Even if Marriage is illegal Wife is Entitled to Maintenance Under Section 125 CrPC Says Madras High Court.
Title: Loyola Selva Kumar
Versus
Sharon Nisha
Date of Decision: Reserved on: 20.04.2023
Delivered on: 26.06.2023
Coram: THE HONOURABLE MR. JUSTICE K. MURALI SHANKAR.
Citation: Crl.R.C.(MD)No.417 of 2021 and Crl.M.P.(MD)No.4388 of 2021.
Facts:
The first respondent, alleging that the marriage between her and the revision petitioner was solemnized on 26.01.2018 at the petitioner’s parents home, Sankar Nagar, Tirunelveli and due to their wedlock, the second respondent was born to them; has filed an application claiming maintenance for herself and for her minor daughter under Section 125 of the Code of Criminal Procedure. The revision petitioner has filed counter statement disputing the very marriage and also the paternity to the second respondent and consequently, liability to pay maintenance.
Legal Analysis:
Justice K Murali Shankar of the Madurai bench was dealing with a revision petition seeking review of an order passed by Family Court, Tirunelveli directing a man to pay a monthly maintenance of ten thousand rupees to his wife” and their son and to pay the entire arrears of maintenance amount within a month. The woman had earlier filed the maintenance petition contending that he had failed to maintain her and their son even though he was legally bound to maintain them. It was also submitted that he had demanded a sum of 25 lakh as dowry and when she could not meet the demand, he started avoiding her. She had also contended that he was getting a monthly salary of Rs. 50,000 and also getting more than Rs 90,000 as monthly rent from the 11 houses that he owned.
On the other hand, the man disputed the very marriage and paternity of the child. He submitted that he had married a different woman in 2011 and had a child from that marriage. He further contended that though a divorce petition was filed, the same was dismissed after trial and an appeal against the same is pending. Kumar also disputed his salary as claimed by the woman and submitted that he was getting only Rs. 11,500 in hand and that he had been paying Rs.7000 as maintenance to his first wife and child. Thus, he contended that since there was no marriage between him and the woman and there was no relationship, he was not liable to pay maintenance.
Thus, the court was satisfied that the couple were living together as husband and wife and from this relationship, their child was born. The court also noted that though the man had argued that his salary was only Rs. 11,500, he had not produced any salary certificate or pay slip or any document from the employer to prove his income Considering the same, the court noted that the trial court’s order of monthly maintenance of Rs 10,000 each for the woman and their child was not excessive.
Judgement:
This Court is of the clear view that for the purpose of Section 125 Cr.P.C, the first petitioner can very well be considered as wife and the second petitioner as the son of the respondent. Hence, the finding of the trial Court that the petitioners are entitled to get maintenance from the respondent cannot be found fault with. Now turning to the quantum of maintenance, it is the specific stand of the petitioners that the respondent is working in ATG Tyre Company at Gangaikondan and is getting monthly salary of Rs.50,000/- and that he is owning 11 houses and is getting Rs.90,000/- as rent. But according to the respondent, though he admitted his work in a Tyre company, he is only receiving Rs.16,000/- and after deduction, he is only getting Rs.11,500/- as take home salary. When he was examined with regard to his owning of house properties and getting rent from the said properties, he would say that his father alone was owning the same and he has to get documents from his father. As rightly contended by the learned counsel for the petitioners, the respondent has not specifically disputed the factum of owning houses and leasing out the same to the third parties. Moreover, the respondent has taken a stand that he is getting Rs.16,000/-, he has not chosen to produce salary certificate or pay slip nor taken any steps to sent for the documents from his employer to prove his income. As rightly pointed out by the learned counsel for the petitioners, though the respondent has been alleging that the first petitioner is still working, he hasn’t produced any iota of evidence to show that the first petitioner has been working at the time of filing of the case till now.
Considering the above and also the present economic scenario and the status of the parties, the fixation of the monthly maintenance at Rs.10,000/- for each of the respondents is very much reasonable and the same cannot be said to be excessive. The revision petitioner has not advanced any other reason or ground to impugn the order. Hence, this Court decides that
the revision is devoid of merits and the same is liable to be dismissed.
Conclusion:
The Madras High Court recently held that even if a marriage was not legal due to the existence of a first marriage, the second wife and any children from the second marriage would still be entitled to maintenance under Section 125 of the Code of Criminal Procedure. The court also noted that though the man had argued that his salary was only Rs. 11,500, he had not produced any salary certificate or pay slip or any document from the employer to prove his income. Considering the same, the court noted that the trial court’s order of monthly maintenance of Rs 10,000 each for the woman and their child was not excessive.
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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.