Animadverting upon the order dated 15.09.2006, passed by the Chief Judicial Magistrate, Namakkal in M.C.No.14 of 2006, this criminal revision is focussed.
2. A 'resume' of facts which are absolutely necessary and germane for the disposal of this revision would run thus:
(a) The respondents herein filed M.C.No.14 of 2006 under
Section 125 Cr.P.C. as against the revision petitioner seeking maintenance.
(b) Inasmuch as the revision petitioner resisted the claim, enquiry was conducted. During enquiry, on the side the of the respondents herein, the first respondent herself examined as P.W.1 along with P.W.2. On the side of the revision petitioner, he examined himself as D.W.1 and Exs.D1 to D3 were marked.
(c) Ultimately the Magistrate, awarded a sum of Rs.500/-per month in favour of the first respondent and Rs.750/- each per month in favour of R2 and R3 herein, payable by the revision petitioner.
3. Animadverting upon such awarding of maintenance, this revision is focussed on various grounds, the warp and woof of them would run thus:
The Magistrate failed to take into consideration the fact that the revision petitioner filed HMOP No.94 of 2005 before the Sub Court, Namakkal for restitution of conjugal rights, but it was R1 who is harsh and belligerent in refusing to resume co-habitation with the revision petitioner. The revision petitioner is having the responsibility to maintain his aged parents and hence he would not be able to pay such huge maintenance. The Magistrate ignoring the evidence in favour of the revision petitioner, simply awarded maintenance. Accordingly, the revision petitioner prays for setting aside the order of the Magistrate.
4. Heard both sides.
5. The point for consideration is as to whether there is any perversity or non-application of law in awarding such maintenance.
6. The learned counsel for the revision petitioner reiterating the grounds of revision would advance and set forth his argument to the effect that the wife is cultivating lands and earning sufficient income. Over and above that, her parents are financially sound, whereas, the revision petitioner is reeling under penurious and impecunious circumstances and he is not in a position to make both ends meet. Accordingly, he prays for setting aside the order of the lower Court.
7. At this juncture, a plain poring over and reading of the order of the lower Court and also a perusal of the records available would exemplify and expatiate, display and demonstrate that the relationship between the parties is an admitted one. The Magistrate after considering the pro et contra, recorded the finding to the effect that absolutely there is nothing to indicate that the wife is in possession of one-third of the husband's properties and cultivating the same. The finding of the lower Court also is to the effect that the wife is having no sufficient income to maintain herself and her children.
8. Regarding direction to pay maintenance to the children by the revision petitioner is concerned, it should be beyond challenge, for the reason that whether the children are with the father or with the mother, they should be maintained by the father. Hence, in such a case, direction by the lower Court to pay maintenance to each of the minor children at the rate of Rs.750/- per month, by no stretch of imagination could be stated to be exorbitant. In fact, it amounts to awarding a sum of Rs.25/- per day. R2 and R3 are aged about 8 and 7 years respectively. Such children cannot be brought up without even incurring an expenditure of Rs.25/- per day in favour of each of them. As such, I could see no perversity or non-application of law in awarding maintenance in favour of R2 and R3 herein.
9. Regarding the maintenance of wife is concerned, the lower Court awarded only a meagre sum of Rs.500/- per month payable by the husband, viz., the revision petitioner. The contention that the wife is having sufficient income is not borne by any evidence.
10. The learned counsel for the revision petitioner would contend that the wife is at fault and in such a case, she is not entitled to maintenance. The very fact that the husband has chosen to file an application for restitution of conjugal rights would bespeak that the wife is not having bad qualities disabling her from claiming maintenance. What I could understand from the records is that because the aged parents are living with the petitioner, he is not in a position to set up a nucleus family of his own. Of course, this is a problem which they have to negotiate before Mediators and get it settled.
11. Hence in these circumstances, I am of the considered opinion that the maintenance in a sum of Rs.500/- per month in favour of R1, payable by the revision petitioner also cannot be found fault with.
Wherefore, I could see no perversity or non-application of law in awarding maintenance by the lower Court. Accordingly, this criminal revision case is dismissed.