The evidence available on record would clearly show that the respondent herein is living with her son and also maintaining the family, doing money-lending business, earning sufficient income for her livelihood and also filed cases against the persons, who have not repaid the loan amount obtained from her and she has got ownership of the residential house, that was settled by the petitioner herein in favour of their children. As she was financially sound, she has not printed even the name of the petitioner, being the father, in the marriage invitation of her son, with whom she is residing and also maintaining the family, whereas the petitioner is aged about 62 years and he could not do his regular avocation of mazonary work due to his old age and earn for his livelihood. The evidence available on record would clearly establish that the respondent / wife is earning sufficient income by way of money-lending business to maintain herself and the revision petitioner, who is the husband, aged about 62 years could not maintain himself by doing his mazonary work.
16. On the aforesaid circumstances, it cannot not be decided that the respondent / wife could not maintain herself and the revision petitioner is capable to maintain the respondent, is neglecting or refusing to maintain the revision petitioner, so as to seek maintenance under Section 125 Cr.P.C.
Madras High Court
Issakkimuthu vs Mallika on 18 January, 2012
The criminal revision has been preferred against the order, dated 28.10.2010 passed in M.C.No.2 of 2009 on the file of the learned District Munsif-cum-Judicial Magistrate, Vadipatti, Madurai District.
2. The revision petitioner, aged about 63 years on the date of filing the revision is the husband of the respondent herein, who filed the maintenance case in M.C.No.2 of 2009 under Section 125 of the Code of Criminal Procedure, seeking maintenance. After contest, the Court below directed the revision petitioner herein to pay a monthly maintenance of Rs.1,000/- to the respondent from the date of the order. Aggrieved by which, the petitioner has preferred this revision.
3. It is not in dispute that the petitioner Isakkimuthu married the respondent in the year 1976. Out of the wedlock, two daughters namely, Ganeshwari, Sankareswari and one son Sathasivam were born to the petitioner and the respondent. Subsequently, the petitioner herein filed H.M.O.P.No.105 of 1987 before the First Additional Sub-Court, seeking Divorce. During the pendency of the said H.M.O.P, there was a settlement arrived at between the petitioner and the respondent, accordingly, the petitioner returned all the jewels and other sreedhana properties to the respondent and also executed a settlement deed in favour of the children, a residential house property, that was purchased in the name of both the petitioner and the respondent. On the aforesaid terms of the settlement and arrangement, the respondent agreed for getting mutual divorce.
4. It is not in dispute that the respondent herein is the divorced wife of the petitioner, on the date of filing the maintenance case. The respondent herein has stated that she could not maintain herself and on that ground, claimed a monthly maintenance of Rs.5,000/- from the revision petitioner. The revision petitioner who was the respondent in the maintenance case has disputed the averments of the respondent that she could not maintain herself and further stated that the petitioner was working as mazon and was earning daily wage. However, due to his old age, he could not earn more for his livelihood.
5. According to the revision petitioner, the respondent is doing money- lending business and earning sufficient income for her livelihood though the revision petitioner, being an aged person is suffering without any income, however, in order to harass the petitioner, the respondent filed the maintenance case before the Court below, nearly 19 years after the judicial separation of the petitioner and the respondent.
6. Mr.T.K.Gopalan, learned counsel appearing for the petitioner has not disputed that under Section 125 Cr.P.C., a divorced wife is also entitled to get maintenance from her husband, if she is unable to maintain herself and the respondent is capable of maintaining his wife. However, the learned counsel submitted that the revision petitioner is a mazon, aged more than 63 years. On account of his old age, he could not earn anything even for his livelihood, whereas the respondent is doing money-lending business, for which supporting documents were produced before the Court below, however, the same was not considered properly by the Court below, while awarding maintenance against the revision petitioner. Learned counsel appearing for the petitioner also drew the attention of this Court to the evidence available on record, in support of the plea of the revision petitioner.
7. It is not in dispute that Section 125 Cr.P.C deals with awarding of maintenance for wife, children or parents. As per the Section, if any person having sufficient means neglects or refuses to maintain his wife, who is unable to maintain herself, such wife is entitled to get maintenance from her husband. The concerned Judicial Magistrate, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife. Similarly, neglected children or parents are also entitled to claim maintenance. In the explanation, it has been made clear that the term "wife" includes a woman who has been divorced and not remarried any other person. In the instant case, admittedly the respondent, who was the petitioner in the maintenance case is the wife of the revision petitioner herein. Learned counsel appearing for the petitioner herein submitted that the respondent is a divorced wife, which is not in dispute.
8. As contemplated under Section 125 Cr.P.C., a divorced wife is also construed under the purview of wife, entitled to claim maintenance, if her divorced husband having sufficient means, neglects or refuses to maintain her and she has not remarried. It is not the case of the revision petitioner that the respondent herein has remarried any person subsequent to the divorce. Therefore, the Court has to consider whether the revision petitioner has sufficient means and he neglects or refuses to maintain the respondent, divorced wife of the petitioner.
