Mallikarjun vs Sarita and Others

B. Veerappa, J.

The petitioner/husband has filed this revision petition against the order dated 03.07.2014 made in Crl.Misc. Case No. 64/2013 on the file of the Family Court, Gadag, granting maintenance of Rs. 5,000/- per month to both wife and daughter.

It is the case of the 1st respondent/wife before the Family Court that the she is the legally wedded wife of the petitioner and their marriage was solemnized on 02.04.2008 at Kusugal village as per the customs prevailed in their community. At the time of the marriage, as per the talks, the parents of the 1st respondent have given Rs. 2,50,000/- to the petitioner as Varopachar and also for the marriage expenses. After the marriage, the 1st respondent has gone to the house of the petitioner and she has lead marital life with the petitioner. The petitioner at the instigation of his mother and also his elder sister, used to abuse the 1st respondent in filthy language and he has also demanded additional dowry of Rs. 1,00,000/- and also 10 tolas of gold. Inspite of the advise of the elders and also the request of the parents of the 1st respondent, the petitioner has not stopped his demand and ill-treatment. He has not taken back the petitioner to his house and thereby, the 1st respondent has suffered a lot of harassment from her husband and his parents, and when she could not tolerate the harassment, she lodged complaints before the Hubli Police Station and Gadag Police Station. The police authorities had settled the matter and sent back the 1st respondent to the matrimonial house. Even after the advise of the police authorities, the petitioner and his family members have not stopped the ill-treatment. Under these circumstances, the 1st respondent lodged another complaint at Hubli Police Station on 25.10.2010. She also contended that she is not having any income and the petitioner has done Diploma in Fitter and he is working as a Technician at Kalyan Factory, Hubli and he is drawing a salary of Rs. 25,000/- p.m. and also owns 4 acres of fertile land and getting more than Rs. 4,00,000/- annually. The respondents 1 and 2 require Rs. 10,000/- p.m. for their maintenance and the petitioner is having sufficient income and is capable of payment of maintenance amount and therefore, she filed the maintenance petition.

The petitioner/husband filed objections before the Family Court denying all the allegations made against him and his family members, but admitted the relationship between the respondent and petitioner and also admitted that their marriage was solemnized on 02.04.2008 as per the customs prevailed in his community and denied the allegation that the respondent has given Rs. 2,50,000/- towards marriage and other gold articles, etc. Therefore, he sought for dismissal of the petition.

Based on the pleadings, the Family Court framed the following points:

"i) Whether the petitioner proves that the respondent has deserted her and neglected her and subjected her to utmost cruelty by demanding additional dowry?

ii) Whether the respondent proves that the petitioner has left the matrimonial house on her own and started residing in her parent''s house from the last two years?

iii) Whether the petitioners are entitle for monthly maintenance of Rs. 10,000/-from the respondent and also litigation expenses?

iv) What order?"

In order to establish her claim, respondent No. 1 herself examined as PW-1 and marked documents at Exs. P-1 and 2, while the petitioner/husband examined himself as RW-1 and has got examined one more witness as RW-2 and produced documents which are marked as Exs. R-1 to 3.

After considering the entire material on record, the Family Court, by the impugned order, dated 03.07.2014 has awarded monthly maintenance of Rs. 5,000/- p.m. to both the wife and daughter. Against the said order, the present revision petition is filed by the petitioner/husband.

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

Smt. Padmaja S. Tadapatri, learned counsel for the petitioner, contended that the impugned order passed by the Family Court granting maintenance of Rs. 5,000/- per month to the wife and daughter is arbitrary and against the material on record and she strenuously contended that the material on record discloses that the petitioner/husband has no income to maintain the respondents and she has also submitted that RW-2 in his evidence has specifically stated that the marriage expense was borne by the husband and not from the family of the 1st respondent and also contended that the 1st respondent has lodged several criminal cases against the petitioner and some of them are already disposed of and some of them are still pending. Under these circumstances, the conduct of the wife has to be considered while granting maintenance. Therefore, she sought for setting aside the order passed by the Family Court.

