IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.7.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.35 of 2007 and M.P.No.1 of 2007 Reynolds alias Jamaes ... Petitioner vs. 1.Denise 2.Sofia(minor ... Respondents minor rep.by her mother, natural guardian and next friend the first petitioner herein) Petition filed under Section 397 r/w 401 of Cr.P.C. against the order dated 29.11.2006 passed by the Family Court Judge, Pondicherry, in M.C.No.22 of 2003. For Petitioner : Mr.S.Yves Joseph For Respondents : Mr.R.Subramanian ORDER
Challenging and impugning the order dated 29.11.2006 passed by the Family Court Judge, Pondicherry, in M.C.No.22 of 2003, this criminal revision case is focussed.
2. Compendiously and concisely, the facts absolutely necessary and germane for the disposal of this criminal revision case would run thus:-
The respondents herein filed the M.C.No.22 of 2003 under Section 125 of Cr.P.C. before the Family Court, Pondicherry, claiming maintenance from the revision petitioner herein. Since the revision petitioner resisted the claim, enquiry was conducted.
(b) During enquiry, the first respondent herein examined herself as P.W.1 and Exs.P1 to P4 were marked. The revision petitioner herein examined himself as R.W.1 along with R.W.2 and Exs.R1 to R5 were marked.
(c) Ultimately, the Family Court awarded maintenance in a sum of Rs.3000/- per month payable by the revision petitioner herein in favour of each of the respondents herein.
3. Being aggrieved by and disconcerted with such awarding of maintenance, this revision is focussed on various grounds, the gist and kernal of them would run thus:
The Family Court failed to take into account the fact that the wife deliberately refrained from cohabiting with the revision petitioner herein by citing the reason as though the sister of the revision petitioner refused to live with her brother. The financial wherewithal of the husband would not enable him to pay such huge amount towards maintenance and that too, when he is ready and willing to take back his wife, but it is she who is showing antipathetic and rebarbative, antagonistic and recalcitrant attitude towards him.
4. Heard both sides.
5. The point for consideration is as to whether there is any perversity or non-application of law in awarding maintenance by the Family Court.
6. The learned counsel for the revision petitioner reiterating the grounds of revision would submit that when the husband is ready and willing to live with the wife and whereas the wife is not willing to live with the husband, the question of invoking Section 125 of Cr.P.C.would not arise.
7. In all fairness, the learned counsel for the revision petitioner would submit that the revision petitioner is having no objection for paying maintenance to his daughter-R2 herein; however, because of the contumacious conduct on the part of the wife, he is not willing to pay maintenance to her.
8. Whereas, the learned counsel for the respondents would set forth and put forth his argument to the effect that the husband is earning more than a sum of Rs.20,000/- per month; even Ex.R1-the salary slip refers to the year 2004, but the order was passed in the year 2006, but he had not chosen to disclose and divulge his real income and even the maintenance of Rs.3000/- per month awarded in favour of each of the respondents, is meagre and they require more maintenance.
9. A plain reading of the order of the Family Court as well as the records would evince and evidence that there erupted matrimonial dispute between the brother of the first respondent herein and the sister of the revisioner petitioner and such cleavage in the matrimonial relationship between that couple had its own repercussion in the matrimonial relationship between the revision petitioner and the first respondent herein.
10. It is something unfortunate that because there is some apple of discord, which emerged between one couple, that got reflected in the relationship of the other couple, namely, the revision petitioner and the first respondent herein.
11. Be that as it may. It is for them to settle their disputes amicably. As of now, while dealing with this revision, I am of the considered opinion that the husband has to work out his remedy for reunion by approaching the matrimonial Court by filing appropriate application for restitution of conjugal rights. The Family Court also considered the pros and cons of the matter and felt that the wife is entitled to maintenance and it is based on appreciation of evidence adduced before it, warranting no interference by this Court.
12. Regarding quantum is concerned, the learned counsel for the revision petitioner would submit that the sum of Rs.3000/- per month awarded in favour of the wife, is on the higher side and furthermore, the wife is working in BSNL and earning sufficiently, but she suppressed those materials and got the order in her favour.
13. In the additional typed set of papers filed by the revision petitioner, certain copies of certificates are found, for which, the learned counsel for the respondents would vehemently object and would not agree to them. At this revisional stage, I am not concerned with the additional typed set of papers filed by the revision petitioner. What I would like to observe in this revision is that it is open for either of the parties to approach the lower Court under Section 127 of Cr.P.C. to get their remedies, by adducing appropriate evidence showing as to what transpired subsequently after the passing of the order of maintenance by the Family Court.
14. In this revision I have to consider only the facts which prevailed at the time of passing of the order by the Family Court Judge. The daughter of the revision petitioner/R2 being 13 or 14 years old at the time of passing of the order, certainly might have been in need of more money as maintenance than the wife of the revision petitioner, because according to the wife, she is only a house wife. As such awarding a sum of Rs.100/- per day in favour of R1 might be on the higher side and it could be reduced to Rs.75/- per day. Accordingly, if worked out, it comes to Rs.2,250/- per month and it is rounded to Rs.2,200/- per month.
15. Whereas, the learned counsel for the respondents would submit that as of now the husband is earning more than a sum of Rs.20,000/- per month.
16. If it is so, it is for the respondents to secure the salary certificate of the revision petitioner or secure evidence relating to his financial status and place before the lower Court, by filing an application under Section 127 of Cr.P.C for enhancement of the maintenance.
17. However, the learned counsel for the revision petitioner would contend that in view of the fact that R1-the wife of the revision petitioner is earning a sum of Rs.1,500/- per month, from B.S.N.L, as a sweeper on contract basis, she is not entitled to any maintenance.
18. If that be so, for proportionate reduction in maintenance, the revision petitioner could also approach the Family Court under Section 127 of Cr.P.C.and produce evidence to that effect.
19. In the result, the criminal revision case is partly allowed reducing the maintenance awarded in a sum of Rs.3000/- per month in favour of R1 to Rs.2,200/-(rupees two thousand and two hundred only) per month. Whereas, the maintenance of Rs.3000/-(rupees three thousand) per month awarded in favour of R2-the daughter of the revision petitioner is confirmed. Consequently, connected miscellaneous petition is closed. It is axiomatic that this order shall take effect from the date of filing of M.C.before the Family Court.
msk 21.7.2009 G.RAJASURIA,J. msk To The Family Court, Pondicherry. Crl.R.C.No.35 of 2007 21.7.2009