Naresh S. vs Latha

Aravind Kumar, J.—Heard Sri Ravishankar Shastry, learned Advocate appearing for revision petitioner.

First respondent who is the wife of petitioner filed a petition under Section 125 Cr.P.C. seeking monthly maintenance of Rs. 5,000/- to each of respondents from the petitioner. It was contended that on account of cruelty meted out to her, she was perforced to withdraw herself from the company of her husband and as such, it was contended that respondents are entitled for maintenance.

Revision petitioner - respondent appeared before family Court after service of notice and filed statement of objections denying the averments made in petition in its entirety. Both the parties got themselves examined as P.W.1 and R.W.1 respectively and got marked the documents Exs. P-1 to P-5 and Exs. R-1 to R-4 and after considering rival contentions, the family Court formulated following points for its consideration:

"(1) Whether petitioners prove that hey are entitled to get maintenance from the respondent as claimed?

(2) What order?"

On evaluation of evidence tendered by the parties and after considering the rival contentions, family Court has allowed the petition in part and has awarded maintenance of Rs. 3,000/- per month to the wife and Rs. 1,500/- per month to the daughter by order dated 30.06.2014 which is now assailed in the present revision petition by husband.

It is the contention of Mr. Ravishankar Shastry, learned Advocate appearing for revision petitioner that necessary ingredients of Section 125 Cr.P.C. have not been proved by first respondent - wife before family Court and as such, award of maintenance by the family Court is liable to be set aside. He would also contend that family Court has not taken into consideration admission of the wife namely, her admission in cross examination wherein she has admitted that she is not ready and willing to reside with the husband even if a separate house is made and as such, he contends that without justifiable cause wife had withdrawn herself from the company of husband and as such, revision petitioner cannot be saddled with liability to pay maintenance to his wife and daughter and hence he seeks for allowing the revision petition.

Having heard the learned Advocates appearing for the petitioner and on perusal of the order in question, I am not inclined to admit this revision petition for the following reasons:

It was contended by the wife before family Court that after solemnization of marriage on 20.04.2009 she delivered a female child and at the time of presenting the petition for maintenance, child was aged about 2 years. She has contended that after engagement ceremony, there was pressure from the parents of revision petitioner to pay a sum of Rs. 2,00,000/- and 35 sovereign of gold and despite being poor, said amount was paid and a sum of Rs. 68,000/- was also spent towards the marriage. She has further contended before the family Court that there was demand for more dowry from the revision petitioner and his parents after marriage and despite she being subjected to physical and mental cruelty with the fond hope of saving the institution of marriage, she has undergone the cruelty to which she was subjected to and she has also contended that revision petitioner used to come late night by consuming alcohol and assault her brutally. She further stated that on the birth of daughter, he has completely neglected her and revision petitioner-husband did not even seen the child and all efforts made by the elders to save the marriage went in vain and she was also threatened not to enter the matrimonial home. On account of cruelty meted out to her, she is stated to have filed a complaint before jurisdictional police which is registered in Crime No. 36/2012 before Surathkal Police Station as per Ex. P-3 and the charge sheet which is stated to have been filed as per Ex. P-5 after investigation. It is because of this reason, she has contended that she is unable to continue to reside with her husband and therefore, she withdrew from his company. These averments in the petition came to be denied in toto by the revision petitioner - husband.

Cause shown by the wife to withdraw herself from the company of her husband in the instant case cannot be construed as one which requires to be disbelieved, particularly when after investigation jurisdictional police have filed a charge sheet. Thus, from evidence on record it can be seen that respondent-wife has given a justifiable cause to withdrew herself from the company of her husband. There is no error committed by the family Court in arriving at a finding that wife was justified in withdrawing herself from the company of her husband and same does not call for interference.

Now turning my attention to the issue regarding maintenance paid to the wife and child @ Rs. 3,000/- per month and Rs. 1,500/- per month, when examined in the background of evidence of the parties and Section 125 Cr.P.C., it would not detain this Court too long to brush aside the contention raised by Sri. Ravishankar Shastry, learned Advocate appearing for revision petitioner for the reasons that would unfold hereunder:

Sub-section (4) of Section 125 Cr.P.C. would indicate that wife will not be entitled to seek maintenance either interim or otherwise under three eventualities namely, (1) if she is living in adultery; (2) without any sufficient reason refused to live with her husband; and (3) if they are living separately by mutual consent.

Undisputedly, parties to the present lis do not fall under first and third exceptions. It has been the contention of Mr. Ravishankar Shastry that admission by P.W. 1 in the cross examination which is to the effect that she would not join the company of her husband even if separate house is made itself is sufficient to disentitle the wife to claim maintenance requires to be considered with utmost circumspection. The reason assigned by the wife to join the company of husband, as already noticed herein above, is on account of alleged cruelty meted out to her not only by her in-laws but also by her husband. As such, there was good and sufficient cause for her to withdraw herself from the company of her husband. This Court would not embark upon conducting a roving enquiry in this regard, inasmuch as, undisputedly there is a criminal proceedings pending before jurisdictional criminal Court in this regard. Any opinion expressed in this regard is likely to prejudice either of the parties. Hence, without expressing any opinion in that regard, it would suffice for this Court to hold that even the second exception carved out under sub-section (4) of Section 125 Cr.P.C. would not come to the rescue of revision petitioner to contend that wife had left the company of her husband without sufficient reason so as to disentitle her to seek maintenance.

The Family Court after succinctly discussing the evidence on record, has rightly arrived at a conclusion that none of the exceptions carved out under subsection (4) of Section 125 Cr.P.C. is attracted to the facts on hand and there is no error committed by the family Court in this regard. Hence, second contention raised by learned Counsel appearing for revision petitioner is also not acceptable and same stands rejected.

Insofar as third contention which relates to quantum of maintenance is concerned, which according to Mr. Ravishankar Shastry would be a ground to interfere by the revisional Court, when examined on the basis of evidence discussed in detail by the family Court, said contention also deserves to be rejected for two reasons. Firstly, when the husband himself has entered the witness box and stated that he is earning Rs. 6,000/- per month by working as a supplier in a Hotel, least that was expected of him was to produce some evidence in this regard atleast by examining a co-employee to establish what his actual salary was, let alone examining the employer. This exercise was not undertaken by him. Secondly, he has not produced any evidence to show as to what is his actual income. Wife cannot be expected to produce any positive evidence particularly when husband claims to be working in a private sector that too, as a supplier in a Hotel and this Court cannot lose sight of the fact that in an unorganized sector, at least minimum wages would be paid to the employees by their employer and judicial note will have to be taken note of for arriving at the income and it is this precise exercise which had been undertaken by the family Court, Mangalore to award maintenance to the wife @ Rs. 3,000/- per month and to the daughter Rs. 1,500/- per month. Said maintenance awarded is just and proper not calling for interference at the hands of this Court.

For the reasons aforestated, I proceed to pass the following:

ORDER

(i) Revision petition is hereby dismissed.

(ii) Judgment and decree passed by Principal Judge, Family Court, Dakshina Kannada, Mangalore dated 30.06.2014 in Crl. M.C. No. 24/2013 is hereby affirmed.

In view of revision petition having been dismissed on merits, I.A. 1/14 does not survive for consideration. Hence, same is also dismissed.