P. Jaisankar vs J. Thavamani and Dravid <BR>Thavamani Vs Jaisankar

S. Tamilvanan, J.—Crl. R.C. (MD) No. 345 of 2007 has been preferred u/s 397 and 401 of Criminal Procedure Code challenging the order dated 10.05.2007 in M.C. No. 10 of 2006 on the file of the learned Judicial Magistrate, Melur, Madurai District. The first respondent in Crl. R.C. (MD) No. 345 of 2007 has filed Crl. R.C. (MD) No. 535 of 2007. It is seen that the petitioner in Crl. R.C. (MD) No. 345 of 2007 is the husband of the first respondent and father of the minor second respondent and they had filed a maintenance case before the Court below u/s 125 Criminal Procedure Code seeking for maintenance. After contest, the Court below directed the revision petitioner herein to pay monthly maintenance of Rs. 1,000/- (Rupees One Thousand only) to the minor second respondent. However, the claim of the first respondent was dismissed by the Court below.

Aggrieved by which, the first respondent in Crl. R.C. (MD) No. 345 of 2007 filed, the revision in Crl. R.C. (MD) No. 535 of 2007.

For the sake of convenience, the petitioner, P. Jaisankar, in Crl. R.C. (MD) No. 345 of 2007 is stated as the petitioner and the respondents J. Thavamani and Minor Dravid are stated as first respondent and second respondent respectively unless they are specifically referred to in the order.

In Crl. R.C. (MD) No. 535 of 2007, the petitioner has not disputed that the first respondent is his wife and the second respondent is his minor son. However, he has raised defence that she left her matrimonial home and caused mental agony to the petitioner. The petitioner has further stated that the first respondent would admit the monthly income of the petitioner at Rs. 1,500/- but the Court below ordered Rs. 1,000/- per month in favour of the second respondent towards maintenance. Learned Counsel for the petitioner submits that the petitioner is a coolie worker and he is earning only a meager income for the work done on daily basis. The petitioner has stated that the first respondent was bearing with a wavered life and thereby committed torture to the petitioner and his family members and that the first respondent had been living with the petitioner only for a short span of time and therefore, she is not entitled to get maintenance from the petitioner herein.

Before the trial Court in order to establish the claim, the first respondent herein as first petitioner, has examined herself as PW. 1. On the side of the revision petitioner herein he deposed evidence as RW. 1 and one Ammaci was examined as RW. 2 apart from marking Exs. R1 to R5.

Considering the evidence available on record, the Court below found it just and reasonable to award maintenance only for the minor second respondent. Accordingly, a sum of Rs. 1,000/- (Rupees One Thousand only) was ordered as monthly maintenance for the minor R2 and the Court below negatived the claim of the first respondent herein, on the ground that the first respondent voluntarily had deserted the petitioner herein. Though the petitioner had stated himself as coolie worker, considering the age and the evidence available on record it is seen that he is capable of doing coolie works and earn to his livelihood and also to maintain the first respondent being his wife and minor son. The Court can take judicial notice in the absence of any other supporting material to decide his income that the petitioner herein could earn as a coolie worker a sum of Rs. 200/- per day for about 25 days in a month. Accordingly, he could earn Rs. 5,000/- per month. Being the father, he has to maintain his minor son, the second respondent herein. Accordingly, the maintenance awarded by the Court below at Rs. 1,000/- per month for second respondent is quite reasonable and it cannot be construed as exorbitant or on the higher side.

The first respondent has stated that she had not deserted the revision but due to the cruelty caused by her husband, the petitioner herein, she went away with the second respondent, minor son and they are living separately and the respondents could not maintain themselves.

It is seen that nothing has prevented the petitioner in filing a petition seeking restitution of conjugal rights. No such petition is filed by the petitioner herein seeking restitution of conjugal rights or any other relief. The revision petitioner was examined as RW. 1 and he deposed that he had 30 cents of lands and the same was usufructuary mortgaged (Othi) to some other person and further RW. 2 has deposed that the revision petitioner/respondent has two cents of land in Melavalavu.

Learned Counsel appearing for the first respondent submits that in order to defeat the legitimate claim of the maintenance to the first respondent, the petitioner has raised allegations, against the first respondent. According to the first respondent she was forced to leave her matrimonial home by the petitioner by demanding dowry and she was also subjected to torture. Though in the grounds, the petitioner has stated that he was getting income at Rs. 1,100/- per month, as per the evidence of the first respondent, it is seen from the impugned order that the first respondent has stated that the petitioner is working in a printing press and getting an income of Rs. 1,500/- per week. Accordingly, the monthly income should be computed at Rs. 6,000/- (Rupees Six Thousand only). Though the first respondent has stated that the petitioner is having three acres of land as, per the evidence and admission of the petitioner before the Court below, it is seen that he is having more than one acre of land and also earning income of Rs. 6,000/- (Rupees Six Thousand) per month.

Learned Counsel appearing for the petitioner would submit that the first respondent eloped with some other person and therefore she is not entitled to claim maintenance. However, there is no such findings available in the impugned order and there is no material available in the evidence to show that the first respondent had eloped with any other person and therefore, the arguments advanced by the first respondent not supported by any evidence is unsustainable, in law.

Learned Counsel for the first respondent drew the attention of this Court to the plea of the revision petitioner that he was ready and willing to lead matrimonial life with his wife, but the allegations raised by him against her is self-contradictory. From the evidence and findings of the Court below, it is clear that the petitioner is carrying a monthly income of more than Rs. 5,000/- p.m. (Rupees Five Thousand) apart from his agricultural income.

In the aforesaid circumstances, considering the fact that the petitioner has to pay a sum of Rs. 1,000/- to the minor second respondent towards maintenance, I find it reasonable to direct the petitioner P. Jaisankar to pay monthly maintenance of Rs. 750/- to the first respondent J. Thavamani.

In the result confirming the award of maintenance passed by the Court below, the Crl. R.C. (MD) No. 345 of 2007 is dismissed. Consequently, connected M.P. (MD) No. 1 of 2007 is closed. Crl. R.C. (MD) No. 535 of 2007 is allowed, whereby the impugned order dated 10.05.2007 passed against the first respondent in M.C. No. 10 of 2006 is set aside and the petitioner is directed to pay maintenance at Rs. 750/- per month from the date of filing of the said M.C. No. 10 of 2006. It is made clear that Mr. M.M.E. Philips, Legal Aid Counsel is entitled to get proper remuneration as per the Rules as he conducted the case sincerely.