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Judgment
P.R. Shivakumar, J.—This Criminal Revision case is directed against the order of maintenance dated 15.06.2005 passed by the learned
Judicial Magistrate, Bhavani in M.C. No. 8 of 2003, directing payment of a sum of Rs. 1000/- per month to each one of the respondents herein,
who are admittedly the wife and minor daughter of the petitioner herein.
The first respondent for herself and on behalf of the second respondent minor Nandhini had filed the Miscellaneous Case No. 8 of 2003
claiming a total sum of Rs. 6,500/- per month towards maintenance for herself and for the second respondent, based on the allegation that the
revision petitioner neglected and refused to maintain the respondents. It was the further averment made by the respondents in their petition that the
petitioner was having seven acres of land from which he was deriving an income of Rs. 2,00,000/- (Rupees two lakhs only) per annum whereas
the respondents did not have any source of income to maintain themselves. Even though the petitioner herein entered appearance before the trial
court by engaging a counsel, he did not choose to file any counter statement denying the petition averments. However, the learned Judicial
Magistrate conducted trial, in which two witnesses were examined and six documents were marked on the side of the respondents
herein/petitioners in the Maintenance Case. Similarly two witnesses were examined and six documents were marked on the side of the revision
petitioner/respondent in the Maintenance Case. A photograph and its negative have been marked as M.Os.1 and 2 on the side of the respondents
herein. At the conclusion of trial, in the light of the arguments adduced by the learned Counsel appearing on either side, the learned Judicial
Magistrate considered the evidence adduced on either side, both oral and documentary and came to the conclusion that the respondents herein
were entitled to claim maintenance from the revision petitioner. The quantum of maintenance payable to each one of the respondents was fixed at
Rs. 1000/- per month. Challenging the legality and correctness of the said order of the learned Judicial Magistrate, the revision petitioner has
brought forth the present revision case u/s 397 read with Section 401 of Cr.P.C.
This Court heard the submissions made by the learned Advocate representing the revision petitioner and Mr. T. Murugamanickam, Advocate
representing the respondents herein. This Court also perused the relevant materials available on record.
The challenge made to the impugned order of the learned Judicial Magistrate is two fold. The first is on the ground that the first respondent is
having sufficient wealth and deriving income which shall be more than sufficient to maintain herself. The second ground on which the order of the
learned Judicial Magistrate is challenged is that the award of maintenance in favour of the second respondent cannot be sustained for the reason
that the second respondent has already obtained a decree for partition in respect of the family properties of the revision petitioner.
Let us now consider the above said grounds of attack made by the revision petitioner one by one. So far as the claim of maintenance for the
wife, namely, the first respondent is concerned, it is the contention of the revision petitioner that the first respondent is having immovable properties
from which she derives sufficient income. But unfortunately, the revision petitioner has not put in any written plea to the effect that the first
respondent is having immovable properties capable of yielding income that may be either sufficient or more than sufficient for maintaining herself.
While the first respondent herein was deposing as PW.1, she was cross examined on behalf of the revision petitioner suggesting that she was
having properties, the income derived from which would be sufficient to maintain herself. But the said suggestion was denied by the first respondent
herein. The mere admission that there was one acre of land in the name of her brother will not be enough to hold that she is having immovable
property of her own. The gratuitous support she gets from the parent or the brother shall not be taken into account in deciding whether she is
having sufficient means of income to maintain herself. Therefore, the contention of the revision petitioner that his wife, namely the first respondent
herein owns immovable property yielding income, which shall be more than sufficient for her maintenance, has got to be rejected as there is no
evidence to prove the same.
The learned Counsel for the revision petitioner, drawing the attention of this Court to the admission made by PW.1 that she had spent nearly Rs.
50,000/- for the litigation in the name of the second respondent to get her share in the family properties, contended that the same would be enough
to draw an inference that the first respondent was having sufficient means to maintain herself. The fact that the first respondent has spent about Rs.
