court erred in fixing the quantum of
maintenance at Rs.2,500/- per month to the first petitioner and Rs.6,000/-
per month to the second petitioner/daughter. He further contended that the
respondent/husband had availed loans for settling the arrears amount of
maintenance and that very recently he had also paid a sum of Rs.3.00 lakhs
towards the arrears of maintenance. He further contended that he was always
willing to live along with his wife whereas she has refused to join him.
Further, the counsel contended that the wife had filed several vexatious and
false cases against the husband and her family members and that he had been
forced to run between courts and that even after an acquittal by the trial
court the wife is witch hunting him by filing appeal against acquittal and
thereby contended that the wife is not entitled to maintenance.

12. In reply to the above arguments of the learned counsel for the
respondent/husband Mr.A.Jayaramachandran, learned counsel for the first
petitioner/wife vehemently contended that it was the husband who invited the
litigation and false allegations of adultery were raised against the
petitioner/wife and moreover, the respondent/husband had also committed fraud
on the court through one of his relatives who was working in the court and
attempted to show as if court summons were served on a fictitious person to
be the 2nd respondent in the Divorce proceedings and thereby the
petitioner/wife was constrained to initiate proceedings against him. The
counsel further contended that the husband having raised a false and vague
serious allegations of adultery cannot now fault with the wife for not
joining him and that the divorce petition filed by the husband on the ground
of adultery had been dismissed and the appeal has also been dismissed. In
such circumstances, there was sufficient reason and grounds for the wife to
refuse to live with him. Moreover, the wife had been subjected to severe
cruelty and thereby she was forced to give a criminal complaint against her
husband and that having forced her into four corners, the husband cannot now
find fault with her in taking appropriate legal recourse against him for the
fault committed by him. The counsel for the petitioner/wife further contended
that as on today, the monthly income of the respondent is Rs.53,459/- per
month and even as per the records submitted by him he is contributing
Rs.8,000/- towards Provident Fund and he is purposely and wilfully avoiding
payment of maintenance to his wife. Whereas the wife is suffering without
permanent income and that she has to maintain herself and her daughter and
her educational expenses, rent for dwelling house and in the present day cost
of living in comparison to the amount earned by the husband and the life
style of the husband, she and her daughter are in poor state of living and
prayed for enhancement of maintenance considering the plight of the destitute
woman and her child.

13. At this juncture with regard to the contention of the counsel for
the respondent/husband that the wife had refused to live with him without any
reasonable cause and that he was willing and ready to live with her, it is
worthwhile to refer to an earlier judgment of this Court in Kandasamy Moopan
vs. Angmmal reported in AIR 1960 Madras 348, wherein this Court has held that
a deliberate attribution of immorality of a wife must be considered as legal
cruelty entitling the wife to live separately and claim maintenance. It had
also held that the last minute offers to take back the wife are open to
scepticism as they are put forward with no other object than to ward off
applications arising in civil and criminal proceedings for supporting wife

14. The Family Court in its order dated 24.08.2016 made in Cr.M.P.No.75
of 2014 in M.C.No.63 of 2008, while passing the order for maintenance had
taken into consideration the salary of the wife and the monthly salary of the
husband and awarded maintenance at Rs.2,500/- to the wife and Rs.6,000/- to
the daughter. In the judgment reported in AIR 2015 SC 554 (Sunita Kachwaha
Ors. vs. Anil Kachwaha ) the Hon’ble Apex Court has held that where the wife
states she had great hardships in maintaining herself and the daughters,
while her husband’s economic condition is quite good the wife would be
entitled to maintenance. In the very same judgment it has also been held that
merely because the wife was earning something it would not be a ground to
reject her claim for maintenance.

15. In Chaturbhuj vs. Sita Bai reported in (AIR 2008 SC 530) 2008 2
SCC 316, it has been held that Section 125 is a measure of social justice and
is especially enacted to protect women and children, para 5 to 8 of the
judgment is extracted hereunder:

5. The object of the maintenance proceedings is not to punish a person for
his past neglect, but to prevent vagrancy by compelling those who can provide
support to those who are unable to support themselves and who have a moral
claim to support. The phrase “unable to maintain herself” in the instant case
would mean that means available to the deserted wife while she was living
with her husband and would not take within itself the efforts made by the
wife after desertion to survive somehow. Section 125 Cr.P.C. is a measure of
social justice and is specially enacted to protect women and children and as
noted by this Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal
and Ors. (AIR 1978 SC 1807) falls within constitutional sweep of Article
15(3) reinforced by Article 39 of the Constitution of India, 1950 (in short
the ‘Constitution’). It is meant to achieve a social purpose. The object is
to prevent vagrancy and destitution. It provides a speedy remedy for the
supply of food, clothing and shelter to the deserted wife. It gives effect to
fundamental rights and natural duties of a man to maintain his wife, children
and parents when they are unable to maintain themselves. The aforesaid
position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat
and Ors. (2005 (2) Supreme 503).

