Basappa and Others vs Dyamawa and Others

B. Veerappa, J.

Both these RPFCs are filed against the judgment and order dated 09.07.2014, in Crl. Misc. No. 230/2013, on the file of the Principal Judge Family Court at Gadag, partly allowing the petition filed by the wife under Section 125 of the Code of Criminal Procedure.

RPFC No. 100113/2014 is filed by the husband against the said order of granting maintenance of Rs. 4,000/- p.m. whereas RPFC No. 100015/2015 is filed by the wife for enhancement of maintenance.

The parties are referred to as they are referred to in RPFC No. 100015/2015, filed by the wife, for the sake of convenience.

The brief facts of the case are:

The case of the petitioner/wife before the Family Court is that she is the legally wedded wife of the respondent and their marriage was solemnised about 40 years back as per the Hindu customs and rituals prevailed in their community at the time of marriage. The parents of the petitioner/wife have given Rs. 10,000/- towards Varopachar and they have also given watch and cloths to the respondent/husband. The petitioner has lead happy marital life with the husband and out of their wedlock, a daughter was born by name Basavva and thereafter, respondent/husband started harassing the petitioner stating that she has given birth to a daughter and not to a son and he used to abuse her and she used to bear inhumanity. Inspite of the same, respondent has contracted second marriage with an intention that the petitioner will never give birth to a male child and hence, thrown her out of the house. He has not made any arrangements for her maintenance and her daughter, till today.

She also contended that she is staying in her elder brother''s house and respondent has not made any arrangement for maintenance and she has been maintaining her daughter at the mercy of her brother. Inspite of several requests made by the petitioner to help the marriage of her daughter, respondent has not helped to perform the marriage of his daughter. Therefore, the petitioner alone celebrated the marriage of her daughter with the assistance of her elder brother. It is also contended that the petitioner is now aged and she is not in a position to do any work. Her elder brother is aged and he is not in a position to support her. The respondent has got the obligation to maintain the petitioner, as she is the legally wedded wife. Inspite of the advise of the elders and well-wishers in March 2013, respondent stoutly refused and he has not given any respect to the elders and he has abused them in filthy language and refused to maintain the petitioner. It is also the case of the petitioner that she requires at least Rs. 8,000/- per month. for her maintenance. Respondent is having 11 acres of fertile land and is getting income of more than Rs. 5,00,000/- per annum. In addition, he is running a diary and also owning a tractor and earning more than Rs. 2,00,000/- per annum. from milk vending. Hence, respondent is having capacity to pay the maintenance. Therefore, she filed the petition for maintenance before the Family Court.

After receipt of notice from the Family Court, the husband filed statement of objections denying the very relationship between himself and petitioner. It is the case of the respondent/husband that the allegation made in the petition are all false and far from truth. He has specifically contended that the petitioner is not at all the legally wedded wife. He has not married the petitioner about 40 years back as stated by her. Therefore, question of receiving any Varopachara, watch and clothes does not arise. He has also denied the birth of a daughter by name Basavva and his specific case is that he has married one Gangavva and he has got two children; records reveal that the petitioner is the wife of one Basappa Nukapur and not his wife. The petitioner has created a story colluding with the ill-wishers of the family and succeeded in creating voters list and other documents recently, by showing the name of respondent. When the petitioner is not at all the wife of respondent, there is no obligation or duty to provide maintenance to her. Therefore, he prays for dismissal of the petition.

Upon considering the pleadings, the Family Court framed the following points for consideration:

"1. Whether the petitioner proves that she is legally wedded wife of the respondent and their marriage was solemnised about 40 years back as per the customs prevailed in their community?

Whether the petitioner proves that she has lead marital life with the respondent for more than 8 years and she gave birth to a daughter namely Basavva?

Whether the petitioner proves that the respondent has taken a second wife by name Gangavva and thrown out this petitioner and her daughter about 35 years back and he has completely neglected and deserted the petitioner and her daughter?

Whether the respondent proves that the petitioner is in no way related to him and the petitioner is not his wife and he is having a wife by name Gangavva and he has got three children and leading his matrimonial life with Gangavva?

Whether the petitioner is entitled for a monthly maintenance of Rs. 8,000/- and litigation expenses of Rs. 5,000/- from the respondent?

