Madras High Court
Sivasankar vs Ganga on 10 March, 2021
Crl. R.C.(MD)No.507of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 11.11.2021
PRONOUNCED ON : 03.12.2021
CORAM
THE HONOURABLE MRS. JUSTICE R. THARANI
Crl. R.C.(MD)No.507 of 2021
and
Crl.M.P.(MD)No. 5500 of 2021
Sivasankar .. Petitioner/Respondent
Vs.
Ganga .. Respondent/Petitioner
Prayer : This Revision Case is filed under Sections 397 r/w. Section 401 of
Cr.P.C., to call for the records and set aside the order passed in Maintenance
Case No.30 of 2019, dated 10.03.2021, on the file of the Family Court,
Sivagangai.
For Petitioner : Mr.K.Gurunathan
For Respondent : Mr.R.Srinivasan
ORDER
The revision is filed against the order in M.C.No.30 of 2019, on the
file of the Family Court, Sivagangai. The petitioner herein is the respondent in
the petition and respondent herein is the petitioner in the original petition.
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Crl. R.C.(MD)No.507of 2021
2.Brief substance of the petition, in M.C.No.30 of 2019, is as
follows:
The marriage of the petitioner and the respondent was solemnized
on 09.11.2016 as per the Hindu rituals. After the marriage they lived together
in the joint family of the respondent and the petitioner came to know that the
respondent cheated the petitioner regarding the educational qualification and
the job. The father of the petitioner died in an accident and the mother
obtained loan for the marriage of the petitioner. Later the petitioner came to
know that the respondent is not fit for matrimonial life and he is impotent. The
parents of the respondent scolded the petitioner as if she is barren and she
could not bear a child. The petitioner was harassed by the respondent and his
parents. On 11.12.2018, the respondent and his parents drove the petitioner
away from the matrimonial house. The respondent is earning Rs.50,000/- by
doing transport service for IT Companies. The respondent is having a house
worth Rs.40,00,000/- in Madurai, Thirumohur Village, he is having a three
storeyed building consisting of six houses in Chennai, Palavakkam and the
respondent and his parents lived in one of the house and he rented the other
five houses and is earning Rs.1,00,000/- as rental income but the respondent
failed to maintain the petitioner and the petitioner prayed as sum of Rs.
20,000/- per month as maintenance.
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Crl. R.C.(MD)No.507of 2021
3. Brief substance of the counter filed by the respondent, in M.C.
No.30 of 2019, is as follows:
The house in Chennai belonged to the father of the petitioner. The
house was the self acquired property of the father. The jewels given to the
petitioner at the time of marriage were with her. At the time of marriage, the
respondent was working in a Maruthi Suzuki Car Company and was earning
Rs.25,000/- per month. The petitioner worked in Anand Engineering College,
Kelampakkam. The petitioner got pregnant and the doctor reported that the
heart beat of the child is very low and the petitioner went to her parents house
and without the knowledge of the petitioner she aborted the child and refused
to live with the respondent. The mother of the petitioner demanded Rs.
5,00,000/- from the respondent and since the respondent was not in a position
to give that amount, the petitioner indulged in creating problems and she
refused to do the household works. The father of the respondent was having
cancer and the respondent borrowed amount from others and he sold some of
the properties to meet out the medical expenses. Without considering the
situation, the petitioner and her mother were demanding Rs.2,00,000/- from
the respondent. During the month of December 2018, the petitioner went to
her parents house for vacation and later she refuses to come back to the
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Crl. R.C.(MD)No.507of 2021
matrimonial home. The efforts taken by the respondent to bring back the
petitioner went in vain. She admitted before the Panchayatdar that she is not
willing to live with the respondent. The allegation that the respondent is
impotent amounts to cruelty and the abortion was suppressed by the
petitioner. The petitioner is working as a Teacher and is earning Rs.10,000/-
per month she is having a house at Singampunari worth about Rs.50,00,000/-
she rented two houses and was earning Rs.15,000/- per month. The petitioner
is having five acres of land at Thirumangalam. She is having sufficient means
to maintain herself,
4. After examining the witnesses, the Family Court has passed an
order directing the respondent to pay a sum of Rs.10,000/- per month as
maintenance to the petitioner. Against the order,the petitioner has filed this
revision.
