Bandulal vs Sania and Others

Aravind Kumar, J.—Heard Shri T.M. Nadaf, learned counsel for petitioner and Shri Ram P. Ghorpade, learned counsel appearing for respondent. Perused the case papers.

Order passed by Family Court, Belgaum in Crl. Misc. No. 169/2007 dated 24.09.2009 along with petition filed by respondents under Section 125 Cr.P.C., whereunder respondent therein has been directed to pay maintenance of Rs. 2,000/- per month to wife and Rs. 1,000/- per month to each of petitioner Nos. 2 and 3 therein from the date of filing of petition i.e., 16.04.2007 has been called in question.

This litigation has pending for past five years and same is being postponed for being decided on one ground or other for the reasons attributable to the litigants themselves as is evident from the records namely order sheet of this matter would indicate that learned advocates after having taken time to arrive at an amicable settlement got the matter referred to Lok Adalath and before Lok Adalath a joint memo came to be filed on 26.08.2011. Pursuant to which matter was ordered to be listed before Court for recording the compromise and thereafter, certain difference of opinion is said to have arisen between parties, due to which compromise petition was not filed. Hence, matter has been listed for admission. From time to time, it has been adjourned for one reason or other. Hence, I have examined the order under challenge on merits by considering the contentions raised by respective learned Advocates.

It is the contention of Shri T.M. Nadaf, learned counsel appearing for petitioner - husband that 1st respondent - wife is in the habit of getting married quite often and after obtaining divorce or getting herself separated or recusing herself from discharging her marital obligations she would file petition seeking maintenance and as such, petitioner is not entitled and as such, he contends respondent No. 1 - wife would not be entitled for maintenance. He would elaborate his submission by contending that nikhanama produced along with memo would indicate that 1st respondent had got married on 01.10.2004 and as on the date of filing of present petition for maintenance, she was already married and as such, she would not be entitled for award of any maintenance. He would also make an alternate submission by contending that order under challenge is an ex parte order and though respondent No. 1 was aware that petitioner is a resident of Bangalore had got notice of service done at Dandeli and petitioner never stayed at Dandeli and no notice was served on him at all and as such, petitioner may be extended an opportunity to defend his rights and establish his plea before Family Court hence, he would pray for an order of remand being passed.

Per contra, Shri Ram P. Ghorpade, learned counsel appearing for respondents herein would support the order passed by Family Court and prays for dismissal of the petition.

As already noticed herein above, parties had arrived at a settlement by filing a joint memo before Lok Adalath and subsequently, it has been not been given effect to. Learned advocates had made a joint submission before this Court on 18.11.2011 that matter is not settled between parties and as such, this Court had directed listing of this petition for admission. There is no dispute with regard to relationship between parties. Hence, same is not discussed in this order, as it would be repetition of facts.

Out of wedlock between petitioner and 1st respondent herein, respondent Nos. 2 and 3 herein were born (twins) and in view of the uncontroverted evidence of wife about petitioner - husband having neglected to maintain his wife and children, Family Court has taken into consideration the financial capacity of the petitioner to pay maintenance and the landed properties owned by petitioner as evidenced from RTC extracts Ex. P-22 to Ex. P-25 to arrive at a conclusion that petitioner - husband is having sufficient income to pay maintenance to his wife and children. As such, taking into consideration these aspects maintenance has been awarded to wife @ Rs. 2,000/- per month and to each of the child a sum of Rs. 1,000/- per month. Award of maintenance insofar as children are concerned, it cannot be construed as either being excessive or exorbitant, in view of present day cost of living. I do not find any merit in the contention of Shri T.M. Nadaf to modify the order of maintenance awarded by Family Court in favour of children namely respondent Nos. 2 and 3 herein and same requires to be affirmed.

Insofar as maintenance awarded to wife is concerned, it would emerge from records that undisputedly, husband did not appear before Family Court and he did not file his statement of objections or contested the matter. Whatever be the reason, fact remains that there is no dispute with regard to relationship. The certified extract of nikhanama relating to 1st respondent produced by learned counsel for the petitioner along with a memo filed today would clearly indicate that 1st respondent herein namely wife had remarried on 01.10.2004 namely even as on the date of filing of present petition before Trial Court, she got married and signature found in said nikhanama has been compared by this Court with the signature found in the vakalatnama of 1st respondent as well as in joint memo that had been filed before the Lok Adalath, to arrive at a conclusion that there cannot be any dispute to the fact that signature found in the nikahanama is the signature of 1st respondent. In other words, it is to be necessarily held that even as on the date of filing of petition under Section 125 of Cr.P.C., 1st respondent - wife had already remarried and as such, she was not entitled to seek maintenance from petitioner herein.

In that view of the matter, order passed by the Family Court, Belgaum in Crl. Misc. No. 169/2007 directing petitioner to pay maintenance to 1st respondent herein @ Rs. 2,000/- per month cannot be sustained. Hence, the following order:

"ORDER

(i) Revision petition is hereby allowed in part.

(ii) Order passed by Family Court in Crl. Misc. No. 169/2007 insofar as awarding maintenance to 1st respondent herein is hereby set aside and award of maintenance granted in favour of respondent Nos. 2 and 3 stands affirmed.

(iii) Arrears payable, if any, shall deposited by the petitioner before the Jurisdictional Family Court within three weeks from today. Failure to make such deposit, respondent would be at liberty to take steps to recover the amount in accordance with law.

(iv) Respondent Nos. 2 and 3 would be at liberty to seek for enhancement of maintenance by filing a separate petition under Section 127 Cr.P.C."