Shankar Ganesh vs Baby Shamily
- Court
- Madras High Court
CRL RC(MD) No. 1071 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 06.10.2026
DELIVERED ON: 16.10.2026
CORAM
THE HON'BLE MR.JUSTICE B.MURUGESAN
CRL RC(MD) No. 1071 of 2025
CNR:{HCMD010661842025}
AND
CRL MP(MD) No. 10812 of 2025
Shankar Ganesh
..Petitioner
Vs
Baby Shamily
..Respondent(s)
PRAYER: C-45R To call for the records and set aside the order dated
03.09.2024 passed in MC No.7/2022 by the Learned District Munsif Cum
Learned Judicial Magistrate Court, Srirangam.
For Petitioner: Mr.J. Vijayaraja
For Respondent: R.Sundar
ORDER
Heard and admitted.
02. With the consent of both parties, this criminal revision was
taken up for final hearing on 07.10.2026.
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03. Challenging the order dated 03.09.2024 of the District
Munsif cum Judicial Magistrate, Srirangam, Tiruchirappalli District,
hereinafter referred to as ‘the trial court’ for the sake of brevity, passed
in MC No.07/2022, awarding maintenance to the revision
respondent/petitioner/wife, the revision petitioner/ respondent/husband
has filed this Criminal Revision Petition under S.438 BNSS.
04. For the sake of convenience, the parties are referred
hereunder according to their litigative status and ranking in this
criminal revision, 'the revision petitioner' and 'the revision respondent',
unless the context otherwise requires.
05. Prefatory facts are that the revision petitioner is the husband
of the revision respondent and their marriage took place on 10.03.2019
in accordance with the hindu rites and ceremonies, that the revision
respondent is a MCA graduate and the revision petitioner is a MSW
graduate, that the revision respondent got pregnant but aborted, that
owing to some estrangements between the spouses, the spouses were
living separately, that the revision respondent filed against the revision
petitioner a maintenance case in MC No. 07/2022 on the file of the trial
court, that the trial court, after enquiry, has awarded a monthly sum of
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CRL RC(MD) No. 1071 of 2025
Rs.12,000/- for the maintenance of the revision respondent.
06. Challenging such order of the trial court, the revision
petitioner has filed this criminal revision.
07. Heard both sides, and perused all the materials available.
08. Learned counsel for the revision petitioner would submit that
the trial court has decided the claim of maintenance made by the
revision respondent only on assumptions, conjectures and surmises
because there is no evidence or proof of whatsoever either to show the
actual needs of the revision respondent or to show the actual income of
the revision petitioner, that the trial court has obviously decided such
claim of maintenance simply on the assertions of the parties made in
their respective application and the counter statement, that therefore,
the order of the trial court granting maintenance is not sustainable, that
the revision respondent, through one Sathiyamoorthy, has given birth
to two children and their birth certificates traced very recently have
also been filed in this criminal revision, that therefore, the revision
respondent is not at all entitled for any maintenance from the revision
petitioner and that therefore, the revision petitioner is entitled to get an
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CRL RC(MD) No. 1071 of 2025
order allowing this criminal revision and reversing order of
maintenance passed by the trial court.
09. Per contra , the learned counsel for the revision respondent
would submit that the order of maintenance passed by the trial court
does not suffer any sort of infirmities or illegalities warranting any
interference by this court, that the trial court has rightly awarded a
monthly sum of Rs.12,000/- for the maintenance of the revision
respondent, that this criminal revision has been filed only with a view
to stall the enforcement proceedings, that the copy of birth certificates
relied on by the revision petitioner, without due proof thereof, cannot
be taken into consideration in this criminal revision and that therefore,
this criminal revision deserves for dismissal.
10. Point for determination is whether the revision petitioner is
entitled to get an order allowing this criminal revision and reversing
the order of maintenance passed by the trial court in MC No.07/2022?
11. Of course, it is true that neither the revision respondent nor
the revision petitioner has chosen to lead any evidence, either oral or
documentary, before the trial court. Precisely speaking, there is nothing
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CRL RC(MD) No. 1071 of 2025
on record either to show the actual needs of the revision respondent or
to show the actual income of the revision petitioner. What is available
on record is mere assertion in the application of the revision
respondent for maintenance to the effect that the revision petitioner is
getting a monthly salary of Rs.2,00,000/- and that the revision
respondent is in need of a monthly sum of Rs.40,000/- for her
maintenance, and the trial court appears to have simply determined the
quantum of maintenance only on such ipse dixit . Surprisingly, the trial
court, in its order at page 14, has observed that there is no document to
show the actual income/ salary of the revision petitioner, but after the
next line, it has observed that both parties have filed ‘documents’
showing their respective incomes. It is not known how the trial court
has fixed the monthly maintenance as Rs.12,000/- when there is
nothing on record either to show the actual needs of the revision
respondent or to show the actual income of the revision petitioner. In
short, the order of the trial court with regard to the determination of the
quantum of maintenance is enigmatic, and the trial court has decided
the quantum of maintenance abruptly without any logical conclusion
and without applying its judicial mind.
12. Rajnesh V Neha (MANU/SC/0833/2020) is a case where
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the Hon’ble Supreme Court, in exercise of its powers under Article 142
of the Constitution of India, has issued some necessary directions for
determining the quantum of maintenance, and the relevant excerpts
would read as under:
‘VI Final Directions
97 . In view of the foregoing discussion as contained in Part B - I
to V of this judgment, we deem it appropriate to pass the
following directions in exercise of our powers Under Article 142
of the Constitution of India:
99 . The Affidavit of Disclosure of Assets and Liabilities annexed
as Enclosures I, II and III of this judgment, as may be applicable,
shall be filed by both parties in all maintenance proceedings ,
including pending proceedings before the concerned Family
Court/District Court/ Magistrates Court, as the case may be,
throughout the country.
