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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.06.2019
CORAM :
THE HONOURABLE MR. JUSTICE P.N. PRAKASH
Crl.R.C. No.376 of 2019
and
Crl.M.P.No.5531 of 2019
Udhaya Saravanan … Revision Petitioner
Vs.
1.S.Prema
2.Minor U.Athisaya … Respondents
[Minor represented by her mother
and natural guardian S.Prema,
the 1st respondent]
Prayer: Criminal Revision Case filed under Section 397 and Section401 Cr.P.C.,
praying to set aside the order dated 18.02.2019 passed in M.P.No.957 of 2018
in M.C.No.66 of 2018 on the file of the Principal Family Court, Chennai.
For Petitioner : Mr.R.Amizhthu
For Respondents : M/s.Lekha Shankar
ORDER
This Criminal Revision Case has been filed to set aside the order
dated 18.02.2019 made in M.P.No.957 of 2018 in M.C.No.66 of 2018 on the file
of the Principal Family Court, Chennai.
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2.For the sake of convenience, the parties will be referred to by their
name.
3.Prema got married to Udhaya Saravanan on 22.08.2005 and
through the wedlock, they have a child Athisaya, who is now 12 years old and
studying in 8th Std. Admittedly, Udhaya Saravanan is a dentist by profession.
Their marriage ran into rough weather resulting in spouses getting estranged.
Since, Udhaya Saravanan failed to maintain his wife and child, Prema filed
M.C.No.66 of 2018 under Section 125 Cr.P.C. before the Family Court, Chennai,
for maintenance. Pendente lite, she filed M.P.No.957 of 2018 in M.C.No.66 of
2018, seeking interim maintenance of Rs.50,000/- each. On notice, Udhaya
Saravanan contested the case in M.P.No.957 of 2018. On behalf of Udhaya
Saravanan, 23 documents were filed and were marked as R1 to R23.
4.After hearing either side, the Family Court, by order dated
18.02.2019 in M.P.No.957 of 2018 in M.C.No.66 of 2018, has directed Udhaya
Saravanan to pay Rs.20,000/- each (Rs.40,000/- per month) as interim
maintenance with arrears calculated till 28.02.2018, challenging which, Udhaya
Saravanan is before this Court.
5.Heard Mr.R.Amizhthu, learned counsel appearing for Udhaya
Saravanan and Ms.Lekha Shankar, learned counsel appearing for Prema.
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6.Mr.R.Amizhthu submitted that Udhaya Saravanan was not
successful as a dentist and therefore, he is working in a software company in
Bengaluru and therefore, the sum of Rs.40,000/- awarded by the Family Court
is far and excessive and that he cannot make the payment.
7.Refuting the contentions, Ms.Lekha Shankar, learned counsel
appearing for the wife submitted that, Prema is a 10 th drop-out and suffers
from hearing impairment. She contended that, for deciding the quantum of
maintenance, one parameter which is adopted is, to find out the number of
dependents on the husband. The learned counsel contended that Udhaya
Saravanan’s mother is no more and his father had retired from the Indian
Overseas Bank as a Senior Manager, who is a pensioner himself. Udhaya
Saravanan’s sister is married and Udhaya Saravanan owns three houses.
8.This Court gave its anxious consideration to the rival submissions.
9.It may be apposite to extract the discussion portion of the order
dated 18.02.2019, passed by the Family Court, which is under.
“It is an unique and peculiar case to notice the
respondent being a dentist has transformed as a software
professional. From the records and from the counter
statement it is apparent that the respondent is taking up
dual profession. The exact quantum of income from his job
with Softtek, Bengaluru could be identified through Ex.R13.
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According to the income tax assessment, the monthly salary
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of the respondent is Rs.53,000/- approximately which is for
the previous year. From the documents in Ex.R9 to Ex.R.11,
the salary escalation could be identified. Hence a
presumption arises that the current salary of the respondent
would be Rs.70,000/- approximately. Until unless the
respondent does not provides his current salary statement,
there cannot be an exact determination.
Further the respondent denies that he has no
income through the dental profession. The statement
rendered by him in his counter statement itself would be self
speaking that the respondent is capable of paying salary to
the junior dentists to a tune of Rs.10,000/- per month and
the monthly rent to a tune of Rs.6000/- for his dental clinic,
and his monthly travel expenses from Bengaluru to Chennai
and back every week end to a tune of Rs.10,000/- per
month. He also states several other expenses in his counter
statement.
Based on the admission in the counter statement,
it is clear that the respondent would not spend for his dental
clinic but for his income from it. When he is capable of
spending for his clinic to a tune of Rs.20,000/-
approximately, the presumption arises is that the income
should be atleast five times of the expenditure. Since the
respondent has not disclosed his true income from the dental
clinic, this Court has to necessarily presume that the
respondent is getting benefits to a tune of Rs.80,000/- per
month atleast. The exact income and expenditure has to be
proved by the respondent during the course of main case.
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Thus, consolidating all the above aspects, an
inference is drawn that the respondent is earning a sum of
Rs.1,50,000/- per month. The contention of the respondent
that the petitioners are holding his huge money and jewels
could not be taken in to account as on date as they are in
papers. The respondent has to necessarily hand over the
savings amount and other benefits in the name of the
second petitioner such that it could be accounted. Till the
respondent holds them, they cannot be accounted towards
maintenance. The contentions of the respondent that his
father is taking care of his expenses are also not proved
through any documents such as bank transfers. More
particularly the respondent has not denied that the
petitioners have independent income. Though the main
claim of the petitioners is still pending, this Court considers
that the petitioners are entitled for interim relief though not
as prayed for but to a reasonable extent till the disposal of
the main case.
Consolidating all the above facts and
circumstances, this Court considers that a sum of
Rs.20,000/- each to the petitioners as interim maintenance
would be reasonable for time being till the date of disposal.
Therefore this Court fixes the interim maintenance as
Rs.40,000/- in all payable by the respondent to the
petitioners with effect from 1.10.2018 till the disposal of the
main case.”
10.In the opinion of this Court, the reasoning given by the Family
Court
http://www.judis.nic.in does not suffer any serious infirmity, inasmuch as Udhaya Saravanan has
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failed to place before the Family Court, his correct income from the software
company, where he is supposed to be working. The fact remains that, Udhaya
Saravanan has a separate clinic in Chennai and also engages the services of
junior dentists to run the show.
11.In such view of the matter, this Court does not find any infirmity
in the order dated 18.02.2019, passed by the Principal Family Court, Chennai in
M.P.No.957 of 2018 in M.C.No.66 of 2018. In the result, this Criminal Revision
Case is dismissed. Consequently, connected Miscellaneous Petition is closed.
10.06.2019
mkn
To
The Principal Judge,
Family Court,
Chennai.
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P.N.PRAKASH, J.
mkn
Crl.R.C. No.376 of 2019 and
Crl.M.P.No.5531 of 2019
10.06.2019
http://www.judis.nic.in
