T.Hari vs Sugunya on 22 December, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 22.12.2017

CORAM

THE HONOURABLE MR.JUSTICE A.M.BASHEER AHAMED

Crl.RC(MD)Nos.497 of 2015 529 of 2015

[Orders Reserved on 07.02.2017]

Crl.RC(MD)No.497 of 2015

T.Hari : Petitioner / Respondent

Vs.

Sugunya : Respondent / Petitioner

Prayer: Revision is filed under Section 397 r/w 401 of Cr.P.C., praying to
call for the records pertaining to the order passed by the learned Family
Court Judge, Madurai, in M.C.No.82 of 2013, dated 04.08.2015, examine them
and set aside the order.

Crl.RC(MD)No.529 of 2015

R.Suganya : Revision Petitioner / Wife

Vs.

T.hari : Respondent / Husband

Prayer: Revision is filed under Section 397 r/w 401 of Cr.P.C., praying to
allow the Revision Petition and enhance maintenance amount awarded from the
date of application of M.C.No.82 of 2013 on the file of Family Court, Madurai
pronounced order dated 04.08.2015 and to call for the records pertaining to
the case in M.C.No.82 of 2013 on the file of family Court, Madurai, to
scrutinize the legality, propriety and correctness of proceedings and order
passed as well dated 04.08.2015.

!For Petitioner in : Ms.D.Geetha
Crl.RC.497/2015
and for Respondent
in Crl.RC.529/2015.

^For Respondent in : Ms.R.Suganya
Crl.RC.497/2015 (Party-in-person)
for Petitioner in
Crl.RC.529/2015.

:COMMON ORDER

The Criminal Revision in Crl.R.C(MD)No.497 of 2015 has been filed
praying to set aside the order passed by the learned Judge, Family Court,
Madurai, in M.C.No.82 of 2013, dated 04.08.2015 and Criminal Revision in
Crl.R.C(MD)No.529 of 2015 has been filed praying to enhance the maintenance
amount awarded from the date of application of M.C.No.82 of 2013, on the file
of Family Court, Madurai, dated 04.08.2015.

2. Both the Criminal Revisions Cases ie., Crl.RC(MD)No.497 of
2015 and Crl.R.C(MD)No.529 of 2015 are taken up together for final disposal,
since they are being interlinked.

3. The sum and substance of the submissions of the Ms.D.Geetha,
the learned counsel appearing for the petitioner?husband in Crl.R.C(MD)No.497
of 2015 is that the petitioner-husband married to the respondent-wife on
05.03.2012 at Madurai, according to Hindu rites and customs and started their
matrimonial life at Chennai. The respondent-wife always suspicious about the
character and conduct and tortured the petitioner-husband, along with her
family members and caused mental cruelty. Due to interference of the family
members of the respondent-wife, the respondent-wife left the matrimonial
home, on her own volition, on 22.04.2013, when the Petitioner-Husband was
away from home, at Bangalore. Therefore, the Petitioner-husband forced to
prefer an application for divorce against the respondent-wife, before the
learned Sub-Judge, Tambaram. The respondent had also preferred criminal
cases and also a Petition for Maintenance against the petitioner-husband.
The Divorce case was transferred to the file of Family Court, Madurai, as per
the orders of this Court. The Family Court, Madurai, vide order dated
04.08.2015, though came to the conclusion that the respondent-wife left the
matrimonial home on her own, awarded a sum of Rs.5000/- per month, as
maintenance, in M.C.No.82 of 2013.

4. The learned counsel appearing for the petitioner-husband would
submit that, as per
Section 125(4) of Cr.P.C., no wife shall be entitled to
receive an allowance from her husband, if, without any sufficient reason, she
refused to live with her husband. He drew the attention of this Court to
Section 125(4) of Cr.P.C, which reads as follows:-

?(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. ?

5. The learned counsel appearing for petitioner-husband, in
support of his contention, invited the attention of this Court to the
Judgment of the Hon’ble Supreme Court in Deb Narayan Halder Vs. Anushree
Halder reported in [2003 Crl.L.J.4470] ; the Judgment of this Court in
R.Vinayagam and Another Vs. M.Prema and Others reported in [2013(3) MLJ (Crl)
690] ; the Judgment of the Bombay High Court in Sow.Sumanbai Ramesh Garje
Another Vs. Ramesh Dagadu Garje reported in [1 (2015 DMC 358] and
the Judgment of Telangana and Andhra Pradesh High Court in S.Rehana Sulthana
@ Rehana Begum Vs. Mohammad Ghouse and Another reported in [ III (2016) DMC
412].

