This criminal revision is directed against the maintenance order passed in MC No.56 of 2016, dated 04.01.2017 by the Family Court, Tirunelveli.
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2.The short facts of the case is that the marriage between the petitioner/husband and the first respondent/wife was solemnised 06.07.2006 at Madurai and in view of the said marriage, they were blessed with one female child/the 2nd respondent herein and subsequently, due to matrimonial tiff, both of them have decided to dissolve their marriage and entered on mutual agreement to dissolve their marriage and filed an application in HMOP No.85 of 2019 before the Additional Sub Judge, Tirunelveli, with mutual consent. The said petition was allowed on 29.06.2009 and divorce has been granted. Thereafter, the revision petitioner/husband got second marriage and having a male and female child. The 1st respondent/wife has not chosen to get second marriage and she is only taking care of her child in a rental house. That being so, the revision petitioner/husband lodged a complaint before the Palayamkottai Police Station, Tirunelveli District, in order to visit them. Thereafter, the 1 st respondent/wife filed an application under section 125 Cr.P.C in MC No.60 of 2017 before the Family Court, Tirunelveli, to direct the revision petitioner/husband to pay a sum of Rs.15,000/- towards maintenance per month. The Family Court has partly allowed the petition and directed the revision petitioner/husband to pay Rs. http://www.judis.nic.in 3 10,000/- to the 2nd respondent/minor child from the date of petition i.e, 26.09.2017 within every English Calender month of 5th day. Aggrieved over the said order, the revision petitioner/husband is before this court.
3.Heard the learned counsel appearing on either side and perused the materials available on record.
4.The main contention raised on the side of the revision petitioner/husband is that the 1st respondent/wife got divorce by mutual consent and hence, there is no question of default on the part of the revision petitioner/husband to maintain the respondents, who are his wife and daughter and the revision petitioner/husband is working as coolie and after the divorce, he got second marriage and now he is living with his second wife and two children and he is taking care of his aged parents and lead his life with meager income and there is no material records available about the income of the revision petitioner, but the learned trial court without appreciating the same and without care about the earning capacity of the revision petitioner/husband fixing the maintenance amount as Rs.10,000/-, which is highly erroneously and the 1st http://www.judis.nic.in 4 respondent/wife is living sophisticated life derived income from interest income and other rental income by depositing huge amount after sold her property and the 1st respondent/wife has sufficient means to maintain her and her daughter and prays that the criminal revision has to be allowed.
5.On the other hand, it is argued on the side of the respondents that there is no possibility for the 1st respondent/wife to live with the revision petitioner and divorce was granted by mistake and the first respondent/wife depending on her father and now her father expired and she has no means to maintain her daughter and and the revision petitioner/husband is running a rice mill in Maudrai and thereby earning Rs.1,50,000/- per month and the trial court has rightly came to the conclusion that the revision petitioner/husband should pay the maintenance to their daughter, which is correct and the maintenance amount ordered by the trial court is reasonable and prays that the criminal revision has to be dismissed.
6.In this case, only the revision petitioner/husband and the 1st respondent/wife filed HMOP No.85 of 2009 for divorce by http://www.judis.nic.in 5 mutual consent and divorce by mutual consent was ordered. Now the revision petitioner/husband got second marriage marriage. It is admitted on the side of the revision petitioner/husband and the 1st respondent is his wife and the 2nd respondent is his daughter. It is seen from the records already, the revision petitioner/husband and the 1st respondent/wife executed an agreement for mutual divorce, which was marked as Ex.R1. On perusal of Ex.R1, it is stated as follows:-
“ek;kpy; 2tJ egh; jw;nghnjh my;yJ vjph; fhyj;jpnyh $#tdhk;rk; Vjk;
njitapy;iy vd;gjhy; $#tdhk;rk; Vjk;
nfhUtjpy;iy vd;W cWjpaspf;fpwhh;.”
7.From the reading of the above, it is to be noted that the first respondent/wife has no right to execute the agreement by stating that the 2nd respondent/child has no right to claim maintenance from her father. Hence, it is held that Ex.R1 will not bind on the 2nd respondent/child. In this case, the revision petitioner/husband was examined RW1 before the trial court. RW1 during his cross examination admitted that it is his bounden duty to maintain her daughter. At this juncture, it is necessary to refer the cross examination of RW1, which would run thus:-
http://www.judis.nic.in 6 “2k; kDjhuUf;F jfg;gdhh;
vd;w Kiwapy; mtUila fy;tp czt[ ciwtplk; cil ,Ug;gplk;
Mfpatw;wpw;fhf ehd; $#tdhrk; tHq;f flikg;gl;lth; vd;why; rhpjhd.”
8.On careful perusal of the cross examination of RW1, it reveals that he is willing to maintain his daughter. The contention of the revision petitioner/husband is that he was working as coolie in a Rice Mill and hence, it is not possible for him to pay Rs.10,000/- towards maintenance to the 2nd respondent/daughter. But the first respondent/wife stated that her husband is not a coolie in the Rice Mill, but her husband is the owner of the Rice Mill and he was earning Rs.1,50,000/- per month. No document was filed on the side of the 1st respondent/wife to prove that his husband is the owner of the Rice Mill. Further the first respondent/wife filed Exs.P6 to P7 to show that her husband owned property. Ex.P6 is the partition deed and Ex.P7 is the sale deed stands in the name of the father of the revision petitioner/husband. It is stated on the side of the revision petitioner/husband that the father of the revision petitioner/husband was alive and hence, the argument put forth on the side of the first respondent/wife stating that her husband owned some properties is not at all acceptable. Further no document was filed on the side of the first respondent/wife to http://www.judis.nic.in 7 prove that her husband was earning Rs.1,50,000/- per month. Though the revision petitioner/husband is working as Coolie in a Rice Mill or owner of the Rice Mill, it is his bounden duty to maintain his daughter. His contention is that the maintenance amount ordered towards the 2nd respondent/daughter is excessive. The revision petitioner/husband has not filed any document to show that he was working as Coolie in a Rice Mill and further, no document was filed on the side of the revision petitioner/husband to prove his income.
9.On perusal of the impugned order passed by the trial court, it is ordered Rs.10,000/- per month towards maintenance for the 2nd respondent/daughter. Considering the present cost of living and the expenses for the education of the 2nd respondent/daughter, this court is of the opinion that the amount of maintenance ordered by the trial court in respect of the 2nd respondent/daughter is reasonable. Hence, it is not necessary to interfere with the impugned order passed by the trial court.
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10.In the result, the criminal revision is dismissed. The impugned order passed by the trial court is confirmed. Consequently, connected Miscellaneous Petition is closed.
10.06.2020 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 9 T.KRISHNAVALLI,J er To, The Family Court, Tirunelveli.
Crl.RC(MD)No.239 of 2019 10.06.2020 http://www.judis.nic.in