Narayanaswamy vs Lakshmidevamma

K.N. Phaneendra, J.—The aggrieved petitioner/husband has filed this petition seeking to set-aside the order passed by Fast Track Court-VII, Doddaballapura, in Criminal Revision Petition No. 44/2010 and also consequently to set aside the order passed by the Principal Civil Judge (Jr. Dn.) and JMFC, Doddaballapura, in C. Misc. No. 46/2004, in granting maintenance of Rs. 1,000/- each to Respondent Nos. 1 to 3 herein.

I have heard the arguments of the learned counsel for the respondents. The petitioner and his counsel are absent before the court.

Merely because the petitioner and his counsel are absent before the Court, it will not absolve the court from its liability to look into the merits of the case, so far as criminal proceedings are concerned. Hence, I prefer to dispose of the matter on merits, as the matter is pretty old.

The records disclose that Respondent Nos. 1 to 3 herein, as petitioners before the trial Court in C.Misc.No.46/2004, have filed a petition under Section 125 of Cr.PC seeking maintenance from the respondent therein (petitioner herein) on the allegations that Petitioner No. 1 is the wife and Petitioner Nos. 2 and 3 are the children from the wedlock of the Petitioner No. 1 and the Respondent. It is contended before the trial Court that the respondent has taken the second wife and neglected and refused to maintain the petitioners. At the time of filing of the petition, Petitioner Nos. 2 & 3 were minors aged 15 and 12 years, respectively. It is alleged that the respondent was a weaver by profession and there was some compromise entered into between the parties and during the compromise, an amount of Rs.20,000/- was given to Petitioner No. 1 and also a Weaving Handloom Machine. It is specifically contended by the petitioners that the respondent has not made any arrangements for their maintenance and he has neglected and refused to maintain them. The trial Court after filing of the petition, issued notice to the respondent. In response to the notice, the respondent appeared and contested the proceedings. He also categorically admitted that the 1st petitioner is the legally wedded wife and Petitioner Nos. 2 & 3 are children of him. The specific contention taken-up by the respondent is that he is only a coolie worker and he is earning a sum of Rs.350/- to Rs.400/- per week and therefore, he is unable to give any maintenance to the petitioners. The second contention taken-up by the respondent therein is that the petitioners have received a sum of Rs.20,000/- as final settlement of maintenance and they cannot claim any maintenance again and he has denied the other allegations with regard to neglect, refusal, etc.

The trial Court after framing the points for consideration, passed an order that there was negligence and refusal by the respondent to look after the petitioners; the respondent has taken the second wife: he has been living with her: he is an earning member: he is having sufficient income and still he refused to maintain the petitioners. Therefore, the trial Court passed an order granting maintenance of Rs. 1,000/- each to the petitioners making it clear that the second petitioner is entitled for the maintenance till attaining the age of majority.

Against the said order, the petitioner has approached the Revisional Court and filed an Interlocutory Application seeking stay of the said order and the said application came to be dismissed on 16.11.2010. The said order is challenged before this court.

In fact, the Revisional Court has passed a detailed order while dismissing the Application-I.A. No.1 , wherein it is specifically observed that Petitioner No. 2 -Manjunath has already attained majority and he is earning Rs.3,500/- p.m. as a Photographer, hence, he is not entitled for maintenance.

It is further contended by the learned counsel for the respondent that Petitioner Nos. 1 & 2 are also not entitled for maintenance as per Ex.P6, which is the compromise petition entered into between the parties before the police. Considering the above said objections, the learned Judge of Fast Track Court has observed that, if any document is entered into between the parties contrary to the provisions of Hindu Marriage Act, it becomes unenforceable. Though it is an admitted fact that the parties are living separately since long time, nevertheless, it cannot be said that the respondent can absolve himself from making arrangements for their maintenance. The learned Judge of the Fast Track Court has also observed that the petitioners residing separately and no arrangement has been made by the respondent for their maintenance and therefore, it refused to grant stay, as prayed for. Looking to the facts and circumstances of the case, a meager amount of Rs. 1,000/- payable to each of the Respondent Nos. 1 & 2, has been ordered by the trial Court. I have perused Ex.P6. As rightly observed by the Fast Track Court, this document, showing payment of Rs.20,000/- by way of permanent alimony to the petitioners, at any stretch of imagination, cannot be called as a compromise petition. It is also admitted in the said document that the petitioner is liable to give share in the properties to the minor children. No document is produced to show that any property is given to the petitioners and from that they can maintain themselves. In order to contest the proceedings and also petitioners to survive during the pendency of the proceedings, the order passed by the learned Magistrate granting Rs. 1,000/- to each of the petitioners, in my opinion, is very meager and not exorbitant, so as to stay the order passed by the learned Magistrate and in order to deprive the petitioners to receive that amount as maintenance. The Revisional Court has applied its mind to the facts of the case and the law involved, and has rightly refused to grant an interim order which is purely discretionary in nature. In my opinion, the said order cannot be easily brushed aside and interfered with by this court unless there are strong and compelling reasons. No such compelling reasons are made-out before this court. Therefore, the petition is devoid of merit and the same is liable to be dismissed. Accordingly, the petition stands dismissed.