Challenging and impugning the order dated 12.1.2005, passed by the Judicial Magistrate, Namakkal, in M.C.No.43 of 2003, this criminal revision case is focussed.
2. Compendiously and concisely the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision petition would run thus:
(a) The revision petitioners filed the M.C.No.43 of 2003 before the Magistrate Court as against the respondent, who being the husband of the first petitioner and father of the second petitioner, respectively, and sought a sum of Rs.4000/-p.m. for the first petitioner and Rs.3500/-p.m. for the child towards maintenance. The husband resisted the claim. Whereupon the enquiry was conducted.
(b) During enquiry, on the revision petitioners' side, the first petitioner-wife was examined as P.W.1 along with three others as P.Ws.2 to 4 and Exs.P1 to P4 were marked. On the side of the respondent, the respondent examined himself as R.W.1 and Ex.R1 was marked.
(c) Ultimately, the lower Court awarded maintenance of Rs.400/- per month in favour of the first petitioner and Rs.600/- per month in favour of the second petitioner payable by the respondent herein.
3. Being aggrieved by and dis-satisfied with the said meagre awarding of maintenance by the lower Court, this revision is focussed on various grounds, the warp and woof of them would run thus:-
Ignoring the relevant evidence available on record that the respondent is earning, as Administrative Executive, not less than Rs.12,000/- per month, the lower Court simply awarded only Rs.400/- and 600/- p.m., respectively, in favour of the first and second petitioners, which require to be enhanced.
4. Whereas, the learned counsel for the respondent would invite the attention of this Court to Ex.B1-the certificate issued by the employer of the respondent and advance his argument to the effect that the respondent's take home pay was only Rs.4,015/- and in such a case, he could not pay maintenance over and above, a sum of Rs.1000/- per month, cumulatively, in favour of both the petitioners as ordered by the Court below.
5. At this juncture, I would like to highlight and spotlight the fact that in this case the respondent/husband's liability to pay maintenance to the revision petitioners is beyond question. The respondent would contend that as per Ex.R1, he is earning only a sum of Rs.4,015/-/- and hence, he cannot be asked to part with more than Rs.1000/- totally towards maintenance as ordered by the lower Court. I cannot countenance and uphold the argument of the learned counsel for the respondent for the reason that the general formula, which has been accepted as a common or garden principle, is that a male should part with at least 2/3rd of his income in favour of his wife and child and he cannot appropriate more for himself and leave his wife and child in the lurch and make them to languish in a cash strapped and impecunious circumstance.
6. The learned counsel for the revision petitioners would submit that the very Ex.R1-salary certificate itself is not a genuine one, as there is no indication as to what are all the other emoluments the respondent is getting from his employer.
7. I could see considerable force in the submission of the learned counsel for the petitioners that a certificate like Ex.R1 should not be cryptic, as the one filed in the Court. However, it appears, the respondent was cross-examined in depth on that aspect.
8. Be that as it may. It is open for the revision petitioners to file application under
Section 127 Cr.P.C. for enhancement of maintenance before the Magistrate concerned, taking into account the changed situation and improvement in the income of the respondent. So far this revision is concerned, I have to take into consideration the situation which prevailed in the year 2003, as the M.C.was filed in that year only. Even assuming that at the relevant time, the respondent's take home pay was only Rs.4000/-, nevertheless 2/3rd of it would come to Rs.2666/-. But totally only a sum of Rs.1000/-p.m. was awarded as maintenance by the Magistrate court, warranting interference by this Court, as the discretion exercised by the Magistrate was perverse and quite antithetical to the well established principles of law, as highlighted supra. Hence, I would like to modify the order of the Judicial Magistrate, Namakkal, by enhancing the compensation payable by the respondent to the effect that the first petitioner shall be paid maintenance of Rs.1,200/-p.m. and the second petitioner shall be paid a sum of Rs.1500/-p.m., payable by the respondent from the date of petition. It is quite axiomatic that in the wake of the cost of living prevailing during the year 2003, a lady with his child would not be able to live without having at least a sum of Rs.100/- per day and accordingly, if it is calculated it would come to Rs.3000/-p.m. for both. However, I am awarding only a sum of Rs.2,700/- totally in favour of first and second petitioners, for want of clinching evidence.
9. To the risk of repetition, without being tautalogous, I would like to observe that it is open for the revision petitioners to file an application under
Section 127 Cr.P.C. and process their claim for further enhancement of maintenance, depending upon the changed situation.
The criminal revision case is ordered accordingly.
Msk To
1.The Judicial Magistrate, Namakkal