IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23.07.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.1162 of 2006 and M.P.No.1 of 2006 S.Venkatesan ... Petitioner vs. Pownammal ... Respondent Prayer: Petition filed under Section 397 r/w 401 of Cr.P.C. against the order dated 10.07.2006 passed by the learned Chief Judicial Magistrate, No.I, Krishnagiri in M.C.No.7 of 2005. For Petitioner : No appearance For Respondent : Mr.V.Nicholas O R D E R
Animadverting upon the order dated 10.07.2006 passed by the learned Chief Judicial Magistrate, No.I, Krishnagiri in M.C.No.7 of 2005, this criminal revision is focussed.
2. A ‘resume’ of facts, which are absolutely necessary for the disposal of this criminal revision could succinctly and precisely be set out thus:
(i) The respondent herein filed M.C.No.7 of 2005, before the learned Chief Judicial Magistrate, No.I, Krishnagiri, seeking maintenance. Inasmuch as the revision petitioner resisted the claim, enquiry was conducted.
(ii) During enquiry, on the side of the prosecution, P.W.1 was examined and Exs.P1 and P2 were marked. On the respondent’s side, R.W.1 was examined and Exs.R1 to R8 were marked.
(iii) Ultimately, the lower court dismissed the claim of the revision petitioner herein and awarded maintenance in a sum of Rs.1,000/- p.m payable in favour of the respondent herein.
(iv) Challenging and impugning, the order of the learned Magistrate, this revision has been filed on various grounds, the pith and marrow of them would run thus:
Without appreciating the facts and details placed before the lower court, the learned Magistrate simply jumped to the conclusion that the respondent herein is entitled to maintenance and awarded the same.
3. The learned counsel for the revision petitioner is absent. Whereas the learned counsel for the respondent is present and would submit that his client Pavunammal died. The revision petitioner also has not chosen to take any interest in prosecuting this revision. Hence, in these circumstances, I would like to consider as to whether any interference in this revision is warranted, de hors the death of the respondent.
4. The gist and kernel of the case, is that Pavunammal filed M.C.No.7 of 2005 as against her husband Venkatesan seeking maintenance on the ground that he neglected to maintain her, despite, he was having enough source to provide maintenance.
5. The point for consideration is as to:-
“Whether, there is any perversity or non-application of law in awarding maintenance by the Magistrate Court ?
6. The learned Magistrate after seeing the pros and cons of the matter held that the respondent herein,viz., Pavunammal is the wife of Venkatesan/ the revision petitioner and gave a finding that she was entitled to maintenance. The reason attributed by Pavunammal as against her husband for he having neglected her was that since the husband started leading a wavered life by having illicit intimacy with several ladies, he neglected to maintain her and she struggled like anything to eke out her livelihood with her children and inasmuch as she became old, she wanted maintenance from her husband. Such a theory was accepted by the learned Magistrate based on appreciation of evidence, which warrants no interference by this Court.
7. The Magistrate also gave a finding that Venkatesan is a Pensioner, as he happened to be the retired teacher and earning sufficiently, so to say, a sum of Rs.7,000/- per month, which also is quite probable as it is anybody’s knowledge that a retired Government Teacher could get a pension of Rs.7,000/- per month.
8. The husband primarily is responsible to maintain his wife even though, a son might be there for a lady. The court cannot compel a lady seeking maintenance from her husband to go and seek maintenance from her son. As such, on that ground also, the lower court correctly held, warranting no interference.
9. It is a trite proposition of law that a husband is expected to maintain his wife, by toiling and moiling and also by straining every nerve and the learned Magistrate has ordered only a sum of Rs.1,000/- per month as maintenance payable by the revision petitioner to his wife/respondent herein. Taking into account the cost of living prevailing during the year 2006, a lady would not be able to lead a proper life without even having a sum of Rs.30/- per day. Accordingly, if worked out it comes to Rs.900/- per month. To meet her travelling expenses, medical expenses and other unforeseen expenses, she would require additionally, a sum of Rs.100/- per month. As such, the total comes to Rs.1,000/- per month, which was correctly awarded by the learned Magistrate.
10. In the result, I could see no perversity or non-application of mind on the part of the lower court in awarding maintenance, warranting interference by this Court. Accordingly, the revision fails and the same is dismissed. Consequently, the connected miscellaneous petition is closed.
11. The learned counsel appearing for the respondent would submit that regarding the accrued arrears are concerned, the legal heirs of the deceased respondent, viz., son and daughter would be entitled to it. Already the law is well settled on that point that, accrued arrears could be claimed by the legal heirs and for that the maxim Actio personalis moritur cum persona – A personal action dies with the person cannot be pressed into service. It is open for them to work out their remedy before the appropriate forum.
23.07.2009
vj2
Index : Yes
Internet: Yes
To
The Chief Judicial Magistrate, No.I, Krishnagiri
G.RAJASURIA,J.,
vj2
Crl.R.C.No.1162 of 2006
23.07.2009