6. Ms.Suganya-wife, the Party-in-person, would submit that the
marriage between them held on 05.03.2012 in Madurai. After the marriage, the
party-in-person / wife was living in Chennai with her husband. Due to
interference of husband’s family members, he forced to file divorce petition
on 18.04.2013, before the Sub-Court, Tambaram, Chennai, without the
knowledge of wife. After that, the wife filed restitution of conjugal rights
before the Family Court, Madurai on 26.06.2013 and also filed an application
in M.C.No.82 of 2013 for claiming Rs.25,000/- per month, as maintenance, but
the Court awarded a meagre amount of Rs.5000/- per month, on 04.08.2015.
Challenging the order of maintenance, she preferred a Revision in
Crl.R.C(MD)No.529 of 2015, for enhancement of maintenance. As a legally
wedded wife, the husband is bound to maintain the wife by doing matrimonial
obligations and though he has sufficient means, he neglects and refuses to
maintain his wife. Wife has no means to maintain herself, to cover expenses
for roof, food cloth and other necessities of life. She also submitted that
the alleged allegation of cruelty against her husband is a false one and
prayed for dismissal of Crl.RC(MD)No.497 of 2015 by allowing
Crl.R.C(MD)No.529 of 2015.

7. I have heard Ms.D.Geetha, the learned counsel appearing for
the petitioner in Crl.RC(MD)No.497 of 2015 and the respondent
Crl.R.C(MD)No.529 of 2015 and I have heard Ms.Suganya-wife, the Party-in-
person, for petitioner in Crl.R.C(MD)No.529 of 2015 and for Respondent in
Crl.RC(MD)No.497 of 2015. I have also perused the materials available on
record.

8. Both the parties were living together in the matrimonial home
till 05.03.2013 at Chitlapakkam, Chennai, after their marriage. It is also
admitted that the mother of the Revision Petitioner / husband was admitted
in a Hospital for treatment due to cancer on 01.03.2013. It is also admitted
that problem arose between the Revision petitioner / husband and the
respondent / wife from 06.03.2013 onwards and the Revision petitioner /
husband has given a Police complaint on 06.03.2013 against the respondent /
wife and her family members before the All Women Police Station, Madipakkam.
Both parties were called by the said Police Station and were advised to lead
a peaceful matrimonial life after getting statements from both the parties.
Again the Revision Petitioner / husband has given a Police complaint on
17.04.2013 before the Police Commissioner at Chennai, against the respondent
/ wife and her family members. On the very next day, the revision petitioner
has filed a divorce petition on 18.04.2013 in HMOP No.204 of 2013 before the
Sub Court, Thambaram against the respondent / wife on the grounds of cruelty
under
Section 13(1)(ia) of the Hindu Marriage Act, 1955. While both are
living in the same roof ie., matrimonial house at Chitlapakkam, the said case
was transferred to the Family Court, Madurai and taken on file as HMOP No.516
of 2014 and is pending, as per the order of this Court in Tr.C.M.P.No.29 of
2014, dated 30.06.2014.

9. The respondent / wife has also entered appearance through her
counsel in the divorce proceedings, while the case was pending before the
Sub-Court, Thambaram. Thereafter, the respondent filed HMOP No.369 of 2013
on 26.06.2013, before the Family Court, seeking the relief of restitution of
conjugal rights against the revision petitioner / husband and is pending.
The said HMOP No.204 of 2013 was taken on file by the Sub Court, Thambaram on
29.04.2013 and Notice was sent to the same address where both parties were
living at Chitlappakkam, Chennai, but the said notice was returned stating
that no such person in the address.

10. Admittedly, the respondent / wife left the matrimonial Home
on 20.04.2013. The counsel for the revision petitioner / husband would
contend that the respondent / wife is not entitled to claim maintenance from
the revision petitioner / husband as per
Section 125(4) of the Code of
Criminal Procedure, 1973, since the respondent / wife left the matrimonial
home, without any sufficient reason and on her own volition. The contention
of the revision petitioner / husband cannot be accepted taking into the
consideration of the events from 05.03.2013 onwards as stated in the
previous paragraphs. It is also admitted that the respondent / wife left
the matrimonial house on 20.04.2013 while the revision petitioner / husband
was at Bangalore due to his official work from 19.04.2013 to 24.04.2013. The
Revision Petitioner / husband filed HMOP No.204 of 2013, for divorce before
the Sub Court, Thambaram, on 18.04.2013 and on the next day, he left for
Bangalore. The respondent / wife has also sent messages on 20.04.2013 from
her Mobile to the Mobile number of the revision petitioner / husband, as
follows:-

?I stay with my family at Thambaram, as you are in Bangalore?

