Challenging and impugning the judgement dated 25.7.2005 passed by the Family Court, Coimbatore, in M.C.No.58 of 2004 this criminal revision case is focussed.
2. Compendiously and concisely, the facts which are absolutely necessary and germane for the disposal of this case would run thus:-
(a) The revision petitioners herein filed the M.C.No.58 of 2004 before the Family Court, Coimbatore, as against the respondent seeking maintenance. The respondent resisted the petition.
(b) In fact, the Family Court did choose to conduct joint trial/enquiry relating to three matters (i) M.C.No.58 of 2004, which was filed by the revision petitioners herein seeking maintenance, (ii) H.M.O.P.No.429 of 1998 filed by the husband for divorce as against the wife-the first petitioner herein and (iii) O.S.No.14 of 1998-the partition suit filed by the husband as against the wife.
(c) I would like to observe that the Family Court could have done well by separately conducting the enquiry under
Section 125 Cr.P.C. relating to the M.C.No.58 of 2004 is concerned.
(d) Be that as it may, in his wisdom the learned Judge thought fit to conduct joint trial/enquiry of all the three matters and rendered common judgement. The M.C. filed by the revision petitioners herein was dismissed.
3. Being disconcerted and dissatisfied with the judgement of the Family Court, this revision has been filed on various grounds, the gist and kernal of them would run thus:
The Family Court failed to take into consideration the responsibility of the respondent herein to maintain his wife and child. The Family Court, after giving a finding in favour of the revision petitioners on certain aspects simply refrained from awarding maintenance on untenable grounds.
4. Heard both sides.
5. The point for consideration is as to whether there is any perversity or non-application of law in dismissing the claim of the revision petitioners herein for maintenance as against the respondent herein.
6. The learned counsel for the revision petitioners, by way of reiterating the grounds of revision would set forth and put forth his argument to the effect that the Family Court gave a categorical finding to the effect that the respondent is living in adultery and he gave birth to an illegitimate child also and in the meanwhile, the lower Court also held that the allegation as against the wife, namely, the first revision petitioner herein that she has been living in adultery, has not been proved. In such a case, instead of awarding maintenance in favour of the revision petitioners, the Family Court simply observed that the revision petitioners should somehow or other meet their requirements from and out of the half share of immovable property allotted in favour of the first revision petitioner, in the suit O.S.No.14 of 1998.
7. Whereas, the learned counsel for the respondent, by way of torpedoing and pulverising the arguments as put forth on the side of the revision petitioners, would advance and develop his argument to the effect that when the wife is affluent and capable of maintaining herself and the child, she is not justified in seeking maintenance as against the respondent herein for herself and the child. According to the revision petitioners, the respondent was a nonentity and that he was provided with some assistance by her, so as to eke out his living.
8. A plain reading of the judgement of the lower Court would at once display and evince that there is a categorical finding to the effect that the husband, so to say, the respondent herein, is living in adultery and he gave birth to a child also and that the accusation as against the first petitioner herein, that she is living in adultery was not proved. The Family Court also recognised the basic right on the part of the revision petitioners to claim maintenance. However, it simply refrained from awarding maintenance on the ground that half of the suit property involved in O.S.No.14 of 1998 was allotted in favour of the first revision petitioner and that they could derive their maintenance from it.
9. The ratiocination adhered to by the Family Court in refraining from awarding maintenance in favour of the child, to say the least, is far from satisfactory.
10. It is a trite proposition of law that a father is expected to maintain his child irrespective of the fact whether he is earning or not. In catena of precedents, the Honourable Apex Court pointed out that a father is expected to toil and moil like anything and also strain his every nerve to see that he is earning and maintaining his wife and child. Simply because, in the connected original suit half a portion was decreed in favour of the first revision petitioner herein, the Family Court was not justified in simply driving the minor child, who is hapless and helpless, to seek maintenance from her mother.
11. Admittedly, the husband is doing tailoring business. It is a common or garden principle that a child is entitled to live incommensurate with the status of his father. According to the revision petitioners, the respondent is earning a sum of Rs.3000/- p.m. It is common knowledge that a tailor, in these days ,could very well earn more than Rs.100/- per day as correctly put forth by the revision petitioners. At the time of filing the M.C. the second petitioner being the female minor child was 15 years old and this Court, while disposing of the criminal revision case should take into account the situation prevailing as on the date of filing of the M.C. The female child of 15 years old cannot live without even a sum of Rs.40/- per day. Accordingly, if calculated, it comes to Rs.1200/- per month, which includes the child's requirement for food, clothing, education, medical expenses, travelling expenses and other unforeseen expenses.
12. However, the learned counsel for the respondent would point out that in the M.C. the claim itself was only for Rs.500/- per month in favour of each of the petitioners. Since the prayer itself on behalf of the second petitioner was restricted to Rs.500/-, I would like to award the same.
13. The learned counsel for the revision petitioners would submit that owing to some misconception of law, such prayer was made as they were labouring under the wrong notion that the old law prescribing the limit of Rs.500/- p.m. was in prevalence, even though that was amended.
14. Be that as it may, it is for the second petitioner to work out her remedy for enhancement under
Section 127 of Cr.P.C. in the way known to law.
15. Regarding the claim of maintenance by the wife is concerned, the evidence is somewhat murky. Even as per the admission of the wife, she is getting a rental income of Rs.1000/- (One thousand) per month and it is her contention that her husband was a nonentity and she only helped him to establish himself in life. Hence, in such a case, I am of the view that if at all she is in need of maintenance, she has to take appropriate civil proceedings in the way known to law, by producing clinching evidence and the dismissal of her claim herein shall not be a bar for her to claim maintenance by instituting a regular suit.
16. Taking into consideration the status of the husband, so to say the respondent, I am of the view that in the summary proceedings under
Section 125 of Cr.P.C. he cannot be directed to pay maintenance in favour of the wife.
17. Accordingly, the revision is partly allowed. The respondent herein is directed to pay a sum of Rs.500/-(Rupees five hundred only) per month in favour of the second petitioner herein from the date of filing of the M.C. petition.
Msk To
1.The Family Court, Coimbatore