Animadverting upon the order dated 12.12.2006 passed by the First Additional Family Court, Chennai, in M.C.No.206 of 2004, this criminal revision case is focussed.
2. Pithily and precisely, the 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.206 of 2004 before the First Additional Family Court, Chennai, seeking maintenance as against the revision petitioner herein, who is her husband. Inasmuch as the revision petitioner resisted the claim, the trial was conducted.
(b) During trial, the respondent herein examined herself as P.W.1 and Exs.P1 to P5 were marked. The revision petitioner herein examined himself as R.W.1 and Exs.R1 to R3 were marked.
(c) Ultimately, the Family Court awarded maintenance in a sum of Rs.2000/- per month in favour of the respondent herein, payable by the revision petitioner herein.
3. Being dissatisfied and disconcerted with such awarding of maintenance, this revision is focussed on various grounds, the warp and woof of them would run thus:
The Family Court failed to consider Ex.R2, which would show that the respondent was living in adultery and that she was not entitled to any maintenance. The respondent herein of her own accord left the matrimonial home, for which the revision petitioner cannot be held liable. The respondent is receiving rental income from the immovable properties, however the revision petitioner is a poor farmer, having no property or income and as such, he could not pay Rs.2000/- per month towards maintenance.
4. The point for consideration is as to whether there is any perversity or non-application of law in ordering maintenance.
5. The learned counsel for the revision petitioner, by inviting the attention of this Court to the various portions of the evidence of P.W.1 as well as R.W.1 and also various documents, would set forth and put forth his argument to the effect that the respondent herein was caught red handed, while she was in the act of adultery; even thereafter, the revision petitioner did not insist upon the respondent to leave the matrimonial home, but indubitably and indisputably, admittedly and unassailably, it was she who left the matrimonial home, for which, the revision petitioner may not be held responsible; even then, the revision petitioner, being an exceptional personality, wanted to resume cohabitation with the respondent, but it was she who is adamant in not accepting to the request of the revision petitioner.
6. However, the learned counsel for the respondent would submit that if really the imputation of adultery was true, certainly no husband would ever come forward to resume cohabitation with the wife. But in this case, the very fact that the husband has come forward to resume cohabitation would speak volumes that the wife was not at all at fault and the imputation of adultery was false and frivolous.
7. At this juncture, I would like to point out that in the proceeding under
Section 125 of Cr.P.C., which is summary in nature, the larger issue relating to adultery and desertion cannot be conclusively decided. The preponderance of probabilities would govern the adjudication even in proceedings under
Section 125 of Cr.P.C., as the Honourable Apex Court clearly held that the proceedings under
Section 125 of Cr.P.C. should be treated like civil proceedings, even though it is quasi criminal in nature.
8. The very fact that the husband did choose to withdraw the divorce petition and file one other petition for restitution of conjugal rights, bespeaks that the husband himself was not serious about the imputation of adultery as against the wife and once again it is a common or garden principle of law that if a husband imputes baselessly or lightheartedly adultery on the part of the wife, the later is entitled to live apart from the husband.
9. Once again to the risk of repetition and pleonasm, but without being tautalogous, I would like to point out that all these issues should be got thrashed out before the matrimonial forum and not in the summary proceedings under
Section 125 of Cr.P.C. However, prima facie it is clear that no fault can be fastened on the wife so as to deprive her of her right to claim maintenance.
10. The learned counsel for the revision petitioner would submit that subsequent to the filing of the M.C., all the lands of the revision petitioner were sold to LD Bank, as he was heavily indebted.
11. I am of the view that the alienation of the immovable properties by the husband, subsequent to the filing of the M.C., would not be taken note of. Be that as it may the law is clear that the husband cannot shirk his responsibility by pleading that he is in a cash strapped, penurious and impecunious circumstance and that he would not pay maintenance to his wife. The husband is expected to toil and moil like anything and strain his every nerve to see that he is earning and providing maintenance to his wife.
12. It is seen that the only daughter of the revision petitioner and the respondent, was already given in marriage and it is stated that she is in foreign country. Now the revision petitioner's only commitment and primary commitment is to maintain his wife. Ofcourse it is in evident that his aged mother is with him. Even then the primary responsibility of the revision petitioner is to maintain his wife and he cannot shirk his responsibility.
13. The learned counsel for the revision petitioner would submit that as on date, the respondent is living in her father's house without paying any rent. This aspect I can take into account, but however, in view of the trite proposition that the wife is entitled to live in commensurate wit the status of her husband, at least she would require a sum of Rs.50/- per day to keep the wolf from the door, to keep the pot boiling and to make both ends meet. Accordingly, if worked out, it comes to Rs.1,500/- per month. Awarding any amount less than Rs.1,500/-(one thousand five hundred), in a case of this nature, would lead to travesty of justice. Accordingly, in the peculiar facts and circumstances of this case, I would like to reduce the maintenance from Rs.2000/- to Rs.1,500/- per month, payable by the revision petitioner in favour of the respondent from the date of M.C.
Accordingly, this criminal revision case is partly allowed.