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Pugalenthi vs Revathi on 1 August, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON: 17.07.2018

DELIVERED ON : 01.08.2018

Dated: 01.08.2018

CORAM

THE HONOURABLE MRS. JUSTICE R. THARANI

Crl.R.C.(MD) Nos.429 of 2017 and 923 of 2017

Crl.R.C.(MD)No.429 of 2017:

Pugalenthi … Petitioner

vs.

1.Revathi

2.Minor. Kathambari
(Rep. By through her mother 1st respondent) … Respondents

Crl.R.C.(MD)No.923 of 2017:

1.Revathi

2.Minor. Kathambari
(Rep. By through her mother 1st petitioner) … Petitioners

vs.

Pugalenthi … Respondent

Common Prayer:- Criminal Revision Petitions filed under Sections 397 r/w. 401
of the Code of Criminal Procedure, 1973, to call for the records in
M.C.No.87 of 2011 dated 21.01.2016 on the file of the learned Judge, Family
Court, Madurai District and set aside the same.

!For Petitioner in
Crl.R.C.(MD)No.429 of 2017 : Mr.S.Rajaprabu
^For Respondents in
Crl.R.C.(MD)No.429 of 2017 : Mr.M.Sarangan
For Petitioners in
Crl.R.C.(MD)No.923 of 2017 : Mr.M.Sarangan
For Respondent in
Crl.R.C.(MD)No.923 of 2017 : Mr.S.Rajaprabu

:Common Order

The petitioner in Crl.R.C.(MD)No.429 of 2017 is the husband and the
petitioners in Crl.R.C.(MD)No.923 of 2017 are the wife and their child
respectively. Since the subject in these petitions are similar, both the
petitions are taken up together and are disposed of by this common order.
For the sake of convenience as both the cases are related to each other, this
Court deems it fit that the word petitioner will denotes the husband who is
the petitioner in Crl.R.C.(MD)No.429 of 2017 and the word first respondent
will denotes the wife who is the petitioner in Crl.R.C.(MD)No.923 of 2017.
The child will be discribed as the second respondent throughout the order.

2.Heard the learned counsel on either side.

3.These petitions have been filed to set aside the order passed in
M.C.No.87 of 2011 dated 21.01.2016 on the file of the learned Judge, Family
Court, Madurai District.

4.The marriage between the petitioner and the first respondent was
solemnized on 27.06.2002. After the marriage, they started living in
Tirunagar, Madurai. On 06.01.2014, they got a female child.

5.On the side of the petitioner, it is stated that in the month of
January 2004, the petitioner obtained a job in the Honda Company at Chennai
and the first respondent lived with him in Chennai for two months and then
she returned back to Madurai and lived with her parents. It is stated that
the petitioner tried to live with the first respondent. However, irrespective
of the steps taken by the petitioner, the first respondent deserted him.
During 2005, the petitioner went to Malaysia and returned back after two
years. Even at that time, the first respondent refused for re-union. She
insisted him to sell the property at Paramakudi and to start a business at
Madurai. As efforts for reunion failed, the petitioner issued a legal notice
and the first respondent gave a reply notice with false allegations. Hence,
the petitioner filed a petition under Section 13(1) (i-a) of Hindu Marriage
Act
in H.M.O.P.No.286 of 2011 on the ground of cruelty and subsequently, the
first respondent filed a restitution of conjugal rights petition in
H.M.O.P.No.583 of 2011. After considering both sides, the learned Judge,
Family Court, Madurai allowed the divorce petition filed by the petitioner
and dismissed the restitution of conjugal rights petition filed by the first
respondent.

6.On the side of the petitioner, it is stated that the first respondent
filed a petition for maintenance under Section 125 of Cr.P.C., before the
Family Court, Madurai and without considering the petitioner side
submissions, the Family Court has directed the petitioner herein to pay a sum
of Rs.2,000/- (Rupees Two Thousand only) to the first respondent herein and
to pay a sum of Rs.4,000/- (Rupees Four Thousand only) to the second
respondent herein towards maintenance from January 2014 onwards. The
petitioner herein was also directed to pay a sum of Rs.3,000/- (Rupees Three
Thousand only) towards cost of expenses to the respondents herein. Against
the order, the petitioner has come forward with this revision petition.

7.On the side of the first respondent, it is stated that at the time of
marriage, the petitioner has promised the first respondent that they will
settle at Madurai. Later he suggested to settle at Chennai. After the birth
of the second respondent, the petitioner shifted the residence to Chennai.
After shifting their house, the second respondent got some disability and was
not able to sleep properly. The first respondent insisted the petitioner for
proper treatment. But the petitioner did not consider the same and he also
refused to take the child to the hospital. The first respondent informed
about the child’s illness to her mother, who has completed M.D. Course in
Acupancher. Thereafter, she took the second respondent to Madurai for
treatment.

