M.Udayarajulu vs P.Priya
2021 Latest Caselaw 6058 Mad

                                                             Crl.R.C.No.15 of 2021

         IN THE HIGH COURT OF JUDICATURE AT MADRAS

                             Dated : 08.03.2021

                                  Coram :

         THE HONOURABLE MR.JUSTICE P.VELMURUGAN

                         Crl.R.C.No.15 of 2021 and
                          Crl.M.P.No.129 of 2021


M.Udayarajulu                                          ...       Petitioner

                                   Versus

1. P.Priya
2. U.P.Hemachander
 (Minor aged 14 years)
 represented by his mother and natural
 guardian P.Priya)                                       ...     Respondents

      Criminal revision Petition is filed under Sections 397 r/w 401 of the
Cr.P.C., to call for records of the Judgment passed in M.C.No.55 of 2019
dated 24.11.2020 on the file of V Additional Family Court, Chennai and set
aside the same and modify the maintenance order.



            For Petitioner     : Mr.V.M.Venkatramana


                                 ORDER

This Criminal Revision case has been filed against the Judgment passed

in M.C.No.55 of 2019 dated 24.11.2020 on the file of V Additional Family

Court, Chennai and set aside the same and also modify the maintenance order.

Crl.R.C.No.15 of 2021

2.The petitioner is the respondent on the file of V Additional Family

Court, Chennai in M.C.No.55 of 2019 and the respondents herein are the

petitioners. The respondents filed the maintenance case for maintenance in

M.C.No.55 of 2019 before the V Additional Family Court, Chennai against the

petitioner for maintenance. The learned Judge, after enquiry passed an order

by ordering a sum of Rs.20,000/- per month to the first respondent/wife and a

sum of Rs.10,000/- to the second respondent/minor son as maintenance.

Challenging the said order passed by the Family Court, the respondent therein

has filed the present petition before this Court.

3. The case of the respondents before the Family Court in M.C.No.55 of

2019 is that the first respondent herein married the petitioner on 02.02.2006

and out of their wedlock she gave birth to a male child, the second respondent

herein on 01.02.2007. The Second respondent is under the care and custody of

the first respondent/mother. When she was pregnant, the petitioner,his parents

and other family members abused the first respondent in filthy language and

tortured her by demanding gold and two wheeler as dowry, due to which on

03.07.2006, the parents of the first respondent went to the petitioner's house

and took her to their house. Thereafter. the petitioner filed a petition for

divorce in O.P.No.3739 of 2014 against the first respondent on the ground of

Crl.R.C.No.15 of 2021

cruelty and desertion and the first respondent also filed the petition in

O.P.No.4286 of 2014 against the petitioner for restitution of conjugal rights.

Both the cases were tried together before the Principal Judge, Principal

Family Court, Chennai and the petition filed by the petitioner was allowed and

the petition filed by the first respondent herein was dismissed vide common

order dated 13.11.2018. Aggrieved by the said common order, the first

respondent has preferred a Civil Miscellaneous Appeal before this Court and

the same is pending. It is the further stated that the first respondent is not

working anywhere and she is fully depending upon the income of her parents

and taking care of the second respondent, who is studying in sixth standard in

C.S.I. Bain Matriculation Higher Secondary School, Chennai and further she

has to look after the educational expenses of her son also. The petitioner is

electrician and doing electrician work and he is also having ancestral property

and having source of income for a sum of Rs.5,00,000/- per year and he is also

getting rental income of Rs.30,000/- per month. Therefore he is having

sufficient means to maintain the respondents, who do not have means to

maintain themselves. Hence, the petitioner is liable to maintain the

respondents.

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4. The stand taken by the petitioner herein in the counter statement filed

before the Family Court is that on 03.07.2006, after the third month of

marriage,the parents of the first respondent came to the house of the petitioner

took the first respondent to their house for Aadi month and thereafter she has

not returned. It is further stated that the petitioner completed the I.T.I.

