Ishappa Tippanna Korawar vs K. Manjunath and Others

B. Veerappa, J.

This revision petition is filed by the petitioner who is the father of the respondent Nos. 1 and 2 challenging the order passed by the Family Court on 27.01.2014 made in Crl.Misc. No. 70/2012 by allowing the petition under the provisions of Section 125 of Cr.P.C. granting maintenance of Rs. 5,000/- each per month to the petitioner Nos. 1 and 2 from the date of petition till they attain majority or until further orders.

For the sake of convenience, the parties are referred to as per their ranking before the Family Court.

The respondents who are the petitioners before the Family Court filed Crl.Misc. No. 70/2012 under the provisions of Section 125 of Cr.P.C. against the respondent-father seeking maintenance of Rs. 10,000/- each per month and Court cost alleging that they are the children of the present respondent/petitioner. The mother of the respondent Nos. 1 and 2 - Smt. Huligemma W/o. Ishappa Koravar has expired on 23.03.2011, leaving behind the petitioners as her minor sons and a daughter by name K. Netravathi who is now married. The respondent/petitioner had refused, deserted and neglected his wife who is the mother of the petitioners 1 and 2. The respondent-father was having illicit relationship with a lady by name Channamma and he is addicted to bad vices. Hence, there was a dispute between the mother of the petitioners 1 and 2 and the respondent. The mother of the petitioners, along with the petitioners and Smt. K. Netravathi had filed a Crl.Misc.58/2008 before the Family Court, wherein the Family Court pleased to pass an order for interim maintenance of Rs. 1,000/- each of the petitioners in Crl.Misc. No. 58/2008, but the respondent i.e., the present petitioner with deliberate intention did not comply with the said interim order by not paying single pai towards the interim maintenance and he dragged the proceedings. In the meantime, the mother of the petitioners 1 and 2 - Smt. Huligemma has expired on 23.03.2012. Thereafter, at the intervention of the elders the petitioners and the respondent have entered into compromise and a compromise memo was filed in Crl.Misc. No. 58/2008. In the said compromise memo the petitioner herein had agreed to look after and take care of the welfare of his sons i.e., petitioners 1 and 2 and accordingly, the said case came to be disposed of as settled out of Court. That as per settlement, the respondent on the advise of the elders, had kept Rs. 50,000/- each in Fixed Deposit in the name of the petitioners 1 and 2 with IDBI Bank, Sandur. But unfortunately within the period of one month after the Fixed Deposit, the respondent has illegally withdrawn the entire R.D. amount kept in the name of minors i.e., petitioners 1 and 2 without any legal necessity for the minors and immediately he driven out the minor sons i.e., the petitioners 1 and 2 from his house at the instigation of his kept mistress and now the petitioners 1 and 2 are under the care and custody of their maternal uncle i.e., the brother of their mother Sri. Ramanna Hiligeppa Siddapur.

The petitioner who was respondent before the Family Court has filed his objections to the main petition. Based on the pleadings, the Family Court framed the following issues:

"1. Whether the petitioners prove that the respondent has willfully neglected and refused to maintain the petitioners though he is having sufficient income?

Whether the petitioners are unable to maintain themselves?

Whether the petitioners are entitled for maintenance? If so, on what quantum?

What order?"

In order to establish their case, the petitioners 1 and 2 have examined their maternal uncle guardian Sri. Ramanna Hiligeppa Saidapure as PW1 and produced the documents marked Exs. P1 to P10. On the other hand, the respondent i.e., present petitioner has not adduced any oral or documentary evidence.

After considering the entire material on record, the Family Court recorded a finding that the sons petitioners 1 and 2 proved that the respondent-father i.e., present petitioner has fully neglected and refused to maintain the petitioners. Though, he is having sufficient income and the petitioner Nos. 1 and 2 are unable to maintain themselves, since they are minors and accordingly granted a sum of Rs. 5,000/-each of the petitioners 1 and 2 from the date of petition till they attain majority or until further orders. Against the said order, the present RPFC is filed by the petitioner-father.

Sri. R.M. Javed, learned counsel for the petitioner has specifically contended that the petitioner is suffering from HIV positive decease and he has been removed from service. Therefore, he is unable to maintain the petitioner Nos. 1 and 2 and also unable to comply with the order.

Though the respondents served, remained un-represented.

It is most unfortunate that it is a case where the father has no concern with his own sons and because of his harassment, his wife is also died on 23.03.2011 and the material on record also discloses that the present petitioner having illicit relationship with another lady by name Channamma as urged by the respondent Nos. 1 and 2 (before the Family Court). No material is produced to show that the petitioner was suffering from HIV positive decease and has been removed from service and admittedly the order was passed by the Family Court in Crl.Misc. No. 58/2008 granting maintenance of Rs. 1,000/- each of the sons i.e., petitioner Nos. 1 and 2, the same was not complied and subsequently in view of the compromise entered into, the petitioner/respondent-father has deposited Rs. 50,000/- each in Fixed Deposit in the name of petitioner Nos. 1 and 2. But unfortunately within the month the respondent-father has illegally withdrawn the said R.D. The finding of fact recorded by the Family Court clearly indicates that the petitioner-father was getting Rs. 35,000/- per month. The evidence of PW1 and the material document produced by the petitioners i.e., Exs. P1 to P10 clearly depicts that the petitioner-father having a responsible post in NMDC Company, which is a Government of India Undertaking, working in Sandur of Bellary District drawing monthly salary of Rs. 35,000/- and apart from this he is having income from the immovable properties and he is capable to pay maintenance to the petitioners/respondent Nos. 1 and 2. The said evidence not at all challenged by the petitioner by producing any contra evidence. Therefore, the Family Court has held that it is the bound and duty of the father to maintain his minor childrens.

The previsions of Section 125 of Cr.P.C. deals with the maintenance of wives, children and parents, which reads as under:

"125. Order for maintenance of wives, children and parents, (1) If any person having sufficient means neglects or refuses to maintain--

(a) his wife, unable to maintain herself or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means

Explanation-For the purposes of this Chapter--

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried

[(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses proceeding, as the case may be.]

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any port of each month''s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing

Explanation-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife''s refusal to live with him.

(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."

The said provision makes it clear that it is bound and duty of the father or husband to maintain his wife and children and the aid provision is a measure of social justice extended to protect women and children, the object to prevent vagrancy and destitution. Therefore, it is the duty of the petitioner who is the father of the minors-respondent Nos. 1 and 2 to maintain till they attain majority, that is what the Family Court in the impugned order has recorded. It is mandatory on the part of the petitioner-father to maintain his minor children. It is also cleared from the records that the petitioner being the father of the respondent Nos. 1 and 2 failed to discharge his obligation towards his sons and he is not providing basic needs like food, shelter, clothing, education and medicine to the respondent Nos. 1 and 2 and they are living under the mercy of their maternal uncle who is aged about 60 years. In view of the same, it is a fit case to dismiss the petition with exemplary cost.

In view of the aforesaid reasons, the impugned order passed by the Family Court dated 27.01.2014 is in accordance with law and no interfere is called for to exercise revisional jurisdiction by this Court under the provisions of Section 19(4) of the Family Courts Act, 1984.

Accordingly, this RPFC is dismissed with cost of Rs. 10,000/-.