IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23.6.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.Nos.301 and 183 of 2006 and Cr.M.P.No.1705 of 2006 G.Thangarajan ... Petitioner in Crl.R.C.No.301 of 2006 respondent in Crl.R.C.No.183/06 vs. 1. Selva Priya alias Selvambal ... Petitioner in Crl.R.C. No.183 of 2006 2.Minor Preethi D.o.Thangarajan rep.by her mother/next friend .... Respondents in Crl.R.C.No.301 of 2006 Petitions filed under Section 397 r/w 401 of Cr.P.C. seeking to set aside the order dated 9.12.2005 passed by the Family Court, Salem, in M.C.No.42 of 2004. For Petitioner : Mr.P.Subramanian in Crl.R.C.No.301 of 2006 Mr.G.Pugazhenthi in Crl.R.C.No.183 of 2006 For Respondent : Mr.G.Pugazhenthi in Crl.R.C.No.301 of 2006 Mr..Subramanian in Crl.R.C.No.183 of 2006 COMMON ORDER Challenging and impugning the order dated 9.12.2005 passed by the Family Court, Salem, in M.C.No.42 of 2004, these revision cases are focussed. 2. Concisely and compendiously, pithily and precisely, the relevant facts, which are absolutely necessary and germane for the disposal of both these revisions would run thus:- (a) The revision petitioner in Crl.R.C.No.183 of 2006, namely, Selvapriya @ Selvambal (hereinafter referred to as the https://hcservices.ecourts.gov.in/hcservices/ 'wife' for short) along with her minor child filed the M.C.No.42 of 2004 before the Family Court, Salem under Section 125 of Cr.P.C. seeking maintenance at the rate of Rs.2000/- per month in favour of each of them, payable by the revision petitioner in Crl.R.C.No.301 of 2006, namely, G.Thangarajan (hereinafter referred to as the 'husband' for short). The said Thangarajan resisted the claim. Whereupon, enquiry was conducted. (b) During enquiry, on the side of the wife, Selvapriya examined herself as P.W.1 along with P.W.2 and Exs.P1 to P5 were marked. On the husband's side three witnesses were examined as R.W.1 to R.W.3 and Exs.R1 to R7 were marked. (c) Ultimately, the Family Court passed the award directing the husband to pay a sum of Rs.2000/-per month to the minor child and rejected the claim of the wife. Whereupon, the wife preferred the revision, namely, Crl.R.C.No.183 of 2006 and the husband preferred the Crl.R.C.No.301 of 2006 as against the awarding of maintenance in favour of minor child, on various grounds. 3. Heard both sides. 4. The learned counsel for the husband would develop his argument to the effect that this case is having a chequered carrier of its own for the reason that earlier the husband filed the H.M.O.P. and in that, interim maintenance order was passed, as against which, C.R.P.was filed and at that stage, before the High Court, both of them informed this Court that they compromised the matter and they are for reunion. However, it is the case of the husband that the wife resiled from her commitment. Whereas, the wife would accuse the husband that it was he who never took any steps for reunion, even though she took steps for resuming cohabitation. 5. At this juncture, I would like to observe that the husband and wife are living apart from each other. For this rift in their relationship, each one is blaming the other. I am of the considered opinion that in a summary proceeding under Section 125 Cr.P.C., these contentious issues cannot be decided and should not be decided finally, as it would amount to converting the summary proceedings into one of regular elaborate proceedings. It is open for either of the parties to seek remedy before the Family Court concerned by filing appropriate application for reunion or otherwise, which they might deem fit and proper. As of now, the awarding of maintenance in favour of the child in a sum of Rs.2000/- per month payable by Thangarajan, the husband of Selvapriya, cannot be found fault with. 6. Whether the minor child is with the father or the mother, the father is primarily liable to maintain the child. Here, Thangarajan is admittedly working as Conductor in the Government Transport Corporation. According to the wife, he was earning, https://hcservices.ecourts.gov.in/hcservices/ even as on the date of filing of the M.C., a sum of Rs.7000/-p.m. as salary, in addition to getting Rs.1500/- as batta p.m.. The Family Court, at paragraph No.16 of its order, had drawn adverse inference correctly that even though the husband was capable of producing the pay slip, he had not chosen to produce it and as such, the Family Court accepted the version of the wife that the husband was earning a sum of Rs.7000/- per month and also getting a batta of Rs.1500/-. 7. The question arises as to whether such a man could pay a sum of Rs.2000/- as monthly maintenance to the minor child. It is anybody's guess that such an amount could rightly be paid by the father in favour of his child and no interference with such an order is warranted. 8. Next, the question arises as to whether the wife, who is admittedly earning, as evidenced by Ex.R1 a salary of Rs.2,625/- per month, by working as Tamil Teacher, having a M.A.B.Ed., qualification, in Mahendra Matriculation Higher Secondary School, Mallasamudhram, Salem, could claim maintenance from her husband. 9. The learned counsel for the wife could cite the decision of this Court reported in 1997-2-L.W.