Honnuramma vs Allalli Pakkeer Sab

B. Veerappa, J—The wife filed the above petition against the order dated 29.08.2013 made in Criminal Misc. 9/2013 on the file of the Principal Judge, Family Court, Bellary rejecting her claim petition under Section 125 of the Code of Criminal Procedure.

It is the case of the petitioner that she is legally wedded wife of the respondent and their marriage was performed on 23.09.1973. After their marriage she came to the house of the respondent and started to live there. Out of their wedlock, a mail child was born by name Honnursab @ Gidda Honnursab. Thereafter, the respondent started ill-treating her and was abusing and beating her mercilessly and sent her out of the matrimonial house. He was abusing and beating her mercilessly and ultimately driven her out of the matrimonial house. Thereafter, she was residing in her parental house. She further contended that the respondent got married second time with one Shaikamma and out of said wedlock, he had 8 children. He did not make any arrangement for the livelihood of petitioner though he was having 12 acres of agricultural land, two houses at Itagi village, sufficient cash and gold jewels in his possession. Though the petitioner for their re-union conveyed several panchayats, all went in vain and hence, as she is having no income, the respondent is bound to maintain her, etc.

In response to the notice issued by the Family Court, the respondent/husband filed objections denying all the allegations. However, he admitted that the marriage with the petitioner was solemnised on 23.9.1973. He had also denied in regard to the petitioner delivering one male child by name Honnursab @ Gidda Honnursab out of their wedlock. He also contended that the petitioner was found having some illicit relationship and on the very first night itself the respondent came to know that the petitioner was already pregnant before the marriage and there was no relationship between him and the petitioner. Hence, contending that she has voluntarily left the matrimonial house and is staying separately for more than 30 years to the date of filing of the petition and therefore, she is not entitled to claim any maintenance from him, etc., sought for dismissal of the petition.

In order to establish the claim, the wife examined herself as P.W. 1 and two witnesses as P.Ws. 2 and 3 and got marked the documents Exs. P. 1 to 6 and respondent as R.W. 1 and a witness as R.W. 2. No documents are marked on behalf of the respondent.

The family Court on the basis of the material on record dismissed the maintenance petition mainly on the ground that since the petitioner/wife did not claim any maintenance for more than 25 years and hence, this itself shows that she is not in need of any maintenance to be paid by the respondent. Aggrieved by the same, the present revision petition is filed by the wife.

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

Sri Rajshekar Gunjalli, learned Counsel for the petitioner/wife contended that the impugned order passed by the Family Court rejecting maintenance petition of the wife is erroneous and contrary in law and the same is against the very intention and object of Section 125 of the Code of Criminal Procedure (for short hereinafter referred to as ''the Cr.P.C.'') and if the wife is unable to maintain herself, she is entitled to claim maintenance. He further contended that the ground, on which the Family Court has rejected the claim that the wife has not claimed any maintenance from the husband for more than 25 years, is not a ground to reject the claim in view of the mandatory provisions of Section 125 of Cr.P.C. Therefore, he sought for setting aside the impugned order passed by the Family Court.

Per contra, learned Counsel Sri Hanumanthareddy Sahukar appearing for the respondent sought to justify the impugned order contending that the petitioner has deserted the husband voluntarily and therefore, she is not entitled for any maintenance under the provisions of Section 125(4) of the Cr.P.C.

I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.

It is an admitted fact that the marriage between the petitioner and respondent was solemnized on 23.9.1973 and out of their wedlock, a male child by name Honnursab @ Gidda Honnursab was born (though it was disputed by the respondent/husband). It is specifically averred by the petitioner/wife examined as P.W. 1 that the respondent/husband is having 12 acres of agricultural land, two houses at Itagi village, sufficient cash and gold jewels in his possession and inspite of several panchayats being held for rejoining him, all went in vain. The family Court ignoring the entire material on record has erred in observing that P.W. 1 has admitted that neither she has filed any complaint against the respondent alleging ill-treatment nor any petition claiming maintenance which infers that the petitioner has left the matrimonial home voluntarily and she is residing separately without claiming maintenance as she is capable of maintaining herself. Therefore, the Family Court rejected the claim petition of the petitioner/wife. The Family Court while considering the evidence on record did not advert to the averments made in the petition, evidence of P.Ws. 1 and 2 and material documents - Exs. P. 1 to P. 6 and hence, committed an error in rejecting the claim petition.

