Madras High Court
R.Ochappan ... Revision vs Keerthana on 9 January, 2024
Crl.R.C.(MD).No.611 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 20.12.2023
Pronounced on :09.01.2024
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.RC(MD)No.611 of 2023
R.Ochappan ... Revision Petitioner/
Respondent/Respondent
Vs.
Keerthana ... Respondent/Revision Petitioner/
Respondent
PRAYER: Criminal Revision Petition has been filed under Section 397 & 401 of
Cr.P.C., to allow the revision petition and set aside the impugned order passed by
the learned IV Additional District and Sessions Judge, Madurai in Crl.R.P.No.15
of 2022 against M.C.No.26 of 2019 passed by the learned Additional Chief
Judicial Magistrate, Madurai.
For Petitioner : Mr.A.K.Azhagarsami
For Respondent : No Appearance
1/14
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.611 of 2023
ORDER
This petition has been filed to set aside the impugned order passed by the
learned IV Additional District and Sessions Judge, Madurai in Crl.R.P.No.15 of
2022, dated 07.02.2023 against M.C.No.26 of 2019 passed by the learned
Additional Chief Judicial Magistrate, Madurai, dated 12.10.2021.
2. The revision petitioner is the father of the respondent. The respondent
and her minor brother filed M.C.No.26 of 2019 before the learned Additional
Chief Judicial Magistrate, Madurai, claiming maintenance of Rs.25,000/- under
125 Cr.P.C.
3.1. The petitioner is working as a driver in TNSTC. He married the
mother of the respondents namely, Pandiyammal on 08.06.1997. Out of the
wedlock, the respondent and her brother Prasanna were born. Thereafter, due to
difference of opinion, the mother of the respondent filed HMOP.No.369 of 2012
under Section 13(B) of the Hindu Marriage Act, before the learned Sub Judge,
Camp at Usilampatti, seeking divorce on the basis of mutual consent and the
same was allowed on 28.02.2013. The said Pandiyammal and the petitioner got
separated. Thereafter, the petitioner married another woman. The said
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Pandiyammal is unable to maintain herself and her children namely, the
respondent and her brother. Hence, the respondent and her minor brother filed
M.C.No.26 of 2019 before the learned Additional Judicial Magistrate, Madurai,
seeking maintenance on the ground that the petitioner is working as a driver in
Tamil Nadu State Transport Corporation and earning a sum of Rs.50,000/- as
salary. He owns house at Nagamalaipudukottai, Madurai and has lands at
Vikkiramangalam which is fetching Rs.20,000/- as income. The respondent's
brother Prassanna is studying. Because of insufficiency of fund, she is unable to
meet his educational expenditure and the other expenses. In the said maintenance
petition, the minor Prasanna was represented by his sister namely, the
respondent.
3.2. Even after serving of notice, the petitioner has not appeared before the
learned trial Judge. But, the learned trial Judge has dismissed the maintenance
petition filed by the respondent and his brother on the ground that the brother of
the respondent is a minor and maintenance petition filed for herself and on
behalf of her minor brother claiming maintenance is not maintainable for the
reason that she is not a natural guardian and next friend of her minor brother.
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3.3. Aggrieved over the same, the respondent filed a Revision Petition in
Cr.R.P.No.15 of 2022 before the learned IV Additional District and Sessions
Judge, Madurai. The learned Sessions Judge has allowed the same on the
ground that though the respondent cannot seek relief through the maintenance
petition filed under Section 125 of Cr.P.C., the trial Court is the authority to
grant maintenance to the respondent under Section 20(3) of Hindu Adoption and
Maintenance Act, 1956, until she gets married and further stated that though the
brother of the respondent has attained majority during the pendency of the
Crl.R.P.No.15 of 2022, he is entitled for the maintenance from the date of filing
of the maintenance case till the age of his majority by granting maintenance of
Rs.7,500/- per month to the respondent and Rs.5,000/- per month to her brother.
Aggrieved over the same, the petitioner has filed this Revision.
4. This Court considered the rival submission made on either side and
perused the materials available on records and the impugned judgment and the
precedents relied upon by them.
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5. The learned counsel for the petitioner submitted that at the time of
mutual divorce, the mother of the respondent has received a sum of Rs.
