S. Jagannathan vs Sundari and Another

Mrs. Padmini Jesudurai, J.—The criminal revision is by the father of the respondents and is directed against the order passed by the Judicial First Class Magistrate No.II, Madurai, directing the petitioner to pay monthly maintenance to each of the respondents at the rate of Rs. 125 per month.

Facts giving rise to the present revision briefly are as follows:--The mother of the respondents, on behalf of herself and on be half of the respondents herein, filed M.C.35 of the 1982, before the Judicial First Class Magistrate II, Madurai, under S.125 Crl.P.C. on the allegation that she was the legally wedded wife of the petitioner, their marriage having taken place on 30.3.1979 and that the respondents were born to them both and the petitioner, due to different reasons, started ill-treating her and finally, after she gave birth to the second respondent on 4.2.1982, the petitioner did not take her back and she was forced to live with her parents and that therefore the petitioner had failed and neglected to maintain them and they were unable to maintain themselves. It was further averred that the petitioner was having a banian agency which fetched him Rs. 2000 per month and had also properties worth Rs. one lakh in Tenkasi and was also doing wholesale business in plastic goods. Maintenance at the rate of Rs. 250 for herself and Rs. 125 for each of the respondents was prayed for.

The above action was resisted by the petitioner on the allegation that though the marriage between himself and the mother of the respondents had taken place and though the two respondents were born to them, the further averment of cruelty, neglect and failure to maintain were all false. It was the mother of the respondents who, on her own, had left the marital home and had made it impossible for him to join her. Several attempts made by him for a reconciliation were resisted by the mother of the respondents. He also contended that he was out of employment and had no property and was only living on the generosity of his father.

The mother of the respondents examined herself as P.W. 1 and also examined P.Ws.2 to 4 on her side. She had Exs. P1 to F6 marked. The petitioner examined himself as R.W.1 and examined R.Ws.2 to 4 and had Exs.R1 to R7 marked.

The learned Magistrate, on a consideration of the entire evidence, found that the mother of the respondent had on her own, left the marital home and the reasons given by her for rejecting the offer of the petitioner to live with her did not constitute just grounds for refusal and that, therefore, she was not entitled to any maintenance. However, regarding the claim of maintenance made by the respondents, the learned Magistrate held that the petitioner was bound to maintain them and awarded maintenance to the two respondents at the rate of Rs. 125 per mensem. Aggrieved with the above order of the learned Magistrate the present revision has been filed by the father of the respondents. That part of the order disallowing maintenance for the mother of the respondents has not been challenged by her.

Thiru Kannan, Learned Counsel for the petitioner, contended that the order of the learned Magistrate fixing the quantum of maintenance could not be sustained since a necessary finding regarding the means of the petitioner was a preliminary to arriving at the quantum of maintenance to be awarded. In the instant case, in paragraph 19 of the order of the lower court, there was merely a summary of the evidence of the respective parties on the means of the petitioner. The necessary discussion was absent, thereby indicating that the Court below had not applied its mind to that aspect of the case. There was also no finding regarding the actual income of the petitioner. Learned Counsel placed reliance on a decision of the Allahabad High Court reported in Mohammad Ayyub Vs. Zaibul Nissa, , and also a decision of the Calcutta High Court in Modari Bin v. Sukdeo Bin 1967 M.L.J. Cri. 136. These decisions are to the effect that the Court, before it passes an order awarding maintenance under S.125 Crl.P.C. has to be satisfied that the person who is ordered to pay maintenance should himself have sufficient means. Learned Counsel submitted that in the absence of such a finding regarding the actual income, fixing any particular sum as maintenance would be arbitrary and that the matter, therefore, has to be sent back to the court below for a proper discussion of the evidence on that aspect and for a finding regarding the actual means of the petitioner. Per contva, Mr. S.A. Rajan, Learned Counsel for the respondents, submitted that the maintenance that had been ordered to the respondents was the bare minimum and that even in the absence of any income the father was bound to maintain his minor children who were unable to maintain themselves and that therefore, the matter need not be sent back to the court below.

The question that arises for consideration is whether the order of the court below suffers from any illegality or impropriety or perversity, warranting interference by this Court, under its revisional jurisdiction.

