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2016 Supreme(Mad) 3760
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. DEVADASS, J.
Ajithkumar – Petitioner
Versus
Simmi and Ors. – Respondents
Crl.R.C.No.1169 of 2010
Decided On : 05-12-2016
For the Petitioner: Mr. Manoj Sreevalsan
For the Respondent: Mr. Ashok Menon
Headnote:
Criminal Procedure Code, 1973 - Section 125 - Hindu Marriage Act, 1955 - Section 13(i) (a) and 13(i) (b) - Maintenance case - Union Territory - revision petitioner married first respondent in Mahe, Union Territory of Puducherry - Their daughter/second respondent was born - Difference of opinion arose between spouses - Revision petitioner is working and residing in Moradabad, U.P - First respondent along with her daughter started living in her parents house in Mahe - Couples got separated - revision petitioner would contend that divorce was granted on ground of her desertion - Family Court held that she has deserted him has been filed in 2006 - Thus, even on said date she has withdrawn her society from her husband - In such circumstances, as per Section 125(4) Cr.P.C, she is not entitled to maintenance from him - Held, Amount paid towards her maintenance covering said period cannot be asked for because principle of restitution cannot be applied to maintenance issue as amount paid towards her maintenance has gone and no question of recouping or reimbursement of such amount arises - Under Section 125 (1) Cr.P.C., there is no ceiling limit, there is no cap - Quantum of maintenance depends on facts and circumstances of each case - In maintenance petition, without knowing or gauging reality of situation, unknowingly they may ask more amount or a lesser amount - But, Court has to consider all relevant aspects and grant maintenance, which may be less than what was claimed in maintenance petition or more than amount mentioned in maintenance petition – Direction issued - Revision is disposed of.
The respondent in the Maintenance case in M.C.No.7 of 2006 on the file of the learned Judicial Magistrate (Sub-Judge) Mahe, Puducherry is the revision petitioner.
2. On 10.7.2003, the revision petitioner married the first respondent in Mahe, Union Territory of Puducherry. On 19.5.2004, their daughter/second respondent was born. Difference of opinion arose between the spouses. The revision petitioner is working and residing in Moradabad, U.P. The first respondent along with her daughter started living in her parents house in Mahe. The couples got separated.
3. In the circumstances, she filed M.C.No.7 of 2006 under Section 125 Cr.P.C. before the learned Judicial Magistrate, Mahe seeking maintenance for herself and for her daughter.
4. The revision petitioner filed counter opposing her claim contending that she has left him without sufficient reason.
5. The trial Court, brushing aside his contentions, on 3.5.2010, ordered him to pay monthly maintenance at the rate of Rs.3,000/- and Rs.1,000/- respectively to the respondents 1 and 2 from the date of its order.
6. Aggrieved, the revision petitioner has directed this revision.
7. Subsequently, on 26.5.2014, the revision petitioner filed O.P.No.261 of 2014, in the Family Court, Thalassery, Kerala seeking divorce under Section 13(i) (a) and 13(i) (b) of Hindu Marriage Act, 1955 on the ground of her cruelty and desertion. It was contested by her. Evidence was let in. Ultimately, on 8.7.2016, the Family Court dissolved their marriage on both the grounds (see Ex.R-2 decree and judgment of the Family Court, Thalassery).
8. The learned counsel for the revision petitioner would contend that divorce was granted on the ground of her desertion. The Family Court held that she has deserted him from 30.1.2005. M.C.No.7 of 2006 has been filed in 2006. Thus, even on the said date she has withdrawn her society from her husband. In such circumstances, as per Section 125(4) Cr.P.C, she is not entitled to maintenance from him.
9. In this connection, the learned counsel for the revision petitioner cited Rohtash Singh vs. Ramendri and others [2000 (3) SCC 180 = CDJ 2000 SC 136] and R.Mathialagan vs. V.Ravichandrika [CDJ 2015 MHC 5803].
10. On the other hand, the learned counsel for the respondents contended that the first respondent was harassed, she was driven out of the matrimonial home. The revision petitioner tries to reap benefit out of his own wrong.
11. The learned counsel for the respondents further contended that when divorce has been obtained by the husband or wife, Section 125 (4) Cr.P.C. will not apply to a maintenance petition filed under Section 125 (4) Cr.P.C.
12. In this connection, the learned counsel for the respondents also cites Rohtash Singh case (supra) and Parvatevva @ Roopa vs. Channabasappa (Crl.R.P.No.2122 of 2013 dated 29.1.2014 (Karnataka).
13. The learned counsel for the respondents also contended that the Salary Certificate of the revision petitioner shows that he earns considerably. However, a ludicrously low amount has been granted towards their maintenance. The Court can consider the reality of the situation and fix the maintenance amount.
14. However, the learned counsel for the revision petitioner replied that the revision petitioner has lost his job.
15. I have anxiously considered the rival submissions, perused the impugned order, the entire materials on record and also the decisions cited by both sides.
16. In the facts and circumstances, now the question in exercise of this Court's power under Section 401 Cr.P.C. whether we have to interfere with the impugned order and if so, to what extent.
17. The dispute is between the revision petitioner and the first respondent. There is no dispute with regard to the grant of maintenance to the second respondent, who is the daughter of both. Further, as her father he is bound to provide her maintenance.
18. The contentious issue is with regard to the grant of maintenance to the first respondent.
19. The revision petitioner and the first r
