Mailarappa vs Neelavva

B. Veerappa, J.

The above revision petition is filed by the petitioner-husband challenging the award of maintenance of Rs. 3,000/- made by the Family court in favour of the respondent-wife. It is the case of the respondent that, she is legally wedded wife of the petitioner and their marriage took place on 8.5.2006 in a Mass marriage conducted at Revansiddeshwar Temple, Koujageri, Taluk: Ron. After the marriage, the respondent went to the house of the petitioner to lead marital life where she was residing with petitioner for a period of 15 days and thereafter she returned to her parents house on the occasion of Kartik festival. She was residing with her parents for four days and returned to her husband''s house where she has resided for about two months. At that time the petitioner-husband went to Mangalore for mason work. The father of the respondent came and took the respondent back to her native place for Kar Hunnime. After that the brother of the petitioner by name Laxman came and took the respondent to the matrimonial house.

It is alleged that the father of the petitioner-husband is a most wayward, lusty person. He used to take the respondent to his fields to do agricultural work and tried to over power on her and tried to have sexual intercourse with the respondent. When the said fact was brought to the notice of the petitioner and also his brothers about the awkward behaviour of their father, they turned deaf ears. Thereafter, respondent informed the fact to her parents when she was brought to her parents house to attend the marriage of her uncle''s daughter. After that the parents and elders of the respondent convened a panchayath and advised the petitioner-husband to arrange for a separate house. In view of the same, the petitioner arranged a separate rented house at Datanal village where the petitioner and respondent were residing for 5 months. On that occasion the respondent was conceived. Thereafter, the petitioner-husband again took respondent and stayed with his father. Even during pregnancy period of respondent-wife the father of the petitioner tried to have sexual intercourse with the respondent. When the same was brought to the notice of petitioner-husband, being enraged he kicked her on the stomach and beaten her inhumanly. Due to this she suffered injuries and was admitted to hospital and gave birth to a dead child after 8 1/2 months on 13.4.2008. After that when the petitioner came to take back the respondent-wife to his house, the elders of the village and panchayatdars advised the petitioner to arrange for a separate house and take back his wife to lead happy married life. The petitioner went away by threatening that he will arrange for a second marriage and thereafter he got issued a legal notice on 19.9.2009.

It is also the case of the respondent that she was treated with cruelty in order to bring more money, gold from her parents. At the time of marriage, the parents of the respondent gave Rs. 15,000/- and 2 tolas of gold, dresses, watch and household utensils and they have borne marriage expenses but the petitioner at the instigation of his father used to torture the respondent-wife inhumanly. It is the specific case of the respondent-wife that after delivery of dead child, the petitioner never cared to provide any maintenance to the respondent and neglected and deserted her and therefore she filed claim petition claiming monthly maintenance of Rs. 5000/- from the petitioner-husband on the ground that the petitioner is owning 7 acres of fertile land at Datanal village and two houses and one open site. The petitioner is also a skilled person doing masonry work earning Rs. 10,000/- per month and he is earning more than Rs. 2 lakhs per year from the agricultural work. The petitioner is undertaking building construction with 8 to 10 servants under him, etc.

Upon notice issued by the Family court, the petitioner-husband appeared and filed objections stating that the petition is not at all maintainable and admitted the relationship of respondent as his wife. It is the specific case of the petitioner that the respondent never came to the matrimonial house to lead the marital life. When the elders of the family went to call the respondent she flatly denied to come and to lead matrimonial life, as such there is no access in between the respondent and petitioner. The respondent refused to come to the house of the petitioner on the ground that the marriage took place against her will. Hence, she denied to come and lead matrimonial life with this petitioner. Therefore, the petitioner prayed for dismissal of the petition.

The Family court based on the pleadings, framed the following points for consideration:

"1. Whether the petitioner proves that respondent and his family members have not at all allowed the petitioner to lead the marital life with the respondent?

Whether the petitioner proves that the respondent has neglected and deserted the petitioner without any sufficient cause?

Whether the respondent proves that the petitioner has not at all cooperated with this respondent to lead matrimonial life from the very beginning and there is no access between himself and the petitioner?

