Palaniyathal vs Komaraswamy Gounder

N. Arumugham, J.—The Petitioner-wife before the learned Chief Judicial Magistrate, Periyar District at Erode, in M.C. No. 8/89, filed u/s 125 of the Code of Criminal Procedure, claiming maintenance amount from her husband, the Respondent herein, lost her case before the learned Sessions Judge, Erode, in CrI.R.C. No. 21/90 dated 28.2.1991, and as against that order, she has filed this revision challenging the impugned order for its want of legality and propriety.

It was stated that about 24 years ago the marriage between the revision Petitioner and the Respondent was performed. At the time of marriage 20 sovereigns of gold jewels and a cash of Rs. 5,000/- were presented to the revision Petitioner by her parents. They were living jointly as husband and wife. There was a son born to them by name Duraisamy who is now aged about 23. There is a girl also whip is aged about 21. It was further stated that the Respondent was addicted to liquor and was regular drunkard and used to beat the revision Petitioner by demanding dowry every day. By such conduct and method, he has snatched the jewels presented to her along with the cash of Rs. 5,000/- from the revision Petitioner. The further demand made by him to get some more money has not been complied with by the revision Petitioner for the reason of her inability. However, she had met with all cruelty perpetrated by the Respondent herein all through in a drunken stage. It was also stated that the Petitioner bore all the cruelty and humiliation perpetrated by her husband for the reason that she was having a grown up girl for marriage. However, under the circumstances, she was able to arrange the marriage of her daughter with the help of her parents and the Respondent had not spent a single pie nor extended any help. After the marriage, it was stated that the Petitioner was ill-treated very badly and driven away by the Respondent. But, however, at the mediation of the Panchayatdars, she had to come again and live with the Respondent. Since the Respondent had contracted second marriage with another girl and was living with her, the ill-treatment become unbearable, with the result, she was driven away and the Petitioner sought asylum in her parent''s house.

As the Respondent owns 3 1/2 acres of agricultural land cultivated with cash crops and getting the annual income of Rs. 24,000/- and is in a position to pay the maintenance to the Petitioner, a quantum of maintenance of Rs. 500/- was demanded by the Petitioner by filing a petition u/s 125 of the Code of Criminal Procedure before the trial Court.

This petition was resisted by the Respondent by filing a counter, in which, the alleged addiction to liquor or alcohol, the cruelty and ill-treatment on the Petitioner were totally denied and that similarly performing of the marriage of their daughter without the Respondent''s presence was also denied. It was also denied that he had contracted second marriage. The means position and the source of income with quantum was also denied by the Respondent.

After having considered the oral and documentary evidence adduced on behalf of the respective parties, the learned trial Magistrate, after the full discussion found that the Petitioner is entitled to claim maintenance from the Respondent and in the context of the established means position, he has allowed the petition and consequently directed the Respondent to pay a sum of Rs. 300/- per month as maintenance. However, in the revision preferred against the said order, the learned Sessions Judge, Erode, in Crl.R.C. No. 21/90 reversed the entire finding and consequently set aside the order of maintenance passed by the learned Chief Judicial Magistrate. While doing so, the learned Sessions Judge has found that the very conduct of the wife viz., the revision Petitioner has become highly questionable in the context that she had attempted to kill her husband by pouring kerosene and set fire and evidently admitted by her, which resulted in filing a case against her and she had admitted and paid the fine. The next ground upon which the learned Sessions Judge has harped his view to set aside the impugned order was that the Petitioner having been able to live with her husband for more than 20 years and after the marriage of her daughter initiated the proceedings claiming maintenance, proves her conduct totally against her claim and that therefore it was not genuine. Thirdly, the learned Sessions Judge found that the alleged contracting of the second marriage has not been proved at all. Basing his conclusion upon the above three grounds, the learned Sessions Judge has set aside the order of maintenance passed by the learned Chief Judicial Magistrate.

I have heard the Bar for the respective parties for and against the impugned judgment.