8.Then they came to know that the second respondent is suffering from
mental retardation. When the petitioner came to know about the health of the
second respondent, he refused to take care of her and gone abroad for two
years. Thereafter, the petitioner filed a divorce petition. The first
respondent is suffering to maintain the second respondent and she is unable
to pay for the treatment and for the Special School expenses. The first
respondent is not having any independent income. The petitioner is having
immovable property at Paramakudi and he is receiving rental income. He was
working in a private company and is doing real estate business and drawing
more than Rs.50,000/- (Rupees Fifty Thousand only) per month.

9.The petitioner has not produced any oral and documentary evidence in
the case. Considering the fluctuation of price today and needs for special
child/the second respondent, the first respondent prays to consider her case
and to enhance monthly maintenance amount into Rs.14,000/- (Rupees Fourteen
Thousand only).

10.Records perused. The marriage between the petitioner and the first
respondent is not denied and the second respondent is the child of the
petitioner and the first respondent. This fact is also not denied. The
petitioner is only denying the quantum of maintenance for the respondents.
The first respondent has demanded an enhanced amount for the maintenance of
the second respondent.

11.On the side of the first respondent, a document is filed before this
Court wherein it is stated that the second respondent is studying Standard IX
in the Xavier Matric Hr. Sec. School and the School fees for the first term
is Rs.19,000/- (Rupees Nineteen Thousand only).

12.On the side of the first respondent, a Certificate is filed before
this Court wherein it is stated that the second respondent is having learning
disability dislexia and she needs special care and special education, for
improving her learning and writing skills and she needs speech therapy also.

13.On the side of the petitioner, it is stated that the Fast Track
Court has allowed the divorce petition on ground that the first respondent
deserted her husband. It is further stated that as per Section 125(4) of
Cr.P.C., the first respondent is not entitled for maintenance as she has
deserted the husband. It is further stated that the first respondent is
working and is getting sufficient income. No document is filed on the side of
the petitioner to prove that the first respondent is getting salary. It is
further stated that the petitioner was working as a Server in a hotel and he
was not able to pay the maintenance and he has undergone imprisonment as per
the order in Crl.R.C.(MD)No.332 of 2017 and got suspension of sentence in
Crl.M.P.(MD)No.3197 of 2017.

14.On the side of the first respondent, it is stated that the
petitioner refused to pay the maintenance amount, though the petitioner is
having sufficient means for paying the maintenance. The second respondent was
having 100 % disability at the age of three. Now she is improving due to the
treatments given to her. Until her end, she needs attention, assistance and
medical care. The petitioner has to pay Rs.15,000/- (Rupees Fifteen Thousand
only) per month towards the fees for the special School such as speech
therapy, occupational therapy and behaviour therapy are necessary for the
second respondent. The second respondent has attained puberty and the
responsibility of the first respondent is increasing day by day. Only because
the second respondent was born with some mental illness, the petitioner has
refused to live with the respondents.

15.The second respondent is a special child who needs speech therapy
and behavior therapy and also needs special attention. Even a divorce wife is
entitled for maintenance.

16.In such circumstances, the order of the lower Court that the
petitioner herein has to pay a sum of Rs.2,000/- (Rupees Two Thousand only)
to the first respondent herein towards maintenance is correct. The petitioner
is having immovable properties and he is getting rental income. This fact is
admitted by him. The petitioner is duty bound to take care of this family
members. The second respondent being a special child, she needed special
treatment. The petitioner has to prove that the first respondent is working
and earning sufficient amount and she can maintain herself and the second
respondent. But, he has not filed any document to prove the same. In these
circumstances, this Court deems it fit to enhance the maintenance amount for
the second respondent and the petitioner herein is directed to pay a sum of
Rs.8,000/- (Rupees Eight Thousand only) per month towards the maintenance of
the second petitioner.

17.In the result, the petition in Crl.R.C.(MD)No.429 of 2017 is
dismissed and the Crl.R.C.(MD)No.923 of 2017 is partly allowed. The
respondent/husband in Crl.R.C.(MD)No.923 of 2017 has to pay a sum of
Rs.2,000/- (Rupees Two Thousand only) per month towards maintenance of the
wife and he has to pay a sum of Rs.8,000/- (Rupees Eight Thousand only) per
month towards maintenance of the child from the date of filing of this
petition. Arrears of the maintenance is to be paid within a period of three
months and the monthly amount is to be paid on or before 6th of every month.

To

1.The Family Court Judge, Madurai.

.

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