Durudundeshwar vs Aarati and Others

B. Veerappa, J.

RPFC No. 348/2013 filed by the husband and RPFC No. 326/2013 filed by the wife and her son against the impugned order dated 27.6.2013 made in Criminal Misc. 48/2007 on the file of the Family Court, Belgaum granting maintenance of Rs. 2,500/- to the son/2nd petitioner and rejecting the claim of the 1st petitioner/wife.

It is the case of the wife and her son before the Family Court that the 1st petitioner is the legally wedded wife of the husband/respondent in RPFC 326/2013 and their marriage was solemnized on 20.12.2004. After the marriage, wife joined the respondent/husband to lead the marital life and out of their wedlock, 2nd petitioner/son was born. Thereafter he started demanding dowry from the parents of his wife. It was also contended that wife, her parents and elderly people tried to convince the respondent/husband not to resort to illegal demand of dowry. He kept quite for a month and thereafter, again he started demanding dowry of Rs. 50,000/- failing which she has to face dire consequences. Ultimately, the respondent/husband addicted to bad vices and during night hours he used to assault his wife mercilessly. Since petitioner No. 1/wife was working in Kasabekar Metgud Hospital, respondent/husband used to come to the hospital and look her in a suspicious manner thereby subjecting her to humiliation. Thereafter, on 13.12.2006 respondent/husband filed a petition in M.C. No. 181/2006 before the Family Court, Belgaum for divorce which was dismissed as withdrawn. Petitioner No. 1/wife has left the job and living separately due to mental agony since January 2006 and thereafter, she is not in a position to maintain herself and her son. Therefore, it is the obligation of the respondent to provide maintenance since he has willfully neglected them. Hence she has issued legal notice to the respondent/husband to pay monthly maintenance of Rs. 10,000/- for which the respondent/husband has issued a evasive reply. Therefore, she was constrained to file a petition.

Respondent/husband appeared before the Family Court and filed his objections. Except admitting the relationship between himself and petitioner Nos. 1 and 2, he denied all other averments contending that his wife/petitioner No. 1 is also earning and therefore, she is not entitled to any relief.

After considering the entire material on record, the Family Court by its impugned order dated 27th June, 2013 has granted maintenance of Rs. 2,500/- only to petitioner No. 2/son and rejected the claim of the wife/petitioner No. 1 on the ground that it is admitted by herself, she is getting the salary of Rs. 13,000/- per month against which order, the present revision petitions are filed.

I have heard learned Counsel for the parties to the lis.

Sri Hebballi, learned Counsel for the respondent/husband contended that the Family Court while granting maintenance has not considered both oral and documentary evidence and thereby has committed an error in passing the impugned order. Therefore, he sought for setting aside of the order passed by the Family Court granting Rs. 2,500/- to the 2nd petitioner/son without application of judicious mind.

Per contra, Smt. Hemalekha, learned Counsel for the wife and son contended that the Family Court has not assigned any proper reasons to grant only to petitioner No. 2 though the respondent/husband has neglected and refused to maintain both petitioner Nos. 1 and 2. The learned Counsel further contended that the Family Court has erred in awarding only Rs. 2,500/- to petitioner Nos. 2 which is inadequate. Therefore, she sought for enhancement of maintenance by modifying the impugned order passed by the Family Court.

I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties.

After considering both oral and documentary evidence, the Family Court has recorded a specific finding that the 1st petitioner/wife herself has deserted her husband and in view of her admission on oath as P.W. 1 that, she is getting a salary of Rs. 13,000/- per month, she is not entitled to any maintenance from her husband/respondent. Therefore, the finding recorded by the Family Court with regard to rejection of maintenance to the wife/1st petitioner is affirmed.

The only point that arises for my consideration in the present case is whether the Family Court was justified in granting maintenance of Rs. 2,500/- to the 2nd petitioner/son in the facts and circumstances of the case?

The relationship between the parties and out of their wedlock, 2nd petitioner/son - Pratik was born are not in dispute. Admittedly the 2nd petitioner was aged about 11 months at the time of filing of petition and as of now, he is aged about 8 years studying in St. Xavier School, Belgaum and expenses like the monthly fees, clothes, books for his education comes to Rs. 6,000/- to Rs. 8,000/- and yearly donation to the institution is Rs. 20,000/- as submitted by the learned Counsel for the 2nd petitioner during the course of arguments. He is still a minor and it is the duty of his father/petitioner in RPFC 348/2013, who is a legal practitioner/advocate to pay maintenance to his minor child and therefore, taking into consideration the cost of living as on today and the school expenses like education fee, clothes, books donation, etc., to be paid to the school and other things, the 2nd petitioner/son is entitled for enhancement.

In view of the provisions of Section 125 of Cr.P.C., it is the duty of the father to maintain his son, since the concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for his basic maintenance somewhere else. He is entitled in law to lead a life in the similar manner as he would have lived in the house of his father. That is where the status and strata come into play, and that is where the obligations of the father, become a prominent one. In a proceeding of this nature, the father cannot take subterfuges to deprive his son of the benefit of living with dignity.

Taking into consideration the oral evidence of P.W. 1 and the material documents - Exs. P. 1 to 22 and R. 1 to R4(a), I am of the considered opinion, that the 2nd petitioner/son is entitled to a minimum maintenance of Rs. 4,000/- per month for his day to day livelihood, school fees, books, clothes and other expenses which shall be paid by his father/petitioner in RPFC No. 348/2013 from 24.2.2012 when the matter was dismissed for default and was restored and he shall continue to pay the same till his son/petitioner No. 2 in RPFC No. 326/2013 attains majority.

Accordingly, revision petition filed by the father/petitioner in RPFC No. 348/2013 is dismissed and the revision petition filed by the 2nd petitioner/son in RPFC No. 326/2013 is allowed in part modifying the order passed by the Family Court.

However, it is made clear that the revision petition - RPFC No. 326/2013 filed by the 1st petitioner/wife is rejected confirming the order of the Family Court and she is not entitled to any maintenance.