What order?"

In order to establish her claim, petitioner/wife examined as PW-1 and two more witnesses as PWs-2 and 3, and got marked documents Exs. P-1 to 8. On the other hand, inspite of grant of sufficient opportunity, respondent/husband did not adduce any oral or documentary evidence. Though he has appeared before the Court, he has not cross-examined PWs-1 to 3.

After considering the entire material on record, the Family Court, by the impugned order dated 09.07.2014, allowed the petition in part, granting maintenance of Rs. 4,000/- per month to the wife, from the date of filing of the petition.

Against the said order, these revision petitions are filed by the petitioner/wife for enhancement and respondent/husband for setting aside the order of grant of maintenance, as stated above.

Heard the learned counsel for the parties to the lis.

Sri. H.N. Gularaddi, learned counsel for the husband, who is the petitioner in RPFC No. 100113/2014 has contended that the impugned order passed by the Family Court granting Rs. 4,000/- is illegal and contrary to law; when the marriage itself is in dispute, question of granting maintenance to the wife does not arise; he has also contended that respondent is married to one Gangavva and got three children. Respondent never married Dyamavva as his wife. Therefore, question of granting maintenance does not arise. Therefore, he has sought for setting aside the order of the Family Court.

Sri. Chandrashekhar P. Patil, learned counsel for the wife, who is the petitioner in RPFC No. 100015/2014, sought to justify the impugned order passed by the Family Court and prayed for enhancement of maintenance amount.

I have given my thoughtful consideration to the rival contentions urged and perused the entire material on record, including the original records from the Family Court.

Though, the learned counsel for the respondent/husband disputed the very marriage itself between the parties, earlier the Family Court, after considering the entire material on record, has granted interim maintenance of Rs. 3,000/- per month to the wife by an order dated 25.11.2013 on I.A. No. II in Crl. Misc. No. 230/2013, wherein the Family Court, has specifically recorded a finding at paragraph Nos. 10 and 11 and held that the petitioner is the legally wedded wife of the respondent, which reads as under:

"10. The respondent has specifically denied the very relationship between himself and the petitioner. The petitioner in order to prove her contention has produced before the court the copy of the Election Identity Card issued by the Election Commission of India in the year 1995. The Election ID. Cad clearly discloses that the petitioner name is shown as Belen Dyamawa and the husband name is shown as Basappa. The same was issued on 4/9/1995. If really the petitioner is not the wife of the respondent the husband name of the petitioner was not shown as Basappa in the Election Identity Card. It is also the contention taken by the respondent that he is married and his wife name is Gangavva and he has got children by name Hanamappa, Laxmawa and Vasantgeeta. It is the case of the respondent that the petitioner is wife of one Basappa Nukapur. The petitioner has also produced the "Adhaar" acknowledgment issued by the Government. The petitioner has given her complete name as Dyamawa Basappa Beleri. Her father name was given as Ramanna. I have gone through the Identity Card produced by the respondent and his alleged wife Gangavva. The Identity Card was issued by the authorities on the same day on 4/9/1995. The name of the alleged wife of the respondent is shown as Beleri Gangawa and the name of her husband is shown as Basappa. If really the petitioner is wife of one Basappa Nukur nothing prevented the respondent from producing the document before the Court. The petitioner is a rustic villager and she cannot create any document alleging that the respondent is her husband. If really the petitioner is not at all the wife of the respondent he would have taken any action against the petitioner for showing his name in identity card as husband of this petitioner. The Identity Card was issued in the year 1995 when there was no dispute between the petitioner and the respondent. The acknowledgment issued by the Govt. of India was on 10.06.2012. The petitioner has filed this petition in June 2013. All the documents produced by the petitioner were issued before filing of this suit. If really the petitioner has misused the name of this respondent as her husband and if petitioner is a stranger to the respondent he would not leave the petitioner and he would have taken serious action against the petitioner. If really the respondent has taken any serious action against the petitioner nothing prevented him from producing the document before the Court.