Sri. M.G. Naganun, learned counsel for the respondents, sought to justify the impugned order.

I have given my thoughtful consideration to the rival contentions urged by the learned counsel for the parties and perused the entire material on record.

Though several contentions are urged by the learned counsel for the petitioner and justified by the learned counsel for the respondents, the only point that arise for consideration while granting maintenance under Section 125 of Cr.P.C. is whether this Court has to take cognizance of the cases and counter cases filed by the husband and wife against each other?

It is worthwhile to state here that the provision of Section 125 of Cr.P.C. deals with the order for maintenance of wives, children or parents. Section 125(1)(a) of Cr.P.C. is attracted in cases, if any person having sufficient means neglects or refuses to maintain, his wife who is unable to maintain herself. In the present case, we are concerned with only Section 125(1)(a) of Cr.P.C. The husband has to establish that he has no sufficient means to maintain the wife. The wife has also to establish that she is unable to maintain herself. Taking into consideration the said provision, let me proceed with the matter in the present case.

It is the specific case of the respondent No. 1/wife that the husband is working in a reputed factory as Technician in Kalyan Factory in Hubli and he is drawing salary of Rs. 25,000/-. In addition, he also owns 4 acres of land and getting net income of Rs. 4,00,000/- per annum. She has produced Ex. P-2/record of rights, pertaining to the landed properties. According to the learned counsel for the petitioner, the property is not in his name, it is in the name of joint family. Respondent No. 1/wife also stated that she has no sufficient means to maintain herself and her daughter.

It is not the case of the husband that the wife can maintain herself or she is doing job. In the absence of the same, merely because of criminal case is registered against him and some cases are filed by him against the wife, does not bar the petitioner to pay maintenance and admittedly, the petitioner/husband has not produced any document before the Family Court that he has no means or neglected or refused to maintain his wife. Admittedly, he has not produced any document to show that the wife is able to maintain herself. In the absence of the same, taking into consideration the provisions of Section 125 Cr.P.C., the petitioner being the husband has bounden duty to maintain the respondent/wife and his daughter, since, he has not established that his wife can maintain herself.

Taking into consideration the entire material on record, the Family Court has specifically recorded a finding that the petitioner examined as RW-1, deposed that, as there is no cordial relationship between the petitioner and the respondent, and they are living separately from the last 2 years. The efforts made by the elders, well-wishers and parents of both parties went in vain and both of them are not ready to lead marital life. In the cross-examination of RW-1, he has also stated that he has done Electrical ITI and at the time of marriage, he was working as an Electrician in Jindal Factory. He is the only son for his parents. The parents of the wife got married to the petitioner only on the ground that the petitioner is working in Jindal Factory and he has capacity to look after the wife and child and he also stated that even after the marriage, he has capacity to look after his wife and child.

The wife examined as PW-1 has deposed that, as per Ex. P-2/RTC extracts, petitioner owns land to an extent of 3 acres 34 guntas at Kusugal village, from which, he is earning Rs. 4,00,000/- per year. Even though the said aspect is disputed by the learned counsel for the petitioner contending that it is a joint family property, the fact remains that the petitioner will get a share in the said property. Taking into consideration the qualification and earning capacity of the petitioner at the time of his marriage and even after the marriage, he has bounden duty to maintain his wife and daughter, who is aged about 5 years, as contemplated under Section 125 of Cr.P.C. and granting of maintenance by the Family Court is not exorbitant, having only granted Rs. 5,000/- p.m. to both the wife and daughter, and the same is in accordance with the provisions of Section 125 of Cr.P.C. Hence, no interference is called for with the impugned order passed by the Family Court, in exercise of revisional jurisdiction.

Accordingly, this revision petition is dismissed.