Madras High Court
S.Roopaselvan vs K.Sabitha on 2 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.R.C.No.876 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.06.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Revision Case No.876 of 2021
and
Crl.M.P.No. 12384 of 2021
S.Roopaselvan ... Petitioner
Versus
1. K.Sabitha
2. Minor Harsha Mirthula ... Respondents
D/o.S.Roopaselvan
Represented by next friend natural guardian mother K.Sabitha
Criminal Revision Petition filed under Section 397 and 401 of Cr.P.C., to
set aside the fair and decreetal order dated 17.06.2020 passed in M.C.No.86 of
2018 on the file of the Family Court, Namakkal.
For Petitioner : Mr.S.Thirumurugan
for M/s. S.Senthil
For Respondents : Mr.G.C.Nelson Britto
for M/s.C.E.Pratap
ORDER
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This Criminal Revision Case had been filed to set aside the fair and
decreetal order dated 17.06.2020 passed in M.C.No.86 of 2018 on the file of
the Family Court, Namakkal.
2. The brief facts, which are necessary for the disposal of this
Criminal Revision, are as follows:-
2.1. The maintenance case in M.C.No.86 of 2018 had been filed by the
wife/first Respondent herein. As per the averments in the petition for
maintenance, the marriage between the first Petitioner and the Respondent was
an arranged marriage performed by the elders of both families and the marriage
was performed on 11.09.2013 at Shri Palaniappa Kalyana Mandapam,
Ottanchathiram, Dharapuram Road at Ottanchatram. After the marriage, the
first Petitioner/wife and the Respondent/husband was residing at Bengaluru
where the Respondent/husband was employed as a Software Engineer in
McAfee Software (India) Private Ltd., Spaces Fairway, Fairway Business Park,
Survey Nos.10/1, 11/2 and 12/2B of Chalaghutta Village, Next to Embassy
Golf Links, Domlur, Bengaluru – 560 071, Karnataka.
2.2. In the course of the matrimonial life, the first Petitioner/wife
became pregnant. In the seventh month of pregnancy, as per the customary
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practice between the spouses, the elders of both the families performed
Valaikappu Ceremony at Bengaluru. After the Valaikappu Ceremony, the first
Petitioner/wife was taken to her parental house by her parents. On 08.09.2015
she delivered a female child/second Petitioner. The child was named as Harsha
Miruthula. As per the petition averments in M.C.No.86 of 2018, the birth of
the child was informed to the Respondent/husband and in-laws by the family of
the first Petitioner/wife, however, none of them visited the child. The parents
of the first Petitioner/wife are daily wage labourers and with great difficulty,
they are maintaining their daughter and granddaughter. Whereas the
Respondent/husband is working as a Software Engineer and earning
Rs.1,25,000/- per month. The Respondent/husband is having agricultural lands
and buildings and through which, the Respondent/husband and his family earns
not less than Rs.5,00,000/- per month apart from the salary drawn by the
Respondent/husband. Still the Respondent/husband failed to maintain the
Petitioners/wife and the child. Therefore, the wife had filed M.C.No.86 of
2018 seeking Rs.30,000/- per month from the Respondent/husband .
2.3. The Respondent/husband filed counter resisting the claim. Also,
the Respondent/husband had filed H.M.O.P.No. 4058 of 2018 at Bengaluru
under Section 13(1)(ia), 13(1)(b) of Hindu Marriage Act, 1955 seeking divorce
against the first Petitioner/wife for desertion and cruelty. The contents of the
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H.M.O.P.No.4058 of 2018 was reiterated as counter in M.C.No.86 of 2018
stating that after marriage, the husband took the wife on honeymoon to Kerala.
After the marriage, they had booked a flat on rent and celebrated house
warming ceremony. The Respondent/husband purchased all the household
articles including provisions. The marriage expenses was also raised by the
husband. When the Respondent/husband wanted to resign his job at Bengaluru
and join a job at Chennai, the first Petitioner/wife resisted claiming she cannot
adjust to hot weather at Chennai. The Respondent/husband was overburdened
with work at Bengaluru, still he continues the job considering the request of his
wife to continue the job at Bengaluru. Also the the first Petitioner/wife was
suffering from Thyroid and Diabetics and she was given treatment at
Bengaluru. The first Petitioner/wife is not cordial towards the family members
of the husband. She uses abusive words against the husband. When the
Respondent/husband went to meet her after the Valaikappu Ceremony in her
native place - Ottanchatram, he gave her Rs.20,000/- for medical expenses.