5.On the side of the revision petitioner/ husband, it is stated that the
Family Court failed to consider that the wife was not forcibly sent out from the
matrimonial house on 11.12.2018. The petitioner and the respondent were
living separately and there is no question of the parents of the husband
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Crl. R.C.(MD)No.507of 2021
forcibly driven out the wife. She went out on her own accord and hence she is
not entitled for maintenance.
6.On the side of the revision petitioner/ husband, it is stated that the
wife has not taken any legal steps for reunion, she has admitted that no
complaint was filed against the husband or the in-laws. Under Section 125 of
the Criminal Procedure Code, the wife is not entitled for maintenance when
she left the matrimonial house without any sufficient reason.
7.On the side of the revision petitioner, it is stated that the wife left
the matrimonial home without any justifiable ground and hence, she is not
entitled for maintenance.
8.To substantiate the contention that the wife is not entitled for
compensation, the learned Counsel for the husband cited a judgment of the
Chatisgarh High Court in Crl.M.P.No.303 of 2008, dated 09.04.2010, which
reads as follows:
“4.Considering the evidence adduced by the parties
learned Magistrate had passed the order holding that
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Crl. R.C.(MD)No.507of 2021
without any sufficient cause the applicant is living
separately and she has failed to prove her case for
maintenance from the respondent/husband. In revision, the
revisional Court has also confirmed the order passed by
the learned Magistrate by order impugned.”
9.On the side of the revision petitioner, a judgment of the Hon'ble
Supreme Court reported in AIR 2003, (3174) is cited. A Similar judgment of
the Kolkata High Court in CRR No.2649 of 2008, dated 12.02.2010, is cited
on the side of the revision petitioner.
10.The wife tried to live with her husband but the husband refused
to live with his wife and in the evidence of the husband, he has clearly
admitted that he is not willing for re-union.
11.On the side of the respondent/wife, it is stated that the husband
has admitted in his evidence that he is having a house at Madurai, Thirumohur
and at Chennai, Palavakkam. Financial status of the husband was admitted by
him and Rs.2,90,000 is pending as arrears of maintenance. Though the father
of the petitioner is said to be undergoing treatment, on 12.11.2018, the
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Crl. R.C.(MD)No.507of 2021
husband has obtained a loan for purchasing a car and he is paying Rs.17,000/-
as EMI but the husband was not willing to pay atleast 50% of the arrears of the
maintenance amount, though such a suggestion was made by the previous
Judge.
12.The revision petitioner who is not familiar with the Court
proceedings, has mechanically accepted the vague statements regarding the
asserts of the petitioner. In reality of the properties are standing in the name of
the petitioner's mother. The petitioner is not having properties of his own and
only by leasing the properties, the petitioner and his mother are taking care of
the father. The petitioner could not secure a job and he filed a petition for
divorce and filing a divorce petition cannot be a criteria for awarding
maintenance. The bank loan for the car stands in the name of the mother of
the husband. The husband educated the wife to complete M.Phil Course.
Now, the husband could not get any work and he is working only as an acting
driver.
13.On the side of the revision petitioner it is stated that as per the
dictum laid down by the Hon'ble Supreme Court in Crl.A.No.730 of 2020,
instructions were given to all the Courts dealing with maintenance cases to
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Crl. R.C.(MD)No.507of 2021
obtain affidavits regarding the assets and liabilities statement of both the
parties. It is stated that the Family Court failed to get the affidavits and that
the matter has to be remitted back to the Family Court for getting affidavits
regarding the assets of the parties.