? As per you told to go to Bangalore as office visit I am going
to stay with my parents in Thambaram today night.?

11. Considering the above facts and circumstances it cannot be
said that the respondent / wife left the matrimonial house without sufficient
reasons and she deserted the matrimonial home on her own volition. The
defence taken by the revision petitioner / husband under
Section 125(4) of
Cr.P.C., is not maintainable. Hence, the Criminal Revision Petition filed by
the revision Petitioner / husband is liable to be dismissed.

12. The respondent / wife was Awarded by the trial Court for a
sum of Rs.5000/- per month towards her maintenance from the date of filing of
the petition in M.C.No.82 of 2013, under
Section 125 Cr.P.C. Before the
Family Court, the respondent / wife claimed a sum of Rs.25,000/- per month
towards her monthly maintenance from the Revision petitioner / husband. The
respondent has pleaded in her maintenance petition that the revision
petitioner / husband is working at CMS Info Systems Private Limited and
getting a sum of Rs.80,000/- per month towards his salary. The above facts
are not denied in the counter statements filed by the revision petitioner /
husband in M.C.No.82 of 2013. The revision petitioner / husband has also not
stated his monthly salary in his proof affidavit filed in M.C.No.22 of 2013.
The Revision petitioner / husband was examined as R.W.1 in M.C.No.82 of 2013
and after cross-examination of R.W.1 by the respondent / wife, R.W1 has
produced his pay particulars for the month of February-2015 and marked as
Ex.R14 and he has admitted that he is an Income Tax Assessee and his total
salary is Rs.49,000/-.

13. On perusal of Ex.R.14 would reveal the fact that the net
salary of the revision petitioner / husband is Rs.44,386/-. It is also
admitted that the mother of the revision petitioner / husband also
subsequently expired. The Revision Petitioner / husband has also admitted
that his sister, who is a widow, and her daughter are living separately. The
revision petitioner / husband has no issue at all through the respondent /
wife out of their lawful wedlock. It is well settled principles of law that
there can be no evidence without any pleadings. The revision petitioner /
husband has not pleaded in his counter statement filed in M.C.No.82 of 2013
regarding his monthly salary. The respondent / wife also contested the case
of divorce filed by the revision petitioner / husband and is pending before
the Family Court, Madurai. The Revision petitioner / husband has not
produced any documents or evidence to show that the respondent / wife is
earning. It is also admitted that the respondent had obtained degrees in
M.Sc., B.Ed., but not employed anywhere. The respondent / wife is living
separately with her parents from April 2013 onwards. The respondent / wife
has also admitted in Ex.P13 that the Revision Petitioner / husband is
indebted to many persons. The revision Petitioner / husband is legally and
morally bound to maintain her wife / respondent.

14. Considering the monthly income of the revision petitioner /
husband being received from the Company in which he is working from 2015
onwards and also day-to-day needs of the respondent / wife, escalating food
prices, medical expenses and also necessary other requirements of the
respondent / wife, to lead a decent life with status, the maintenance amount
awarded by the trial Court is not a reasonable one, in the considered
opinion of this Court. Hence, this Court concludes that the respondent /
wife is entitled to get higher quantum of monthly maintenance, taking into
consideration of the education and social status of both parties.

15. In the result, the Criminal Revision Petition No.497 of 2015
stands dismissed and Crl.R.C.No.529 of 2015 is partly-allowed by modifying
Award of maintenance passed in M.C.No.82 of 2013 on 04.08.2015 by the Family
Court, Madurai. Accordingly, the monthly maintenance awarded by the trial
Court is enhanced to Rs.15,000/- (Rupees Fifteen Thousand Only) from
Rs.5,000/-. The revision petitioner / husband is directed to deposit the
arrears of maintenance due to the respondent / wife as on date, after
deducting the payments already made, if any, to the credit of M.C.No.82 of
2013, Family Court, Madurai, within a period of two months from the date of
receipt of a copy of this order. The revision petitioner / husband is also
directed to deposit the enhanced future monthly maintenance amount, now
determined by this Court, from the date of this order, on or before 10th day
of every English Calender month, to the respondent / wife. On such deposit
of arrears of maintenance and future monthly maintenance are being made, the
revision petitioner / wife is also permitted to withdraw the said maintenance
amounts from the concerned Court, on proper application. Both the parties
are directed to bear their costs on their own.

To

1.The Judge,
Family Court,
Madurai.

2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

3.The Record Keeper,
Criminal Record Section
Madurai Bench of Madras High Court. .

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