B. Sharzoo Khan vs S. Haseena Banu and Others

M. Sathyanarayanan, J.—By consent the revision petition itself is taken up for final disposal.

The revision petitioner herein is the respondent in M.C.No. 11 of 2010. The respondents herein filed the said petition under Section 125 of Cr.P.C., on the file of the Court of Additional Chief Judicial Magistrate, Madurai, stating among other things that the marriage between the first respondent herein and the revision petitioner herein was solemnized on 15.07.2007 and at the time of marriage, it was represented that the revision petitioner is employed as a Software Engineer in Bangalore and he was earning a sum of Rs. 40,000/- per month. At that time of marriage, 185 sovereigns of gold jewels and a sum of Rs. 3,50,000/- in cash was given by the parents of the first respondent to the revision petitioner. In addition to the said sum, a sum of Rs. 2,00,000/- was also demanded by way of additional dowry and it was also paid. It is the specific case of the first respondent herein that there is misunderstanding and difficulty started right from the time of marriage and they also demanded additional dowry and also threatened her with divorce (Talaque). Since it was not met, the revision petitioner took the first respondent from Bangalore and left in lurch at Arapalayam Bus Stand, Madurai, on 03.10.2007. Subsequently, at the intervention of Jamath, there was a reunion and a girl child viz., the 2nd respondent was born on 30.05.2008 and for the purpose of keeping jewels of the girl child, the first respondent requested the revision petitioner to open the locker and keep the jewels in safe custody and it was refused. It is the specific case of the first respondent herein that though the revision petitioner is man of means and a B.E.Graduate, he is capable of maintaining her and her child, he is deliberately failed to maintain them and hence she came forward to file a petition for maintenance, claiming a sum of Rs. 15,000/- per month for her and Rs. 10,000/- per month for the 2nd respondent.

The said petition for maintenance was strongly opposed by the revision petitioner by filing a counter stating among other things that the first respondent did not behave as a dutiful wife and often created problem deliberately and repeatedly she was in the habit of lodging complainants against the revision petitioner. She has also chosen to lodge a false complaint on the file of Commissioner of Police, Madurai City, during July 1999 and thereby caused physical and mental harassment to him. It is further alleged that though the revision petitioner was employed in Saudi Arabia during 2010, the first respondent has deliberately given a false address, as if he was in Bangalore and managed to serve the same and got a favourable order and also took steps to impound the passport, which is in the custody of the jurisdictional Court. When he sought to return of the same for the purpose of renewal, it was also opposed and in the process, the validity of the Passport got expired. It is the specific case of the revision petitioner herein that on account of impounding of the Passport and non-renewal of the same, he is unable to get employment in any one of the Software Companies for the reason that having in possession of valid Passport with a precondition for getting the job in those Companies and therefore, he is not able to get employment and not earning anything and hence, he is incapable of paying maintenance demanded by the respondents.

During the course of enquiry, the first respondent examined herself as P.W.1 and marked Exs.P1 to P10 and the revision petitioner examined himself as R.W.1 and marked Exs.R1 to R18.

The trial Court, on a consideration of oral and documentary evidence, has awarded a sum of Rs. 5000/- each to the 1st and 2nd respondents by way of monthly maintenance payable from the date of petition, vide impugned order dated 18.02.2014. Aggrieved by the same, the respondent in M.C.No. 11 of 2010 / husband of the first respondent herein, has filed this revision.

It is the vehement and forcible submission of the learned counsel appearing for the revision petitioner that apart from this present proceedings, he is also facing a criminal prosecution, which is pending on the file of Additional Mahila Court, Madurai and he is also facing proceedings under the Domestic Violence Act and his Passport has also been impounded and before expiry, he sought return of the passport for the purpose of renewal and it was also opposed and consequently, it was not renewed at all. It is the further submission of the learned counsel appearing for the revision petitioner that on account of impounding of passport and non-renewal, he is unable to get any employment in reputed software companies, for the reason that even consideration of application for employment, having possession of valid passport is a precondition and therefore, unable to get the job and on account of the same, he is finding it difficult to make both ends meet and hence, he is unable to pay the maintenance and in any event, the award of a sum of Rs. 5,000/- each to the respondents herein is very much exorbitant and he is prepared to pay a lump sum amount of Rs. 10,00,000/- towards maintenance.