On subsequent visits, he gave her Rs.2,000/- which she did not accept it. She
wanted Rs.20,000 for every visit and not for every month. She used to pick up
quarrel even through mobile phone and ill-treat her husband. After delivery of
the child, when the message received by the Respondent/husband, he along
with his parents and sister eagerly went to meet the child but they were treated
badly by the first Petitioner/wife and her parents. Subsequently, the
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Respondent/husband could not meet them. The father-in-law threatened the
Respondent/husband stating that the brother of first Petitioner/wife viz., Suresh
is a rowdy and he will go to any extent of even annihilating him. Also the
brother of the first Petitioner in the maintenance case, after consuming
alcoholic drinks, picked up quarrel through the mobile phone of the
Respondent in the maintenance case. Since he was using intemperate language
the Respondent in the maintenance case switched it off. He again contacted the
mother of the Respondent and father of the Respondent. Since they knew
about his intemperate language, they did not pick up the phone. Under those
circumstances, the Respondent/husband did not visit the family of the in-laws.
Subsequently, the relatives, uncles of the Respondent/husband had peace
meetings with the parents of the first Petitioner in the maintenance case and
only after the Respondent along with his parents, uncles was able to meet the
child and the first Petitioner in the maintenance case conceded that she will
join in the matrimonial home. Subsequently, she left the matrimonial home, as
he wanted to be with her parents. Subsequently, she gave information that she
had taken up a job as Lecturer in PGP Arts and Science College, Namakkal-
Karur Main Road, Namakkal District where she is paid monthly salary of
Rs.25,000/- per month. The request of the Respondent/husband that till the
child is able to take care of herself, she can avoid joining as a Lecturer was not
headed to. The first Petitioner/wife is under the spell of the parents and her
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brother. She never respects the words of the Respondent/husband or the
parents of the husband. Every time, she finds fault with the
Respondent/husband and parents of the husband. Therefore, on that ground,
the Respondent/husband filed H.M.O.P.No.4058 of 2018 before the learned
Judge, Family Court, Bengaluru, seeking dissolution of marriage. The
contumacious behaviour of the first Petitioner/wife was treated as grounds for
divorce. She does not have an intention to live as a dutiful wife and living in
peaceful, harmonious atmosphere. Therefore, frustrated by the conduct of the
first Petitioner/wife, the Respondent/husband was forced to file a petition for
dissolution of marriage. The contents of the petition in HMOP No.4058 of
2018 was filed as counter in the maintenance case by the Respondent/husband.
During enquiry, the first Petitioner in maintenance case examined herself as
P.W-1 and she had a marked three documents as Ex.P-1 to Ex.P-3. Ex.P-1 is
the marriage invitation card. Ex.P-2 is the marriage registration certificate.
Ex.P-3 is the birth certificate of their daughter Harsha Mirthula. The
Respondent/husband had examined himself as R.W-1 and no documents had
been marked on his side.
2.4. The Respondent/husband in the counter had stated that as the
father of the child, he is ready to pay maintenance for the child. Since the first
Petitioner/wife is employed as Lecturer/Assistant Professor in a private College
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in Namakkal and earning Rs.25,000 per month, he is not obliged to pay
maintenance to her. Also, he had stated that he is working in Bengaluru on a
temporary basis. Therefore, he is likely to lose his job any time. Therefore, he
requested that the maintenance case be dismissed against the wife and ordered
against the minor child.