The petitioner has also produced genealogy tree issued by the Village Accountant and it clearly discloses that the petitioner is a 1st wife of the respondent and he is also having another wife by name Gangavva. As per genealogy tree the petitioner is having only one daughter namely Basavva and the 2nd wife of the respondent is having 3 children. If really the documents produced by the petitioner are all created and the petitioner is a stranger to the respondent, the respondent would have taken serious action against the petitioner. The petitioner is an illiterate and having no worldly knowledge and she has no capacity to create any documents. The only contention taken by the respondent that the petitioner is not at all his wife. The court has to consider only the relationship between the parties and the means of the parties at the time of disposing of the interim application for maintenance. At this stage the petitioner has produced sufficient materials before the court to show that she is wife of the respondent. The documents produced by the petitioner are all public documents. It is not the case of the respondent that the petitioner has obtained all these documents by giving false information to the concerned authorities. If really the petitioner has given false information to the concerned authorities nothing prevented the respondent from taking any action against the petitioner. The respondent has not at all taken any action till today against the petitioner. Under these circumstances it is clear that the petitioner is wife of the respondent."

Against the said order passed by the Family Court, the petitioner filed Criminal Misc. No. 100070/2014 before this Court, which was represented by the same counsel who is representing the respondent/husband herein and this Court, after considering the entire material on record, by its order dated 27.01.2014, was pleased to dismiss the petition. The learned Single Judge, while confirming the order passed by the Family Court, has specifically recorded a finding at paragraph No. 3, holding that the petitioner is the wife of the respondent and the said finding has become final and conclusive. Paragraph No. 3 of the said order reads as under:--

"3. I have carefully perused the affidavit of the wife and also the orders passed by the trial Court. The trial Court at paras 10 to 13 considered all the documents produced by wife and also the husband and also considered the objections taken up by the petitioner herein. The learned trial Judge has specifically stated that the identity card issued by the competent authority on 04.09.1995 in favour of the wife, reveals her husband''s name as Basappa of the same village. It is argued by petitioner''s counsel that if really the petitioner is the wife of Basappa Nukapur, it would have been mentioned in the document as Basappa Nakapur instead of Basappa. It is also observed by the Court that the petitioner has not challenged this identity card at any point of time earlier. Learned counsel contends before this Court that said identity card is challenged now. It is submitted that the said document has been challenged before the Deputy Commissioner concerned, but no order is yet passed. Under the above said circumstances, when tentatively the Court has come to the conclusion that on the basis of affidavit as well as the document produced by the wife and no document has been produced to show that she is not the wife of the petitioner herein, in my opinion the order of the trial Court cannot be interfered with at this stage. When the order of the trial Court is passed on factual matrix and as well supported by the documents, in my opinion such order cannot be interfered with. At the threshold itself in my opinion this petition is not maintainable and this is not a fit case for admission. Hence, at this sage itself without admitting the matter, the petition deserves to be dismissed."

The Family Court, while deciding the main matter, by the impugned order herein, has recorded a specific finding at paragraph No. 29 that the petitioner is the wife of the respondent and he got one daughter namely, Basavva, which reads as under:

"29. The Ex. P1 produced by the petitioner clearly discloses that the petitioner is the 1st wife of the respondent and the respondent is also having another wife by name Gangavva. As per Ex. P-1 the petitioner is having only one daughter namely Basavva and the respondent is having 3 children from his second wife. The petitioner who is an illiterate lady has no worldly knowledge and has no capacity to create any documents. If really the documents produced by the petitioner are all created and she has filed this petition only to grab money from the respondent he would have taken action against the petitioner. The respondent has not taken any action against the petitioner till today. If really the petitioner has given false information to the concerned authorities for obtaining Adhar and also election Identity Card Ex. P-6 and 7, nothing prevented the respondent form giving or lodging any complaint against petitioner before the concerned authorities to initiate action against the petitioner. The respondent has not at all taken any action against the petitioner till today. Under these circumstances, it is clear that the petitioner is the wife of the respondent and he has got one daughter from the petitioner namely Basawa."

Therefore, in view of the categorical findings recorded by the Family court, while deciding the case, the interim order granting maintenance of Rs. 3,000/- p.m. and the same was confirmed by this Court in the Crl. Petition No. 100070/2014, stated supra, there is concurrent finding of fact on three occasions by the Family court as well as by this Court, that the petitioner is the legally wedded wife of the respondent and the said finding is final and conclusive. Therefore, the contention raised by the respondent/husband in his petition is untenable.

