P. Govind Reddy vs Indiramma

K.N. Phaneendra, J—This petition is filed calling in question the order passed by the Principal Judge, Family Court, Ballari in Crl. Misc. No. 321/2013 dated 30.08.2014 for enhancing the maintenance of Rs. 5,000/- per month to the petitioner in addition to the amount of maintenance of Rs. 3,000/- per month awarded in Crl. Misc. No. 270/2009 on the file of JMFC, Ballari.

There is no dispute with regard to the relationship of the parties and also the previous litigation between them. For the purpose of convenience and easy understanding and to avoid confusion, I would like to retain ranks of the parties before the trial Court.

Petitioner Smt. Indiramma earlier filed a petition for grant of maintenance against the respondent-her husband in Crl. Misc. No. 270/2009 under the Domestic Violence Act. The Court after due contest of the said petition awarded a sum of Rs. 3,000/- as maintenance. Subsequently, in the year 2013 after lapse of four years, the petitioner approached the Family Court at Ballari under Section 125 of Cr.P.C. for enhancement of the said maintenance, pleading that the said amount is inadequate in view of changes in cost of living. The respondent has contested the said proceedings by filing objection and both the parties have respectively lead their evidence.

Petitioner examined herself as P.W.1 and got marked documents as per Ex.P.1 to Ex.P.12. Respondent examined himself as R.W. 1 and examined his brother as R.W.2 and got marked documents as per Ex.R.1 to Ex. R.8.

The trial Court after analyzing the oral and documentary evidence on record enhanced maintenance to the extent of Rs. 5,000/- in addition to the amount of Rs. 3,000/- already ordered by the JMFC, Ballari. In all, the petitioner herein was directed to pay monthly maintenance of Rs. 8,000/- to the respondent herein.

I have heard arguments for the petitioner as well as the respondent and carefully perused the judgment of the trial Court and also the oral and documentary evidence and the evidence recorded by the trial Court furnished by the learned counsel before this Court.

There is no dispute with regard to the fact that the petitioner has been living separately since long and an amount of Rs. 3,000/- was ordered by the JMFC, Ballari, in Crl. Misc. No. 270/2009. The petition for enhancement was filed on the ground of inadequacy of maintenance. The parties have lead their oral evidence and also the documentary evidence. The sum and substance of the evidence and pleadings of the parties disclose that the respondent is a farmer and is having 1 acre 33 guntas of land to his credit. He has not made any arrangements to the wife towards her maintenance. It is also the contention of the wife that the petitioner is not only having agricultural properties but also a house to his credit but also is a financier earning lot of money. Therefore, he is capable of paying more money towards maintenance.

Per contra, case of the respondent-husband is that he is only an agriculturist having 1 acre 33 guntas of dry land, he is only growing one crop per year. Further added to that, the allegation that he has been earning more money from finance business has been denied. During the course of the evidence, the husband has stated in his evidence that he has been suffering from illness and he has spent more than Rs. 10-12 lakhs towards his treatment. His brother who is examined before the Court as R.W.2 also deposed in the same manner but the Court observed that, in order to prove such contention the respondent has not produced any material before the Court to show that he has taken treatment anywhere for having spent Rs. 10-12 lakhs except producing some outpatient slips. However, the said aspect taken into consideration by the trial Court that, when he has spent such amount, it shows that he is having sufficient income to spend money. Therefore, he has got sufficient means to pay more maintenance to the wife. The trial Court has blown hot and cold at once, as for the purpose of disbelieving him the Court observed that, the respondent has not produced any materials to show that he has spent Rs. 10-12 lakhs towards his treatment and disbelieves the said evidence for the purpose of considering the claim of the respondent that he was suffering from illness and spent such money, but the same evidence was made use of by the Court in an exorbitant manner that he was capable of earning Rs. 10-12 lakhs. Therefore, he is liable to pay more maintenance to the wife. This would not stand to the logic because of the simple reason the Court has to believe or disbelieve the evidence for all practical purposes in the case, some factual aspects cannot be believed for one purpose and disbelieve for the another purpose. Therefore, I am of the opinion, such observation of the trial Court has to be excluded from consideration. If the above said portion of the observation of the trial Court is excluded, what remains for consideration of the Court is what exactly the income of the respondent for enhancing the maintenance. Admittedly, respondent is a farmer and is having 1 acre 33 guntas of dry land to his credit though he has stated that he has relinquished that property also in favour of his brother, that will not come to his help.