2.5. On appreciation of evidence, the learned Judge, Family Court,
Namakkal, had in the discussion of evidence stated that both parties had not
filed any document as proof of salary either their own salary or the salary of
other party. Therefore, based on presumption, the learned Judge had arrived at
a conclusion that the first Petitioner/wife claimed that she is on a temporary job
as a college Lecturer/Assistant Professor and she was earning not Rs.25,000/-
as claimed by the Respondent/husband but was earning only Rs.10,000/- and
the child had been admitted in a School and she has to pay Rs.60,000/- for the
School fees which was disputed by the Respondent/husband when he had
adduced evidence as R.W-1. In the course of the cross-examination, he
claimed that Rs.60,000/- is high and he undertook to pay reasonable amount for
the maintenance of the minor child. The learned Judge in the course of
discussion of evidence presumed that the Respondent/husband having not
furnished any document as proof of the claim of salary or disputing the claim
of salary by the wife that he is drawing Rs.1,20,000/- as Software Engineer and
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Rs.5,00,000/- income from the agricultural properties and residential
properties. The learned Judge had considered the cross examination of the first
Petitioner/wife on behalf of the Respondent/husband that Respondent/husband
had availed loan for which he had to pay Rs.20,000/- per month towards
repayment of loan. Therefore, Rs.1,20,000/- is not the carry home salary. At
the same time, in the counter the Respondent/husband had claimed that “the
Respondent is having sufficient income to give his child a comfortable coupled
with good education as he has the ferver to give the same as dutiful father”.
That undertaking was taken by the learned Judge to grant Rs.15,000/- to the
minor child and Rs.5,000/- to the wife as she claimed that she is receiving only
Rs.10,000/- as salary. She had admitted that the Respondent/husband is
employed temporary in Bengaluru. Considering the fact that both are in
temporary jobs, the learned Judge had ordered Rs.5,000/- per month, for the
first Petitioner/wife and Rs.15,000/- per month, for the minor child, totally
Rs.20,000/- per month.
2.6. Aggrieved by the grant of Rs.5,000/- to the first Petitioner/wife as
maintenance, the Respondent/husband as Revision Petitioner had filed this
Revision Case seeking to set aside the order of grant of maintenance to the first
Petitioner/wife.
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3. The learned Counsel for the Revision Petitioner submitted that the
Revision Petitioner who is the Respondent in M.C.No.86 of 2018. It is the
contention of the learned Counsel for the Revision Petitioner that the marriage
between the Revision Petitioner and the first Respondent took place on
11.09.2013. It was an arranged marriage. The Revision Petitioner is employed
at Bengaluru as a Software Engineer. While so, in the course of their
matrimonial life, the first Respondent/wife became pregnant. Following the
ritual of Valaigappu, she was taken back by the parents of the first Respondent
to their house for delivery. After going to her parents house, she did not return
and there was no communication from the first Respondent/wife. The attempt
of the husband to reach out the first Respondent/wife was also resisted by the
first Respondent/wife. After the delivery of the child, there was no
communication between the Revision Petitioner and the first Respondent. The
attempt of the Revision Petitioner/husband to meet his wife and the child had
failed.
4. It is the submission of the learned Counsel for the Revision
Petitioner/Husband that the only attempt of the first Respondent/wife is to use
the money from the Revision Petitioner/husband for her luxurious life and she
is not interested in the matrimonial life.
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5. The learned Counsel for the Revision Petitioner invited the
attention of this Court to Section 125(4) of the Cr.P.C wherein it is stated that if
the wife, without any reason, is separately living from the matrimonial home,
she is not entitled to maintenance. Section 125 (4) of Cr.P.C. is extracted as
under:
“125. Order for maintenance of wives, children and parents -
(4) No wife shall be entitled to receive an (allowance for the
maintenance or the interim maintenance and expenses of
proceeding, as the case may be) from her husband under this
Section if she is living in adultery or if, without any sufficient
reason, she refuses to live with her husband, or if they are living
separately by mutual consent.”
In the light of the fact that the husband had preferred H.M.O.P.No.4058 of
2018 before the learned Judge, Family Court at Bengaluru which was
subsequently transferred to the file of the Family Court, Erode, without
sufficient cause the wife had withdrawn from the family of the husband which
is ground for filing of petition for dissolution of marriage on the ground of
desertion and cruelty. Under those circumstances, she is not entitled to
maintenance. The learned Judge failed to consider those aspects and had
granted Rs.5,000/- to the wife.
