Chikkahonnaiah vs Siddagangamma and Others

A.N. Venugopal Gowda, J.—Marriage of the petitioner with the first respondent was solemnized on 09.06.1996. The spouses are blessed with three sons. A petition was filed by the respondents under S. 125 Cr.P.C, to grant maintenance. Parties having deposed, considering the record of the case, petition was allowed, directing the petitioner to pay Rs. 1000/- per month to his wife and Rs. 800/- each to his sons, from the date of filing of the petition. The petitioner preferred Revision Petition under S. 397 of Cr.P.C, assailing the said award. The same having been dismissed on 01.10.2012, this petition was filed to set aside the said orders.

Sri S. Nagaraja, learned advocate, firstly contended that the first respondent, living in adultery, cannot claim maintenance from the petitioner. Secondly, the sum awarded in her favour considering the fact that the petitioner is an agriculturist and has no assured income, is highly excessive. Learned counsel submitted that the Courts below having failed to properly appreciate the record of the case, impugned orders being perverse, are liable to be set aside.

Sri K.R. Anantha Murthy, learned advocate for the respondents, on the other hand by referring to the record of the proceeding in Crl.Misc. No. 149/2004 on the file of Prl. JMFC, Kunigal, submitted that the entire record having been correctly appreciated by both the Courts below, the impugned orders do not call for any interference in exercise of power under S. 482 of Cr.P.C. Learned counsel made submissions in support of the findings recorded in the impugned orders and sought dismissal of the petition.

The allegation of the petitioner that the respondent No. 1 is living in adultery and hence, is not entitled to maintenance has been considered by the learned Magistrate and finding that except his mere self-serving testimony, there is no other material to prove the allegation, was not accepted. M.C. No. 12/2004 filed by the petitioner in the Court of Senior Civil Judge, Ramanagar, Bengaluru Rural District has stood dismissed. Learned advocate for the petitioner fairly conceded that the allegation of adultery was not raised as a ground in M.C. No. 12/2004. The said contention having been reiterated has been held as devoid of merit by the learned Sessions Judge. In view of the concurrent findings recorded by both the Courts below, the first contention of the petitioner that the respondent No. 1 is leading an immoral life, should fail, in as much as, Sri S. Nagaraja was unable to point out any material from the record of the case, which has not been considered and findings recorded.

Record shows that on account of the compelling circumstances, respondents moved away from the petitioner. The evidence of PW.1 shows that in S.C. No. 264/2002, there is a finding of guilt against the petitioner for the offence punishable under S. 326 of IPC i.e., for causing hurt to PW.1. Since there was threat to her life from the petitioner, she has justifiable reasons to live along with children, separately, from the petitioner.

In Chaturbhuj Vs. Sita Bai, AIR 2008 SC 530 : (2008) 105 CLT 729 : (2008) CriLJ 727 : (2008) 1 DMC 22 : (2008) 1 JT 78 : (2008) 149 PLR 263 : (2007) 3 SCALE 402 : (2008) 2 SCC 316 : (2007) 12 SCR 577 , grant of maintenance to wife was perceived as a measure of social justice by the Apex Court. It was held that object is to prevent vagrancy and destitution and that S. 125 Cr.P.C. provides speedy remedy for supply of food, clothing and shelter to the deserted wife.

With regard to the second contention advanced by Sri S. Nagaraj, noticed supra, it is to be pointed out that the first respondent is not employed and has no sufficient means to take care of herself. Hence, the petitioner cannot be permitted to contend that on account of financial constraint, he is unable to provide maintenance to his wife i.e., as long as he is capable of earning. In this regard, it is appropriate to notice the decision in Chander Parkash Bodh Raj Vs. Shila Rani Chander Prakash, AIR 1968 Delhi 174 : (1968) CriLJ 1153 : (1969) 5 DLT 271 , wherein, it has been held as follows:

"An able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable to reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him."

The amount which has been awarded in favour of the first respondent/wife is meager and I do not find any justification to interfere with the same.

The first respondent being unable to maintain herself, which has stood established with the evidence placed on record before the learned Magistrate, has been rightly held as entitled to the award of maintenance. The amount awarded being meager and having also been upheld by the revision Court, no interference in exercise of powers under S. 482 of Cr.P.C. is permissible.

Sri S. Nagaraj, submitted that the petitioner is not questioning the award of maintenance to the respondent Nos. 2 and 3 - children of the petitioner. The submission stands recorded.

In the circumstances, the petition being devoid of merit is dismissed with costs. Advocate''s fee is quantified at Rs. 2,000/-.