Chitra vs Gunasekaran

T.S. Sivagnanam, J.—This Revision is filed under Sections 397 read with 401 Cr.P.C., is directed against the order passed by the lower appellate court in Criminal Revision Petition No. 16 of 2009 dated 16.02.2010 on the file of learned Principal Sessions Judge, Villupuram in setting aside the order dated 09.10.2009 passed in M.C. No. 2 of 2007 on the file of Chief Judicial Magistrate, Villupuram.

The petitioners are the wife and minor child of the respondent. The petitioners filed a petition for maintenance under Section 125 Cr.P.C., in M.C. No. 2/2007 claiming maintenance at the rate of Rs. 20,000/- for the purpose of house rent and other expenses.

The respondent/husband filed counter affidavit resisting the claim for maintenance stating that already H.M.O.P. No. 81/2001 is pending before the court, wherein, the respondent has sought for divorce in which the interim maintenance was agreed to be paid at the rate of Rs. 1,000/- per month; therefore, the petitioners cannot maintain a separate petition for maintenance under Section 125 Cr.P.C.

The trial court considered the submissions made on either side and after referring to the decision of this Court in Crl.R.C. No. 1102 of 2006 dated 17.06.2009 in the case of Subban @ Subramani Vs. Kaliyammal held that in maintenance proceedings, preponderance of probabilities would govern the adjudication and not proof beyond reasonable doubt. After considering the fact that an amount of Rs. 1,000/- had already been granted in the divorce proceedings as interim maintenance, the trial court directed Rs. 1,000/- to be paid for the first petitioner and Rs. 800/- for the second petitioner. Aggrieved by the same, the respondent preferred revision before the lower appellate court. The lower appellate court set aside the order passed by the lower court solely on the ground that the petitioner is not entitled to maintain the application under Section 125 of Cr.P.C., since she is receiving interim maintenance in H.M.O.P., proceedings.

In my view, the legal issue in this Criminal Revision need not be adjudicated for the simple reason that the conduct of the husband/respondent if looked into, it is evident that the respondent/husband purposely dragged the petitioners to various forums and ultimately not paid a single pie for the first petitioner and the minor child-the second petitioner.

It is not in dispute that the respondent/husband has not complied with the direction issued in the H.M.O.P., proceedings, wherein, interim maintenance of Rs. 1,000/- was directed to be paid. In fact, it was only disqualification against the respondent/husband and the lower appellate court allowed the Revision Petition. That apart, the petitioners have approached the court below in H.M.O.P. 81/2001 and filed a petition to strike off the matter, as interim maintenance not paid to them and the said application is also pending. That apart, the husband is said to have filed Revision Petition before this Court against the order of interim maintenance and the same is also pending.

In such circumstances, the order of the lower appellate court on dismissing the maintenance petition in entirety is not in consonance with law. Accordingly, the Criminal Revision case is allowed. The respondent/husband is directed to comply with the order in M.C. No. 2 of 2007 dated 09.10.2009 without any default.