5,50,000/- as permanent alimony towards her and her children and also gave an
undertaking that she would not claim any maintenance in future. The above said
submission of the learned counsel for the petitioner cannot be accepted. In the
mutual decree granted in HMOP.No.369 of 2012, which was marked as Ex.P6,
there was no clause for payments of any maintenance to the children. The
payable clause is concerned, the mother of the respondent namely, the wife of the
petitioner would not claim any maintenance and also there is no whisper
regarding the payment of permanent alimony. Hence, the petitioners in M.C.No.
26 of 2019 are the children of the present revision petitioner and he is duty
bound to maintain them. Since, the first petitioner namely Keerthana is now
married, she is not entitled to claim maintenance. But her claim on behalf of her
minor brother namely the second respondent in M.C.No.26 of 2019, is
maintainable. But, the learned trial Judge erroneously dismissed the claim on the
ground that the respondent namely Keerthana has no locus standi to file the
petition for maintenance on behalf of her minor brother. Section 125 of Cr.P.C.,
is social welfare legislation. The Section is aimed to achieve the social justice.
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The object is to prevent vagrancy and destitution. Section 125 Cr.P.C., provides a
speedy and efficacious remedy to those women, children and destitute parents
who are in distress. The object of the 125 of Cr.P.C., is clearly demonstrated by
the Hon'ble Supreme Court in various decisions in the following terms:
5.1. Bhagwan Dutt v. Kamla Devi (1975) 2 SCC 386:
“Their object is to compel a man to perform the moral
obligation which he owes to society in respect of his
wife and children. By providing a simple, speedy but
limited relief, they seek to ensure that the neglected
wife and children are not left beggared and destituted
on the scrap-heap of society and thereby driven to a
life of vagrancy, immorality and crime for their
subsistence. ...The jurisdiction conferred by the section
on the Magistrate is more in the nature of a preventive,
rather than a remedial jurisdiction; it is certainly not
punitive.”
5.2.Dukhtar Jahan v. Mohd. Farooq - (1987) 1 SCC 624:
16. & Proceedings under Section 125 [of the
Code], it must be remembered, are of a summary
nature and are intended to enable destitute wives and
children, the latter whether they are legitimate or
illegitimate, to get maintenance in a speedy manner.”
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5.3. Vimala (K.) v. Veeraswamy (K.) [(1991) 2 SCC 375: 3.
3.“Section 125 of the Code of Criminal Procedure is
meant to achieve a social purpose. The object is to
prevent vagrancy and destitution. It provides a speedy
remedy for the supply of food, clothing, and shelter to
the deserted wife.”
5.4 Kirtikant D. Vadodaria v. State of Gujarat (1996) 4 SCC 479:
15. “… While dealing with the ambit and scope of
the provision contained in Section 125 of the Code, it has
to be borne in mind that the dominant and primary object
is to give social justice to the woman, child and infirm
parents, etc. and to prevent destitution and vagrancy by
compelling those who can support those who are unable
to support themselves but have a moral claim for support.
The provisions in Section 125 provide a speedy remedy to
those women, children and destitute parents who are in
distress. The provisions in Section 125 are intended to
achieve this special purpose. The dominant purpose
behind the benevolent provisions contained in Section 125
clearly is that the wife, child and parents should not be left
in a helpless state of distress, destitution and starvation.”
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5.5. Danial Latifi v. Union of India, (2001) 7 SCC 740:
“20. It is a small solace to say that such a woman should
be compensated in terms of money towards her livelihood
and such a relief which partakes basic human rights to
secure gender and social justice is universally recognised
by persons belonging to all religions”
5.6. Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705 :
13.When the aforesaid anguish was expressed, the
predicament was not expected to be removed with any
kind of magic. However, the fact remains, these
litigations can really corrode the human relationship
not only today but will also have the impact for years
to come and has the potentiality to take a toll on the
society. It occurs either due to the uncontrolled design
of the parties or the lethargy and apathy shown by the
Judges who man the Family Courts. As far as the first
aspect is concerned, it is the duty of the courts to
curtail them. There need not be hurry but
procrastination should not be manifest, reflecting the
attitude of the court. As regards the second facet, it is
the duty of the court to have the complete control over
the proceeding and not permit the lis to swim the
unpredictable grand river of time without knowing
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when shall it land on the shores or take shelter in a
corner tree that stands “still” on some unknown bank
of the river. It cannot allow it to sing the song of the
brook. “Men may come and men may go, but I go on
forever.” This would be the greatest tragedy that can
happen to the adjudicating system which is required to
deal with most sensitive matters between the man and
wife or other family members relating to matrimonial
and domestic affairs. There has to be a proactive
approach in this regard and the said approach should
be instilled in the Family Court Judges by the Judicial
Academies functioning under the High Courts. For the
present, we say no more.
