1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 08.09.2011 Coram: THE HONOURABLE MR.JUSTICE S.PALANIVELU Crl.R.C.(MD).No.479 of 2011 and M.P.(MD).No.1 of 2011 Zahir Hussain ... Petitioner/Respondent Vs 1. J.Taj 2. Minor Barsheed Ahmed 3. Minor Farook Mohammed (minor respondents represented through their mother first respondent herein) ... Respondents Prayer: Criminal Revision Petition filed under Section 397 r/w. 401 of Criminal Procedure Code against the order dated 19.04.2011 passed in M.C.No.35 of 2008 on the file of the Family Court, Madurai. For Petitioner : M/s. P.Veerabaku For Respondent : Mr.R.Suriya Narayanan O R D E R This Criminal Revision is preferred against the order, dated 19.04.2011 passed in M.C.No.35 of 2008, on the file of the Family Court, Madurai. 2. The allegations contained in the maintenance case is as follows: The marriage of the petitioner and the first respondent was solemnized on 13.11.2005 in Madurai. At the time of marriage, 50 sovereigns of gold jewels and Rs.50,000/- of cash, besides house-hold utensils were also given to the respondent by the first petitioner's parents. The respondent is working as junior bailiff in Ilayankudi Court and he is getting a sum of Rs.10,000/- per month. From the date of marriage, the first petitioner came to know about the bad activities of the respondent. He used to take liquor every day and to use ganja and he was also having illicit intimacy with another woman. Hence, the first petitioner suffered from mental agony. The respondent used to come to the house in intoxication, due to which, the first petitioner has to tolerate the above said harassments. The first petitioner was pregnant by 5 months. The respondent attempted to set fire on her by pouring kerosene. Hence, she left the matrimonial home and went to her mother's house. On 10.11.2008, she delivered twin male babies. When the junior paternal uncle of the respondent was asked by the first petitioner, he demanded further gold jewels of 30 sovereigns and a cash of Rs.30,000/- and in default, they would not allow the first petitioner to live with respondent. In the above said circumstances, the first petitioner continued to stay in the house of her parents from 05.05.2006. 3. The respondent knowing that the first petitioner is going to prefer a complaint against him, lodged a complaint against her. He took the first petitioner to her house to perform valaikappu and he also took Rs.5,000/- obtained by the first petitioner in valaikappu ceremony. Further, in an https://hcservices.ecourts.gov.in/hcservices/ 2 intoxicated condition, he demanded Rs.50,000/- stating that Rs.30,000/- was not enough. He further threatened her that he would terminate her pregnancy, if complaint was lodged against him. Hence, getting afraid of the situation, the first petitioner came to her mother's house on 05.05.2006. Even in the enquiry before All Women Police Station, the first petitioner refused to go with her husband herein on his activities. After complaint was given by the first petitioner on 29.05.2007, the respondent was arrested and came out on bail. 4. The first petitioner delivered twin babies with great difficulties in her parents' house. The respondent without maintaining the petitioners, is residing with his junior paternal uncle. Hence, a sum of Rs.2,000/- each, may be granted to the petitioners as maintenance by the respondent. 5. The contentions raised in the counter are as follows: It is incorrect to say that the respondent demanded Rs.50,000/- and 50 sovereigns of gold jewels. On 04.07.2005, the uncle of the respondent by name Abdul Kadhar and father of the first petitioner entered into an agreement and accordingly, the father of the first petitioner agreed to give jewels weighing about 28 sovereigns and Rs.30,000/- cash. Accordingly, they were given. A case was registered under Sections 498(A) and 506(i) I.P.C. and Section 4 of Dowry Prohibition Act by All Women Police Station, Tallakulam against the respondent, on the complaint preferred by the first petitioner. It is incorrect to say that the respondent used to drink and take ganja and having illicit intimacy with other ladies and he used to beat and harass the first petitioner in drunken mood. The first petitioner sold her jewels for Rs.90,000/- and got Rs.1,10,000/- from her parents and she got a house for othi. For the valaikappu function, the respondent spent Rs.7,000/- and he did not take Rs.5,000/- as pleaded. 6. It is incorrect to say that the respondent attempted to burn his wife with kerosene. It is also incorrect to say that out of fear, the first petitioner left the house (which was obtained by her on othi) to her mother's house. The respondent and his relatives requested to send the first petitioner and children with the respondent during December 2006, the first petitioner and her parents dictated terms to the respondent that he should stay at Madurai and attend the office at Ilayankudi daily from Madurai. They further stated that the respondent should give his entire salary to them, but he has not accepted for those demands. The respondent gave Rs.2,500/- per month during the months of June, July and August 2006 to the first petitioner. He also sent by M.O. Rs.1,000/- to the first petitioner for the months of January to March 2007. He requested the first petitioner to return to the matrimonial home, but it was rejected by her and her parents. 7. In the enquiry before the All Women Police Station, Tallakulam, she stated that the matter would be settled at Muslim Jamath. After 2007, she did not visit the house of the respondent. There was no criminal intimidation on the part of the respondent. On her own accord, she has been staying with her parents from 05.05.2006. She also disposed 28 sovereigns of jewels on her own accord. The first petitioner has failed to discharge the marital obligation in spite of the efforts taken by the respondent for the past one year, by staying with her parents and deserted the respondent. Therefore, she is not entitled to any maintenance. Hence, the petition may be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 3 8. After analysing the evidence on record, the learned Family Court Judge, Madurai found that the first petitioner was having sufficient cause to live separately from the respondent and directed payment of maintenance at Rs.1,500/- to the first petitioner and Rs.750/- each to the respondents 2 and 3, totaling Rs.3,000/- per month. This is the order, which is under challenge before this Court. 