Per contra, the learned counsel appearing for the respondents would strongly urge that the trial Court, on a proper consideration and appreciation of oral and documentary evidence, has awarded the maintenance of Rs. 5000/- per month to each of the respondents and though it is very much on lower side, it has been accepted by them without any murmur. It is the further submission of the learned counsel appearing for the respondents that it is not as if without the Passport, the revision petitioner herein cannot get any employment and even on his own admission he is capable of getting employment in some other software companies. It is further alleged by the learned counsel appearing for the respondents that now a days, doing work / business through online is a popular mode of earning and the petitioner has also failed to resort to the same and therefore, the contention put forth by him that on account of non- employment, he is unable to maintain himself and consequently, he cannot pay maintenance for the respondents, is very much untenable. It is also brought to the notice of this court by the revision petitioner by drawing the attention of this Court by Exs.R16 and R17 that the revision petitioner has pronounced trible Thalaque and in the opinion of the Jamathars he should repent for his act. Thus, by inviting the attention of this Court to the said act of the revision petitioner, the learned counsel appearing for the respondents prays for dismissal of the revision.

This Court paid its best attention to the rival submissions and also perused materials available on record in the form of typed set of documents.

Admittedly, at the time of marriage, the petitioner was employed as software engineer in Bangalore. Subsequently, he has gone to Gulf Countries. It is the stand of the revision petitioner that right from the marriage, the first respondent has exhibited an adamant and uncooperative attitude and repeatedly taunting by lodging numerous complaints and made his marriage life miserably and unable to bear with the same, he was left no other option, except to pronounce trible ''Talaque'' to divorce her and he has done so. It is the further stand by the revision petitioner that his passport was impounded on account of lodging of criminal prosecution, which is pending on the file of the Additional Mahila Court and though he moved the concerned Court for getting return of the same for the purpose of renewal, the said petition was rejected on the ground that it was opposed by the prosecution as per the instruction of the first respondent and consequently, the Passport got expired and the renewal time is also over and even if he wants to apply for a fresh passport, the return of the old Passport is must and in any event, the Regional Passport Authority may not renew or issue a fresh Passport, on account of pendency of criminal proceedings.

The core question arises for consideration is that whether the respondents are entitled to maintenance.

The marriage between the revision petitioner and the first respondent was admitted and so also the parentage of the 2nd respondent. No doubt, the revision petitioner is facing prosecution, which is pending on the file of Additional Mahila Court and also another proceedings under Domestic Violence Act. But, the pendency of the said proceedings cannot be cited as a reason for maintaining the respondents. It is the specific stand of the revision petitioner that on account of impounding of Passport and non-renewal, he is unable to get any job in a reputed software company.

The trial Court in paragraph No. 13 has recorded its findings that since the revision petitioner is not wiling to acted maintain the respondents herein, the first respondent herein left the matrimonial home and in paragraph No. 14 formulated a question as to whether the respondents are able to maintain themselves. The trial Court while answering the said questions has taken into consideration Ex.P4, which disclose the fact that the father of the first respondent is running a hotel and the trial Court has recorded the finding that though the father of the first respondent is running a hotel, it cannot expect that he will maintain her daughter and grand daughter in their time. The trial Court further found that having accepted the validity of the marriage and begotten of child, an obligation is cast upon the revision petitioner to maintain them. In paragraph 15 of the impugned judgment, the trial Court has also considered the plea raised by the petitioner on account of impounding of the Passport, he is unable to get job in a reputed software company. The trial Court found that it is open to the revision petitioner to apply for a fresh passport and that, he is an MCA Postgraduate and under the present circumstances, he can get employment in software companies and he can earn not less than Rs. 50,000/- per month. The trial Court also found that on account of qualification and experience, he is also capable of earning and consequently maintain the respondents. The trial Court having dealt with oral and documentary evidences in elaborate manner thought fit to award a sum of Rs. 5000/- month each to the respondents, as maintenance.

This Court upon hearing the rival submissions and on careful analysis and consideration of materials placed before it, is of the view that the reasons arrayed by the trial Court for awarding maintenance, cannot said to be perverse or without any evidence and I find no error or infirmity.

In the result, the Revision Petition is dismissed confirming the order dated 18.02.2014 passed by the learned Additional Chief Judicial Magistrate, Madurai in M.C.No. 11/2010.