With regard to the grant of maintenance, the petitioner/wife examined as P.W. 1 has categorically stated that the respondent/husband is having 11 acres of fertile land and he is getting more than Rs. 5,00,000/- per annum income. In addition to this, he is running milk dairy and also owning a tractor and earning more than Rs. 2,00,000/- from milk vending. Though the husband filed objections, he has not adduced any evidence nor produced documents contrary to oral evidence and documents produced by the wife. The Family Court considering the contentions and the documents relied and on appreciation of entire oral and documentary evidence has come to the conclusion that the respondent/husband is owning 7 acres of land in Sy. No. 620/1B and about 4 acres 15 guntas of land in Sy. No. 694/1 at Lakkundi village and he has changed khatha in the name of his sister in respect of Sy. No. 694/1, as per RTC extracts Ex. P.2, P.3 and P.4 and also recorded a finding that the husband is owning a house at Lakkundi as per Ex. P.5 and taking into consideration the entire material on record, the Family Court granted maintenance of only Rs. 4,000/- per month, which is inadequate as per contentions raised by the wife by filing RPFC. 100015/15 before this Court. It is her contention that, in view of high cost of living and rise of price of essential commodities in the market, Rs. 4,000/- maintenance granted by the trial court is insufficient. The petitioner states that she is aged 59 years as on today and at this stage, she has to spend more amount towards her medical expenses. Taking into consideration the circumstances of the case and the financial capacity of the husband, I am of the considered opinion that it is a fit case to grant another sum of Rs. 2,000/- in addition to Rs. 4,000/- already granted by the Family Court. Thus, in all wife is entitled to maintenance of Rs. 6,000/- per month from the date of filing of the Revision Petition before this Court.

It is also relevant to state in spite of the orders passed by the Family Court on 25.11.2013, granting maintenance of Rs. 3,000/- per month and same was confirmed by this Court on 27.1.2014 in Crl. P. 100070/14, the respondent/husband has not paid a single pie to the petitioner/wife. It is also observed by the Family Court in the present impugned order that the conduct of the respondent clearly discloses that he has subjected the petitioner to utmost cruelty and he has thrown her out of the family and he has not made any arrangement for the maintenance of the petitioner and her daughter. It is stated by the petitioner that now her daughter is married and the respondent has not paid a single pie to meet the expenses of her daughter''s marriage, and the petitioner has celebrated the marriage with the assistance of her elder brother. The petitioner states that as on today the respondent/husband is due in a sum of Rs. 70,000/- towards arrears of maintenance.

This Court by its order dated 30.01.2015 in RPFC No. 100113/2014 had directed the Registry to secure records from the Family Court and the petitioner was specifically directed to deposit the arrears as ordered by the Family Court within two weeks from the date of the order. Inspite of the said order, till today the respondent/husband has not deposited a single pie. The conduct of the respondent-husband clearly depicts that he is not only cheating his wife by depriving her of maintenance and he has also dared to disobey the orders passed by the Family Court as well as this Court and the conduct of the respondent is nothing but utter violation of provisions of Section 125 of Cr.P.C. It is also to be noted that the respondent has gone to the extent of denying the relationship of the petitioner as his wife and till today he is maintaining the same attitude even though the said statement was negated by the Family Court and confirmed by this Court in earlier occasion. Therefore, taking into consideration the entire material facts and circumstances of the case, it is a fit case to dismiss RPFC No. 100113/2014 filed by the husband with costs and to allow RPFC No. 100015/2015 filed by the wife.

Accordingly, I pass the following:

ORDER

"RPFC No. 100113/2014 filed by the husband is dismissed with costs of Rs. 10,000/- payable by the husband to the wife. In view of disposal of main matter, I.A. No. 1/2014 does not survive for consideration.

RPFC No. 100015/2015 filed by the wife is allowed in-part. The impugned order passed by the Family Court in Crl. Misc. No. 230/2013 is modified and the petitioner/wife is entitled to maintenance of Rs. 6,000/- per month (Rupees Six Thousand only) from the date of this petition and the respondent/husband shall continue to pay the said amount without fail and shall pay the entire arrears of maintenance within four weeks, failing which the wife is at liberty to execute the decree and seek charge on his immovable property."