Ningappa vs Harish

S.N. Satyanarayana, J.—The respondent in Crl.Misc. No. 225/2012, on the file of the Family Court, Hubli, has come up in this revision petition impugning the order dated 15.7.2013 in enhancing the maintenance to petitioners 2 and 3 at the rate of Rs. 4,000/- and Rs. 5,000/- per month, respectively.

The brief facts leading to this petition are that the petitioner herein who is the respondent in Crl.Misc. No. 225/2012 is the husband. The 3rd respondent herein is his wife and respondents 1 and 2 are his children in the wedlock with 3rd respondent. The marriage of the petitioner and 3rd respondent solemnized on 30.4.1985 is not in dispute. It is also not in dispute that in the wedlock respondents 1 and 2 are born. The records would disclose that the petitioner and respondents 1 to 3 are living separately from the year 1988. When they were living separately, a petition was filed by the 3rd respondent seeking maintenance in the year 1988 in Crl.Misc. No. 175/1988 on the file of II Addl. Civil Judge (Jr.Dn.) and JMFC, Hubli, seeking maintenance for herself and also on behalf of respondents 1 and 2.

The said petition came to be allowed awarding maintenance to petitioners 1 and 2 at the rate of Rs. 125/- each and Rs. 250/- to 3rd respondent. Subsequently in the year 2012 Crl.Misc. No. 225/2012 is filed by respondents 1 to 3 herein under Section 127 of Cr.P.C. seeking enhancement of compensation from Rs. 500/- to Rs. 11,000/- per month, on the ground that since the day the 3rd respondent herein started living separately from her husband along with her two children, she was supported by her mother who was getting pensionary income of Rs. 4,500/- per month. In addition to that it is stated that the 3rd respondent''s brother was also contributing a sum of Rs. 4,000/- to the mother of the 3rd petitioner for maintenance of the house which includes the respondents 1 to 3 herein.

It is the case of the respondents that the mother of 3rd respondent died in the year 2008. Subsequently the brother of 3rd respondent also stopped providing financial assistance to 3rd respondent, which has necessitated her to file Crl.Misc. No. 225/2012 under Section 127 of Cr.P.C. In the said proceeding it was contended by the respondents that the petitioner herein being a Government employee drawing a salary of Rs. 24,000/- per month and that he has no other person depending upon him and the respondents 1 to 3 being his wife and children are required to be maintained by him.

In the said proceeding the respondent/petitioner herein entered appearance filed statement of objection, evidence was recorded and thereafter the criminal miscellaneous petition was allowed enhancing maintenance to 2nd respondent in a sum of Rs. 4,000/- and Rs. 5,000/- to 3rd respondent wife. While doing so, the claim of 1st respondent son for enhancement of maintenance was rejected on the ground that he has already attained the age of majority. The said order of Family Court in Crl.Misc. No. 225/2012 is subject to challenge in this revision petition.

In this proceeding though notice is duly served on respondents and they entered appearance through counsel, there is no representation on behalf of respondents on any date of hearing earlier. In fact on 4.12.2014 this Court specifically posted this matter today to enable the respondents to appear before this Court through their counsel. In spite of that the respondents'' counsel is not present before this Court.

Heard the counsel for the petitioner. Perused the order impugned and also the grounds urged in this revision petition. On going through the same it is seen that the petitioner husband is aged about 55 years as on the date of filing of this revision petition in the year 2013. Admittedly he is a Government employee with his retirement age being 60 years, would be retiring from service in another 3-4 years. The evidence on record would disclose that the 1st respondent herein has already attained the age of majority and is capable of maintaining himself. So far as the 2nd respondent daughter is concerned, the counsel for the petitioner stated that she is presently employed as teacher in a private school in Gudageri. However there is no document available on record to support that. The order impugned also does not state until which time the 2nd respondent is entitled to receive maintenance. So far as 3rd respondent is concerned, she being the wife of the petitioner she is entitled to receive maintenance for life.

In the circumstances what is required to be seen is whether there is any income to the respondents 1 to 3 or whether they are required to be maintained from out of the income of the petitioner. Again this Court will have to say that the petitioner who is in government service with a fixed salary, how much he would be in a position to contribute for maintenance of respondents 1 to 3. In the evidence though it is stated that the petitioner herein is working as Government servant, drawing salary of Rs. 24,000/-, there is nothing on record to substantiate the same. However considering the nature of job that he is holding, the said income may be presumed as the income of the petitioner herein. It is seen that the petitioner herein is living with his aged mother who is also ailing and the petitioner herein is also at advanced age of life.

If all that is taken into consideration, fixing of maintenance at the rate of Rs. 4,000/- to 2nd respondent and Rs. 5,000/- to the 3rd respondent appears to be on higher side. That the Court below has also not put an upper limit as to the number of years for which the 2nd respondent is entitled to receive maintenance. Therefore in the present petition what is required to be considered is whether the maintenance awarded is just and proper and for how many years the petitioner shall continue to pay maintenance to 2nd respondent. In the absence of any assistance to the Court from the respondents, this Court will have to rely upon the material available on record to come to a conclusion regarding what should be the reasonable maintenance for 2nd and 3rd respondents and for how long the maintenance for 2nd respondent shall continue.

Admittedly the 2nd respondent who is aged 21 years as of now, it is stated that she is gainfully employed. In that behalf there is no material available on record to substantiate the same. Therefore this Court feel that minimum of Rs. 3,000/- is required for her maintenance and also that of the 3rd respondent wife and for which they are entitled to. While awarding this maintenance what is required to be seen is that the respondents 1 to 3 have been living separately from the petitioner since 1988, in the meanwhile whether the 3rd respondent has secured any job or not, whether she is having her own income are all not properly elicited.

Therefore this Court feel, considering the advanced age of the petitioner herein who is likely to attain the age of superannuation in three years, it is necessary to ensure that maintenance which is awarded now to the respondents 2 and 3 is just and reasonable. Accordingly the order dated 15.7.2013 passed in Crl.Misc. No. 225/2012 is modified in such a way that the 2nd and 3rd respondents would be entitled to receive a sum of Rs. 3,000/- per month each as maintenance. So far as the maintenance to the 2nd respondent daughter is concerned, she is entitled to receive the same until she attains the age of 25 years. Thereafter as and when her marriage is finalized, she is entitled to seek assistance of her father for the marriage expenses. So far as the maintenance to wife is concerned, it shall be at the rate of Rs. 3,000/- per month for her life time.

With the aforesaid observation this revision petition is disposed of.