Full Judgment
Prayer :-Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., to call for the records pertaining to the order dated 22.07.2010 made in M.C.No.6 of 2008 on the file of the Judicial Magistrate-I, Tindivanam and set-aside the same.
ORDER
1. The brief facts of the case are as follows:-
The respondent herein / wife had filed a maintenance case in M.C.No.6 of 2008, on the file of the Judicial Magistrate-I, Tindivanam, against the revision petitioner / husband and has claimed a monthly maintenance of a sum of Rs.3,000/-. The wife further stated that prior to marriage both had loved each other. Subsequently, the marriage was solemnized at "Arulmigu Srilakshmi Narasimha Swamy Temple" on 24.09.2006 as per Hindu Customs and Rites. Prior to the marriage, both had sexual relationship. In the result, she had become pregnant and she gave birth to a male child. Her husband is a painter and earning Rs.10,000/- per month. She further stated that her husband had killed the child. Therefore, a criminal case had been registered on the file of Rosanai Police Station as Crime No.296 of 2007. The case is still pending. She further stated that her husband had deserted her and hence she has claimed maintenance against him as he is his legally wedded wife.
2. The husband had filed counter statement and resisted the maintenance case. He admitted that both had loved each other and that subsequently the marriage was solemnized. He had further stated that his wife had levelled a false criminal case against him. The said false case is still pending. He further stated that prior to separation, he had provided all necessities required for his wife. He is not earning Rs.10,000/-, as a painter, as alleged. After marriage, his wife's brother and sister had tortured him and he had opposed them. Hence, the false case had been filed. His wife did not feed her breast milk to the child.
3. On considering the averments of both the parties, the learned Magistrate had framed three issues, viz.,
"(i) Whether the wife is eligible to get maintenance as per Section 125 of Cr.P.C?
(ii) Whether both had separated and living separately? and
(iii) Whether the petitioner / wife is entitled to receive maintenance from her husband?"
4. On the side of the wife, she had been examined as P.W.1 and one Kasirajan had been examined as P.W.2. On the side of the wife, five documents had been marked, viz., Ex.P1-marriage receipt, Ex.P2-child birth certificate, Ex.P3-copy of the plaint filed before the District Munsif Court, Ex.P4-copy of the appeal of the Sub Court and Ex.P5-partition deed. On the side of the husband, the husband had been examined as R.W.1 and no document was marked.
5. P.W.1 had adduced evidence that her husband married her on 24.09.2006 at "Arulmigu Srilakshmi Narasimha Swamy Temple".Out of wedlock, she gave birth to a male child. The child had subsequently died. She further stated that a Criminal Case in Cr.No.296 of 2007 has been registered against her husband by the Rosanai Police Station. Her husband is doing painting work and is earning Rs.10,000/- per month. She further stated that her husband had deserted her and therefore she is living separately. She has no job and she is a physically challenged person.
6. P.W.2 had adduced evidence, which is in consonance with the evidence of P.W.1.
7. R.W.1 had stated that he had married the petitioner on 24.09.2006. Before marriage, he had sexual relationship with her. He further stated that his wife had filed a false case, on the instigation of her brother and sister. His wife had refused to give her breast milk to her child. After marriage, her activities had changed on the advice of her brother and sister. Therefore, all of them had jointly started to harass him. He further stated that his wife had deserted him without any reasons.
8. P.W.1 had admitted in her cross-examination that she is living at her brother's house. Further, she has no interest to lead her marital life with her husband.
9. After recording evidence of both sides and on hearing the arguments of the learned counsels on either side and on perusing the documents marked by the petitioner, the learned Magistrate had assessed the monthly maintenance payable to the wife as a sum of Rs.2,000/-, from the date of filing the maintenance case. Against the said order, the above revision has been filed by the husband.
10. The learned counsel for the revision petitioner submits that the learned Magistrate had assessed the income of the revision petitioner as a sum of Rs.6,000/- per month, which is an erroneous one as it has been done without any documentary evidence. The respondent had voluntarily deserted her husband and living at her brother's house. Further, the respondent herself had categorically admitted that she is not interested to lead her marital life with the revision petitioner. As such, the maintenance case is not sustainable. The learned counsel further submits that painting jobs are very rare to get in the village. Therefore, he does not get sufficient income.
11. The learned counsel for the respondent submits that the revision petitioner is a painter and is earning not less than Rs.10,000/- per month. But the learned Magistrate, had wrongly assessed the income of the revision petitioner as Rs.6,000/-. As per judgments made in several cases by the Hon'ble Supreme Court, the wife is entitled to receive maintenance which is 1/3rd of the income of the husband. Therefore, the impugned order is maintainable. The learned counsel further submits that the respondent is a physically challenged person. Knowing the same, the revision petitioner married her and has now deserted her. The marriage was admitted and as such the relationship of husband and wife still exists. Hence, the wife is entitled to receive maintenance from her husband.
12. From the foregoing facts and circumstances of the case, arguments advanced by the learned counsels on either side and on perusing the impugned judgment passed by the learned Magistrate, this court is of the considered view that the revision petitioner works as a painter and is unable to get a regular monthly income. Therefore, the monthly maintenance of a sum of Rs.2,000/-, which had been awarded by the learned Magistrate is slightly on the higher side. Hence, this Court reduces the monthly maintenance awarded from Rs.2,000/- to Rs.1,500/-, as it is found to be appropriate in the instant case. This Court directs the revision petitioner / husband to pay the arrears of monthly maintenance to the respondent / wife, from the date of maintenance case in M.C.No.6 of 2008, till date, within a period of two months from the date of receipt of this order. Subsequently, the revision petitioner herein is directed to pay the monthly maintenance, as ordered by this Court, regularly to the respondent, on or before 10th of every succeeding english calendar month.
13. Resultantly, the above revision is partly allowed. Consequently, the order passed in M.C.No.6 of 2008, on the file of the Judicial Magistrate-I, Tindivanam, dated 22.07.2010 is modified. Consequently, connected miscellaneous petitions are closed. Accordingly ordered.