Mohammed Illyas vs Sharmila Begam and Others

B.S. Patil, J—Crl. R.P. No. 198/2015 arises out of judgment and order dated 20.01.2015 passed by the III Addl. Sessions Judge, Mysore, in Crl. A. No. 319/2013 filed under Section 29 of The Protection of Women from Domestic Violence Act, 2005 (for short ''the Act''). Petitioner is the husband whereas respondent is his wife. C. Misc. No. 7/2010 was filed by the wife before the learned Magistrate (JMFC III Court), Mysore, under Section 12 of the Act seeking a direction against her husband prohibiting him from meeting out ill-treatment and praying for payment of rent and also for compensation for physical and mental ill-treatment suffered by her at the hands of her husband.

The learned Magistrate passed an order dated 22.04.2013 in C. Misc. No. 7/2010 directing the husband to pay monthly rental for the residence of petitioner and the two children along with monthly maintenance of Rs. 8,000/- per month to the petitioner and her two children apart from a sum of Rs. 1,00,000/- as compensation for physical and mental ill-treatment handed down to her, as per the provisions of the Act. The learned Sessions Judge has confirmed the said judgment against which the present revision petition has been filed by the husband.

RPFC No. 14/2015 is also filed by the husband challenging the order dated 05.12.2014 passed by the learned Judge, Addl. Family Court, Mysore in C. Misc. No. 174/2010 under Section 125 of the Cr.P.C. awarding maintenance of Rs. 4,000/- per month to the wife and Rs. 2,000/- per month each to the two children with effect from June'' 2013 till the date of the order and thereafter, from the date of order at Rs. 5,000/- per month to petitioner No. 1-wife and Rs. 2,500/- per month to the two children making it clear that minor children were entitled for maintenance till their marriage.

As, both these matters arise between the same parties and it concerns the maintenance of wife and two children, keeping in mind the ends of justice and convenience, these two matters are listed together and therefore, they are clubbed, heard together and are disposed of by this common order.

Having heard the learned counsel for both parties and on careful perusal of judgment in Crl. A. No. 319/2013 arising out of C. Misc. No. 7/2010, I find that several contentions are urged contending inter alia that the findings regarding the ill-treatment by the revision petitioner of his wife and his obligation to maintain by paying maintenance towards rental and other charges are illegal and unsupportable from the evidence on record. But, I do not find any justification for this Court exercising the revisional jurisdiction to interfere with the concurrent findings recorded by both the Courts in the matter. There is no such illegality in the findings recorded. However, the fact remains that maintenance to be awarded including towards rent payable by the wife for the residence for herself and her two minor children, has to be done keeping in mind the situation and status of parties and that there cannot be two sets of orders independently passed one under the provisions of the Act and another under Section 125 of Cr.P.C. The order passed in one proceeding will have certainly bearing on another proceeding. In the instant case, the Courts below have passed the order in the two proceedings independently without taking note of maintenance amount awarded in favour of wife and children in the other case.

It is an admitted fact that wife-respondent herein is a qualified lady, indeed she has completed her post graduation in Kannada and was working earlier while both of them were residing at Mangalore. Therefore, her capacity to engage herself in gainful employment to support herself cannot be denied.

Learned counsel for respondent submits that because the children were young and were required to be looked after she had discontinued her avocation. Even if it is so, now that both the children are of the age of 6 years and 9 years respectively, there would be no impediment for the respondent-wife to seek a suitable job and engage herself in a gainful employment. But, that does not absolve the obligation of the husband to meet other expenses including rental and the daily expenditure of the two children for their maintenance.

Keeping in mind these factual situations, the amount of compensation payable and the maintenance amount to be awarded has to be worked out. In my view as both the Courts below have recorded concurrent finding in the proceedings under provisions of the Act with regard to ill-treatment by petitioner towards his wife, consequently awarding a sum of Rs. 1,00,000/- as compensation, I do not find it just and appropriate to interfere with the said finding.

Out of this amount of Rs. 1,00,000/-, petitioner has already deposited a sum of Rs. 30,000/- in the Court below. If the said amount has not been withdrawn so far, the wife would be entitle to withdraw the same. So far as the remaining amount of Rs. 70,000/- is concerned, revision petitioner has to pay it within four weeks from today.

So far as the rental for the premises awarded by both the Courts for the residence of the wife and children, the Courts below have not fixed any amount. In my view a sum of Rs. 5,000/- per month deserves to be allowed for payment of rental towards the residence of the petitioner and her two children. Insofar as maintenance of two children and the respondent-wife is concerned, Rs. 2,500/- per month each for the two children and Rs. 4,000/- for the respondent-wife deserves to be awarded. The above mentioned amount per month is determined keeping in mind the fact that two children are now pursuing their studies in UKG and Primary Section. The amount of Rs. 4,000/- per month towards maintenance of wife is determined keeping in mind her qualification and her potential to get herself engaged in gainful employment.

Thus, in modification of the judgment and order passed in both these cases i.e., Crl. A. No. 319/2013 and C. Misc. No. 174/2010 (filed under Section 125 of Cr.P.C.) following order is passed:

ORDER

(i) Crl. R.P. No. 198/2015 and RPFC No. 14/2015 are partly allowed.

(ii) The impugned judgment/order are modified in the following terms:

(a) the compensation awarded in a sum of Rs. 1,00,000/- under the provisions of the Act is sustained. As a sum of Rs. 30,000/- has been already deposited on 05.05.2015 before the trial Court pursuant to interim order passed by this Court, the balance amount of Rs. 70,000/- shall be paid by the husband-petitioner to the wife-respondent within four weeks from the date of receipt of copy of this order.

(b) Towards maintenance of the two children, a sum of Rs. 2,500/- per month each shall be paid by the revision petitioner.

(c) Towards the maintenance of the wife a sum of Rs. 4,000/- per month shall be paid every month.

(d) Towards rental for the residence of the wife and children of the petitioner, he shall pay a sum of Rs. 5,000/- every month.

Accordingly, both the petitions are disposed of.