Mechanic course and completed his apprentice at Metropolitan Corporation,

Chennai and after completion he registered before employment office and

there is no dowry demand as alleged by the first respondent. Neither the

petitioner nor his parents or his relatives have scolded the first respondent as

alleged by her and they only wanted the petitioner and the respondent to live

together. It is further stated that the first respondent and her parents never

informed about the birth of the second respondent to him. It is further stated

that from the date of marriage, the first respondent was not interested to live in

joint Family. Therefore, he filed a petition for divorce in O.P.No.3739 of 2014

and during pendency of the same, even though the first respondent not willing

to join with the petitioner and only as a counter blast she filed petition for

restitution of conjugal rights in O.P.No.4286 of 2014 and the Family Court

allowed the petition filed by him and dismissed the petition filed by the first

respondent. It is further stated that once the divorce was granted on the

ground of cruelty and desertion the first respondent is not entitled to get any

Crl.R.C.No.15 of 2021

maintenance. It is further stated that the second respondent was not shown to

the petitioner even a single day and the first respondent has got ancestral

properties and also receiving rental income of Rs.50,000/- per month and the

petitioner is unemployed and has no means and since he is only doing

electrician work, he would not get the work every day and he does not know

when he will get work and he is not a Government employee or he is not

having any permanent income.

5. The learned counsel for the petitioner would further submit that the

first respondent left the matrimonial home voluntarily on her own. The

parents of the first respondent have not informed about the birth of the second

respondent and he got divorce on the ground of cruelty and desertion and

therefore the respondents are not entitled to get maintenance. He would

further submit that she has got ancestral property and getting rental income of

Rs.50,000/- per month and she is having sufficient means to maintain herself

and her son and therefore he is not liable to pay maintenance. The learned

Judge failed to consider the pleadings and evidence and erroneously ordered a

sum of Rs.20,000/- and the same is liable to be set aside.

6. Heard the learned counsel for the petitioner. There is no

Crl.R.C.No.15 of 2021

representation for the respondents.

7. The jural relationship of the parties are not disputed. The petitioner

and the respondents are residing separately also not in dispute and the second

respondent/minor son is under the care and custody of the first respondent/

wife also not disputed. The main contention raised by the learned counsel for

the petitioner is that he got divorce on the ground of cruelty and desertion and

further the first respondent has got sufficient means to maintain herself and as

far as the divorce is concerned, the first respondent has stated that she filed

Civil Miscellaneous Appeal before this Court and the same is pending and

further the petitioner has not denied the same. Though the divorce was granted

on the ground of desertion and cruelty by the Family Court, the first

respondent filed an Appeal before this Court and the Appeal is the

continuation of proceeding. Therefore, since it had not attained finality,

respondents are entitled to get maintenance till the disposal of the Appeal and

after the disposal of the Appeal, certainly the petitioner can approach the

family Court for modification. As far as income of the first respondent is

concerned, though the petitioner has stated that the first respondent has got

ancestral property and receiving rental income of Rs.50,000/- per month, he

has not produced any document to show that the property stands in the name

Crl.R.C.No.15 of 2021

of the first respondent, she is also receiving rental income. As far as income of

the petitioner is concerned, as per the decisions of the Hon'ble Supreme Court

when the case filed by the wife for maintenance and the petitioner say that he

has no income, he should file an affidavit to that effect, but he has not filed

such an affidavit before the Family Court. Since, it is not proved that the first

respondent has independent income to maintain herself and the petitioner has

not proved her income by way of producing any documentary evidence, as the

petitioner admitted that he is doing electrician work, he would definitely get

considerable income. Considering the costs of living prevailing as on date,

this Court feels that petitioner is liable to pay a sum of Rs.10,000/- to the first

respondent and Rs.10,000/- to the second respondent as maintenance.

8. Accordingly, the order passed by the V Additional Family Court,

Chennai in M.C.No.55 of 2019 is modified as far as first respondent is

concerned from Rs.20,000/- to Rs.10,000/- and the maintenance ordered to the

second respondent remains unaltered.

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P.VELMURUGAN, J

arr

With the above modification, this Criminal Revision Case is disposed

of. Consequently, connected Miscellaneous Petition is closed.

08.03.2021

Index:Yes/No Internet:Yes Speaking order / Non speaking order arr

To

1. The V Additional Family Court, Chennai 2 The Public Prosecutor, Madras High Court.

Crl.R.C.No.15 of 2021

Crl.R.C.No.15 of 2021