14.On the side of the revision petitioner, it is stated that the Family
Court failed to rely on the dictum of the Hon'ble Supreme Court in Rajnesh
Vs Neha reported in 2020 SCC online SC (903). The Family Court has failed
to ascertain the assets and liabilities by getting affidavits from the parties since
the wife is propagating that the husband is impotent, that amounts to cruelty
and on the ground of cruelty, the learned Counsel for the revision petitioner
has relied upon a judgment of the Hon'ble Supreme Court reported in 2020
SCC Online SC 903 is cited, wherein, it is stated as follows:-
“b.Payment of Interim Maintenance
The Affidavit of Disclosure of
Assets and Liabilities annexed as Enclosurres I,II and
III of this judgment, as may be applicable, shall be
filed by both parties in all maintenance proceedings,
including pending proceedings before the concerned
Family Court/District Court/Magistrates Court, as the
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Crl. R.C.(MD)No.507of 2021
case may be, throughout the Country.”
15.On the side of the respondent, it is stated that this case was taken
up for trial within a period of two months from the date of the Judgment of the
Hon'ble Supreme Court. Both side have not filed affidavits and hence the
husband cannot blame the wife or the Court. The husband has not filed any
affidavit before the Trial Court and hence, the husband cannot raise the point
before this Court.
16.The marriage between the petitioner and the respondent was
admitted and the case of the husband is that the wife left the matrimonial
house on her own accord and the case of the wife is that she was driven out
from the matrimonial home.
17.Both the husband and wife are raising allegation against each
other. It is stated that the husband used to scold the wife as 'barren' and that
the wife used to blame the husband as impotent. But the husband has admitted
that the wife has undergone an abortion without his knowledge. There is no
necessity to decide this issue in this petition.
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Crl. R.C.(MD)No.507of 2021
18.On the side of the husband, it is stated that the wife has not taken
any steps for re-union. But the husband has admitted that though the wife has
taken steps for reunion he has refused to live together. Hence the husband
cannot claim that the wife left him on her own accord. On the side of the wife,
it is stated that the husband is having house properties in Madurai,
Thirumohur and at Chennai, Palavakkam. The averment of the husband is that
both the houses are in the name of the mother of the husband and that the
houses are the self acquired properties of the father of the husband. But, no
documents is filed on the side of the husband to prove that the house property
is in the name of the mother or in the name of the father. In the deposition of
the husband, he has admitted that he is having a house at Madurai and a house
at Chennai.
19.The husband has not filed any documents to prove that the wife is
having properties or she is having income. It is stated that the wife worked as
an Assistant Professor in Anand Institute of Higher Technology, Chennai.
The certificate is dated 04.09.2018, now the wife is not residing in Chennai
and she is residing at Singampunari Village and the husband failed to produce
any documents to prove the income of the wife, at the time of filing the M.C.
Petition.
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Crl. R.C.(MD)No.507of 2021
20.For the reasons stated above, it is decided that the husband was
not willing to live with his wife, even though steps were taken by the wife for
reunion. The husband has admitted that he is having properties worked as a
Technical Advisor, Service Department in Maruthi Suzuki Service Centre
from August 2013 to October 2018. Documents are filed on the side of the
husband stating that his father is having cancer and he is undergoing
treatment. Hence, the revision petitioner / husband is directed to pay a sum of
Rs.8,000/- as maintenance for the respondent / wife. The husband is directed
to deposit the arrears of maintenance within a period of two months from the
date of receipt of copy of this order and he is further directed to pay the
monthly maintenance amount on or before the seventh day of every English
Calendar month.
21.In the result, the Crl.R.C(MD).No.507 of 2021 is partly allowed
and the order passed in Maintenance Case No.30 of 2019, dated 10.03.2021,
on the file of the Family Court, Sivagangai, is hereby modified. Consequently,
the connected Miscellaneous Petition is closed.
03.12.2021
Index : Yes/No
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Crl. R.C.(MD)No.507of 2021
Internet : Yes/No
lr/sn
NOTE: In view of the present lock
down owing to COVID-19 pandemic,
a web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the order
that is presented is the correct copy,
shall be the responsibility of the
advocate/litigant concerned.
To
The Family Court,
Sivagangai.
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Crl. R.C.(MD)No.507of 2021
R.THARANI, J.
lr/sn
Pre-Delivery Order made in
Crl. R.C.(MD)No.507 of 2021
and
Crl.M.P.(MD)No. 5500 of 2021
03.12.2021
https://www.mhc.tn.gov.in/judis
