Madras High Court
Thoulath Nisha @ Ponnachi vs Mohammed Sirajudeen on 21 April, 2022
Crl.R.C.No.1239 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.04.2022
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.1239 of 2018
1.Thoulath Nisha @ Ponnachi
2.Minor Asima Banu
3.Minor Abrin Banu ... Petitioners/Respondents
Versus
Mohammed Sirajudeen ... Respondent/ Petitioner
PRAYER : Criminal Revision Case filed under Sections 397 and 401 of
Cr.P.C. to set aside the impugned order dated 11.07.2018 passed in
Crl.R.P.No.6 of 2017 on the file of the Additional District and Sessions
Court, (Mahila F.T.C) Tiruvarur and confirm the order passed in
Crl.M.P.No.6 of 2014 on the file of District Munsif Court, Judicial
Magistrate Mahila FTC, Tiruvarur.
For Petitioners : Mr.I.Abdul Basith
For Respondent : Mr.K.Thenrajan
Page No.1 of 12
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Crl.R.C.No.1239 of 2018
ORDER
The petitioners filed maintenance case in MC.No.6 of 2014 against
the respondent before the District Munsif Cum Judicial Magistrate,
Nannilam.
2. The gist of the complaint is that on 03.04.2002 marriage
between the 1st petitioner and the respondent had taken place and out of
the marriage the second and third petitioners were born to them on
18.02.2003 and 14.08.2007. During Marriage Sreedhana articles and
gifts were presented. After the birth of the second girl child the attitude of
the respondent, her mother-in-law and sister-in-law changed and she was
subjected to harassment and cruelty. Her husband was initially employed
in Middle East. The 1st petitioner's mother-in-law and sister-in-law had
chased her away from the matrimonial home demanding more dowry.
Further she had lodged complaint before the All Women Police Station,
Nannilam on 01.10.2008 followed by another complaint on 30.11.2008.
Thereafter, enquiry was conducted and the respondent his mother and
sister were warned not to harass or make any dowry demand and cause
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Crl.R.C.No.1239 of 2018
cruelty to the petitioner. During December 2010 again she was chased
out from the matrimonial home. Since the harassment and cruelty was
continuous she was unable to continue in matrimonial home. Later a
complaint was lodged on 01.10.2013 again before the Nannilam All
Women Police Station and a case was registered under Section 498A IPC,
Section 4 of the Tamil Naud Prevetnion of Women for Harassment Act
and 109 IPC. The petitioners were not taken care by the respondent and
further he had contacted second marriage.
3. During trial the petitioner examined herself as PW1 and his
brother as PW2 and marked Ex.P1 to Ex.P8. The respondent examined
himself as DW1 and two other witnesses were examined as DW2 and
DW3. No documents were marked on the side of the respondent.
4. The trial Court on appreciation of the evidence recorded and on
the documents produced had given a detailed well reasoned judgment.
From the evidence it is seen that the respondent owned a housing plot of
30 Kuzhi as well as an agricultural land of 1 ½ acres. To confirm the
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Crl.R.C.No.1239 of 2018
same Ex.P6 to Ex.P8 have been marked. In the chief examination the
respondent admitted that even when he was in Middle East he used to
send Rs.15,000/- to the petitioners. Taking all these into consideration,
the trial Court had orderd Rs.5,000/- as monthly maintenance for the 1 st
petitioner and Rs.8,000/- each for the two minor children in total
Rs.21,000/- was ordered as maintenance. Aggrieved against the same,
the respondent had filed the revision before the Additional District and
Sessions Court, (Mahila F.T.C) Tiruvarur.
5. The Additional District and Sessions Judge, Tiruvarur by order
dated 11.07.2018 in Crl.R.P.No.6 of 2017 had modified the order of the
trial Court based on the cost index. For the period from 01.04.2014 to
31.12.2015 a sum of Rs.2,5000/- to each of the petitioners was ordered to
be paid. For the period from 01.01.2016 to 31.12.2017 a sum of
Rs.3,000/- to each to the petitioners was ordered to be paid and for the
period from 01.01.2018 to 31.12.2018 a sum of Rs.4,000 to each of the
petitioners was ordered to be paid. From 01.01.2019 the respondent was
ordered to pay a sum of Rs.5,000/- to each of the petitioners, for the 2 nd
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Crl.R.C.No.1239 of 2018
and 3rd petitioners till they attend the age of majority or till they get
married and for the 1st petitioner until further orders. With these
modifications the petition was allowed against which the present revision
is filed.
6. The contention of the petitioners is that the petitioners have
proved that the respondent was owning the property by marking Ex.P6 to
Ex.P8. Further the respondent in the proof affidavit admitted that even
when he was in Middle East, he used to pay a sum of Rs.15,000/- per
month to the petitioners. The 2nd and 3rd petitioners are minor daughters.