The application for maintenance has been filed on 10.5.1982, the first respondent was then aged 21 years and the second respondent was aged four months. It is for these children that the quantum of maintenance has now to be fixed. The mother of the respondents, examined as P.W. 1, has given her figures regarding the financial capacity of the petitioner. She would say that the petitioner was doing business in banian agency and was earning Rs. 2000 per mensem and had a house in Tenkasi worth about Rs. 50,000 and was also doing wholesale business in plastic articles, which fetched him another Rs. 2,000 per mensem. This statement of P.W. 1 in the absence of any documentary evidence to support the same cannot be accepted at its face value. Regarding the house said to be in Tenkasi, R.W.2 who is the father of the petitioner, has stated that the house does not belong even to him, and that it belongs to his wife. The evidence let on behalf of the respondents on this aspect is neither satisfactory nor helpful. Adverting to the evidence let in by the petitioner himself, it is seen that the petitioner, between 1977 and 1980, was employed as a clerk in a reputed concern, Messrs. Sundaram Clayton Ltd., Madras belonging to the T.V.S. group. Ex. R3 is the resignation letter which he had submitted to the above concern on 6.12.1980. R.W.4 under whom the petitioner had been working has given evidence that the petitioner was employed as a clerk in the above concern between 1977 and 1980. We are not concerned with what prompted the petitioner to resign that post. The petitioner would say it was due to frustration in the marital life and the mother of the respondent would say that it was because he got a better job. Whatever that be, there is the further evidence of the petitioner himself that in Tiruppur he was employed in a banian factory R.W.2, the father of the petitioner, has slated that all that be gave to his children was education. The petitioner would say that now he is unemployed. Mere unemployment, by itself, would not be a ground for negativing the claims of maintenance by the minor children who are unable to maintain themselves. Even in the decision referred to by Learned Counsel for the petitioner viz., Mohammed Ayub v. Zaibul Nissa Crl. L.J. 1237, the learned Judge of the Allahabad High Court has observed as follows :

It may be mentioned here that in assessing the means of a husband the Court is not confined to taking into account his actual earning for the time being There may be cases where an able bodied and Qualified person may not earn anything merely because he is either too lazy to put to use his resources or because he has indulgent relations to provide for his requirements. In such cases, the court must also take into account the potential earning capacity of the husband.

this Court has expressed on more than one occasion similar views. In Kandasami Moopans. Angammal 1960 M.L.J. Cri. 839, Ramaswami, J., has observed as follows :

So long as a man is able bodied and can work and �am his livelihood, it is his duty to support his wife. Therefore, our courts have gone to the extent of laying down that notwithstanding the fact that a husband may be an insolvent or a professional beggar or a minor or is a sadhu or a monk, he must support his wife so long as he is able bodied and can eke out his livelihood and support his wife.

Reference to case law expressing similar views by this Court and other High Courts has been made in the above decision. These observations made with reference to the wife would apply with greater force to minor children unable to maintain themselves.

In the instant case, the petitioner cannot contend that he is unfit to take up any employment. His potential capacity to earn has to be taken as the basis. He had been employed as a clerk in Messrs. Sundaram Clayton Ltd. He has also been employed in a banian factory. Even if, as on date, he is unemployed, it would not absolve him of his liability to provide minimum maintenance for his minor children who are unable to maintain themselves. The evidence indicates that the mother of the minor children was not employed at the relevant period. The petitioner, therefore, is bound to provide at least minimum maintenance for the two respondents. No doubt, in the order of the court below, there is no discussion and no finding regarding the actual means of the petitioner. However in summary proceedings under S.125 Crl.P.C., intended to provide speedy and cheap relief by avoiding the cumbrous procedure under the civil law remanding the matter to the court below at the length of time, merely for a diseussion and a finding, on the evidence already available, would defeat the ends of justice.

At the time when this application was made, the first respondent was aged only 2� years and the second respondent was aged only 4 months. Since the petitioner himself is not in a very affluent circumstance, and since the respondents are only of very tender age, I feel that the amounts of maintenance awarded by the Court below would be reduced to some extent. The first respondent, being aged 2� years, could be awarded a sum of Rs. 100 per mensem and the second respondent being 4 months, could be awarded Rs. 75 per men sea. Needless to say that if circumstances change, it would be open to the parties to seek alteration of this amount. Accordingly, the order of the court below is modified to the extent that the maintenance of Rs. 125 per month awarded to the first respondent is reduced to Rs. 100 and the maintenance of Rs. 125 awarded to the second respondent is reduced to Rs. 75. But for this modification, the revision petition fails and is hereby dismissed.