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2016 Supreme(Mad) 2780

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
P. DEVADASS, J.
M. Sundaramoorthy – Appellant
Versus
Minor Iswaryalakshmi – Respondent
Crl. R.C. (MD) No. 253 of 2014 and M.P. (MD) Nos. 1 & 2 of 2014 and Crl. R.C. (MD) No. 288 of 2016
Decided On : 31-08-2016

Advocates Appeared:
For the Appellant : Mr. V. Nagendran.
For the Respondent: Mr. K.P. Narayanakumar.

Headnote:

Criminal Produce Code, 1973 - Section 125 – Matrimonial Dispute - Denial in payment of maintenance – Clamming maintenance - Factual matrix and legal issues are intermixed - Against his daughter in granting her monthly maintenance - wife as against her husband in the said Court having denied her maintenance they were blessed with a daughter (Birth Certificate) - She has been christened Iswaryalakshmi - Difference of opinion arose between spouses on account of several aspects - In circumstances, she had gone to her parents house along with her child and spouses started living separately - Family Court ordered maintenance to child from date of filing maintenance petition - However, holding that first petitioner/mother has already received amount and she was also silent in not taking steps for maintenance since 2001, Judge has denied her maintenance - Held, There is no independent source of income to maintain themselves both for wife and daughter - Unaware of all these aspects, in a maintenance petition, petitioner may pray a lesser amount as in present case - However - Court is powerless to grant such an amount when especially judicial discretion has been conferred upon Court - Daughter has grown up, she is a school going female child, therefore Rs.3,000/- per month besides her educational expenses ordered by Trial Court from date of filing maintenance petition does not appear to be excessive - Her father is not duty bound to maintain her after her marriage - It is duty of husband to maintain her - She has no independent source of income - She had to struggle for her sustenance and also to put up a legal battle in maintenance case - Said quantum of maintenance is to be paid to her from date of filing the maintenance petition - Crl.R.C.(MD) No.253 of 2014 is dismissed and Crl.R.C.(MD) No.288 of 2016 is allowed.

ORDER :

1. As these two revisions are directed as against the very same order passed under Section 125 Cr.P.C., and the factual matrix and legal issues are intermixed, they were heard together and are being disposed of by this common order.

2. Crl.R.C.(MD) No.253 of 2014 has been filed by a father as against his daughter in granting her monthly maintenance at Rs.3,000/- in M.C.No.42 of 2010, by the learned Judge, Family Court, Madurai.

3. Crl.R.C.(MD) No.288 of 2014 has been filed by the wife as against her husband in the said Court having denied her maintenance.

4. On 10.02.2000, Lathadevi married Sundaramoorthy (See Ex.P1 Marriage Invitation). On 01.12.2000, they were blessed with a daughter (See Ex.P3 Birth Certificate). She has been christened Iswaryalakshmi. Difference of opinion arose between the spouses on account of several aspects. In the circumstances, she had gone to her parents house along with her child. The spouses started living separately.

5. In the circumstances, she sought for monthly maintenance Rs.5,000/- before the Family Court, Madurai, in M.C.No.42 of 2010 for herself (1st petitioner) and for her daughter (2nd petitioner). Their marital bondage continues. Her husband filed counter questioning her fidelity as between them there is a customary divorce, she has received Rs.1,35,000/- in full quit and they are living separately by a mutual consent and they are not entitled to maintenance from him.

6. The wife has examined herself as P.W.1 and marked Exs.P1 to P3, while her husband examined himself as R.W.1 and one Ramakrishnan as R.W.2 and marked Exs.R1 to R4.

7. Considering the submissions of both sides and the evidence on record, the learned Judge, Family Court, Madurai, ordered maintenance at the rate of Rs.3,000/- per month to the child from the date of filing the maintenance petition. However, holding that the first petitioner/mother has already received Rs.1,35,000/- and she was also silent in not taking steps for maintenance since 2001, the learned Judge has denied her maintenance.

8. As stated at the outset, aggrieved by the grant of maintenance to his daughter, her father has directed Crl.R.C. (MD) No.253 of 2014 and aggrieved by the denial of maintenance to her, the wife has filed Crl.R.C.(MD) No.288 of 2014, along with her child.

9. The learned counsel for the husband contended that under the Ex.P4, wife has already received Rs.1,35,000/- in full quit. Thereafter, they are living separately. In the circumstances, under Section 125(4) Cr.P.C., she is not entitled to maintenance.

10. The learned counsel for the husband further contended that the paternal grandfather of the daughter since has deposited Rs.1,00,000/- in her name in a fixed deposit, the daughter is not entitled to maintenance.

11. The learned counsel for the husband further contended that in the maintenance petition, the wife and daughter have claimed Rs.5,000/-, so Rs.2,500/- each. In such circumstances, the Trial Court granting more than that, namely, Rs.3,000/- per month is not in accordance with law.

12. On the other hand, the learned counsel for the wife and daughter contended that the husband had undesirable contact with his mother's sister, who is a widow and it has been continuously stated by the wife in the proceedings. Further, she has been treated with cruelty. Under these circumstances, she came back to her parents house along with her child. Now, there cannot be a customary divorce.

13. The learned counsel for the wife and daughter further contended that Ex.R4 has not been proved in a manner known to law. In such circumstances, the contentions with reference to Section 125(4) Cr.P.C., and the alleged payment in full quit remain not proved.

14. The learned counsel for the wife and daughter further contended that the deposit of the amount by the paternal grandfather in the name of his granddaughter is out of his love and affection. That will not absolve the daughter's father from paying her maintenance.

15. The learned counsel for the wife
























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