Sunday 11 October 2015

Whether wife can be denied maintenance on the ground that she was in the habit of pestering husband to provide some financial support to her brother?

It is obvious and axiomatic that proceedings under Section 125 of Cr.P.C. are summary in nature, where the Magistrate is not expected to delve deep into each and every aspect of the matrimonial dispute and dilate thereon. Incommensurate with the appropriate legal proposition only the learned Magistrate held that the wife was not at fault. The very fact that even now the husband is expressing his desire to have cohabitation with his wife would speak volume that the wife is not having any blame worthy conduct on her part. If really she involved herself in unwarranted and unchaste acts as against the matrimonial life between the revision petitioner and R1, certainly the revision petitioner would not have ventured to come forward to resume cohabitation with her. The counter filed by the revision petitioner-husband would not in any way reveal that the wife was so aggressive or having any hostile attitude towards the husband. What are all the husband would detail and delineate in his counter to the M.C.is that the wife was in the habit of pestering the husband, namely, the revision petitioner, to provide some financial support to her brother. Even such a plea is found to be true, in my opinion, that cannot be a ground for the husband to desert his wife and refuse to provide maintenance to her and to the minor child. As such, I am of the considered opinion that the approach of the Magistrate is not perverse and there is no illegal exercise of jurisdiction on the part of the Magistrate in awarding maintenance. Wherefore I could see no merit in the contention of the revision petitioner.
Madras High Court
Dayalan vs Jayanthi on 17 June, 2009

Animadverting upon the the common order dated 20.7.2006, passed by the Chief Judicial Magistrate, Chengalpagttu, in M.C.No.5 of 2005 this criminal revision case is focussed.
2. A 'resume' of facts, which are absolutely necessary and germane for the disposal of this criminal revision case would run thus:-
The respondents herein filed the M.C.No.2 of 2005 before the Chief Judicial Magistrate, Chengalpattu, seeking maintenance on the following grounds:
The first respondent herein and the revision petitioner got married on 21.5.2004 as per Hindu Rites and Customs and during the wed lock, they gave birth to R2 herein-the child. While so, the husband created trouble in the matrimonial life, which caused rift in the relationship. Admittedly, she was constrained to live in her parents house and file this M.C. The revision petitioner herein resisted the M.C.
3. During enquiry, the first respondent examined herself as P.W.1 along with one Krishnan as P.W.2 and Exs.P1 to P3 were marked. The revision petitioner examined himself as D.W.1 along with two others as D.Ws.2 and 3 and Exs.D1 to D8 were marked.
4. Ultimately, the learned Magistrate awarded maintenance in a sum of Rs.700/-per month in favour of the wife and a sum of Rs.300/-p.m. in favour of the minor child. Being aggrieved by and dissatisfied with the order of the lower Court, this revision is focussed on various grounds, the nitty-gritty of them would be to the effect that without proper appreciation of facts, the learned Magistrate simply awarded maintenance, even though the husband was ready and willing to resume cohabitation with the wife and maintain her and the child and he also filed the H.M.O.P.No.21 of 2005, seeking restitution of conjugal rights, which is pending before the Sub-Court, Madurandagam. As such, the revision petitioner prayed for setting aside the order of the Magistrate and for the dismissal of the M.C.
5. Heard both sides.
6. The point for consideration is as to whether the order of the Magistrate is perverse, in appreciating the evidence and in awarding maintenance in favour of the wife and child of the revision petitioner.
7. The learned counsel for the revision petitioner would set forth and put forth his arguments to the effect that when the husband is ready and willing to resume cohabitation with the wife, then the wife is not justified in staying away from the matrimonial home and in fact legally such a wife is not entitled to claim maintenance; the husband also has not perpetrated any cruelty on the wife and she of her own accord had chosen to stay away from the matrimonial home and live in her father's house with the child.
8. Whereas, the learned counsel for the wife and child-the respondents herein would argue by way of pulverising and torpedoing the arguments as put forth on the side of the revision petitioner that the first respondent being the wife behaved dutifully towards the husband, but he suspected her fidelity without any basis and also involved in perpetrating cruelties as against her as found set out in the petition; the lower Court considering all these facts held that the husband was bound to maintain the wife and child and accordingly passed the award, warranting no interference by this Court.
9. The perusal of the judgement of the lower Court would exemplify and demonstrate, display and convey that the lower Court considered the evidence of P.W.1-the wife of the revision petitioner and held that there was no justification on the part of the husband in refusing to maintain the wife and child.
10. It is obvious and axiomatic that proceedings under Section 125 of Cr.P.C. are summary in nature, where the Magistrate is not expected to delve deep into each and every aspect of the matrimonial dispute and dilate thereon. Incommensurate with the appropriate legal proposition only the learned Magistrate held that the wife was not at fault. The very fact that even now the husband is expressing his desire to have cohabitation with his wife would speak volume that the wife is not having any blame worthy conduct on her part. If really she involved herself in unwarranted and unchaste acts as against the matrimonial life between the revision petitioner and R1, certainly the revision petitioner would not have ventured to come forward to resume cohabitation with her. The counter filed by the revision petitioner-husband would not in any way reveal that the wife was so aggressive or having any hostile attitude towards the husband. What are all the husband would detail and delineate in his counter to the M.C.is that the wife was in the habit of pestering the husband, namely, the revision petitioner, to provide some financial support to her brother. Even such a plea is found to be true, in my opinion, that cannot be a ground for the husband to desert his wife and refuse to provide maintenance to her and to the minor child. As such, I am of the considered opinion that the approach of the Magistrate is not perverse and there is no illegal exercise of jurisdiction on the part of the Magistrate in awarding maintenance. Wherefore I could see no merit in the contention of the revision petitioner.
11. A bare perusal of the records would display and convey that the wife is in a cash strapped and penurious circumstance and she is reeling under poverty and at this present day cost of living, it is obvious that a lady with a child would not be able to live without having sufficient funds and she along with the child would be a burden to her parents. In such a case, it is the husband, who should provide maintenance to them. Having this principle in mind, the learned Magistrate correctly ordered maintenance, that too, in my opinion meagre maintenance, warranting no interference by this Court.
12. The learned Magistrate also in paragraph No.9 of the order adverted to the fact that the revision petitioner himself admitted that he is owning an extent of 2 acres 16 cents of land. Over and above that, the legal proposition is to the effect that a healthy male cannot wriggle out of his liability to pay maintenance under one pretext or other and he has to toil and moil anything, in addition to straining every nerve to see that he is earning, so as to provide maintenance to his wife and minor child. As such, the awarding of the sum of Rs.700/- per month in favour of the first respondent herein and a sum of Rs.300/- in favour of the minor child, in my opinion perfectly justified and no interference is required. Accordingly, this criminal revision case is dismissed. Consequently, connected miscellaneous petition is dismissed.
13. The learned counsel for the petitioner would earnestly plead before this Court that the revision petitioner is longing for reunion.
14. I am of the opinion that if that be the attitude of the revision petitioner, at the first instance he should create confidence in the mind of his wife by paying the arrears and thereby lure her to the matrimonial home and it is also open for him to take steps to arrange for mediation for reunion.
15. The learned counsel for the respondents would pray for directing the revision petitioner to pay the accrued arrears immediately to the respondents.
16. I would direct that in commensurate with the order of this Court and also in compliance with the order of Magistrate, the revision petitioner is expected to pay the arrears immediately to the respondents.

Msk To The Chief Judicial Magistrate, Chengalpagttu
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