IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:28.7.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.418 of 2007 and M.P.No.1 of 2006 K.Easwaramoorthy ... Petitioner vs. 1.E.Thilagamani 2.E.Gowrishankar (Minor) the 2nd respondent is rep.by his mother E.Thilagamani ... Respondents Petition filed under Section 397 r/w 401 of Cr.P.C. against the order dated 7.2.2007 passed by the Judicial Magistrate No.I, Gobichettipalayam, in M.C.No.1 of 2005. For Petitioner : Mr.S.N.Thangaraj For Respondents : Mr.M.A.P.Thangavel ORDER Challenging and impugning the order dated 7.2.2007 passed by the Judicial Magistrate No.I, Gobichettipalayam, in M.C.No.1 of 2005, this criminal revision case is focussed. 2. Compendiously and concisely, the facts absolutely necessary and germane for the disposal of this criminal revision case would run thus:- The respondents herein filed the M.C.1 of 2005 under Section 125 of Cr.P.C. before the Judicial Magistrate No.I, Gobichettipalayam, claiming maintenance from the revision petitioner herein. Inasmuch as the revision petitioner resisted the claim the enquiry was conducted. (b) During enquiry, the first respondent herein examined herself as P.W.1 along with P.W.2 and no documentary evidence was marked. The revision petitioner herein examined himself as R.W.1 and Exs.R1 and R2 were marked. (c) Ultimately, the Magistrate awarded a sum of Rs.1000/- p.m. in favour of the first respondent and Rs.750/- p.m. in https://hcservices.ecourts.gov.in/hcservices/ favour of the second respondent herein, payable by the revision petitioner herein. 3. Being aggrieved by and disconcerted with such awarding of maintenance by the Magistrate, this revision is filed disputing the order directing the revision petitioner herein to pay maintenance to R1-Thilagamani and so far as the order of the Magistrate directing the revision petitioner to pay maintenance in favour of the minor child/R2 is not challenged in this revision. The gist and kernal, the pith and marrow of the grounds of the revision would run thus: The first respondent herein was at fault in not responding to the request of the petitioner, in resuming cohabitation with him, which alone necessitated him to file H.M.O.P.191 of 2003 for divorce and accordingly, ex-parte decree of divorce was passed. The Magistrate Court failed to take into consideration that R1 because of her own conduct caused rift in the matrimonial relationship and consequently she is not entitled to any maintenance. The revision petitioner is having no sufficient financial wherewithal to pay such huge maintenance awarded by the Magistrate concerned. 4. Heard both sides. 5. The point for consideration is as to whether there is any perversity or non-application of law in awarding maintenance in favour of R1, payable by the revision petitioner. 6. The learned counsel for the revision petitioner, reiterating the grounds of revision, would submit that the whole trouble erupted because of the contumacious and rebellious conduct on the part of the first respondent herein, in not willing to live with the husband for no fault of him and that the husband also is having no job, which could fetch any income. 7. The learned counsel for the revision petitioner, in support of his contention, would cite the decision of this Court reported in 2007(1) T.N.L.R.5(Mad) – NATARAJAN VS. PALANIAMMAL, an excerpt from it would run thus: "9. Learned counsel for the petitioner would contend that the respondent is well-off and her father is tobacco merchant and an agriculturist and therefore she is not in need of money. In fact after deserting her husband in 1992, the respondent filed petition for maintenance only in 1998, six years thereafter, which will show that the respondent has sufficient means to maintain herself and that too when a sum of Rs.60,000/- has been paid towards maintenance. However, the learned counsel appearing for the revision petitioner would concede that inspite of Ex.B-1, he is willing to continue to pay maintenance to https://hcservices.ecourts.gov.in/hcservices/ his son. Therefore, maintenance claimed by the wife is not justifiable and the order of the learned I Addl. Sessions Judge granting Rs.300/- as maintenance every month from 13.7.1999 to the respondent is set aside. However, the petitioner shall continue to pay maintenance to the minor son as ordered earlier by the learned Judicial Magistrate." 8. Placing reliance on the above judgement of this Court, the learned counsel for the revision petitioner would advance and set forth his argument that R1, who showed no soft corner towards the revision petitioner and consciously deserted the husband, is not entitled to maintenance. 9. Whereas, the learned counsel for R1 would submit that at present the revision petitioner is not entitled to question anything about the R1's conduct and it was he who was responsible for the rift in the matrimonial relationship; he indulged in wife battering; he also failed to take care of her and arrange even for her medical treatment. The wife is not having sufficient means to maintain herself and hence there is nothing wrong in the order passed by the lower Court. 10. At this juncture, I would like to point out that the revision petitioner, as revealed by Ex.R2-the xerox copy of the ex-parte judgement of divorce granted by the Sub-Court, Thiruppur in H.M.O.P.No.191 of 2003 dated 14.10.2004, got divorce as against R1 and in such a case, it is not open for him to now fallback and rake up the issue as to whether he was at fault or she was at fault. The only questions now to be decided are as to (i)whether the wife remarried or not and (ii) whether she is having financial wherewithal to maintain herself or not. 11. It is quite obvious and axiomatic that the first respondent has not got remarried. The finding of the lower Court is that she is reeling under cash strapped, penurious and impecunious circumstances in life and that she could not eke out her livelihood by her own earnings. In order to keep the wolf from the door, to keep the pot boiling and to meet both ends meet she would require at least a sum of Rs.30/- per day and accordingly, if worked out, it comes to Rs.900/- per month. To meet her travelling expenses, medical expenses and other unforeseen expenses, she would require at least a sum of Rs.100/- per month. As such, the total comes to Rs.1000/-. The Magistrate, taking into consideration the cost of living prevailing during the year 2007, awarded such sum, warranting no interference by this Court. 12. It is also a trite proposition of law that a lady is entitled to live in commensurate with the status of her husband. Here even though the revision petitioner would contend that he is jobless, nevertheless he admitted that his father is owning lands https://hcservices.ecourts.gov.in/hcservices/ and he is assisting his father in the agricultural operation. Over and above that he is also helping his father in the money lending business and in such a case, he has to maintain his wife. Even de hors that, as per the trite proposition of law, a hale and healthy male is expected to toil and moil like anything and to strain his every nerve to see that he is providing maintenance to his wife or divorced wife. When such is the position, I could see no reason to interfere with the order passed by the lower Court. 13. The learned counsel for the revision petitioner would make an extemporary submission to the effect that the revision petitioner would prefer to deposit the monthly maintenance relating to R1 as well as R2 herein straight away in the bank account, which could be opened by R1 herein, for which, the learned counsel for R1 also agrees. Hence, that arrangement shall be resorted to by them. In the result, the criminal revision case is dismissed. Consequently, connected miscellaneous petition is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar msk To The Judicial Magistrate No.I, Gobichettipalayam +1cc to Mr.N.Domodaran, Advocate Sr 32625 +1cc to Mr.Ma.P.Thangavel, Advocate Sr 33006 MRD(CO) km/14.8. Crl.R.C.No.418 of 2007 https://hcservices.ecourts.gov.in/hcservices/