The wife has stated that the respondent is also earning lot of money by means of finance business but no material has been placed before the Court to establish this particular aspect and no witness has been examined to show that what exactly the income of the respondent by doing any finance business is concerned. Therefore, without any basis if such allegations are made, that cannot be made used for the purpose of fixing the maintenance on imaginary grounds. The wife has produced Ex.P.9 to Ex.P.11 which are the house demand register extracts which show that a house property is in the name of the respondent but what is the nature of the said property, whether it is fetching any rent, what is the extent of the said house, etc. are not at all disclosed. Therefore, at no stretch of imagination it can be said that merely existence of a house in the name of the husband would fetch any rent, it all depends upon the extent of the house, nature of the property, where actually it is situated, etc. all those factors have to be elucidated through evidence. In the absence of that, the Court cannot draw inference with regard to the specific income of the husband. Nevertheless the Court cannot also say that the petitioner is not at all entitled for enhancement of maintenance because it is also the responsibility of the respondent to disclose what exactly is the income and how much he can pay maintenance to his wife and he also did not produce any material before the Court. Therefore, the Court has to draw inference on the basis of the material on record and not by means of exaggeration or imagination.

Looking to the above said facts and circumstances of the case, the trial Court only on the ground that when the respondent is capable of spending Rs. 10-12 lakhs towards his treatment, awarded an amount of Rs. 5,000/- per month to be payable as enhanced maintenance in addition to Rs. 3,000/- already awarded in the absence of any sufficient income to fix the exact income of either of the parties the Court has taken into consideration what would be the reasonable necessary amount that can be awarded in favour of the wife to meet the two ends of the month.

It is an admitted fact that the wife is living in Kappagal Road, Ballari. The evidence also shows that she is residing in her relatives house at Ballari. Therefore, she has to pay some amount in order to occupy a small house. Therefore, in my opinion, if an amount which is commensurated with the income of the husband and also which is sufficient for the wife to take care of food and other needs and rent, if an amount of Rs. 5,000/- per month is awarded in total it would meet the ends of justice. However, as the learned counsel Sri Gode Nagaraja appearing for the wife submitted that though he has not produced sufficient materials before the Court to show more income of the husband, he may get sufficient documents in future.

It is made clear that any number of petitions for enhancement can be filed on the basis of changed circumstances. If the wife gets sufficient materials to show that the husband apart from having 1-33 acres of land, is also doing some other business like finance or he has got any other source of income from the house property or any other property, the wife is at liberty to make necessary application before the Court once again for enhancement of maintenance. In that eventuality, the Court by looking into the material available on record on the date of granting maintenance to the wife, can award maintenance.

With the above said observations, I am of the opinion, the amount awarded by the trial Court awarding Rs. 8,000/- to the wife may be little bit exorbitant and the same is liable to be reduced to Rs. 5,000/- giving liberty to the wife to move the trial Court for enhancement of maintenance, if she has got any material to show that the husband is having sufficient more income. Accordingly, the following order is passed.

ORDER

Petition is partly allowed. Order of the trial Court in enhancing the maintenance amount of Rs. 5,000/- in addition to Rs. 3,000/-, is hereby modified and the maintenance amount of Rs. 2,000/- is awarded in addition to the amount of Rs. 3,000/- awarded in Crl. Misc. No. 270/2009. The husband-petitioner has to pay Rs. 5,000/- in all, per month from the date of the petition and to pay the said amount regularly to the wife without fail.

In view of disposal of the petition, I.A. No. 1/2014 does not survive for consideration and is accordingly disposed of.