9. Mrs.N.Muthulakshmi, learned counsel appearing for the respondent submitted that the respondent could not maintain herself, hence, she filed the maintenance case before the Court below, seeking maintenance from the revision petitioner, on the ground that the revision petitioner has neglected and refused to maintain his wife, the respondent herein. Per contra, Mr.T.K.Gopalan, learned counsel appearing for the revision petitioner submitted that the respondent is doing money-lending business, earning sufficient income, for which there is a clear evidence available on record. She had performed the marriage of the daughter of the petitioner and the respondent, not even printing the name of the petitioner in the invitation, as the respondent was financially sound in performing the marriage, by ignoring the status of the revision petitioner as father of the bride and further, she has the support of her son and daughters, who have sufficient means. According to him, after getting divorce decree against the respondent, the petitioner married another lady and he is also suffering from Diabetic and Blood Pressure, hence, at the age of 62 years, he could not earn any income as mazon and he has no means even for his livelihood.
10. Learned counsel appearing for the petitioner also drew the attention of this Court to the evidence of the revision petitioner as R.W.1, wherein he has deposed that when H.M.O.P.No.105 of 1997 was pending, there was a panchayat convened wherein at the request of the petitioner, the respondent herein had given consent for divorce in writing on 10.09.1990, for which the petitioner executed a settlement deed in favour of his children, whereby he settled his residential house, subsequently, the same was transferred in the name of the respondent by the children. In view of the same, the respondent has made an averment that she would not claim maintenance in future from the petitioner.
11. It is a well settled proposition of law that right to claim maintenance is based on a welfare legislation, hence, pleading waiver of such right is not legally sustainable. Mr.T.K.Gopalan, learned counsel appearing for the petitioner has also not disputed the legal position that the right of the wife, claiming maintenance cannot be denied, if she is unable to maintain herself, based on any waiver of such right by the wife or on her undertaking not to claim maintenance in future.
12. The crucial points for determination in deciding this criminal revision is (1) whether the respondent is unable to maintain herself and (2) whether the petitioner is capable of maintaining his wife, the respondent herein but neglects or refuses to maintain his wife, the respondent herein.
13. As contended by the learned counsel appearing for the petitioner, it is an admitted fact that the petitioner herein was working as mazon and on the date of deposing his evidence, he was aged about 62 years and also having ailments as stated by him. The respondent as P.W.1 has admitted in her evidence that the petitioner had executed a settlement deed in view of the consensus arrived at between herself and the petitioner in favour of their children. It was suggested to the respondent that the value of the residential house was about Rs.10 lakhs, for which the respondent has stated that the value would be Rs.1,50,000/-. Though she had disputed that the property was not subsequently transferred in her name, in the cross-examination, she has admitted that she is paying property tax in her name and she is the owner of the residential house on the date of her deposing evidence and also admitted that for the past 19 years, she was not in talking terms with her husband, the petitioner herein and that she was aged about 48 years on the date of deposing evidence. She is residing with her son, who is doing job in courier service and also doing money-lending business. She has stated that she is doing money-lending business by getting money from her daughter. However, she has admitted that the suit in O.S.No.5 of 2009 was filed by her before the Court below, since somebody, who obtained loan of Rs.30,000/- from her and promised to repaly the same with 12% interest, did not repay the same
14. P.W.2, Ganeswari is admittedly the married daughter of the petitioner and the respondent, who has deposed that marriage of her brother was performed by spending sufficient amount by her mother, the respondent herein and in the invitation, the name of the petitioner was not printed and the respondent is residing with her son and the family is administered and supervised only by her mother, the respondent herein and that the petitioner herein has four children born through his second wife.
15. The evidence available on record would clearly show that the respondent herein is living with her son and also maintaining the family, doing money-lending business, earning sufficient income for her livelihood and also filed cases against the persons, who have not repaid the loan amount obtained from her and she has got ownership of the residential house, that was settled by the petitioner herein in favour of their children. As she was financially sound, she has not printed even the name of the petitioner, being the father, in the marriage invitation of her son, with whom she is residing and also maintaining the family, whereas the petitioner is aged about 62 years and he could not do his regular avocation of mazonary work due to his old age and earn for his livelihood. The evidence available on record would clearly establish that the respondent / wife is earning sufficient income by way of money-lending business to maintain herself and the revision petitioner, who is the husband, aged about 62 years could not maintain himself by doing his mazonary work.
16. On the aforesaid circumstances, it cannot not be decided that the respondent / wife could not maintain herself and the revision petitioner is capable to maintain the respondent, is neglecting or refusing to maintain the revision petitioner, so as to seek maintenance under Section 125 Cr.P.C. Therefore, I am of the view that the findings of the Court below is not based on evidence and as the findings is against evidence, it has to be construed only as perverse finding and accordingly, the revision has to be allowed and the impugned order is liable to be set aside.
17. In the result, this Criminal Revision Petition is allowed and the impugned order, dated 28.10.2010 made in M.C.No.2 of 2009 on the file of the Court below is set aside.
tsvn
To
The District Munsif-cum-
Judicial Magistrate,
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