w w w . L a w y e r S e r v i c e s . i n


S. Senthilkumar, Rep. by his Power of Attorney Agent, N. Srinivasan v/s G. Malarvizhi & Another

    Crl. R.C. No. 872 of 2020 & Crl. M.P. No. 6132 of 2020
    Decided On, 16 September 2022
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE D. BHARATHA CHAKRAVARTHY
    For the Petitioner: M. Gnanasekar, Advocate. For the Respondents: Ramapriya Gopalakrishnan, Advocate.


Judgment Text
(Prayer: Criminal Revision Case is filed under Section 397 r/w 401 of Cr.P.C., to call for the records and set aside the order, dated 24.02.2020 passed in M.C.No.17 of 2017, on the file of the learned Judicial Magistrate Tambaram and thus allow this Criminal Revision.)

1. This Revision is filed aggrieved by the order dated 24.02.2020 of the learned Judicial Magistrate-I, Tambaram in M.C.No.17 of 2017 and by which the first respondent/wife was awarded with the monthly maintenance of Rs.20,000/- and the second respondent minor son was awarded with the monthly maintenance of Rs.80,000/-. The husband/father being aggrieved is the petitioner.

2. Heard the learned counsel Mr.M.Gnanasekar for the petitioner and M/s. Ramapriya Gopalakrishnan, learned counsel on behalf of the respondents.

3. The learned Counsel for the petitioner submit that the parties were relatives and the first respondent/wife had scant regard for the matrimony and matrimonial life, had left the petitioner voluntarily. As a matter of fact, the petitioner had filed an application for divorce before the superior Court of California, U.S.A and the same was also granted on 26.04.2018. He further submit that the first respondent/wife also appeared in the said proceeding and as a matter of fact of monetary payments were also ordered in the said proceedings, which is also received by the first respondent. He further submitted that before the dispute started between the parties, huge sums of money were paid to the first respondent/wife by the petitioner and the same were not at all taken into account by the Trial Court. In any event, he would submit that the first respondent/wife is a qualified M.C.A. Graduate and she is capable of maintaining herself and the Trial Court ought not to have granted maintenance to the first respondent/wife.

4. As far as the maintenance to the second respondent child is concerned, the learned counsel for the petitioner would fairly submit being the father, the petitioner is liable to maintain the child. It is also true that the child is suffering from Autism and needs special care. However, he would submit that when the father is willing to discharge his pious obligation, the first respondent is not even showing the child even to the grand parents, who are now residing in Chennai. Therefore, he submit that any order of payment of maintenance should also be coupled with the visitation rights for the petitioner as well as his parents. He further submits that the sum of Rs.80,000/- is arrived at without any proper basis and the amount is exorbitant.

5. By way of reply, the learned counsel on behalf of the respondents would submit that though the first respondent/wife is qualified, she is unable to maintain herself because of the fact that the child is Autistic and she had to be at home and to accompany the child for the treatment, schooling, etc., and therefore she is unable to go for employment and maintain herself. She would submit that it is only an interim arrangement, which is ordered by the Court in California and the divorce is not granted on willful desertion of the first respondent/wife. It is not also on account of any mutual consent. In that view of the matter, the petitioner is entitled to maintain an application for maintenance under section 125 of Code of Criminal Procedure. She would submit that only the barest minimum amount of Rs.20,000/- is awarded by the Trial Court to the wife. She would further submit that she had furnished details of the expenses to be incurred in respect of the second respondent child in the proof affidavit and had also marked the relevant documents in justification of the claim, in the form of treatment of physiotherapy, school receipts, certificates etc., are marked and as many as 41 Exhibits were marked on behalf of the respondent/wife herein. Per contra, no evidence was let in on behalf of the petitioner and therefore, the Trial Court has rightly awarded the maintenance. This apart, she would contend that the petitioner himself appeared before the Trial Court on 14.02.2020 and filed an affidavit of undertaking to abide by the verdict of the learned Judicial Magistrate and therefore in effect the order is a consent order and therefore, this revision itself is not maintainable.

6. I have considered the rival submissions made by the learned counsel on either side and perused the material records of the case.

7. Firstly, to answer the preliminary objection of the learned counsel on behalf of the respondents, it is useful to extract the relevant portion of the affidavit filed by the petitioner before the learned Judicial magistrate, which reads as follows:

“.......

4. I state that do hereby solemnly affirm and declare that I will abide by the verdict given by the Hon'ble Judicial Magistrate, Tambaram in M.C.No.17 of 2017.”

Mere undertaking to abide by the order cannot be considered that the order itself as passed on consent. A cumulative reading of the entire memo filed along with the undertaking affidavit is that maintenance is being claimed and that the petitioner is unable to visit India in near future, therefore, he cannot appear in person and therefore since he is appointed his father N.Srinivasan as his power of attorney agent, he may be permitted to be represented and in that context he submits that he will abide by the verdict of the court. It does not take away the right of the petitioner to file this revision and I hold that the revision is maintainable.