(c) Criteria for determining the quantum of maintenance
100 . For determining the quantum of maintenance payable to an
applicant, the Court shall take into account the criteria
enumerated in Part B - III of the judgment .
101 . The aforesaid factors are however not exhaustive, and the
concerned Court may exercise its discretion to consider any
other factor/s which may be necessary or of relevance in the
facts and circumstances of a case.
…………….
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105 . A copy of this judgment be communicated by the Secretary
General of this Court, to the Registrars of all High Courts, who
would in turn circulate it to all the District Courts in the States. It
shall be displayed on the website of all District Courts/Family
Courts/Courts of Judicial Magistrates for awareness and
implementation.’ (italics supplied by this court)
13. In this case on hand, the impugned order reads as if certain
‘documents’ were looked into for the determination of quantum of
maintenance but it is not clear and certain what those documents are.
Further, the impugned order does not whisper about the filing of such
‘Affidavits of Disclosure of Assets and Liabilities’ and other necessary
details relating thereto. Therefore, the impugned order, as stated above,
is enigmatic and bereft of necessary judicial discussions and reasoning.
14. Next comes the birth certificates of two children alleged to
have born to the revision respondent through one Sathiyamoorthy.
Even though those birth certificates are the copies, name of the father
has been indicated as Sathiyamoorthy and the name of the mother has
been indicated as the name of the revision respondent, in both
certificates. One reads the date of issue as 13.11.2025 and the other, as
06.02.2026, whereas the date of impugned order is 03.09.2024. As
rightly pointed out by the learned counsel for the revision respondent,
those birth certificates, without due proof thereof, cannot be taken into
consideration in this criminal revision.
15. Therefore, the impugned order of the trial court, in the
considered view of this court, suffers non application of judicial mind
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and non observance of such legal guidelines/directions as issued by the
Hon’ble Supreme Court in Rajnesh V Neha ( supra ). Further, some
evidence, in the form of birth certificates, which, if proved, might go to
the root of the case of the revision respondent, is shown to have been
discovered after the impugned order of the trial court.
16. At this juncture, this court would like to refer to the decision
of Hon’ble Supreme Court in Nasib Singh V State of Punjab and
another (AIRONLINE 2021 SC 871) and the relevant portion thereof
would read as under:
“33. The principles that emerge from the decisions of this Court
on re-trial can be formulated as under:
33.1 The appellate court may direct a re-trial only in
“exceptional” circumstances to avert a miscarriage of justice .
33.2 Mere lapses in the investigation are not sufficient to warrant
a direction for retrial. Only if the lapses are so grave so as to
prejudice the rights of the parties, can a re-trial be directed.
33.3 A determination of whether “shoddy” investigation/trial has
prejudiced the party, must be based on the facts of each case
pursuant to a thorough reading of the evidence.
33.4 It is not sufficient if the accused/prosecution makes a facial
argument that there has been a miscarriage of justice warranting
a re-trial. It is incumbent on the appellate court directing a re-
trial to provide a reasoned order on the nature of the miscarriage
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of justice caused with reference to the evidence and investigatory
process.
33.5 If a matter is directed for re-trial, the evidence and record of
the previous trial is completely wiped out.
33.6 The following are some instances, not intended to be
exhaustive, of when the Court could order a re-trial on the
ground of miscarriage of justice: (a) The trial court has
proceeded with the trial in the absence of jurisdiction; (b) The
trial has been vitiated by an illegality or irregularity based on a
misconception of the nature of the proceedings; and (c) The
prosecutor has been disabled or prevented from adducing
evidence as regards the nature of the charge, resulting in the trial
being rendered a farce, sham or charade.” (italics supplied by
this court)
15. Facing with such factual matrix as discussed above, this
court, in order to prevent aberration of justice and to promote
substantial cause of justice, decides to remand the case in MC
No.07/2022 to the trial court for re trial, in exercise of its powers under
S.442 BNSS r/w S.427 BNSS, in such terms as detailed hereunder.
16. Before parting with, this court, as a word of caution, would
like to make it clear that any observation/finding given by this court in
this order shall not influence the decision of the case ordered to be re
tried and that the parties shall not be entitled to make use of any such
observation/finding in any way in such re trial.
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17. In fine,
(1) that this criminal revision petition filed by the revision
petitioner is hereby allowed,
(2) that the order dated 03.09.2024 of the District Munsif cum
Judicial Magistrate, Srirangam, Tiruchirappalli District, in MC
No.07/2022, is hereby reversed,
(3) that the case in MC No.07/2022 is here by remanded to the
court of District Munsif cum Judicial Magistrate, Srirangam,
Tiruchirappalli District, for re trial,
(4) that the learned District Munsif cum Judicial Magistrate,
Srirangam, Tiruchirappalli District, is hereby directed to re try the case
in MC No.07/2022 by affording sufficient opportunities to both parties,
either to file additional pleading or to adduce evidence, necessary to
the decision of the case,
(5) that the parties are hereby directed to file their respective
Affidavits of Disclosure of Assets and Liabilities, and if already filed,
to file ‘better’ Affidavits of Disclosure of Assets and Liabilities, if
required by the court, and
(6) that the learned District Munsif cum Judicial Magistrate,
Srirangam, Tiruchirappalli District, is hereby directed to complete the
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exercise of such re trial within three months from the date of receipt of
this order. Consequently, connected miscellaneous petition is closed.
16-10-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
GNS
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To
The District Munsif Cum Judicial Magistrate Court,
Srirangam.
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CRL RC(MD) No. 1071 of 2025
B.MURUGESAN, J.
GNS
Pre-Delivery order made in
CRL RC(MD) No. 1071 of 2025
16-10-2026
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