P.W. 1 in her cross-examination has specifically denied as to the suggestion put to her that after leading the marital life with her husband/respondent for two years, she went to her parental house at Hale Nelludi village. P.W. 1 further denied the suggestion that she did not lead the marital life with her husband and has voluntarily left the matrimonial house. In the examination-in-chief, she has specifically stated that because of the ill-treatment by the respondent and throwing her away from the matrimonial house, she is residing in her parental house.

P.W. 2 also has stated that the marriage was solemnized between the petitioner and the respondent.

R.W. 1 in his cross-examination has admitted that the petitioner is his wife and also that the marriage was solemnized between him and the petitioner with the consent of both the parents. He has also stated in the cross-examination that he is not aware of any illicit relationship of the petitioner with other person and he has not produced any material document to prove the same. He has also admitted that during the marital life of the petitioner, he had already got the 2nd marriage without her consent. The material documents produced by the petitioner - Ex. P. 1 to P. 6 - record of rights, copy of the legal notice and reply notice clearly indicate that the Family Court without considering both oral and documentary evidence available on record proceeded to pass the impugned order only on the basis of assumption and presumption that the petitioner has neither lodged any complaint against the respondent about the ill-treatment nor filed any petition claiming maintenance. Therefore, the Family Court presumed that since the petitioner is residing separately without claiming maintenance, she is capable of maintaining herself. The said presumption of the Family Court is contrary to the provisions of Section 125 of Cr.P.C.

Section 125 of Cr.P.C., refers to an order for maintenance of wife, children and parents and if any person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, or his legitimate or illegitimate minor child. In the present case, the respondent/husband has not produced any material documents before the Court to show that the petitioner is capable of maintaining herself and has left voluntarily the matrimonial home. Therefore, the contention of the learned Counsel for the respondent that she has left voluntarily the house of the matrimony and hence, she is not entitled for maintenance under Section 125(4) of Cr.P.C., cannot be accepted.

The Hon''ble Supreme Court while considering the provisions of Section 125 of Cr.P.C., in the case of 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 has held as under:

"8. In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Shri Bhagwan Dutt Vs. Smt. Kamla Devi and Another, AIR 1975 SC 83 : (1975) CriLJ 40 : (1975) 2 SCC 386 : (1975) 2 SCR 483 it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression ''unable to maintain herself'' does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C."

In a latest decision, the Apex Court while considering the provisions of Section 125 of the Cr.P.C., in the case of Bhuwan Mohan Singh Vs. Meena, AIR 2014 SC 2875 : (2014) AIRSCW 4201 : (2014) 8 JT 359 : (2014) 8 SCALE 573 has held as under:

"2. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short "the Code") was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. 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 her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds."

In the present case, the respondent except denying the relationship of son, had admitted the marriage and relationship between him and the petitioner. But the evidence adduced by the petitioner as P.W. 1 and witnesses P.Ws. 2 and 3 clearly indicate that the marriage between the petitioner and respondent was solemnized on 23.9.1973 and out of their wedlock, a male child was also born by name Honnursab @ Gidda Honnursab and the material documents Exs. P. 1 to P. 4 - record of rights, indicate that the respondent/husband is having agricultural lands and Ex. P. 5 - a copy of the legal notice issued by the petitioner calling upon the respondent to allot legitimate share as well as the evidence of P.W. 1 states that apart from 12 acres of agricultural lands, the respondent is also having sufficient cash and gold jewels in his possession. The respondent/husband has not denied the fact that he owns several agricultural lands and he has the capacity to maintain his wife/petitioner. All these material facts have been ignored by the Family Court.

Taking into consideration the entire material documents on record, the impugned order passed by the Family Court is bad in law and contrary to the very object of the provisions of Section 125 of Cr.P.C. Therefore, the petitioner is entitled for maintenance from the respondent.

As already stated above, the Hon''ble Supreme Court in the case of Bhuwan Mohan Singh stated supra has held that 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 her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband.

In view of the aforesaid reasons, considering both oral and documentary evidence on record and taking into consideration the price raise of all the essential commodities, this Court is of the opinion that the petitioner/wife is entitled to a sum of Rs. 3,000/- per month from the respondent as maintenance from the date of petition. Hence, the respondent/husband is directed to pay maintenance to the petitioner/wife.

Accordingly, this revision petition is allowed and the impugned order passed by the Family dated 29th August, 2013 is set aside.