Challenging and impugning the order dated 31.3.2004, passed by the Judicial Magistrate, Sagthyamangalam, in M.C.No.8 of 2003, this criminal revision case is focussed.
2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this criminal revision case would run thus:-
The respondents herein filed the M.C.No.8 of 2003 before the learned Judicial Magistrate, Sathyamangalam, claiming maintenance. The revision petitioner resisted the same. Whereupon, during enquiry, on the side of the respondents, the first respondent examined herself as P.W.1 and Exs.P1 and P2 were marked. The revision petitioner did not choose to adduce either oral or documentary evidence. Ultimately, the learned Magistrate awarded maintenance in a sum of Rs.750/- per month in favour of each of the respondents herein. Being aggrieved by and dis-satisfied with the said awarding of maintenance, the husband filed this revision on various grounds, the gist and kernal of them would run thus:-
The revision petitioner was not served with notice and an ex-parte order was obtained by the respondents herein. The learned Magistrate failed to take into consideration the fact that the revision petitioner already obtained an order from the competent Court for restitution of conjugal rights as against R1 herein, but she refused to resume cohabitation with him. The revision petitioner is only a coolie and that he is earning only a paltry sum and with that sum he cannot provide such huge maintenance.
3. Heard both sides.
4. The points for consideration are as under:-
(i) Whether even without serving proper notice on the revision petitioner, the learned Magistrate was right in awarding maintenance.
(ii) Whether there is any perversity in the order of the learned Magistrate in appreciating the evidence and awarding maintenance?
5. Point No.(i): A bare perusal of the order of the lower Court Magistrate would reveal that at paragraph No.8, the Magistrate observed that intimation was given to the revision petitioner herein, who was respondent in the M.C. proceedings and since it was not claimed, the learned Judge set him ex-parte. In such a case, I could see no perversity in the order passed by the Magistrate. There is also nothing to indicate that the revision petitioner has filed any application before the Magistrate concerned to get the ex-parte order set aside and accordingly, this point is decided as against the revision petitioner.
6. Point No.(ii): The perusal of the copy of the order passed by the learned Special Judge, Gobichettipalayam, on 16.2.2004, in H.M.O.P.No.28 of 2002 would ex facie and prima facie show that it is an ex-parte order passed in a cryptic manner, without adhering to the mandates of this Court as well as law.
7. It is a common or garden principle of law that even in ex-parte matters and that too, in matrimonial ex-parte matters, the Judge concerned is expected to pass a reasoned order. However, to the great shock and surprise of this Court, the said ex-parte order of the learned Magistrate in ordering restitution is niggard and bereft of any reasons, much less valid reasons.
8. Be that as it may. At present, I am not very particular about the same. Simply because such ex-parte order was in vogue at the time of emergence of the maintenance order, it cannot be taken that the Magistrate should have refrained himself from passing the maintenance order based on such ex-parte order of restitution of conjugal rights. Under
Section 125 Cr.P.C., the Magistrate is expected to conduct summary proceedings and incommensurate with that the Magistrate conducted the enquiry and arrived at the conclusion reasonably that the wife and the minor daughter of the revision petitioner were reeling under impecunious circumstance in addition to they having no money to maintain themselves. There is nothing to indicate that the respondents herein are having sufficient financial wherewithal to maintain themselves. As such, the important ingredients of Sec.125 of Cr.P.C., that is negligence on the part of a revision petitioner and the inability on the part of the respondents herein to maintain themselves, are found satisfied. Peculiarly, in this case the Magistrate awarded only a sum of Rs.750/- per month in favour of each of the respondents, which by any standard cannot be termed as excessive. In order to keep the wolf from the door; to keep the pot boiling and to make both ends meet, necessarily the respondents would require at least a sum of Rs.750/- per month and no more elaboration on that count is required, since it is so obvious and axiomatic.
9. The learned counsel for the revision petitioner would submit that the petitioner is only a coolie and he could not pay the maintenance amount.
10. At this juncture my mind is reminiscent and redolent of the well settled proposition that a hale and healthy male should toil and moil like anything, in addition to straining his every nerve to see that he is earning and providing maintenance to his wife and children. There is also nothing to indicate that the wife of her own accord simply had chosen to desert the husband and the Magistrate, on being satisfied with the deposition of P.W.1 held that she has not dis-entitled herself from claiming maintenance. Hence, in this view of the matter I could see no merit in the revision and accordingly, the criminal revision case is dismissed. Consequently, connected miscellaneous petition is dismissed.
Msk To The Judicial Magistrate, Sagthyamangalam