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Dr.G.Sivaraman vs P.Muthukumari on 5 September, 2013
Madras High Court
Dr.G.Sivaraman vs P.Muthukumari on 5 September, 2013
DATED: 05.09.2013
CORAM
THE HON'BLE MS.JUSTICE K.B.K.VASUKI
Crl.R.C.No.694 of 2007
and M.P.No.1 of 2007
Dr.G.Sivaraman ... Petitioner/Respondent
-vs-
P.Muthukumari ... Respondent/Petitioner
Prayer:- This Criminal Revision case is filed to call for the records and set aside the order in M.C.No.41 of 2005 dated 13.03.2007 on the file of the Chief Judicial Magistrate, Vellore.
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For Petitioner : Mr.V.Ramakrishnan
For Mr.S.Sundar Raman
For Respondent : Mr.E.Kannadasan
*****
O R D E R
Here is the peculiar case wherein the question arises for consideration is whether the husband, who obtained decree for divorce on the ground of refusal on the part of the wife to live with her husband is liable to pay any maintenance and if so, the period from which his liability to pay maintenance commences.
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2. The facts, which are relevant for consideration herein are that the petitioner-husband and the respondent-wife got married on 10.07.2003 and the wife left the husband on her own and the parties started living separately from 12.02.2004. The husband filed a petition for divorce on 27.11.2004 on the file of Sub-Court, Chingleput on two grounds, namely, desertion and act of cruelty on the part of wife. During pendency of the divorce petition, wife also came forward with M.C.No.41 of 2005 filed on 2.8.2005 petition under Section 125 of Criminal Procedure Code for monthly maintenance before the learned Chief Judicial Magistrate, Vellore. The wife, on service of notice appeared in the Divorce petition and also filed Transfer C.M.P.No.343 of 2007, seeking transfer of HMOP to different Court, but the transfer CMP was after hearing both sides, dismissed on 29.10.2008. In the meanwhile, M.C.No.41 of 2005, after due contest was ordered on 13.03.2007 thereby directing the petitioner-husband to pay monthly maintenance of Rs.1,000/- to his wife from the date of petition for maintenance. Subsequently, the divorce petition was also disposed of on 30.03.2009 by granting a decree of divorce in favour of the husband on both grounds.
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3. Aggrieved against the award of maintenance, the petitioner-husband preferred this Criminal Revision Petition No.694 of 2007 and the same was admitted on 25.04.2007. The petitioner-husband was also granted an interim order of stay on condition to deposit 50% of the maintenance arrears. Accordingly, the petitioner-husband has deposited Rs.48,500/- (Rupees Forty Eight Thousand and Five Hundred only) till August, 2013 towards maintenance arrears. It is not in dispute that no appeal is filed by the wife against the divorce decree. At this juncture, learned counsel for the respondent-wife would submit that the decree granted in H.M.O.P. is an exparte decree and the wife has been taking steps to have it set aside on the issue of jurisdiction as well as on merits. Whereas learned counsel for the petitioner-husband would read out the final order made in the divorce petition in support of his contention, that the decree of divorce is granted on merits, that too, after hearing both sides and cannot be construed as an exparte award.
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4. In my considered view, the issue as to whether the decree for divorce is exparte or contested one need not be gone into at this stage and unless and until it is set aside, the exparte decree is as good as contested one. As of now, the divorce decree remains in force.
5. The learned counsel for the petitioner-husband would in this criminal revision seriously question the validity and correctness of the award of maintenance, mainly on the ground that as the husband and wife had been contesting the petition for divorce on the ground of act of cruelty and act of desertion on the part of wife and as under Section 125(4) of Cr.P.C., the wife, who refuses to live with her husband without any sufficient reason is not entitled to receive any allowance for maintenance, the learned Magistrate ought to have dismissed the claim for maintenance made by the wife or ought to have postponed the disposal of the maintenance case till disposal of the divorce petition. It is contended by the learned counsel for the petitioner-husband that the wife, being not entitled to claim maintenance for the period prior to the date of decree of divorce on the ground of desertion is not entitled to conduct proceedings for maintenance pending divorce petition. The learned counsel for the petitioner-husband has also cited the authority of the Hon'ble Supreme Court reported in 2000 (3) SCC 180, Rohtash Singh vs. Ramendri (Smt) and others in support of such contention.
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6. The reading of the judgment of the Hon'ble Supreme Court reveals that the issue arose before the Hon'ble Supreme Court is as to whether the wife against whom decree for divorce has been passed on account of her deserting the husband, can claim maintenance allowance under Section 125 Cr.P.C. and how far the plea of desertion to be treated to be an effective plea in support of husband's refusal to pay her maintenance allowance. The facts of the case decided by the Hon'ble Supreme Court are more or less identical to the facts of the present case. There also, the husband and wife got separated and the husband filed divorce petition on the ground of desertion and the wife filed maintenance case. Unlike the present case, the divorce petition in that case was disposed of firstly on 15.07.1995, whereas the application under Section 125 Cr.P.C. was allowed much thereafter.
