Saravanan v. Malathi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 17/11/2022
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN Crl.RC(MD)No.780 of 2021 and Crl.MP(MD)No.9166 of 2021 Saravanan : Petitioner/Respondent Vs.
1.Malathi 2.Minor Gopi Sandhu 3.Minor Santhosh : Respondents/Petitioners (R2 and R3 represented by their mother and next friend Malathi) Prayer:- This Criminal Revision has been filed under sections 397 and 401 of the Criminal Procedure Code to call for the records and set aside the order, dated 27/08/2021 made in MC No.25 of 2019 on the file of the Family Court, Sivagangai and pass such further and other orders.
For Petitioner : Mr.D.Venkatachalam For Respondents : Mr.R.Ilayaraja
O R D E R
This criminal revision has been filed against against the order, dated 27/08/20121 made in MC No.25 of 2019, on the file of the Family Court6, Sivagangai. 2.The facts in brief:- The marriage between the husband and wife was performed, on 27/08/2006 as per their customary rites. At that time of marriage, the husband was working in the Police Department. After the marriage, they were living together and at that time, harassment was made by the family members of the husband seeking additional dowry, etc. The husband used to come late night in drunken mood and used to assault the wife frequently. Because of the torture, the wife suffered abortion in three times. But, on 19/12/2009, a male child was born. It was mentally retarded child. Even before the marriage, the husband was having some illicit intimacy with his brother's wife. Because of the above said, there was frequent trouble between the husband and wife. So they put up a separate residence. Even thereafter, the trouble did not stop. On 20/06/2012, the second child was born. Even at that time,
there was a demand of jewelry. There was a compromise. Later, they were living together. It was also brought to notice of the wife that the husband is having illicit intimacy with several girls. He also spent lavishly the jewels belongs to the wife. A complaint was given by the wife before the Trichy Railway Superintendent of Police. There was a compromise. But even then, the husband has not corrected himself. Even the complaint given by the wife did not yield any result. Now she is living separately with her children. The husband is having illicit intimacy with one Devi. So on coming to know that the husband along with the above said Devi came to the house and take away the articles, which belongs to the wife and the wife was also assaulted.
Over which, a case was registered and the wife was admitted in the Sivagangai Government Hospital and taking treatment for five days as inpatient. Later, she filed MC No.3 of 2018 and that ended in compromise. Even then, there was no change in the behaviour of the husband. So HMOP No.65 of 2018 was filed and it is also pending. With these allegations, the wife filed a petition before the trial court seeking maintenance for herself and the two children.
3.That was resisted by the husband stating that right from the marriage, the wife has not behaved properly and used to pickup quarrel unnecessarily. In 2013, they started living in Thirupuvanam. Even thereafter also, the wife did not change her attitude. She was also not properly taken care of the children. On 08/09/2017, she picked up quarrel during the ear-boring ceremony of two children and due to it, she went to her parental home by taking the two children. With these allegations, the husband made a complaint in Manamadurai All Women Police Station. Thereafter, the husband issued a notice to the wife for restitution of conjugal rights, on 17/05/2018. But there was no reply. The mentally retarded children was admitted in an orphanage. On coming to know about the same, the husband filed HMOP No.65 of 2019 seeking divorce. Fearing of adverse order, the wife discharged the children from the above said orphanage. Only after filing of the above said HMOP, the wife has filed a petition seeking maintenance.
4.It is also stated that the wife has completed M.Com. M.Ed., and working in a private polytechnic and earning Rs.20,000/- per month. Apart from that, she is also having ancestral properties.
5.Before the trial court, on the side of the wife, she has examined herself as PW1 and 12 documents were marked. On the side of the husband, he has examined himself as RW1 and 10 documents were marked on his side. 6.At the conclusion of the trial, the trial court directed the husband to pay a sum of Rs.5,100/- to the wife and Rs.3,050/- to the first children and Rs.4,300/- to the second children. Challenging the above said order, the present criminal revision has been preferred. 7.Pending revision, the revision petitioner was directed to deposit Rs.1,50,000/- to the credit of MC No.25 of 2019 before the Family Court, Sivagangai. The order is, dated 01/11/2021. When the matter was called, on 04/11/2022, the revision petitioner was directed to verify whether the above said conditional order has been complied or not. At that time, the learned counsel appearing for the revision petitioner sought time to get instruction. So the matter is ordered to be listed, on 10/12/2022 for final disposal. At that time, the learned counsel appearing for the revision petitioner sought time again.
8.Since it is a case of maintenance, by perusing the records, this court passes this order.
9.It is not in dispute that the revision petitioner married the first respondent and because of the marital relationship, two children born to them. Among them, one is a mentally retarded child. What went wrong between them as usual there are allegations and counter allegations.
10.It is the case of the wife that the husband is having illicit intimacy with so many women and illtreated her and also assaulted in more than one occasions. Over the above said issue, it appears that repeated complaints have been given. Then the Superintendent of Police has also called them and made enquiry.
11.It is also seen that the police advised both of them to live together. For more than two occasions, there was a compromise between them and they lived together. But according to the wife, there was a quarrel between them on the ear-boring ceremony day of the children. So
because of the above said quarrel, she went to her parental home. This is the first occurrence. The second occurrence stated to be taken place, on 28/02/2019, when the wife and her relatives alleged to have enquired about the conduct of the revision petitioner. At that time, according to the wife, she was assaulted and due to it, admitted in the hospital for five days. Thereafter, MC No.3 of 2018 was also entered into compromise. This sequence of events shows that there was a frequent trouble between them and they separated permanently, on 09/08/2019. HMOP No.65 of 2019 was also filed by the husband for divorce and that was also stated to be granted.
12.There is no clear indication with regard to the above said finding in the order of the matrimonial proceedings. Now whatever it may be, it appears that both are living separately. It is also admitted that one of the children is mentally retarded.
13.It is the allegation on the part of the revision petitioner that the above said children was admitted in the orphanage. On coming to know about the
HMOP filed by the husband, the wife got the children discharged from the orphanage and now keeping with her. Now whatever it may be, it is seen that they have living separately and the husband has to maintain the wife and the children.
14.In the typed set of papers, the husband has also produced the copy of the documents showing the payment of the school fee, etc.
15.Now the short point arises for consideration is with regard to the income of the wife.
16.Even though, it is stated that she has completed M.Com. B.Ed., and working in a private polytechnic, there is no proof for that. With regard to the salary, there is a finding by the trial court to the effect that the total salary of the husband is Rs. 44,657/-. He also agreed to pay Rs.3,000/- to the wife and children. By noting the above said undertaking and the evidence, the trial court thought it fit to fix the above said maintenance amount, which in my considered view that cannot be considered to be excessive or luxurious in nature.
17.In the grounds of the petition, it has been stated that 1/3rd of the income can be awarded as maintenance to the wife. There can be no quarrel and it is settled position of law. But here, there are two children. One among them, as mentioned above, is mentally retarded children. So considering the above said fact, this court is of the considered view that the order of maintenance passed by the trial court cannot be considered to be excessive or luxurious in nature. 18.For all the reasons stated above, this court is of the considered view that the order passed by the trial court does not suffer from any illegality or irregularity.
19.In the result, this criminal revision fails and the same is dismissed.
Consequently, connected Miscellaneous Petition is closed.
17/11/2022 Index:Yes/No Internet:Yes/No er
To, The Family Court, Sivagangai.
G.ILANGOVAN,J er Crl.RC(MD)No.780 of 2021 17/11/2022