The 1st petitioner is not working woman she has to take care of the minor
daughters and their education and for a decent way of life and livelihood,
she needs maintenance amount. The trial Court considering all these
aspects and also the way of life and status, had rightly ordered
maintenance of Rs.5,000/- to the 1st petitioner and Rs.8,000/- each to the
children viz., petitioners 2 and 3.
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Crl.R.C.No.1239 of 2018
7. The lower appellate Court without any reason had passed order
on the basis of the cost index. There is no reason as to how the cost index
has been arrived at. Further the lower appellate Court giving a finding
that it is the petitioner/ wife, who have to prove the income of the
respondent is not proper. In support of his contention the petitioner had
relied upon the decision of this Court in Crl.R.C.(MD).No.470 of 2013
dated 14.09.2015, wherein this Court held that the duty to prove the
income is only upon the husband, as contemplated under Section 106 of
the Indian Evidence Act and also referred to the judgment of the Calcutta
High Court in the case of Mosammat Mamuda Bibi Vs.
Sk.Manirudding @ Monirul and another reported in 2005 (3) CHN 62.
8. He further submitted that the Apex Court in the case of Rajnesh
Vs. Neha and another reported in 2021 (2) SCC 324 in paragraph 77
had given criteria for determining the quantum of maintenance. Further
in paragraph 84 referring to the judgmnet of Bharat Hegde Vs. Saroj
Hede reported in 2007 SCC OnLine Del 622 had given the factors to be
considered for maintenance which are as follows:-
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Crl.R.C.No.1239 of 2018
1.Status of the parties.
2.Reasonable wants of the claimant.
3.The independent income and property of
the claimant.
4.The number of persons, the non-applicant
has to maintain.
5.The amount should aid the applicant to
live in a similar lifestyle as he/ she enjoyed in the
matrimonial home.
6.Non-applicant's liabilities, if any.
7.Provisions for food, clothing, shelter,
education, medical attendance and treatment, etc.
of the applicant.
8.Payment capacity of the non-applicant.
9.Some guesswork is not reuled out while
estimating the income of the non-applicant when
all the sources or correct sources are not
disclosed.
10.The non-applicant to defray the cost of
litigation.
11.The amount awarded under Section 125
Cr.P.C is adjustable against the amount awarded
under Section 24 of the Act.
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Crl.R.C.No.1239 of 2018
9. Thus the trial Court granting the maintenance is proper. The
lower appellate Court without any reasoning referred to the cost index
without any materials had modified which is not as per law. Hence,
prayed for setting aside the order of the lower appellate Court.
10. The learned counsel for the respondent submitted that the trial
Court on the evidence of the petitioner that the respondent used to say
that he is earning an income of Rs.5,00,000/- per month cannot be an
yardstick to calculate the maintenance. In fact in her cross examination
she admits the income is only Rs.50,000/-. Further the agricultural
property does not fetch any reasonable income. The respondent had got
second marriage and he has to take care of them and the income he is
earning is hand to mouth existence. The trial Court arriving at the
quantum of maintenance is on the higher side and not commensurate with
the income of the respondent. The lower appellate Court finding the trial
Court reasoning not proper had rightly reduced the quantum of
maintenance following the cost index. Further they were progressively
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Crl.R.C.No.1239 of 2018
worked out and the quantum of maintenance is periodically increased.
The 1st petitioner herself having deserted the matrimonial home cannot
claim any maintenance. He further submitted that as per the orders of the
lower appellate Court the respondent has been regularly making the
payment of maintenance.
11. The learned counsel for the petitioners intervened at this point
and submitted that for the past 10 months the respondent is not making
any payment of maintenance.
12. Upon hearing the counsel on either side and on perusing the
materials available on record, this Court finds that the finding given by
the trial Court is with proper reason and needs no interference. The lower
appellate Court relying upon the cost index is without any proper material
and reasoning.
13. In view of the same, this Court is inclined to set aside the order
of the lower appellate Court viz., Additional District and Sessions Judge,
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Crl.R.C.No.1239 of 2018
Thiruvarur dated 11.07.2018 made in Crl.R.P.No.6 of 2017 and confirm
the order of the trial Court viz., District Munsif Court, Judicial Magistrate
Mahila FTC, Tiruvarur dated 03.01.2017 made in Crl.M.P.No.6 of 2014.
14. With the above observations this criminal revision case is
disposed of.
15. The petitioner shall file calculation memo before the trial Court
within a period of two weeks from the date of receipt of a copy of the
order and thereafter, the trial Court to consider the calculation and pass
appropriate orders as per the original order dated 03.01.2017.
21.04.2022
Index: Yes/No
Internet: Yes/No
dsa
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Crl.R.C.No.1239 of 2018
To
1.The Additional District and Sessions Judge,
(Mahila F.T.C) Tiruvarur.
2.The Judicial Magistrate,
Mahila FTC, Tiruvarur.
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Crl.R.C.No.1239 of 2018
M.NIRMAL KUMAR, J.
dsa
Crl.R.C.No.1239 of 2018
21.04.2022
https://www.mhc.tn.gov.in/judis
