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MADRAS HIGH COURT
S. Manikumar, J.
G. Sampath —Petitioner
versus
S. Sivakami —Respondent
Crl.R.C.No.190 of 2015 & M.P.No.1 of 2015
Decided on 5.6.2015
Counsel for the Parties:
For the Petitioner:Mr.V.Vargees Amal Raja, Advocate
IMPORTANT POINT
Though a right to defend payment of maintenance, is available to the husband, on the ground that he has obtained a decree for restitution of conjugal rights, which decree, the learned Judicial Magistrate, is bound to consider, in the humble opinion of this Court, such right is not indefeasible, when the wife substantiates, her case for refusal to live.
Headnote:Criminal Procedure Code, 1973 — Section 125 — Maintenance awarded in favour of wife and minor son — Revision on plea that wife knowingly failed to comply decree for restitution of conjugal rights granted in favour of petitioner-husband — Right of husband to resist payment of maintenance on ground that he had a decree for restitution of conjugal rights is not indefeasible — If wife substantiate her case for refusal to live, cause shown by her could not be held to be unjustifiable cause for denying maintenance — No perversity in the order and no reason to interfere. (Paras 17 & 18)
Result: Revision dismissed.
S. Manikumar, J.—Being aggrieved by the order made in M.C.No.12 of 2012, dated 05.09.2014, on the file of the learned Judicial Magistrate No.II, Tindivanam, granting maintenance of Rs.1,000/- to the wife and Rs.750/- each to the minor son and daughter, husband has filed the present Criminal Revision Case.
2. Material on record discloses that marriage between the spouses was solemonized on 01.07.1999 and they were residing at Thenpalai Village, Gingee Taluk. They were blessed with two children. According to the respondent/wife, at the time of marriage, five soverigns of gold jewels and marriage articles worth Rs. 75,000/-, were given. Minor children were studying in Sathamangalam Panchayat Middle School. Out of the sale proceeds of the jewels, the petitioner/husband purchased 0.04 Cents of house site, at Alampundi Village. There was shortage of money. Therefore, the respondent/wife obtained Rs.10,000/- from her parents.
3. It is the further case of the respondent/wife that her husband, petitioner herein, abandoned and driven her away from the matrimonial home. She has been maintaining two children. Husband has not provided her with any maintenance. He was addicted to liquor. He was a mason and earning Rs.600/- per day. In the abovesaid circumstances, she has sought for a direction against the petitioner/husband, to provide maintenance, at the rate of Rs.6,000/- per month, for herself and Rs.3,000/- per month, each, to the children.
4. The petitioner/husband has opposed the petition, contending inter alia that after marriage, respondent/wife had not taken care of his aged parents. She has beaten his mother. Without any reason, she would leave the matrimonial home and go to her parents’ house. Within one month, from the date of marriage, she has filed a false complaint, with the help of her parents and harassed him. After sometime, a separate matrimonial home has been set up at No.56, MGR Street, Annai Satya Nagar, Villivakkam, Chennai.
5. The petitioner/husband has further submitted that he has taken care of his wife and children. Dress and other materials were purchased. Articles worth Rs.75,000/- were not given as Sridhana. Property at Alampundi, was purchased out of his own income. He was not addicted to liquor. He has denied the allegation of physical assault. He has further submitted that through his relatives and friends, he had gone to the respondent’s parents’ house on many occasions, for compromise and in one such time, he was beaten up by the wife’s brothers. H.O.M.P.No.2074 of 2012, filed for restitution of conjugal rights was filed on the file of the Family Court, Chennai and it was pending. He is willing to live with his respondent/wife. For the abovesaid reasons, the petitioner/husband has prayed for dismissal of order passed in M.C.No.12 of 2012, dated 05.09.2014.
6. The respondent/wife, examined herself as PW.1 and one Nagapan has been examined as PW.2. Documents, Copies of Marriage Invitation and Family Card, lawyers’ Notice and Reply to the Notice have been marked as Exs.P1 to P4. Besides examining himself as RW.1, the petitioner/husband has examined one Mani, as RW.2. On his side, Ex.R1 –Lawyer’s Notice, Ex.R2 – Letter sent to the All Women Police Station, Chengi and Ex.R3 – Reply Notice of the petitioner/husband, have been marked.
7. On evaluation of pleadings and evidence, the learned Judicial Magistrate No.II, Tindivanam, held that wife and children are entitled to maintenance, at the rate of Rs.1,000/- per month to the wife and Rs.750/- per month, each, to the children. The Court below has also directed that the amount to be paid on or before 5th of every English Calender month.
8. The main contention of the petitioner/husband is that the learned Judicial Magistrate No.II, Tindivanam, has failed to consider that the respondent/wife has failed to comply with the order of the Family Court, Chennai, for restitution of conjugal rights in H.M.O.P.No.2074 of 2012, dated 04.01.2012 and that the Court below h
