C. Soosai Nayagam vs Pushpa Ritha and Others

Janarthanam, J.—The first respondent for herself and on behalf of her minor children, respondents 2 to 5, filed a petition u/s 125 Cr.P.C. in

M.C. No. 1/84, Judicial Magistrate''s Court, Kuzhithurai, claiming maintenance from the petitioner on the ground that because of unbearable

cruelty meted out to her, she was unable to live in the matrimonial abode and on and from 16.9. 1979, she was living with her mother along with

her children. The petitioner/husband resisted the petition.

The trial Magistrate, on consideration of the materials placed before him, record a finding that the first respondent was entitled to live separately

and consequently awarded maintenance of Rs. 100/- to the first respondents and Rs. 75/- to each of respondents 2 to 5, every month on and from

25-2-1984, the date of petition. Aggrieved by the order, the petitioner preferred Cri. Revision petition No. 22 of 1986 before the Court of

Session, Kanyakumary at Nagercoil. Learned Sessions Judge, on consideration of the materials on recorded and on hearing both sides, dismissed

the trial revision, confirming the order of the trial Magistrate, thus giving rise to the present action.

Learned Counsel for the petitioner would submit that there was no application of mind on the part of the Courts below in sifting the materials on

record to find out whether the first respondent/wife was incapable of maintaining herself from out of the income she derived from the property

owned by her as well as from the profession as tailor. He would further contend that the maintenance awarded to the respondent was on the high

side, taking into account the meagre income received by the petitioner from his employment as Painter in Nesamani Transport Corporation.

Learned Counsel for the respondents would however repel such submissions and contend that the petition, as filed, is not maintainable, since the

power of revision available to the petitioner had been exercised and there cannot be any further revision, under the facade of a petition u/s 482

Cr.P.C.

Anxious consideration may now be given to submissions of either side Leave alone the maintainability of the petitioner u/s 482 Cr.P.C. as

contended by learned Counsel for the respondents, I am unable to affix my seal of approval to both the submissions of the petitioner''s Counsel, on

the facts and circumstances of the case. A perusal of the judgments of the Courts below does indicate the owning of 12 cents of land by the first

respondent and herself having learnt the art of tailoring, what was discussed therein was that though she had learnt tailoring, there was no material

to show that she was a full-fledged tailor earning money from the said profession. That apart, no material was available to show that she was

deriving any income from 12 cents of land owned by her. Taking these aspects as well as the earning capacity of the petitioner/husband by his

profitable employment in Nesamani Transport Corporation, maintenance amount as indicated above was ordered by the trial Court and the same

was confirming by the revisional Court. The sum of Rs. IOO/-to the wife and Rs. 75/- to each of the children awarded, cannot be stated to be so

high, calling for any interference.

Coming to the contention regarding maintainability pleaded by learned Counsel for respondents, I am of the view that the mere fact that the

petitioner had exhausted the power of revision, does not mean that the power u/s 482 Cr.P.C. cannot be invoked. It has been laid down by the

apex of the judicial administration of the country that such a power can be resorted to in extreme cases, where prejudice to the cause of justice is

occasioned or when there is abuse of process of Court. The moot question herein is whether such things exist in the present case. The answer

cannot be anything except an emphatic ''No''. Both the Courts below had taken into consideration the entirety of the materials available on the

record and there is no infirmity or misnomer mal-appreciation in the assessment of evidence, calling for interference.

In these circumstances, the petition deserves to be and is hereby dismissed.