8. Now coming to the grant of maintenance to the first respondent/wife, quantum is only Rs.20,000/-, which is the barest minimum amount considering the socio economic status of the parties. Even though the petitioner is claiming that the divorce has become final and the first respondent is disputing the same, for the purpose of maintenance, even considering the first respondent as divorced wife even then, it has been specifically provided under section 125 of Code of Civil Procedure that even the divorced wife is entitled for maintenance. The divorce was not granted on the ground of desertion or mutual consent as to disentitle the first respondent. In that view of the matter, no exception can be taken for the award of maintenance of only a sum of Rs.20,000/- by the learned Magistrate.

9. As far as the award of maintenance to the second respondent minor child is concerned, it is admitted on both sides that the child suffers from Autism and therefore, it is a special child requiring extra care and medical treatments. It is stated in the proof affidavit that the child's school fee at present is Rs.10,000/- per month. The child goes for dance class, speech therapy, occupational therapy and group therapy and it is stated that the fees for the same is totally Rs.7,900/-. This apart it is stated that for clothing, books and note books etc., in all put together a sum of Rs.1,20,000/- per year is necessary. It was also stated that the child goes for skating, swimming, key board and miruthangam classes and the total fee for these four classes all totally comes to Rs.27,500/-. This apart, separate sports fee of Rs.15,000/- is also claimed. The child also needs special food and sidha and ayurvedha panchakarma treatment.

10. On perusal of the same, the item wise justification is attempted to be given for the entire claim of Rs.2,00,000/- per month. The Trial Court after taken into account the totality of the circumstances, ordered Rs.80,000/- per month in this regard.

11. It is stated on behalf of the respondents that the petitioner is working as a senior consultant in E.M.C. Corporation, U.S.A and in terms of Indian money, he is earning a sum of Rs.12,00,000/- per month. While, the quantum is not disputed by the petitioner, he submits that the said income is subject to 30% tax flat and he is further paying a rent amounting to Rs.2,50,000/- for his U.S.A. Apartment and he is paying housing loan of Rs.50,000/- besides taking care of his parents. Therefore, taking into account all, this Court had questioned the learned counsel for the petitioner as to what exactly would be a fair sum of maintenance, the learned counsel for the petitioner took time and after instructions submitted a sum of Rs.50,000/- per month would be a proper sum. But however prayed that the money is already paid by him shall be taken into account. In response from all, the learned counsel for the petitioner submitted that all the money claimed by the first respondent have been calculated and submitted in detailed by a memo by which it is seen that after the date of filing the petition for maintenance, the first respondent/wife has received a total sum of Rs.13,93,626/-, which is inclusive of the sum paid pursuant to the direction of the U.S.A. Court order. The said sum has to be adjusted in the total amount payable. She would also submit that the respondents do not have any objection for the petitioner to have visiting rights and is also willing to allow the child to be visited by the grandparents for specific time, provided the maintenance is paid.

12. Upon the consideration of the present needs of the child coupled with the status of the parents and calibrating the needs to the affordability of of the petitioner/husband considering his income/expenses, I am of the view that the said sum of Rs.50,000/- as offered by the petitioner would be a fair amount of maintenance which would suffice and cater to all the necessities of the child and which would be very well within the paying capacity of the petitioner and I accordingly modify the monthly maintenance award to the second respondent as Rs.50,000/- per month.

13. This Criminal Revision is therefore disposed off on the following terms:

(i) the order of the learned Judicial Magistrate – I, Tambaram dated 24.02.2020 in M.C.No.17 of 2017 is confirmed in as much as it orders monthly maintenance of Rs.20,000/- to the first respondent/wife viz., G.Malarvizhi;

(ii) the said order in as much as it grants maintenance to the second respondent

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minor son viz., S.Elakiyan Esha is modified and reduced as Rs.50,000/- per month; (iii) the maintenance amount is to be paid from the date of filing of the petition before the Learned Magistrate, that is, from march 2017; (iv) of the total arrears due, a sum of Rs.13,93,626/- has to be adjusted and the petitioner shall pay the balance arrears within a period of three months from the date of receipt of a copy of this order; (v) the petitioner shall also keep paying the monthly maintenance of Rs.20,000/- per month to the first respondent and Rs.50,000/- per month to the second respondent on or before fifth of every succeeding calendar month; (vi) As consented on behalf of the respondent/wife, the petitioner shall be entitled to full visiting rights in respect of the second respondent child whenever he visits India and the parents of the petitioner shall also have rights to visit the child upon intimation atleast once in a month for about two hours at any place/public place convenient and agreed by the parties. (vii) connected miscellaneous petition is closed.
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