5.7. Begum Subanu v. A.M. Abdul Gafoor, (1987) 2 SCC 285
“ 12...... Section 125, its forerunner being Section 488,
has been enacted with the avowed object of preventing
vagrancy and destitution. The section is intended to
ensure the means of subsistence for three categories of
dependants viz. children, wives and parents who are
unable to maintain themselves. The three essential
requisites to be satisfied before an order of maintenance
can be passed are that (1) the person liable to provide
maintenance has sufficient means; (2) that he has
neglected or refused to maintain and (3) the
dependant/dependants is/are unable to maintain
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himself/herself/themselves as the case may be. The
legislature being anxious that for the sake of
maintenance, the dependants should not resort in
begging, stealing or cheating etc the liability to provide
maintenance for children has been fixed on the basis of
the paternity of the father and the minority of the child
and in the case of major children on the basis of their
physical handicap or mental abnormality without
reference to factors of legitimacy or illegitimacy of the
children and their being married or not.”
Section 125 of Cr.P.C., does not prohibit any person from filing maintenance
petition on behalf of the minor children. It creates an obligation to pay
maintenance to the minor. Without any legislative prohibition to file the
maintenance claim on behalf of the minor brother by the married sister who has
taken care of the said minor brother, the dismissal of the maintenance petition on
the ground of the locos standi by the learned trial Judge is not legally correct.
When there is no legal impediment to file the maintenance petition by the sister
of the minor brother, the learned trial Judge ought to have picked out the
interpretation of the provision of Section 125 of Cr.P.C., which advances the
cause. The same was emphasised by the Hon'ble Supreme Court in the following
judgments:
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Ramesh Chander Kaushal v. Veena Kaushal reported
in 1978 4 SCC 70: 9.… The brooding presence of the
constitutional empathy for the weaker sections like
women and children must inform interpretation if it has
to have social relevance. So viewed, it is possible to be
selective in picking out that interpretation out of two
alternatives which advances the cause — the cause of
the derelicts.”
Fuzlunbi v. K. Khader Vali, (1980) 4 SCC 125:
“The conscience of social justice, the cornerstone of our
Constitution will be violated and the soul of the scheme of
Chapter IX of the Code, a secular safeguard of British-
Indian vintage against the outrage of jetsam women and
floatsam children, will be defiled if judicial interpretation
sabotages the true meaning and reduces a benign
protection into a damp squib.”
Therefore, the learned revisional Judge rightly held that the maintenance petition
filed by the petitioner for herself and on behalf of her minor brother is
maintainable.
6. Even though the married sister alone preferred the revision against the
dismissal of the maintenance claim against her and no revision was preferred by
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the minor brother, the learned revisional Judge, exercised the suo motu power
under Section 399 of Cr.P.C., to set aside the dismissal order passed against the
minor children on the ground of the locus standi and granted maintenance to the
said minor brother of the revision petitioner also. The same was vehemently
opposed by the learned counsel for the petitioner stating that without any
revision on behalf of the minor brother, the revisional Court has no power to
grant maintenance in favour of the minor brother. This Court is not inclined to
accept the submission of the learned counsel for the petitioner for the reason that
the learned reviaional Judge exercised the suo motu power in the interest and
welfare of the minor children by exercising his parens partiae jurisdiction. This
Court finds no reason to differ with the said reasoning of the learned revision
Judge.
7. The learned counsel for the petitioner further submitted that his salary is
only a sum of Rs.43,000/- and hence, the amount awarded as maintenance by the
trial Judge is so high. The said submission of the learned counsel for the
petitioner cannot be accepted considering the cost of living as on date. The
Revisional Court only granted Rs.5,000/- to the second petitioner, who is none
other than the son of the petitioner herein.
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8. Accordingly, this criminal revision case is dismissed by confirming the
impugned order passed by the learned IV Additional District and Sessions Judge,
Madurai in Crl.R.P.No.15 of 2022, dated 07.02.2023.
09.01.2024
NCC : Yes/No
Index : Yes/No
Internet: Yes/No
dss
To
1.The IV Additional District and Sessions Judge,
Madurai.
2.The Section Officer,
Records Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
K.K.RAMAKRISHNAN, J.
dss
09.01.2024
https://www.mhc.tn.gov.in/judis
