The court upheld the order for maintenance based on the husband's income and the wife's inability to maintain herself under Section 125 of Cr.P.C.

JUDGMENT

(Prayer: Criminal Revision Petition has been filed under Section 397 & 401 of the Code of Criminal Procedure, praying to set aside the order dated 25.09.2019 made in M.C.No.5 of 2017 on the file of the learned Principal Judge, Principal Family Court, Coimbatore and discharge the petitioner from the above case.)

1. This Criminal Revision Petition has been filed, seeking to set aside the order dated 25.09.2019 passed in M.C.No.5 of 2017 by the learned Principal Judge, Principal Family Court, Coimbatore.

2. The facts of the case is that the revision petitioner is the husband of the first respondent. The first respondent/wife had filed a petition in M.C.No.5 of 2017 under Section 125 of Cr.P.C., seeking maintenance from the petitioner/husband for herself and for her son, who is arrayed as second petitioner. The learned Principal Judge, after affording an opportunity to the revision petitioner, by order dated 25.09.2019 came to the conclusion that the petition filed by the first respondent/wife is allowable and also directed the petitioner to pay monthly maintenance for a sum of Rs.9,000/-. Further, the learned Judge has directed the petitioner to pay a sum of Rs.10,000/- towards expenses of the proceedings. Apart from that, the learned Judge directed the revision petitioner to pay a sum of Rs.3,000/- towards the maintenance of the second petitioner, till he attained majority. Challenging the said order, the revision petitioner is before this Court with the present Criminal Revision Petition.

3. Heard both sides at length and perused all the material records.

4. It is not in dispute that the first respondent/wife is the legally wedded wife of the petitioner. The second respondent is the son born to the petitioner. Ofcourse, for awarding maintenance and also for awarding litigation expenses, it would necessary to see whether the wife is unable to maintain herself and whether the petitioner has refused or neglected to maintain her wife and son after having sufficient means.

5. Initially, it is the contention raised by the learned counsel appearing for the revision petitioner that, the first respondent/wife voluntarily refused to live with the revision petitioner. But in this regard, in order to prove the same, except the oral evidence given by him, nothing was shown by the petitioner as his wife voluntarily refused to live with him. If really, the petitioner intends to get rid of the payment of maintenance to his wife, is at liberty to plead and prove any of these three things, namely, adultery, refusal to live and living separately by mutual consent. Here, it is a case, the revision petitioner has not shown any substantial materials with regard to the above reasons to prove that, he is not having any liability to pay the maintenance.

6. It is admitted case on either side that, the petitioner / husband along with his second child is residing in Appanaickenpalayam, Coimbatore. On the other hand, the wife along with her first child is residing at BSNL Quarters, GN Mills, Coimbatore. The said circumstances also shows that the wife is voluntarily residing at BSNL Quarters, GN Mills, Coimbatore. Therefore, we have come to the conclusion that the question of refusal by wife is not proved and therefore, the revision petitioner is liable to pay the maintenance under Section 125 Cr.P.C.

7. In respect of the second respondent, the child born to the petitioner and first respondent, before the trial Court the Birth Certificate of the second petitioner was marked as Ex.P.4. The details found in the said certificate would disclose the fact that the Date of Birth of the second respondent is 27.06.2001 and therefore, it is clear that he was minor at the time of presenting the maintenance case and now, he has attained majority on 13.05.2019. Therefore, the petitioner is liable to pay the maintenance to the second respondent only upto 13.05.2019.

8. Coming to the inability of the wife to maintain herself, it is for the petitioner to prove that she is