9. The contention of the learned counsel for the petitioner Mr.P.Veerabaku is that the materials and evidence available in this case would candidly indicate that the first petitioner has been living separately leaving the respondent without sufficient cause and that the allegation as to the alleged harassment purported by him in intoxicated condition is false. It is his further submission that for demand of dowry in the form of gold jewels and cash, there is no convincing evidence from her. In view of the above said circumstances, it is his contention that she is not entitled for maintenance. 10. Contending on the other side of the coin, Mr.Suryanarayanan, learned counsel for the respondent would submit that satisfactory evidence are available on record on the side of the first respondent/wife to show that only out of fear she refused to live with her husband and she has been living separately, that preferring of police complaint would show the harassment and cruelty experienced by the first respondent by the behaviour of the petitioner and that the grounds for claiming maintenance have been proved by the first respondent. It is the version of the first respondent that in addition to the dowry offered at the time of marriage, the petitioner was demanding further cash of Rs.30,000/- and gold jewels weighing 30 sovereigns. It is also her statement in the proof affidavit that he used to take and consume liquor and ganja every day and he was also having illicit intimacy with another lady. In the complaint laid by her before the police which was registered in Crime No.9 of 2008 before All Women Police Station, she has stated that when she was not in the house, the petitioner used to take ladies to his house and he used to stay with them in the house for one or two days. 11. The petitioner filed O.S.No.21 of 2008, on the file of Family Court, Madurai for restitution of conjugal rights, in which, the first respondent/wife filed a counter stating that if she was living with the petitioner herein there is danger to her life and hence, she had lodged a complaint with the police. It is further pleaded therein that with an intention of refusing maintenance, the petitioner filed a suit and he did not stop the habit of consuming liquor. The petitioner had produced the copies of the letters given by Marurai Karimedu Jamath, in which the President of the Jamath have stated that in spite of talks for settlement, the first respondent refused to live with her husband. However, they came to existence in the month of November 2010. 12. The learned Family Court judge has observed in his order that since the criminal case was pending and on the basis of the complaint lodged by her, the husband was arrested and in these circumstances, it was not conducive for the respondent to live with the first petitioner. It is further observed that after separation, the petitioner has not taken any steps nor send any notice to the respondent to come back with the children. On 08.05.2007, she has given a statement before the police that she was not willing to live with her husband. https://hcservices.ecourts.gov.in/hcservices/ 4 13. When the above said circumstances are carefully scrutinized, it transpires that the first respondent was fearing danger at the hands of the petitioner, that there was a dowry demand on the part of the petitioner. As per her statement, he was in the habit of consuming liquor and ganja and that he was having bad habits. To prove the above said aspects, the respondent has not examined anybody else. However, the Court has to ascertain whether her contention contains truth. In the considered view of this Court, the respondent has been living separately with sufficient cause since she is having fear to live with the petitioner. 14. The respondent has stated that she was earning Rs.1,500/- by working in xerox shop for about four months. She was also qualified with computer operations. But whether she has been continuously working as such is not known and there is no material to show that she has been earning continuously after the above said four months. Hence, this Court is of the view that there is sufficient cause on the part of the respondent to live separately and hence, she is entitled for the maintenance. 15. Coming to the quantum of maintenance as fixed by the Court below, this Court does not find any wrong. He has produced his pay certificate before this Court for the month of February 2008, in which it is stated that he is getting gross salary of Rs.7,180/- per month in which deductions of Rs.2,910/- have been made. Hence, net salary was Rs.4,270/-. But he has taken G.P.F loan and he has been paying Rs.1,800/- as refund. That could not be considered as a deduction. If it is so, he would have drawn more than Rs.6,000/- per month. Further, after the pay revision by the Government, he might be getting much more salary mentioned in the above said pay certificate. In these circumstances, there are materials to fix the quantum at Rs.3,000/- per month payable to the respondents is correct. 16. In the light of the above said discussion, the order challenged before this Court deserves to be confirmed and accordingly, it is confirmed. There is no valid ground made out to interfere with the order passed by the Court below. 17. In the result, the Criminal Revision Petition is dismissed. Consequently, the connected Miscellaneous Petition is closed. SD/- Assistant Registrar (T & P) /True copy/ Sub Assistant Registrar(C.S) To The Presiding Officer, Family Court, Madurai. akv Crl.R.C.(MD).No.479 of 2011 08.09.2011 TR :11.11.2011: 4p/2c https://hcservices.ecourts.gov.in/hcservices/