Firstly it is to be noted that the learned Sessions Judge has not approached the whole case in the capacity that he was expected to exercise his power as a revisional Judge and not as an appellate Judge. If for any reason the learned Sessions Judge found that the order passed by the learned Chief Judicial Magistrate is improper or illegal, then he has to set aside and remit back the whole matter for fresh consideration to the trial Court. In a revision, it is highly strange to set aside the impugned order passed by the trial Judge. There was no finding given by the learned Sessions Judge with regard to the illegality or impropriety of the order of maintenance passed by the trial Court. However, it was the finding of the learned Sessions Judge that the adduced legal evidence has not been perused in its proper perspective. On this ground alone, I am constrained to allow this revision.

Coming to the factual aspects which also go to the concept of legality in the context that the adduced legal evidence is misconstrued, causing serious prejudice to the party, I am inclined to take the established factual aspects that the marriage between the Petitioner and the Respondent took place about 20 years back and out of their joint living one boy and one girl were born. Both have now grown up at the respective age of 23 and 21 and that the marriage of the girl was claimed to have performed by the revision Petitioner. It is not the definite case or claim of the Respondent that he conducted the marriage of his daughter out of his contribution. It is also noticed that admittedly he was living with one girl by name Baby. It was the categoric and consistent case of the Petitioner that she happened to live along with the Respondent bearing with all ill-treatment and cruelty all through for the reasoning that she has got a girl at the age of marriage. Therefore, she was able to withstand fall the ill-treatment and cruelty projected against her till the marriage of her daughter was performed. A legal notice on 17.6.1989 was given by, and on behalf, of the revision Petitioner under Ex. P-1 through her lawyer which was received by the Respondent on 21.6.1989 under Ex. P-2. A perusal of the said document clinches the fact that the alleged overt act committed by the Respondent has been clearly spelt out and her conduct has been narrated with all consequential facts. It was the admitted case of the Respondent that he had received the same, but he never replied nor denied the same. That being so, no court of law would expect any more evidence by way of corroboration to the claim of the Petitioner herein rather than the one available through Exs. P-1 and P-2. The very conduct of the wife who was claimed to have attempted to pour kerosene over her husband and set fire was admitted in a case filed against her and paid a fine, shows that as was rightly observed by the learned trial Magistrate, there was some extraordinary circumstance surcharged with abnormality, which certainly goes to prove the robust character and ill-treatment perpetrated upon her. There was no evidence pertaining to the circumstances previously to make the Petitioner to pour kerosene and set fire upon her husband. But, however, she had admitted the said fact. Therefore, as was rightly held by the learned trial Magistrate, there are clinching and guiding circumstances clearly established in this case, which prove that out of the conduct and attitude being adopted by the Respondent, the Petitioner left away and that there is a case fully established to attract Section 125 of the Code of Criminal Procedure. Having regard to the evidence pertaining to the means position with regard to the landed property and the income though claimed disproportionately, the learned trial Magistrate found the quantum of maintenance payable by the Respondent as at Rs. 300/- per month. Though it is not exaggerative, commensuration with the rising system of the prices of commodities now a days. I feel the quantum fixed by the learned Magistrate is too high and accordingly the ends on justice would require me to reduce the quantum by Rs. 100/- which would mean the Respondent, for the reasons above mentioned, is liable to pay a sum of Rs. 200/- per month from the date of petition, regularly for the revision Petitioner herein, by way of maintenance as provided u/s 125 of the Code of Criminal Procedure. It is noted that though the Respondent was living with the second wife or a concubine, the marital status between him and the Petitioner as husband and wife still exists and mat therefore, he is liable to pay the maintenance for the reasons aforementioned.

The various findings given by the learned Sessions Judge in the first revision, it is thus identified with every legal laches and

In the result, the revision succeeds and stands allowed. Consequently, the impugned judgment rendered by the learned Sessions Judge in Crl.R.C. No. 21/90 dated 28.2.1991 is hereby set aside. For all the above said reasons, the order of maintenance passed by the learned Chief Judicial Magistrate is hereby restored subject to the modification of the quantum of maintenance above referred.