ALAGAPPAN Vs. INDIRANI AND ANOTHER

JUDGEMENT

(1.) THIS Revision is directed against the order of the learned Judicial Magistrate, Karaikudi, in M.P. No. 10 of 1990, under Section 125 of Criminal Procedure Code. The first respondent -wife filed the petition for herself and on behalf her minor child, the second respondent herein, for maintenance and the learned Magistrate after considering the evidence has found that the first respondent -wife was not entitled to maintenance, but has granted Rs. 250/ - per month, towards the maintenance of the boy. It is against this order, the revision petitioner -husband has come forward with this revision. Unfortunately, though this petition was taken up by 4:15 P.M., neither the revision petitioner, nor his counsel is present. As there is no representation for the revision petitioner I am disposing of this revision by perusing the records and also hearing the learned counsel for the respondents.

(2.) THE paternity of the second respondent child is not disputed in the court below and this revision is only against the maintainability of the petition. The contention taken before the lower Court was that as Rs. 100/ - was fixed for the maintenance of the minor child in the Divorce O.P. No. 12 of 1985, filed by the revision petitioner before the Sub Court, Devakottai, the minor is not entitled to ask for maintenance under any other proceedings, when that order is in force. The Divorce O.P. No. 12 of 1985 on the file of the Sub Court, Devakottai, also has been disposed of, before the order was passed in the petition filed under Section 125 of Criminal Procedure Code. For the reason that in a divorce Original Petition Proceedings, the Court had fixed maintenance on the application of the wife for the minor child, it cannot be stated that Section 125 of Criminal Procedure Code cannot be invoked thereafter to claim maintenance for the minor boy. It is true that the maintenance cannot be claimed under both proceedings simultaneously. It is left to the minor boy to choose the maintenance awarded either by the Sub Court, Devakottai or the quantum fixed by the Magistrate under Section 125 of Criminal Procedure Code. There is no bar under Section 125 of Criminal Procedure Code to award maintenance to the minor child for the reason that in some other proceedings the Civil Court had awarded maintenance. The revision petitioner has not disputed his liability to pay maintenance to the second respondent -minor child because admittedly he is the father and the child was aged only seven years, at the time of this application. The learned Magistrate after taking into consideration of the evidence has found that as the maintenance fixed by the Sub Court, Devakottai in the Divorce Original Petition was only Rs. 100/ -, when the boy was aged 4 years and thereafter as the boy is admitted in a school and the mother is incurring additional expenses for the education if the boy and the cost of living has gone -up, he fixed the maintenance at Rs. 250/ - per month. The revision petitioner is employed as a clerical staff in the Indian Overseas Bank, Karaikudi, I feel that Rs. 250/ - fixed as maintenance for his child is not too heavy for him to part with. No doubt, he has contended before the Magistrate that he has to other burdens like maintaining his parents. When he has the consciousness to maintain his parents, his duty to maintain his child also cannot be a lost sight. In the present day, the cost of living is going up day by day and it is difficult even to maintain a boy of 8 or 9 years old out of this meager amount of Rs. 250/ - by providing food, clothe and also good education. Therefore, taking into consideration of these circumstances, the maintenance fixed at the rate of Rs. 250/ - per month by the lower court cannot be said to be too high and as I find no other reasons on the side of the revision petitioner to interfere with the order of the lower Court, the revision has to fail.