6. Under the law the burden is placed in the first place upon the wife to
show that the means of her husband are sufficient. In the instant case there
is no dispute that the appellant has the requisite means.

7. But there is an inseparable condition which has also to be satisfied that
the wife was unable to maintain herself. These two conditions are in addition
to the requirement that the husband must have neglected or refused to
maintain his wife. It has to be established that the wife was unable to
maintain herself. The appellant has placed material to show that the
respondent-wife was earning some income. That is not sufficient to rule out
application of Section 125 Cr.P.C. It has to be established that with the
amount she earned the respondent-wife was able to maintain herself.

8. In an illustrative case where wife was surviving by begging, would not
amount to her ability to maintain herself. It can also be not said that the
wife has been capable of earning but she was not making an effort to earn.
Whether the deserted wife was unable to maintain herself, has to be decided
on the basis of the material placed on record. Where the personal income of
the wife is insufficient she can claim maintenance under Section 125 Cr.P.C.
The test is whether the wife is in a position to maintain herself in the way
she was used to in the place of her husband. In Bhagwan v. Kamla Devi (AIR
1975 SC 83) it was observed that the wife should be in a position to maintain
standard of living which is neither luxurious nor penurious but what is
consistent with status of a family. The expression “unable to maintain
herself” does not mean that the wife must be absolutely destitute before she
can apply for maintenance under Section 125 Cr.P.C.?

16. Heard both sides Counsels and analysed the judgments of the Honble
Apex Court cited supra. In reference to the judgments cited above it is made
clear that when the personal income of the wife is insufficient she can claim
maintenance under Section 125 Cr.P.C., and next to fix the quantum of
maintenance, the test is whether the wife is in a position to maintain
herself in the way she was used to be in the place of her husband.

17. Here is a case of a woman with a temporary job taking care of her
minor daughter seeking maintenance from her husband who is better placed than
them. The woman and her daughter have to take care of their boarding,
lodging, medical, clothing and also the educational expenses of her daughter.
As on today (the date of hearing), as admitted by both the counsels the
consolidated monthly pay for the wife is Rs.9,116/- and the salary of the
husband is Rs. 53,459/- per month. Taking into consideration the cost of
living index as on today and also the fact that the minor daughter is being
taken care of by wife, the Court finds the amount of maintenance awarded by
the Family Court is low and not consistent with the income of the husband at
Rs.53,459/- per month. The Family Court erred in not enhancing the monthly
maintenance of the wife and the daughter.

18. This Court finds that when the husband is able to pay Rs.8,000/-
per month towards his contribution for Provident Fund, there is no reason for
him deny enhancement of maintenance to his wife and child which would be
consistent with his standard of living.

19. In such circumstances this Court taking into consideration the
consolidated income of the wife which is also temporary in nature and the
income of the respondent husband this Court finds that it would be just and
appropriate that the maintenance awarded to the wife is enhanced to
Rs.4,000/- per month from Rs.2,500/- per month and the maintenance awarded to
the minor child is enhanced to Rs.7,500/- per month from Rs.6,000/- per
month.

20. In the result, Crl.R.C.(MD) No.246 of 2017 filed by the
petitioners/wife and daughter is partly allowed and Crl.R.C.(MD)No.694 of
2017 filed by the respondent/husband is dismissed and thereby the order,
dated 24.08.2016, made in Cr.M.P.No.75 of 2014 in M.C.No.63 of 2008, by the
Family Court, Dindigul, is modified and the maintenance awarded to the wife
is enhanced to Rs.4,000/- per month and the maintenance to the minor child is
enhanced to Rs.7,500/- per month.

21. It is made clear that in the event of any change of circumstances
in the status of the parties, they are at liberty to file appropriate
petition for alteration of allowances under Section 127 of Criminal Procedure
Code, before the Family Court which has originally passed the maintenance
order. The petitioners are entitled to claim the revised amount of
maintenance from the date of order of the Family Court, Dindigul viz.,
24.08.2016 passed in Cr.M.P.No.75 of 2014 in M.C.No.63 of 2008. Three months
time is given to the respondent/husband to pay the arrears of enhanced
maintenance amount.

To:

The Presiding Officer, Family Court, Dindigul.

.

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