50,000/- on behalf of the second respondent for getting the share of the second respondent from the family property shall not be enough to draw
such an inference as claimed by the learned Counsel for the revision petitioner. The second respondent being a minor, her cause could have been
espoused by the first respondent with the help of others. The learned Counsel appearing for the revision petitioner in the Court below was simply
content with eliciting and answer from PW.1 to the effect a sum of Rs. 50,000/- was spent for the litigation. Apart from the possibility of the same
being an exaggeration, there is no iota of evidence to show that the said amount was spent by the first respondent from her pocket. She was not
cross examined further as to the source from which she got the money for the said litigation expenses. Therefore, this Court is of the considered
view that the above said contention of the learned Counsel appearing for the revision petitioner has got to be discountenanced and the conclusion
of the learned Judicial Magistrate to award maintenance in favour of the first respondent has got to be confirmed.
So far as the award of maintenance in favour of the second respondent is concerned, admittedly, what was allotted to the second respondent in
the partition suit is only a small piece of land having an extent of 15 cents. There is no evidence to show how much income can be derived from the
said piece of land. Even the said piece of land is, admittedly, in the enjoyment of the revision petitioner. Though a decree for partition has been
passed in favour of the second respondent herein, still she is not in a position to take actual possession of the share allotted to her in the partition
suit. The learned Counsel for the revision petitioner would venture to argue that there was no fault on the part of the revision petitioner in this
regard and that the respondents have deliberately omitted to execute the decree having an apprehension in their mind that in case of execution of
the decree of partition, the same shall have a bearing on the order of maintenance to be passed in the maintenance case. This Court is not in a
position to accept the said contention of the learned Counsel for the revision petitioner. The revision petitioner being one of the parties ,in whose
favour a share was allotted in the partition suit, should have very well handed over the share of the second respondent without waiting for an
Execution Petition to be filed. So long as the revision petitioner retains the share of the second respondent, he cannot contend that the second
respondent having got a decree for partition shall not be entitled to maintenance. As pointed out supra, even if the small piece of land allotted to the
second respondent in the partition is taken into account, the income derived from the same may not be sufficient for the maintenance of the second
respondent. Admittedly, the second respondent is a minor and during her minority, it is the duty of the parents to maintain her. So far as the
revision petitioner is concerned, he would contend that he has to pull on his life with the meagre income which he derives from an equal extent of
land (14 cents) allotted to him in the partition and hence he cannot be compelled to pay maintenance even to the second respondent. It is also the
contention of the revision petitioner that he is ready to maintain the second respondent provided she comes and lives with him. But the fact remains
that the revision petitioner has not taken any steps so far to get the custody of the minor second respondent, for which he alone can be blamed.
For no fault on the part of the minor and taking advantage of the inaction on the part of the revision petitioner, he cannot deny his liability to
maintain his minor daughter, the second respondent herein. Therefore, this Court comes to the conclusion that the above said contentions raised on
behalf of the revision petitioner as against the order of the learned Judicial Magistrate holding the second respondent entitled to claim maintenance
from the revision petitioner, has got to be rejected as untenable.
So far as the quantum of maintenance is concerned, the learned Counsel for the revision petitioner contended that the amount awarded by the
learned Judicial Magistrate was on the higher side and hence the same deserved to be reduced. If the cost price index is taken into consideration,
one can come to the conclusion that a sum of Rs. 1,000/- shall be hardly sufficient for a person to maintain himself/herself. The case of the revision
petitioner that he is not having sufficient property yielding income is not enough to negative his liability to maintain his wife and minor child.
Admittedly, the minor is not in a position to earn for herself. Therefore, during her minority, it is the duty of the revision petitioner to earn and
maintain her. However, during the course of hearing of this Revision Petition, it was agreed across the bar that there can be a reduction of the
maintenance amount awarded to each one of the respondents by the learned Judicial Magistrate, to the extend of 25%. This Court is also satisfied
that such a suggestion is quite reasonable. Hence, while upholding the order of the learned Judicial Magistrate holding that the respondents herein
are entitled to claim monthly maintenance allowance from the revision petitioner, the quantum of maintenance to be paid to each one of the
respondents herein alone shall be reduced to Rs. 750/-(Rupees seven hundred and fifty only) per month.
Accordingly, the revision petition is disposed of with the modification indicated above. However, there shall be no order as to costs.