6. It is the further submission of the learned Counsel for the Revision
Petitioner that the wife is a qualified person working as Professor in PGP Arts
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and Science College in Namakkal. Also the learned Counsel for the Revision
Petitioner submitted that the first Respondent/wife had in her evidence
admitted that she is employed as Professor. The claim of the Respondent in
Maintenance case/Revision Petitioner that the first Respondent/wife is drawing
a salary of Rs.25,000/- was disputed by the wife claiming that she is drawing
only Rs.10,000/- as Professor in PGP Arts and Science College. Therefore, it is
the submission of the learned Counsel for the Revision Petitioner that the order
passed by the learned Judge, Family Court, Namakkal granting Rs.5,000/-
towards maintenance to the wife and Rs.15,000/- for the child is exorbitant. It
is the contention of the Revision Petitioner/husband that the first
Respondent/wife is not entitled to claim maintenance. Therefore, the order of
maintenance is to be set aside. The Husband as Respondent in Maintenance
case is willing to take back the child under his custody and provide her the
necessities of life including Education and other maintenance.
7. Further, the learned Counsel for the Revision Petitioner submitted
that the Petition for divorce was filed by the Husband in Bengaluru in the year
2018 which was subsequently withdrawn and transferred to the Family Court,
Erode and re-numbered as O.P.No.215 of 2023. It is still pending. Therefore, it
is the submission of the learned Counsel for the Revision Petitioner that the
order passed by the learned Judge, Family Court, Namakkal, in M.C.No.86 of
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2018, dated 17.06.2020 is to be set aside.
8. The learned Counsel for the Respondents vehemently objected to
the line of arguments made by the learned Counsel for the Revision Petitioner
and invited attention of this Court to the averments in the maintenance case by
the first Respondent/wife wherein she had stated that she was ill-treated for not
bringing dowry. Even though the parents of the first Respondent/wife had
informed the birth of the child to the Revision Petitioner/husband and the
parents of the Revision Petitioner/husband, they did not come to meet the child
at the earliest point of time. In the course of evidence, the Revision
Petitioner/husband as R.W-1 admitted that he had met the child only after three
months. In the course of cross-examination, he claimed ignorance of the death
of his father-in-law.
9. The learned Counsel for the Respondents invited the attention of
this Court to the cross-examination of R.W-1 before the learned Judge, Family
Court wherein he had claimed ignorance of the fact that the birth of the child
under the hospital in which the wife delivered the child. Subsequently, he
claimed that he had seen the child four or five months after the birth of the
child during the Temple Kumbhabishekam of Punniyagoundanvalasu Temple.
That shows there was strained relationship between the parties.
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10. The Revision Petitioner had in the maintenance case filed a
counter claiming that the parents of the first Respondent/wife are poor daily
wage earners whereas in the evidence he disputes such claim. Therefore, the
order of the learned Judge, Family Court, even though there is evidence that
the wife is employed as a Professor on temporary basis, on assumption that she
is drawing Rs.10,000/- had granted Rs.5,000/- as a responsible husband has to
pay his wife. He had in the cross-examination stated that the wife is better
qualified, she can get a better job. Therefore, he concedes that she is qualified
to get a job. When he claims that he is in temporary job, he shall not prevent
her from joining in any job and that cannot be taken as a weapon to refuse
maintenance for the wife. Therefore, the learned Counsel for the Respondent
sought to dismiss this Revision.
Point for consideration:
Whether this Revision Case is to be allowed and the order
dated 17.06.2020 passed by the learned Judge, Family Court,
Namakkal, in M.C.No.86 of 2018 is to be set aside regarding the
grant of Rs.5,000/- per month to the wife of this Revision
Petitioner?
11. Heard the learned Counsel for the Revision Petitioner
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Mr.S.Thirumurugan and the learned Counsel for the Respondents
Mr.G.C.Nelson Britto for Mr.C.E.Pratap.
12. Perused the typed set furnished by the Revision Petitioner
containing the deposition of first Respondent/wife and the deposition of the
Revision Petitioner/husband, the order passed by the learned Judge, Family
Court in M.C.No.86 of 2018, dated 17.06.2020.
13. On perusal of the evidence and the order passed by the learned
Judge, Family Court, Namakkal, the observation of the learned Judge while
appreciating the evidence stating that both the parties had not furnished pay
slip or pay particulars as document either their own or on the other side.
