Marimuthu vs Janaki : 2008 LRC Online 746 (Mad) (High Court of Madras; Cri R.C. No 1491 OF 2005: Hon'ble Justice P.R. Shivakumar: Decided on 22/02/2008)
Section 125(4)-Grant of maintenance-Revision-Settlement before husband and wife to which both of them mutually agreed to live separately-Document clearly spells out the mutual consent of parties to live separately-Genuineness of document has not been disputed by the respondent -Magistrate, without properly appreciating such document and without applying principle of law found in sub-section 4 of section 125 CrPC, has erroneously held that respondent (wife) was entitled to maintenance-Order granting maintenance to wife set aside-Petition allowed.
Held: . The said document was dated 21.10.2002. It clearly spells out the mutual consent of the parties to live separately. The learned Judicial Magistrate, without properly appreciating the said document and without applying the principle of law found in Sub-Section 4 of Section 125 Cr.P.C., has erroneously held that the respondent (wife) was entitled to maintenance. The said order passed by the learned Judicial Magistrate, which is against the spirit of the statute and passed in ignorance of the said statutory provision, is definitely infirm and discrepant. The non- application of the said statutory provision to the case on hand by the learned Judicial Magistrate will make his order unsustainable. This Court is satisfied that the said order has got to be set aside in exercise of the revisional powers of this Court.
In the result, the revision case succeeds and accordingly the same is allowed. The order of the learned Judicial Magistrate No.2, Ponneri dated 2.9.2005 passed in M.C.No.4 of 2003 is hereby set aside. M.C.No.4 of 2003 shall stand dismissed. Consequently, connected M.P.No.8952 of 2005 is closed. No costs.