Whether the petitioner is entitled for Rs. 5000/- monthly maintenance from the respondent?

What Order."

The respondent-wife in order to prove her case, herself examined as PW.1 and her mother as P.W.2 and marked the documents as Ex. P.1 and Ex. P.2. The petitioner in order to prove his case examined himself as R.W.1 and examined another witness a R.W.2 and produced the documents as Ex. D.1 and D.2.

After considering the entire material on record, the Family Court came to definite conclusion that respondent has proved that the petitioner and his family members has not at all allowed respondent to lead marital life with the petitioner and respondent has proved that the petitioner neglected and deserted the respondent without any sufficient cause. The family court also recorded a finding that the respondent has proved that the petitioner never cooperated with the respondent to lead happy marital life from the very beginning and there is no access between himself and the respondent. Accordingly, the Family Court awarded monthly maintenance of Rs. 3000/- to the respondent from the date of petition from the petitioner and also awarded Rs. 5000/- as litigation expenses payable by the petitioner.

As against the said order the present revision petition is filed by the petitioner.

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

Sri. V.M. Malali, learned Counsel appearing for petitioner has contended that the impugned order passed by the Family Court is contrary to law and is erroneous and exorbitant and same is liable to be set aside. It is also contended that the Family Court committed serious error in holding that the respondent is entitled to claim maintenance from the petitioner. Therefore, sought for setting aside of the impugned order.

Sri S.M. Kalwad, learned Counsel for the respondent sought to justify the impugned order.

I have given my thoughtful consideration to the arguments advanced and perused the entire material on record.

The material on record disclose that it is an admitted fact that the marriage between the petitioner and respondent was solemnized on 8.5.2006. PW.1 in her evidence has admitted her marriage with the petitioner and has clearly stated about the harassment and physical torture meted out to her by her husband and father-in-law also the properties owned by her husband-petitioner. PW.2 mother of the respondent has stated that the petitioner owns 7 acres of land and two houses and open site at Datanal village and he is also a skilled mason worker and is earning Rs. 2 lakh per year from the agricultural work and Rs. 10,000/- per month from masonry work. Apart from this, the petitioner is also undertaking building construction with 8 to 10 servants under him and he has got sufficient means to provide Rs. 5000/- per month to the respondent for her food, clothing, medicine etc.

Considering the entire material on record, the Family Court has recorded a specific finding that as per Ex. P.2 -RTC extract of Sy. No. 67/2 of Datanal village the petitioner is owning land measuring 8 acres 39 guntas. 3 acres of land stands in the name of father of the petitioner. It is the specific contention taken by the petitioner that he is not at all having any income and he is not at all liable to pay any maintenance to the respondent. In support of his case, he has also examined one witness R.W.2. The contention taken by the petitioner is that the entire land is already mortgaged in favour of RW.2 in order to raise loan for solemnization of his marriage and the said mortgage is not yet redeemed. Under the circumstances, there is no landed property for his family. The evidence of R.W.2 clearly discloses that there was no written document for having taken the mortgage of the land. He has also deposed before the court that he has given an amount of Rs. 4 lakhs and taken the land on mortgage he would have definitely got any registered document. No one will give Rs. 4 lakhs on oral agreement. Under these circumstances, the evidence of RW.2 cannot be accepted. If really the land was mortgaged in favour of R.W.2 nothing prevented the petitioner from disclosing the same in his objection statement at the time of filing his objection statement before the Family Court.

Admittedly, the petitioner has not stated anything about his land and taking into consideration the entire evidence on record, both oral and documentary, the Family Court has come to definite conclusion that the respondent has proved that the petitioner and his family members has not allowed the respondent to lead matrimonial life and neglected to maintain the respondent. Under the circumstances, the Family Court has held that the petitioner having got sufficient means to maintain his wife, has awarded monthly maintenance of Rs. 3,000/- to the respondent-wife and further directed the petitioner-husband to pay Rs. 5000/- towards litigation expenses to the respondent. The said order passed by the Family Court is in accordance with law and no interference is called for by exercising revisional power under the provisions of Section 115 of Code of Civil Procedure.

Accordingly, the revision petition is dismissed at the stage of admission.