Therefore, based on presumption, the learned Judge, Family Court, Namakkal,
had come to the conclusion that even on the lower side Rs.1,25,000/- is the
salary of the person employed as Software Engineer in Bengaluru. Out of
which, he had to pay Rs.20,000/- towards repayment of loan. Therefore, the
Revision Petitioner/husband had claimed in the counter that with his resources
he is able to safeguard the interest of the minor child to provide her
maintenance and education in a better, comfortable manner and taking
advantage of that averment, he had ordered Rs.15,000/- as monthly
maintenance for the minor child and ordered Rs.5,000/- to the wife/first
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Respondent herein since there was no documentary proof regarding claim by
the Revision Petitioner/husband that the first Respondent/wife is employed as
Professor and drawing salary of Rs.25,000/-. The wife/first Respondent had
not marked document as proof of salary. She denied the suggestion of the
learned Counsel for the husband/Revision Petitioner that she is drawing not
less than Rs.25,000/- per month as salary and claimed that she was paid only
Rs.10,000/- per month. Considering the plight of the Professors in private
colleges, the claim made by the husband/Revision Petitioner that the wife/first
Respondent is paid Rs.25,000/- is denied by the wife, has to be accepted.
Since the wife/first Respondent herself had claimed that she is employed as
Professor in a private college, she is not entitled to maintenance. The Court has
to draw adverse inference regarding the salary of the wife. The claim that she
is paid Rs.10,000/- cannot at all be accepted. That is too low considering the
status of temporary Professors in a college are paid Rs.25,000/- invariably
across the State. Therefore, the suggestion by the husband/Revision Petitioner
even though denied by the wife/first Respondent has to be accepted even
otherwise she is capable of earning. As per the counter and as per the copy of
the HMOP filed along with the type set, the husband/Revision Petitioner had
claimed that the wife had been not in mental state to co-habitat with her
husband. As an educated woman, she can seek employment wherever she lives
with the husband. As a Software Engineer, he will be employed only in towns
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an cities where there are Information Technology Parks in Tire-II cities
minimum other than Metropolitan cities. Therefore, the employment
opportunities are available for the wife also. Still, she is not willing to live with
the husband forcing him to file a petition seeking dissolution of marriage on
the ground of desertion and cruelty. Therefore, as pointed out by the learned
Counsel for the Revision Petitioner/husband, Section 125 (4) of Cr.P.C. applies
to the facts of this case which was lost sight by the learned Judge, Family
Court, Namakkal, while appreciating evidence. On sympathy, the learned
Judge had granted Rs.5,000/- to the wife. Therefore, this is fact of the case
which squarely applies to Section 125 (4) of Cr.P.C., the evidence of the
husband cannot be faulted. While appreciating evidence, the learned Judge
found that the husband/Revision Petitioner had fairly conceded as a responsible
father he is ready to pay the necessary expenses for a comfortable life for his
minor daughter. Therefore, he has not agitated or aggrieved for grant of
maintenance to the minor child. He had come by way of revision to set aside
the judgment regarding grant of Rs.5,000/- per month in favour of the wife,
ignoring the averments in the counter and ignoring the evidence of the
husband.
14. In the light of the above discussion, the point for consideration is
answered in favour of the Revision Petitioner and as against the first
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Respondent/wife. The order dated 17.06.2020 passed by the learned Judge,
Family Court, Namakkal, in M.C.No.86 of 2018 regarding the grant of
Rs.5,000/- per month to the first Petitioner/wife of this Revision Petitioner is to
be set aside as perverse.
In the result, this Criminal Revision is allowed. The order dated
17.06.2020 passed by the learned Judge, Family Court, Namakkal, in M.C.
No.86 of 2018 regarding the grant of Rs.5,000/- per month to the first
Petitioner/wife of this Revision Petitioner is set aside. The maintenance
amount of Rs.15,000/- per month to the minor child by the learned Judge,
Family Court, Namakkal, in M.C. No.86 of 2018, dated 17.06.2020 is
confirmed. Consequently, connected miscellaneous petition is closed.
02.06.2025
srm
Index: Yes/No
Internet:Yes/No
Speaking Order/Non-speaking Order
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To
1. The Family Court, Namakkal.
2. The Section Officer,
Criminal Section,
High Court Madras.
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SATHI KUMAR SUKUMARA KURUP, J.
srm
Order made in
Criminal Revision Case No.876 of 2021
02.06.2025
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