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7. The Hon'ble Supreme Court, while answering the question as stated above, is pleased to observe that the Claim for maintenance under Section 125, Cr. P.C. before divorce is based on the subsistence of marriage while claim for maintenance of a divorced wife after divorce is based on the foundation provided by Explanation (b) to Sub-section (1) of Section 125, Cr. P.C. and as a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4) and in another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife and as a woman after divorce becomes a destitute and if she cannot maintain herself or remains unmarried, the man who was, once her husband continues to be under a statutory duty and obligation to provide maintenance to her.....
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8. While answering so, the Hon'ble Supreme Court has also agreed with the contention raised on the side of the husband therein that since the decree of divorce was passed on the ground of desertion of the husband by the respondent-wife, she would not be entitled for maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act. The Hon'ble Supreme Court has observed that "To that extent, learned Counsel appears to be correct". However, the Hon'ble Supreme Court was not inclined to interfere with the award of maintenance for the period prior to the date of divorce in that case for the reason that the period is too short to be interfered with.
9. As rightly argued by the learned counsel for the petitioner-husband, the wife, who had deserted her husband as per the decree of divorce, and who has been living separately on her own and who has been refusing to live with her husband, is disentitled to claim any maintenance for the period prior to the date of decree, which is in the present case 30.03.2009.
10. The above judgment of the Hon'ble Apex Court was not cited before the learned Magistrate, while dealing with Section 125 Cr.P.C application. Had the authority been cited, the learned Magistrate would have dealt with the maintenance petition in the light of the reasoning laid down by the Hon'ble Apex Court. As the maintenance claimed herein is for the period during the pendency of petition for divorce, in the light of the decision of the Hon'ble Supreme Court, the wife is disentitled to claim maintenance for the period prior to decree of divorce. Thus, applying the observation of the Hon'ble Supreme Court, the award of maintenance granted for the period prior to the date of divorce i.e. 30.03.2009 on the ground of desertion cannot be on legal ground allowed to sustain. However, as the decree of divorce is till date in force and the petitioner-husband is liable to pay maintenance to his divorced wife, as the divroced wife is entitled to claim maintenance from the petitioner-husband from the date of decree of divorce in her other capacity as the divorced wife, this Court is not inclined to interfere with the award of maintenance except by directing the payment made for the period prior to 30.03.2009 to be adjusted against the payment of maintenance for the subsequent period from the date of divorce.
11. Here is the case, the husband is liable to pay maintenance from the date of decree of divorce, i.e. on 30.03.2009 till August, 2013, at the rate of Rs.1,000/- (Rupees One Thousand only) per month, [Rs.52,000/- (Rupees Fifty Two Thousand only)]. The petitioner-husband has so far admittedly paid Rs.48,500/- (Rupees Forty Eight Thousand and Five Hundred only) on the strength of the order passed under Section 125 of Cr.P.C. After applying the judgment of the Hon'ble Supreme Court, a sum of Rs.48,500/- is liable to be adjusted against Rs.52,000/-. If that is so, the petitioner-husband is liable to pay Rs.3,500/- (Rupees Three Thousand and Five Hundred only) as arrears of maintenance upto August, 2013 and is liable to pay at the rate of Rs.1,000/- (Rupees One Thousand only) per month from the month of September, 2013.
12. At this juncture, learned counsel for the petitioner-husband would attempt to argue that the respondent-wife is gainfully employed for the past three years, as such, she is disentitled to claim any maintenance since the date of her employment. Such contention, in my considered view, cannot be accepted without any pleading or proof.
13. Considering the scope of the revisional jurisdiction of this Court, this Court is not inclined to deal with the issue relating to employment or otherwise of the wife and her capacity to maintain herself at this belated stage. However, it is open to the petitioner-husband to avail appropriate remedy under the relevant provision of law in Section 127 of Cr.P.C.
14. Going by the observation above made, the order of maintenance stands confirmed with effect from the date of decree of divorce and the amount already paid towards maintenance arrears shall stand adjusted in the manner indicated above. The balance maintenance arrears shall be paid within four weeks from the date of receipt of a copy of this order. The petitioner-husband is also directed to pay future maintenance regularly every month.
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15. The criminal revision petition is accordingly disposed of. Consequently, connected Miscellaneous petition is closed.
05.09.2013
Index: Yes
Internet: Yes
ar
To
1. The Chief Judicial Magistrate,
Vellore
K.B.K.VASUKI, J.,
ar
Crl.R.C.No.694 of 2007
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