K. Sivasankara Boopathy vs Shanthi, Ramya and Srinivasan @ Venkatesh

Aruna Jagadesan, J.—This revision is directed to revise the order of the learned Chief Judicial Magistrate, Tuticorin made in M.C. No.

20/2006 dated 28.04.2009 awarding maintenance to the Respondents at the rate of Rs. 1,000/- per month each to the Respondents 1 to 3

payable from the date of the petition.

It is not disputed that the first Respondent is the wife of the Petitioner and the Respondents 2 and 3 are his minor son and daughter. The

marriage between the Petitioner and the first Respondent was solemnized on 05.06.1996 at Vikkiramachingapuram, Tirunelveli District.

According to the Petitioner, the first Respondent had not acted as a dutiful wife and she had not adjusted with the family members of the

Petitioner and further, she deserted the Petitioner and went to her parent''s house with her children. It is further stated that all the sincere attempts

of the Petitioner for reunion ended in vain. It is further submitted that the Respondent has suffering means to maintain herself and the children as her

father is a person of means. It is contended that the father of the first Respondent is drawing a sum of Rs. 6,000/- per month as pension and he

owns 17 residential houses, which had been leased out to various parties and he is receiving Rs. 20,000/- per month as rent from those houses. He

had further stated in his counter that the father of the 1st Respondent is owning bulldozers, lorries, tractor and omini van and by running those

vehicles also, he is drawing an income of Rs. 50,000/- per month and that the first Respondent is working as a teacher in a school and getting a

salary of Rs. 6,000/-per month. That apart, there are immovable properties and cultivable lands in the name of the first Respondent. He would

submit that the Petitioner has no means, source of income and he has no lands and other immovable properties in his name and therefore, he is not

in a position to pay any maintenance to the Respondents.

Mr. Section Palanivelayutham, the learned Counsel for the Petitioner would strenuously contend that when the wife is able to manage herself as

she has source of income through her father apart from having the capacity of earning substantial income in view of her higher education, the

Petitioner, who is not in sound financial position, cannot be ordered to pay maintenance and therefore, the order passed by the learned Chief

Judicial Magistrate has to be set aside.

On the other hand, Mr. B. Pugalendhi, the learned Counsel appearing for the Respondents would vehemently contend that there is an obligation

on the part of the husband to maintain his wife irrespective of the fact whether he has property or no property, as it is considered as an imperative

duty and the solemn obligation of the husband to maintain his wife and children. He would further contend that the husband cannot say that he is

unable to maintain the Respondents due to his financial constraints, so long as he is capable of earning.

The learned Counsel for the Respondent would point out that the Petitioner is the only son to his father and he has inherited the property of his

father and the same is evident from Exs.P5 to P7. He would also point out to the admission made by R.W.1 that he is getting an income by leasing

out the said lands and he also owns a house and that would prove the means of the Petitioner to pay maintenance.

It is the case of the first Respondent that the Petitioner has married one selvi and he is living with her. Though the said fact is denied by the

Petitioner, he has admitted in his evidence that he is living separately from the first Respondent for the past 8 years and he had not given even a pie

for the maintenance of his wife and children. He has admitted that he is living with one selvi, but he would state that she is only maintaining him and

he has also admitted that he has got a son through selvi by name Rajaram, who is studying UKG. The said admission would clearly show that there

is every reason for the first Respondent to live separately from the Petitioner as her husband is living with another women and it would certainly

amount to negligence and refusal by the Petitioner to maintain the Respondents.

The statement of the first Respondent that she is unable to maintain herself and the children would be enough and it is for the Petitioner to prove

that the first Respondent has sufficient means to maintain herself. In the instant case, the Respondents have placed materials to show that the

Petitioner possessed some lands and also a house and he has admitted that he had been receiving income from those lands. That apart, there is no

evidence to show that the first Respondent owned any lands or any property or any source of income to maintain herself and her children. She

cannot be expected to depend upon her father even assuming that he had some properties in his name. There is no evidence to show that her father

had been receiving any income from any property or lands which could be shared with her. Even if it is assumed that her father possessed some

properties, it is not a criteria for awarding maintenance and the fact that her father is in possession of land is not sufficient to hold that she can

maintain herself, more so, when it has not been shown that she is entitled to a share in the said property.

The first Respondent has admitted in her evidence that she is working as a teacher and receiving salary of Rs. 1,500/- per month. There is

nothing to suggest that she had been receiving more salary than what she has stated. The Petitioner has not placed any material or evidence to

show that the first Respondent is drawing a salary of Rs. 6,000/- per month, by working as a teacher and also getting income from the other

properties either owned by her or her father.

It is contended by the learned Counsel for the Petitioner that the Petitioner is unemployed and he is not in a position to pay the maintenance

awarded by the trial Court. I am unable to countenance the said arguments advanced by the learned Counsel for the Petitioner. Admittedly, the

Petitioner possess higher qualification i.e., M.A.B. Ed., and it cannot be said that he is incapable of earning. If the Petitioner''s version that he is

unemployed is true, then it would only show that he was not making any effort to earn. Though the first Respondent is employed as a teacher and

earning an income of Rs. 1,500/- per month, it would not be sufficient to maintain herself and her school going children.

At this juncture, it is relevant to refer to the decision of the Honourable Supreme Court rendered in the case of Shantha @ Ushadevi and

Another Vs. B.G. Shivananjappa, , wherein the Honourable Supreme Court has held that Section 125 Code of Criminal Procedure is a measure

of Social legislation and is to be construed liberally for the welfare of the benefit of the wife and children. In the present case, the Court below had

analysed the entire evidence and the admission made by the wife that she is getting a salary of Rs. 1,500/- per month ultimately, held that the same

is not sufficient to maintain herself and her children and ordered Rs. 1,000/- each for the Respondents.

It is also appropriate to consider the decision of the Hon''ble Supreme Court in Minakshi Gaur v. Chitranjan Gaur and Anr. reported in AIR

2009 SC 1377, wherein it has been held that that if the wife has got some earning, however, it is insufficient, then the husband, who is earning

substantial income, is liable to pay maintenance to the wife. Hence, the trial Court taking in view of all the facts and circumstances to meet the ends

of justice, after analysing the evidence has rightly fixed the amount of maintenance at Rs. 1,000/- per month each for the Respondents. The said

findings are essentially a factual one and I do not find any infirmity or perversity in the said findings and therefore, there is no scope for interference

by this Court in such findings and accordingly, this criminal revision is liable to be dismissed.

In the result, this Criminal Revision Petition is dismissed.