1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 02/01/2023
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
Crl.RC(MD)No.319 of 2022
and
Crl.MP(MD)No.4035 of 2022
Karthick : Petitioner/Respondent
Vs.
Shiyamala Devi : Respondent/Petitioner
Prayer:- This Criminal Revision has been filed
under section 397 r/w 401 of the Criminal Procedure Code
to call for the records relating to the order, dated
30/12/2021 made in MC No.44 of 2019 on the file of the
Chief Judicial Magistrate, Thanjavur @ Kumbakonam and set
aside the same as illegal.
For Petitioner : Mrs.J.Padhamavathi Devi
For Respondent : No appearance
https://www.mhc.tn.gov.in/judis
2
O R D E R
This criminal revision has been filed seeking to set aside the order, dated 30/12/2021 made in MC No.44 of 2019 on the file of the Chief Judicial Magistrate, Thanjavur @ Kumbakonam.
2.The facts in brief:-
The marriage between the parties took place, on 19/03/2018 as per their customary rites. After the marriage, they were living in Chennai. At that time, her sister-in-law also staying in the above said house and it was objected by the wife. During the joint living ill- treatment and harassment was made by the mother-in-law and the sister-in-law is also making trouble and she was not properly taken care by them also. The parents of the husband also insulted; ill-treated. So because of the above said continuous torture, she wanted to set up a separate house. That was also not supported by the husband and the in-laws. Later, they set up a separate house. But the behaviour of the husband completely changed. He was not taken care of the family and used to come to the house in the late light. The husband has also https://www.mhc.tn.gov.in/judis 3 stated that he is also going to perform another marriage and settle in abroad. On 25/11/2018, the husband left the matrimonial home stating that he was called by his mother. But thereafter, did not return. There was no communication also. On 02/12/2018, there was a panchayat. That was also spoiled by the mother-in-law and the sister-in-law. A compromise talk was also undertaken by the elders. Even after the above said compromise talk, there was no improvement in the behaviour of the husband. On 06/04/2019, she was taken to her parental home by the husband stating that he will come and pick up within two days and thereafter, also there was no communication. Later, he issued a notice seeking divorce. He is working in Signatech Services Private Limited, Chennai and earning Rs.9,00,000/- per annum. Apart from that, he is also having house and other properties. Seeking maintenance, petition has been filed by the wife before the trial court.
3.That was resisted by the husband stating that the wife used to pick up quarrel even for trivial issue. She was making quarrel to take a separate house. Because of the compulsion only, they arranged a separate house https://www.mhc.tn.gov.in/judis 4 and also insisted upon buying a new house. She also threatened to divorce him. Because of the above said behaviour, his life became miserable.
4.During the enquiry, the petitioner did not appear. After cross examination of PW1 was over, the trial court adjourned the matter for the appearance of the parties. In-spite of the adjournment, the petitioner did not appear and so, the evidence was closed, on 16/12/2021. After perusing the evidence on record, the trial court passed an order directing the petitioner/husband to pay Rs.10,000/- as monthly maintenance to the wife.
5.Challenging the above said order, this revision has been preferred by the husband on very many grounds.
6.The learned counsel appearing for the petitioner would straightaway rely upon the judgment of the Hon'ble Supreme court in the case of Bhagwan Dutt Vs. Kamal Devi (AIR 1975 SUPREME COURT 83) for the purpose of argument that the earning capacity of the wife is an important criteria for deciding the quantum of maintenance. https://www.mhc.tn.gov.in/judis 5
7.No doubt that the earning capacity is also a deciding factor. But here, as mentioned above in the trial court, after cross examining the wife, the petitioner did not appear and even not taken care to produce his statements of assets and liabilities, also not even stated his monthly income.
8.As has been stated in the counter, it appears that there was a small issue between the husband and wife, either over setting up of a separate house or new house. These things ought to have been sorted out amicably and in-spite of repeated compromise talk undertaken by the friends, it did not succeed. The reason for the above said failure is also not clear on record.
9.Now whatever it may be, separation is admitted. Divorce notice has also been sent. What happened after that is not clear on record. Here absolutely, there is no evidence on record to show that the respondent/wife though educated, is employed. Unless she is employed and earning money, she is entitled for being maintained by the husband. So that duty cannot be questioned.
10.So apart from that, it is also contended to the https://www.mhc.tn.gov.in/judis 6 effect that the mother-in-law was severally beaten by the wife and she only left the matrimonial home voluntarily are all the matters, which cannot be taken into account, in the absence of any concrete evidence on the side of the petitioner.
11.With this, let us go to the evidence of PW1. A short cross examination has been done by the petitioner. As mentioned earlier, it appears that there was no big issue between them. As stated above, in the light of the above said facts, they would have sorted out the issue amicably. But the petitioner has sent a legal notice seeking divorce. Whether any change of mind for reunion is also not stated by the petitioner at the time of the argument. To a question, the wife has stated that she is ready to live with the petitioner, if no trouble is made by her in- laws. This also shows that the real issue is between herself and the in-laws.
12.No doubt that the respondent has not produced any document to show the monthly income of the petitioner. As mentioned earlier, the husband ought to have produced the statement of the assets and https://www.mhc.tn.gov.in/judis 7 liabilities. But it was not done. So it cannot be taken advantage. It is his own wrong. Accordingly, the trial court has awarded Rs.10,000/- as monthly maintenance to the wife. So considering the status of the parties, I am of the considered view that this cannot be considered to be excessive or luxurious in nature.
13.For the reasons stated above, this criminal is revision is liable to be dismissed and accordingly, it is dismissed. Consequently, connected Miscellaneous Petition is closed.
14.After passing of this order, the learned counsel appearing for the petitioner would submit that still the matter is pending before the trial court. So a direction may be issued to the trial court to expedite the enquiry process.
15.It appears that by closing the evidence of the petitioner, the above said order has been passed by the trial court. Whether the petitioner has filed any petition before the trial court to reopen the case or not is also not clear on record. It has also been submitted https://www.mhc.tn.gov.in/judis 8 that he was regularly paying the above said maintenance amount. In the absence of any clear record to show that the petitioner has filed a petition to reopen the case, no direction can be issued. Accordingly, the request made by the learned counsel appearing for the petitioner is rejected.
02/01/2023 Index:Yes/No Internet:Yes/No er To, The Chief Judicial Magistrate, Thanjavur @ Kumbakonam.
G.ILANGOVAN,J https://www.mhc.tn.gov.in/judis 9 er Crl.RC(MD)No.319 of 2022 02/01/2023 https://www.mhc.tn.gov.in/judis