IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.RC.No.43 of 2019
Crl.MP.No.366 of 2019
2.R.Sundaramurthy(Minor son) Respondent
PRAYER: Criminal Revision case has been filed under Section 397 r/w
401 of Criminal Procedure Code, to set aside the judgment dated
04.12.2018 passed in M.C.No.399 of 2012 on the file of the learned VII
Additional Family Court at Chennai.
For Petitioner : Mr.S.Sadasharam
For Respondents : Mr.K.Ramanamoorthy.
The revision petitioner is the husband and the first respondent is the
wife and the second respondent is the minor son. The first respondent filed
a petition under Section 125 of Cr.P.C., for maintenance before the VII
Additional Family Court, Chennai, in M.C.No.399 of 2012. After an
elaborate enquiry, the learned VII Additional Family Court Judge, Chennai
passed an order dated 04.12.2018 awarding a sum of Rs.3,000/- per month
to the first respondent and Rs.3,000/- per month to the second respondent
towards maintenance. As against the said order, the petitioner/husband
filed the present Criminal Revision Case before this Court.
2 The learned counsel for the petitioner would submit that the
husband filed a petition for Divorce against the first respondent/wife on
the ground of adultery and cruelty in F.C.O.P.No.395 of 2012 before the
VII Additional Family Court, Chennai. After receipt of summon, the first
respondent/wife filed a petition for maintenance in M.C.No.399 of 2012
before the VII Additional Family Court, Chennai. After enquiry, the
learned VII Additional Family Court, chennai, allowed the petition and
directed the petitioner/husband to pay a sum of Rs.3,000/- per month to
the first respondent and Rs.3,000/- per month to the second respondent
towards maintenance. When the husband filed the Divorce petition on the
ground of adultery and cruelty, without giving answer to that petition, the
learned VII Additional Family Court Judge, Chennai, passed an order is
not accordance with law. In case, the Court granted divorce on the ground
of adultery and cruelty, ,she is not entitled to get maintenance from her
husband. The first respondent led an adultery life. Further, he stated that
the first respondent is working in the private concern and earing a sum of
Rs.6,000/- per month. Therefore, she is able to maintain herself and she is
not entitled to get maintenance. Therefore, the order of the VII Additional
Family Court, Chennai, is liable to be set aside.
3 The learned counsel for the respondents would submit that
after marriage the revision petitioner neglected to maintain the
respondents and he has filed a petition for divorce and also stated that he
has sufficient means to maintain his wife and child. Despite having
sufficient means, he refused to maintain the respondents. There is no proof
to show that the first respondent/wife is working in a private company
and earning sufficient income to maintain herself. Hence, the learned
counsel for the respondents prays to dismiss the revision case.
4 Heard the learned counsel for the petitioner as well as the
respondents and perused the materials available on record.
5 Admittedly, the revision petitioner filed a petition for divorce
in F.C.O.P.No.395 of 2012 in the year of 2012. Subsequently, during the
pendency of the petition for divorce filed by the husband the first
respondent/wife filed the maintenance case in M.C.No.399 of 2012 in the
month of August 2012. When the Matrimonial case is pending before the
Family Court, Chennai, the first respondent/wife can file the petition for
interim maintenance under Section 24 of the Hindu Marriage Act but not
invoking Section 125 of Cr.P.C. In this case, the wife has not filed any
maintenance case before filing the petition for divorce by the husband.
Admittedly, the first respondent/wife has filed a case for maintenance
only after receiving the summons from the Court in F.C.O.P.No.395 of
2012. Further, the Family Court, has not passed any order in F.C.O.P.
No.395 of 2012, the same is pending for orders.
6 It is settled law that if the husband is having sufficient source
and means, neglected to maintain his wife and the wife is unable to
maintain herself, she is entitled to get the maintenance. In this case, the
husband has filed a petition for Divorce on the grounds of adultery and
cruelty. The trial Court without deciding the F.C.O.P., as to whether the
wife is leading adultery life, and husband is entitled to get decree for
divorce on the ground of adultery and cruelty decided only the
maintenance case alone. The learned VII Additional Family Court Judge,
Chennai ought to have converted the petition filed by the wife under
Section 125 Cr.P.C., into Section 24 of Hindu Marriage Act or the Family
Court should have decided both the cases simultaneously. Instead of that
before deciding the issue in F.C.O.P.No.395 of 2012 the trial Court decided
the M.C.No.399 of 2012 which warrants interference of this Court.
However, after disposing the F.C.O.P.No.395 of 2012, if the wife succeeds
then she is entitle to file a petition under Section 125 of Cr.P.C., and if the
husband succeeds and established the ground of cruelty and adultery, the
wife is not entitle to file any petition for maintenance. However, the order
passed by the VII Additional Family Court, Chennai to the second
respondent is hereby confirmed. Since, the paternity of the second
respondent is not in dispute and the second respondent is entitled to get
maintenance from his father/petitioner. If the person is having sufficient
means and refused to maintain the child, the child unable to maintain itself
is entitled to get a maintenance from his/her father.
7 Therefore, the petitioner has not established that the second
respondent/child is having sufficient means to maintain himself and he is
aged about only 10 years. Hence, the revision petitioner is liable to pay
maintenance to the second respondent.
8 Accordingly, this Criminal Revision Case is partly allowed by
set aside the award passed by the VII Additional Family Court, Chennai
with regard to first respondent and modified and enhanced from
Rs.3,000/-p.m. to Rs.6,000/-p.m. towards monthly maintenance of the
second respondent. Consequently, connected Criminal Miscellaneous
Petition is closed.
Index : Yes/No
Internet : Yes/No
Note: Issue Order copy on 08.04.2019
1. The VII Additional Family Court,
Crl.RC.No.43 of 2019
Crl.MP.No.366 of 2019