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Judgments of Supreme Court of India and High Courts

S.Rathinavel vs R.Prateepa (Wife) on 2 April, 2019

1

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 02.04.2019
CORAM:

THE HONOURABLE MR. JUSTICE P.VELMURUGAN

Crl.RC.No.43 of 2019
and
Crl.MP.No.366 of 2019
S.Rathinavel Petitioner
Vs
1.R.Prateepa (wife)
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.

ORDER

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

http://www.judis.nic.in
2

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

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3

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

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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,

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5

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.

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6

P.VELMURUGAN.J
sbn

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.

02.04.2019
Index : Yes/No
Internet : Yes/No
sbn
Note: Issue Order copy on 08.04.2019
To

1. The VII Additional Family Court,
Chennai.

Crl.RC.No.43 of 2019
and
Crl.MP.No.366 of 2019

http://www.judis.nic.in

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