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2021 Supreme(Mad) 2995
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. DHANDAPANI, J.
Chitra & Ors. - Petitioners
Versus
M. Senthil - Respondent
Crl. O.P. No. 5104 of 2019 and Crl. M.P. No. 2969 of 2019
Decided On : 11-08-2021
For the Petitioners: Mr. D.R. Arunkumar.
For the Respondent: Mr. Mukunth for Saravabhuman Associates.
Headnote:
Criminal Procedural Code, 1973 – Section 125 – Maintenance - Criminal Original Petition - Petitioners herein are wife and minor son of respondent - Case of petitioners is that marriage between 1st petitioner / wife and respondent was held as arranged one and as demanded, 15 sovereigns of gold were given as Tali for the bride and 8 sovereigns of gold chain was given to bride groom and marriage expenses were incurred by bride's family - Out of their marriage, 2nd petitioner son was born - Thereafter, the respondent family started demanding more jewels and harassing the petitioner - 2nd petitioner was born and entire expenses towards delivery was spent by 1st petitioner's parents - After 3 months from date of birth of child, respondent's father had died and since baby was underweight, petitioner has taken boy to her parents house and due to health condition of minor son, petitioner wife had stayed in her parental home for further treatment – Held, admittedly marriage was performed in year 2008 and 2nd petitioner was born in 2009 and thereafter, there was no compatibility in between the couples, for which, respondent has filed divorce petition in year 2010 and the exparte order was passed in year 2012 - After the exparte order, petitioner wife immediately filed set aside petition before Trial Court and so also maintenance petition in year 2015 - Initially Trial Court has awarded a sum of Rs.10,000/- each - Against order of maintenance, respondent's petition for revising award amount, got ordered in favour of him, whereby the Lower Appellate Court has rejected claim of 1st petitioner in toto, but reduced maintenance amount as ordered by Trial Court to Rs.6,000/- from Rs.10,000/- insofar as 2nd petitioner is concerned - However this Court is of view that reasons for rejecting claim of 1st petitioner, more especially delay, is not justifiable as it is evident from the record that there were series of litigations after order of divorce - Hence Lower Appellate Court was not justified in applying law mechanically and dismissing maintenance awarded to 1st petitioner. Therefore, this Court has no hesitation to set aside order passed by lower Appellate Court rejecting claim of maintenance of 1st petitioner - Insofar as reduction of maintenance awarded to the 2nd petitioner is concerned, same is also not justifiable one, as respondent, as a father, is duty bound to take care of his child - Responsibility is on respondent to provide all necessities to his child and it is admitted that 2nd petitioner is studying 7th standard in a private school, namely, SBB CBSC School and further 1st respondent has obligation to meet out medical expenses as well as educational expenses of minor child and considering medical and educational expenses in present day scenario, bringing up child by giving good education would definitely require a considerable amount and, therefore, maintenance awarded to the child requires increase - Criminal Original Petition is allowed.
ORDER :
This Criminal Original Petition has been filed to call for the records relating to the order dated 26.09.2018 made in C.R.P.No.37 of 2017 on the file of the III Additional District and Sessions Judge, Coimbatore reversing the order dated 14.09.2017 made in M.C.No.17 of 2015, on the file of the learned Judicial Magistrate No.1, Pollachi and set aside the same.
2. The petitioners herein are the wife and the minor son of the respondent. The case of the petitioners is that the marriage between the 1st petitioner / wife and the respondent was held on 16.03.2008 as arranged one and as demanded, 15 sovereigns of gold were given as Tali for the bride and 8 sovereigns of gold chain was given to the bride groom and the marriage expenses were incurred by the bride's family. Out of their marriage, the 2nd petitioner son was born. Thereafter, the respondent family started demanding more jewels and harassing the petitioner. The 2nd petitioner was born on 03.03.2009 and the entire expenses towards delivery was spent by the 1st petitioner's parents. After 3 months from the date of birth of child, the respondent's father had died and since the baby was underweight, the petitioner has taken the boy to her parents house and due to the health condition of the minor son, the petitioner wife had stayed in her parental home for further treatment.
3. In the meanwhile, taking advantage of the prevailed situation, in order to leave the company of his wife, the respondent has filed a petition for divorce and obtained an exparte decree on 30.12.2012 and the 1st petitioner had taken steps to set aside the exparte order and the same is also pending. Since the husband has not maintained the child and had deserted the wife and the child, the 1st petitioner claimed maintenance for medical expenses and other expenses in M.C.No.17 of 2015. The learned Judicial Magistrate has awarded Rs.10,000/- each towards the petitioners herein, by its order dated 14.09.2017. Aggrieved by the said order, the respondent herein has preferred revision before the Lower Appellate Court in C.R.P.No.37/2017, whereby the learned Judge, has rejected the awarded maintenance amount for the 1st petitioner wife and reduced the award amount to the minor son from Rs.10,000/- to Rs.6,000/- per month. Challenging the said reduction order, the petitioners are before this Court.
4. The learned counsel appearing for the petitioner submitted that the Trial Court dismissed the claim of the 1st petitioner on the ground that the marriage was performed in the year 2008, however, the claim petition was filed in the year 2015 and the delay was not properly explained. The claim of the 1st petitioner wife was dismissed without any justifiable reasons and reduced the maintenance of Rs.10,000/- to Rs.6,000/- per month in respect of the 2nd petitioner. In both the cases, the reasons assigned by the Lower Appellate Court is non-est in the eye of law and without any basis. Accordingly prays for allowing of the present petition.
5. The learned counsel appearing for the respondent submitted that the Lower Appellate Court has rightly rejected the claim made by the petitioners. The marriage was performed in the year 2008 and the respondent has got an exparte order during the year 2012 and the maintenance petition, which was belatedly filed after a period of three years, was ordered in favour of the petitioner in the year 2015. Therefore, it is to be pointed out that the petitioner Wife was able to manage herself and her child for a period of three years and odd, without any assistance from the husband. All of a sudden, after a lapse of three years of divorce, claiming maintenance is only to harass the respondent and to grab money from him. Subsequent to the divorce on 30.12.2012, the respondent has married another women and they are living together. Though the petitioner has filed a Set aside petition before the Trial Court, till date no order was passed on the same and further the petitioner Family is having
