Challenging and impugning the order dated 28.3.2007 passed by the Judicial Magistrate No.2, Pollachi, in M.C.No.6 of 2006, this criminal revision case is focussed.
2. A 'resume' of facts absolutely necessary and germane for the disposal of this criminal revision case would run thus:-
(a) The respondent herein filed the M.C.No.6 of 2006 under
Section 125 of Cr.P.C., seeking maintenance. Inasmuch as the revision petitioner resisted the claim, the trial was conducted.
(b) During trial, the respondent(wife) examined herself as P.W.1 along with P.W.2 and Exs.P1 and P2 were marked. On the side of the revision petitioner's(husband) side R.Ws.1 to R.W.4 were marked and Exs.R1 to R20 were marked.
(c) Ultimately, the Magistrate awarded maintenance in a sum of Rs.3000/- per month in favour of the respondent(wife), payable by the revision petitioner herein.
3. Being aggrieved by and dissatisfied with the said awarding of maintenance, this revision has been filed on various grounds, the gist and kernal of them would run thus:-
The Magistrate failed to take into consideration the fact that there was valid pronouncement of 'talaq'. However, on assumptions and presumptions, the Magistrate simply discarded such evidence of 'talaq' having been validly pronounced by the revision petitioner as against the respondent. The respondent herein is having no right to claim maintenance at all, even then the Court awarded maintenance.
4. Heard both sides.
5. The point for consideration is as to whether there is any perversity or non-application of law in holding that there was no valid pronouncement of 'talaq' by the revision petitioner as against the respondent and whether the quantum of maintenance awarded is on the higher side.
6. The learned counsel for the revision petitioner, by placing reliance on the grounds of revision, would reiterate that strictly in accordance with the dictum of the Honourable Apex Court reported in 2003-1-L.W.363 SHAMIM ARA VS. STATE OF U.P.AND ANOTHER, 'talaq' was pronounced by the revision petitioner, nonetheless the lower Court held otherwise.
7. Whereas, the learned counsel for the respondent would submit that in the cited Supreme Court judgement there is a clear indication that before pronouncement of 'talaq' there should be two arbitrators appointed, one on either side, and they should have tried to conciliate and thereafter alone it is for the husband to proceed to pronounce 'talaq', as per Islam Law.
8. The learned counsel for the revision petitioner, by inviting the attention of this Court to the Chief Examination Affidavit of the respondent as P.W.1 before the Magistrate would develop his argument that P.W.1 herself stated that during the month of April there was talk of compromise, as the wife and her parents approached the relatives on both sides and tried to persuade the petitioner to resume cohabitation. According to the learned counsel for the revision petitioner, such an admission by P.W.1 herself is sufficient to point out that there is proper compliance with the mandate, as contained in the Supreme Court's decision cited supra.
9. Whereas, the learned counsel for the respondent, by way of torpedoing and pulverising the arguments as put forth on the side of the revision petitioner, would highlight that the judgement of the Supreme Court directs that there should be one arbitrator on the wife's side and another arbitrator on the husband's side and they should conciliate and if such conciliation fails thereafter alone the question of the husband proceeding to pronounce 'talaq' would arise. Here there is nothing to indicate and exemplify as to who was the arbitrator on the wife's side and who was the arbitrator on the husband's side and on which place and what date they conciliated and on what was the result of the arbitration etc.
10. In such a case, it cannot be held that there is sufficient compliance with the mandates as contained in the Honourable Apex Court's judgement. Hence, the Magistrate was right in holding that there was no proper pronouncement of 'talaq'.
11. Regarding the quantum is concerned, the learned counsel for the revision petitioner would submit that the quantum awarded is on the higher side.
12. Whereas, the learned counsel for the respondent would submit that as per the Salary Slip-Ex.P2, the husband's gross salary was Rs.15,140/-, however, the deductions are shown as Rs.7,310/-.
13. It is a trite proposition of law that all deductions cannot be taken as deductions for the purpose of assessing the disposable income of the revision petitioner. Applying
Section 60 of the Criminal Procedure Code alone the deductions should be scrutinised. If that be so, it is quite obvious that the revision petitioner was contributing Rs.5000/-per month towards G.P.F. A person getting a basic salary of Rs.7,700/- is not bound to contribute compulsorily that much amount towards G.P.F. As such, at his own volition the revision petitioner has been subscribing such huge sum. In this view, it is crystal clear that the revision petitioner's take home salary cannot be Rs.7,830/- and it must be around Rs.11,000/- to Rs.12,000/-. The monthly maintenance G.RAJASURIA,J.
msk awarded is only Rs.3000/-. As such, it ais almost only 1/4th of the husband's monthly income, which cannot be found fault with.
14. It is also a common or garden principle that in commensurate with the status of the husband, the wife is entitled to live. Accordingly, if viewed, in order to lead a decent life, as the wife of a teacher, she would require at least a sum of Rs.100/- per day and accordingly if worked out it comes to Rs.3000/- per month, which warrants no interference.
15. In the result, I could see no merit in the revision and accordingly, the criminal revision case is dismissed. Consequently, connected miscellaneous petition is dismissed.