J. Basavaraj vs Pushpavathi

K.N. Phaneendra, J.—The petitioner-husband has called in question the order dated 21/11/2014 passed in Criminal Misc. Case No. 111 of 2014 by the Family Court, Bellary, wherein the above said petition filed by the respondent-wife under Section 127 of the Code of Criminal Procedure seeking enhancement of maintenance from Rs. 1,000/- to Rs. 5,000/- per month, was allowed.

Sri. Gode Nagaraj, learned counsel appearing for the petitioner has strenuously contended that the respondent is a divorcee and the petitioner has secured divorce in a petition filed by him in Mat.C. No. 26 of 2003 on the file of I Additional Civil Judge(Senior Division), Bellary. The respondent-wife has not filed any petition and she has surrendered all her right to claim maintenance. He further submits that the conduct of the respondent has been strenuously considered by the Matrimonial Court and held that she is an irresponsible lady and therefore on that account itself, the petitioner-husband is entitled for divorce. The Family Court has not considered the earning capacity of wife; has also not properly considered the amount spent by the petitioner-husband for performing the marriage of his daughter and also has not properly taken into consideration the fact that the petitioner is taking care of his children. It is further contended that the Family Court, without appreciating the oral and documentary evidence on record in its proper perspective, has enhanced the maintenance amount and the same deserves to be quashed.

Despite due service, the respondent has remained absent.

After hearing the learned counsel for the petitioner, I have carefully gone through the material on record.

It is an undisputed fact that earlier, the respondent-wife had filed a petition for grant of maintenance under Section 125 of the Code of Criminal Procedure in Crl.R.P. No. 1 of 2007 on the file of III Additional JMFC, Bellary, and the said Court vide its order dated 10/10/2008 awarded an amount of Rs. 600/- per month as maintenance. The same was challenged by the respondent-wife before the Revisional Court in Crl.R.P. No. 1 of 2009 on the file of the Fast Track Court-I, Bellary, wherein the said Court has enhanced the maintenance amount to Rs. 1,500/- from Rs. 600/- per month. Being aggrieved by the said order, the petitioner-husband approached this Court in Criminal Revision Petition No. 2131 of 2010 and this Court by order dated 03/01/2013 by considering all the surrounding circumstances, reduced the maintenance amount to Rs. 1,000/- per month by modifying the order passed by the Fast Track Court-I Bellary in Crl.R.P. No. 1 of 2009. The respondent-wife, after a lapse of more than 5 years, has again filed a petition in the year 2014, seeking enhancement of maintenance before the Family Court, Bellary. The Family Court, Bellary, on considering the facts and circumstances of the case, allowed the petition by enhancing the maintenance amount to Rs. 5,000/- per month from Rs. 1,000/- per month. The respondent-wife/petitioner before the Family Court examined herself as PW-1 and produced 8 documents which were marked as Exs. P-1 to P-8. Exs. P-1 to P-4 are the certified copies of the judgment passed in Mat.C. No. 26 of 2013, Crl.M.C. No. 1 of 2007, Crl.R.P. No. 1 of 2009 and order passed by this Court in Crl.R.P. No. 2131 of 2010, respectively, which are already referred above. Ex. P5 and 6 are the certified copies of the order sheet and petition in Crl.M.C. No. 1 of 2011. Ex. P-7 is the record of rights pertaining to the petitioner therein and Ex. P-8 is the discharge summary of PW-1. The petitioner-husband/respondent therein examined himself as RW-1 and produced one document which was marked as Ex. R-1. Considering the facts, evidence and above said documents, the Family Court has come to the conclusion that the respondent-wife is entitled for enhanced maintenance and accordingly, allowed the petition and directed the petitioner-husband to pay an amount of Rs. 5,000/- per month instead of Rs. 1,000/- per month to the respondent-wife from the date of that order.

The argument of the learned counsel that the wife has forfeited her right of maintenance in the divorce petition and she is not entitled to claim maintenance, is not tenable, because Section 125 of the Code of Criminal Procedure is an independent provision which enables the wife or children to claim maintenance, if they are not able to maintain themselves. In this back ground, now the court has to see whether the respondent-wife has made out a ground for grant of maintenance as ordered by the Family Court, Bellary.

It is the contention of the petitioner-husband that the respondent-wife is a flower vendor and she is earning by vending flowers. But except taking such an averment, no material has been produced by the respondent before the Family Court. Though learned counsel submits that he may not get any documents to that effect, but the said fact has to be proved otherwise than documentary evidence. The Family Court has observed at para 9 that:

"xxx During the course of cross-examination of the respondent as RW-1, the respondent admits that his family has ancestral properties and now 14 acres of land is standing in the name of his mother, 16 acres of land is standing in the name of his children and 14 acres of land is standing in his name. He also admits that all the lands are wet lands and these lands are getting water source through High Level Canal and that there are 5 members in his house and they incur minimum expenditure of Rs. 6 to 7 lakhs per annum towards food and Rs. 50,000/- p.a. towards their medical expenses. He has spent an amount of Rs. 8,00,000/- towards the marriage of his daughter."

Though the learned counsel has strenuously contended that by means of mortgaging the properties, he has secured Rs. 8,00,000/- to perform his daughter''s marriage, there is no whisper about the same before the Family Court and no documents to that effect were produced to establish the same. The respondent therein, who is the husband, has also admitted in the course of his cross-examination that the petitioner therein may also require minimum of Rs. 5,000/- to Rs. 10,000/- per month depending on her expenses. The family Court was of the view that when the petitioner-husband is spending such an amount for his family, at least a sum of Rs. 5,000/- is required by the wife to meet the two ends of the month and accordingly enhanced the maintenance amount by directing the petitioner-husband to pay an amount of Rs. 5,000/- per month instead of Rs. 1,000/- per month to the respondent-wife from the date of its order.

An attempt was also made by the learned counsel for the petitioner to draw my attention to the observation made by the Court which granted the decree of divorce in favour of the petitioner-husband. Of course there is an observation by the Matrimonial Court that the wife has not taken care of her husband, her children, that she is an irresponsible wife and that itself was a sufficient ground to grant divorce in favour of the husband. Though the wife is said to be irresponsible, that by itself is not sufficient to construe that she is having any income to maintain herself. It is not the case of the petitioner-husband that the respondent is living in adultery or she is having other source of income for her maintenance. Even accepting that the respondent is an irresponsible wife nevertheless she has to live in the society till her death without deviating herself to any immoral act. For that purpose she needs some amount for her survival though she has been divorced and it is the husband who has to take care of her till her death or she remarries.

In the above said circumstances, considering the hike in the standard of living and the groceries, I am of the opinion that the amount of Rs. 5,000/- granted by the Family Court, Bellary, is not excessive. In the circumstances, I do not find any strong reasons to interfere with the orders passed by the Family Court. However, it is open to the petitioner to move the Family Court in case of changed circumstances and seek for modification of the order by filing an application under Section 127 of the Code of Criminal Procedure by producing sufficient materials showing that the respondent is earning.

With these observations, the petition deserves to be dismissed, Accordingly dismissed.