This Criminal Revision Petition has been filed against the order passed by the Family Court, Madurai, in M.C.No.43 of 2003, dated 10.07.2008, directing the petitioner to pay Rs.1,000/- per month to the respondent/wife towards maintenance.
2. The brief facts of the case is that the petitioner/husband and the respondent/wife had married 28 years back and out of wedlock, they begotten a son namely Senthil @ Thanga Vanniyaperumal. While so, during the year 1981, the petitioner/husband had taken the respondent/wife to the Registrar Office at Manamadurai and had obtained a deed of divorce. After the divorce the respondent/wife was being taken care of by her father for sometime and by her brother for sometime and thereafter, there was nobody to take care of her. After the death of her father, unable to maintain herself the wife had filed the petition for maintenance before the Family Court, Madurai, in M.C.No.43 of 2003, dated 10.09.2003.
3. The petitioner/husband was working as Blacksmith in Southern Railways and he was earning a sum of Rs.10,000/- per month at that time and thereby, the respondent/wife had claimed Rs.2,000/- per month as maintenance.
4. The petitioner/husband had filed a counter stating that the petition for maintenance was filed by the respondent/wife after the gap of 22 years with the mala fide intention to harass him and to grab his retirement benefits. Further, he had also submitted that they had lived together as husband and wife for a short period of five months from the date of marriage and thereafter, due to difference of opinion they had mutually registered a deed of divorce, therefore, the respondent/wife is not entitled to claim maintenance.
5. The learned Magistrate, after hearing both sides and after considering the materials on record, awarded maintenance of Rs.1,000/- per month to the respondent/wife. Against which, the petitioner/husband had filed the present Criminal Revision Case.
6. The grounds raised by the petitioner/husband in the Criminal Revision is that the Court below had granted a sum of Rs.1,000/- per month as maintenance to the respondent/wife based on the monthly income of the petitioner/husband when he was in service and that he had retired from service on 30.06.2008 and he is getting pension of Rs.4,519/- per month and that the award of maintenance is not in commensurate with the present pension drawn by him. Further they have lived together for few months and thereafter they have been living separately from the date of divorce deed viz., 07.07.1981, so the respondent/wife is not entitled for grant of maintenance.
7. Since both the counsels on record did not appear before this Court, this Court had appointed Legal Aid Counsel for the petitioner as well as for the respondent.
8. The Legal Aid Counsel appearing for the petitioner contended that by a mutual deed of divorce the petitioner and the respondent have dissolved their marriage as early as 1981 and thereafter both of them have been living separately and that after the gap of 22 years with the malafide intention to harass him and to grab his retirement benefits the respondent/wife had filed the petition for maintenance and further the learned Magistrate without taking into consideration the retirement of the petitioner and that he was getting only a meagre sum of Rs.4,519/- per month as pension, has awarded maintenance of Rs.1,000/- per month to the respondent, which was very much on the higher side and prayed for setting aside the order of the learned Magistrate.
9. Per contra, the Legal Aid Counsel appearing for the respondent contended that after the divorce the respondent/wife had not married anybody and her status continues to be that of a divorced wife. All along she was taken care of by her father for sometime and thereafter by her brother for sometime and thereafter due to the demise of her father there was nobody to maintain her and in such circumstances she being unable to maintain herself had filed petition for maintenance and contended that the wife having not married again falls within the status of wife under the Explanation ?b? to
Section 125(a) Cr.P.C., and submitted that the wife is entitled to maintenance. The Legal Aid Counsel for the respondent/wife contended that the learned Magistrate ought to have awarded maintenance of more than Rs.1,000/-taking into consideration the Statement of Objects and reasons of the Amendment Act 50 of 2001, cost of living and the Index prevailing at that time. The Legal Aid counsel also submitted that the maintenance case was filed during the year 2003 and that as per the records the petitioner/husband had retired only on 30.06.2008 and further no evidence had been let in by the petitioner/husband to show the income derived by him as on date. He further contended that taking into consideration the cost of living index as on date the maintenance amount of Rs.1,000/- is too low but however since no revision had been filed by the wife for enhancement, prayed for confirmation of the order passed by the learned Magistrate. He further contended that if at all the petitioner is aggrieved by the order passed by the Magistrate he has got the remedy of filing a petition for modification as per
Section 127 of the Cr.P.C and as such he cannot maintain the revision for modifying the quantum of maintenance awarded.
10.Heard the submissions of both counsels and I have consciously and carefully gone through the records available.
11.The learned Magistrate had categorically given the finding that wife includes divorced wife also.
Explanation ?b? to
Section 125(a) Cr.P.C. Reads as follows:- ?Wife includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.?
12.The learned Magistrate had considered the fact that the respondent/wife being incapable to maintain herself had filed the Maintenance Case in M.C.No.43 of 2003, after 28 years and that the wife is entitled to maintenance and the petitioner/husband is liable to maintain his wife.
13.I do not find any infirmity in the order of the Court below. If at all the petitioner/husband has any grievance, he is entitled to file appropriate petition before the Family Court under
Section 127 Cr.P.C for modification of the quantum of maintenance.
14.In view of the foregoing discussions, this Criminal Revision Case stands dismissed. Consequently, connected miscellaneous petition is closed. .