(Crl.) 572- R.Sivakumar v. Manimegalai, an excerpt from it would run thus: "11. No doubt, it is true that the petitioner, to a certain extent had established through R.W.2, that the respondent was working in a Noon-meal centre. However, this may not be taken as a ground for rejecting the claim of maintenance, for the reason, that R.W.2 herself would say that the said job was not a permanent one, and the respondent/wife could be terminated from the said project work at any time. Therefore, it could not be said, that she would be able to maintain herself with the said sum, which she gets from the noon-meal centre. As rightly pointed out by the trial Court, it could be very well considered, for fixing the quantum of maintenance, and it would not make the claim of maintenance by the respondent/wife, invalid." 10. However, the learned counsel for the husband would cite the decision of this Court reported in The Madras Law Journal (Criminal) (Vol.XLI) 740 – K.KASTHURI VS. C.ALAVUTHEEN RAVUTHAR. 11. It is quite obvious that one and the same Honourable Judge of this Court passed both the judgements and we have to take the gist and kernal of those judgements. 12. A wife, who deliberately deserts the husband's company, obviously would not be entitled to any maintenance. If 'animus deserendi' is there on the part of the wife in living away from the husband for no good reason, certainly she should not be https://hcservices.ecourts.gov.in/hcservices/ encouraged by providing her with maintenance, by any order of this Court. However, in this case the wife would contend that she strained every nerve to see that reunion took place between the husband and the wife, even by approaching the police. However, the husband would submit that after the compromise before this Court, in the earlier C.R.P. proceedings, the wife abruptly left the Court premises and never acceded to the request of the husband for reunion; furthermore, she also imposed condition precedent for reunion that the husband should leave his mother and sister. 13. The learned counsel for the husband also would narrate and delineate that the husband, namely, Thangarajan, is duty bound to maintain his aged mother and his sister and in such a case, he cannot leave them in the lurch and live with the wife separately. 14. Certainly it is a serious problem, which has to be dealt with separately in appropriate proceedings and not in the summary proceedings under Section 125 Cr.P.C. 15. The question arises as to whether the wife, because she is earning a sum of Rs.2,625/- per month by working in the aforesaid school, is dis-entitled to claim maintenance. 16. It is trite proposition of law that if wife is earning separately, then in order to make both ends meet, the wolf from the door, keep the pot boiling and meet her creature comforts, she is not entitled to claim from her husband any maintenance. But, on the other hand, when her earning is not sufficient enough to meet her needs, naturally, proportionately, for the deficit, she is entitled to axiomatically obtain maintenance from her husband. 17. It is a common or garden principle of law that a wife is entitled to live in commensurate with her husband's status. Here the status of the husband is that of a Conductor in a Government Transport Corporation and according to the learned counsel for the wife, he was earning Rs.7000/- per month in addition to getting a sum of Rs.1,500/- per month as batta. In such a case, to the extent of half of his income, he could pay for the maintenance of his wife and child. Here already he has been directed to pay a sum of Rs.2000/- per month as maintenance to the child and he can be further directed to pay a sum of Rs.500/- per month as maintenance in favour of his wife, as the wife is already earning Rs.2625/- per month. In other words, the wife would be requiring at least a sum of Rs.100/- per day to meet her requirements, including travelling expenses, medical expenses etc. Inasmuch as, she is earning a sum of Rs.2625/- per month, awarding a sum of Rs.500/- per month in her favour payable by the husband, in my opinion, would meet the ends of justice. Accordingly, the order of the Family Court, Salem, is reversed to the limited extent that the husband shall pay a sum of Rs.500/- per month towards maintenance to the wife from the date of the M.C. https://hcservices.ecourts.gov.in/hcservices/ 18. It appears, in the order dated 18.12.2003 passed by my predecessor in C.R.P.(PD).No.2075 of 2003, the memo of compromise dated 18.12.2003 filed by the parties was extracted and paragraph No.5 of the said memo of compromise would run thus: "5. It is further agreed that a sum of Rs.29,750/- lying in the credit of F.C.O.P.No.23 of 2001 on the file of the Family Court, Salem, shall be withdrawn and utilised for the common welfare of the family." As such, there could be no embargo for enforcing that paragraph No.5 of the said order by the wife and the child. I would like to dispel the doubt in the mind of each side that such withdrawal of amount by Selvapriya and her child, is having nothing to do with the maintenance order passed by the Family Court as well as by this Court and they are capable of being executed independently. These criminal revision cases are ordered accordingly. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Msk To The Judge, Family Court,Salem. +1cc to Mr.A.Nagarathinam, Advocate Sr 25492 +1cc to Mr.P.Subramanian, Advocate Sr 25644 RSI(CO) km/10.7. Crl.R.C.Nos.301 and 183 of 2006 https://hcservices.ecourts.gov.in/hcservices/