Prabhakar Krishnaji Deshpande vs Purnima

Aravind Kumar, J.—These two petitions are filed by the husband and wife challenging the award of maintenance granted by the Family Court, Gadag, in Crl. Mis. No. 15/2013 by order dated 10.10.2013.

I have heard the arguments of Sri B.V. Somapur, learned counsel appearing for the husband and Sri Narasammanavar, learned counsel appearing for the wife. Perused the order under challenge.

It is the contention of Mr. Somapur, learned counsel appearing for the husband that Family Court committed a serious error in accepting the evidence of the wife in its entirety and awarding maintenance @ Rs. 2,000/- p.m. to each of the petitioners without considering the fact that agricultural land possessed by husband is a dry land and it does not generate any income and when the husband is without any avocation, Family Court ought to have taken into consideration the earning capacity of the husband and his capability to pay maintenance while awarding maintenance that too @ Rs. 2,000/- p.m. to each of the petitioners. Non-consideration of these aspects in proper perspective has resulted in great failure in the administration of justice. Hence, he prays for allowing RPFC 100022/2014.

Per contra, Sri Narasamannavar, learned counsel appearing for the wife would contend that maintenance awarded by the Family Court is abysmally on the lower side and he contends that in these hard days, eking out livelihood with a sum of Rs. 2,000/- p.m. would not suffice to maintain oneself and as such, he prays for enhancing the maintenance. He would also elaborate his submission by contending that Family Court was not justified in ordering for maintenance from the date of order and it ought to have been granted from the date of filing of the petition. Hence, he prays for allowing RPFC 100079/2014 filed by wife and seeks for dismissal of RPFC 100022/2014 filed by the husband.

Having heard learned counsel appearing for the parties and on perusal of the order under challenge, it would indicate that marriage between the 1st petitioner herein and the respondent was solemnised on 13.05.1998 as per the prevailing customs and rites. Out of the said wedlock, 2nd petitioner herein was born on 17.10.2000. These are undisputed facts.

It was contended by wife that after she consummated the marriage and went to her parents'' house for delivery, her husband never turned up and even after the birth of their son and he did not choose to visit his in-laws place. It was also contended that despite earnest efforts made by her parents, did not yield any fruitful result and when she was brought back by her parents to the matrimonial home, her husband refused to take her and abused her and her parents and as such, without any other option she had to return back to her parental house and ever since said date she has been staying with her parents. It was also contended that she is unable to maintain herself and her son who is studying in 4th standard and he is required to be maintained by her and she cannot depend on the alms of her parents for her livelihood. She further contended that her husband is having properties at Hombaradi village and he is earning Rs. 2 to 3 lakhs per year after having leased the same to third parties.

Respondent-husband appeared before the Family Court, filed his objections and denied the averments made in petition except to the extent expressly admitted by him therein. It was contended by him that it is the wife who had gone to her parents'' house and all efforts made by him to get her back to the matrimonial home was of no avail and she had insisted that her husband should stay in her parents'' house which was refused by him.

On the basis of the pleadings, parties went for trial and both the parties tendered oral evidence and on behalf of the wife, four documents were got marked. Respondent who got himself examined as RW-1 also examined two witnesses but did not produce any documentary evidence. After considering the arguments of the learned advocates, Family Court formulated the following points for its consideration:

i) Whether the petitioner proves that the respondent has neglected them and deserted them without any sufficient cause?

ii) Whether the respondent proves that the 1st petitioner has left the company of this respondent without any sufficient reason and she is staying in her parents house on her own?

iii) Whether the petitioner proves that the respondent is doing agricultural work and he is getting more than Rs. 2 to 3 lakhs per annum and he is capable of paying maintenance amount of Rs. 8,000/- to the petitioners?

After evaluating the evidence, Family Court has arrived at a conclusion that wife had reasonable cause to recuse herself from the company of her husband and there was physical assault on her and as such, it held that she is entitled for maintenance. The Family Court has also considered the financial capacity of the respondent/husband to award maintenance at the rate of Rs. 2,000/- p.m. to each to the petitioners. Undisputedly, son namely 2nd petitioner born out of the wedlock between the 1st petitioner and the respondent is studying and as such, she requires financial support to educate him which is on account of the neglect by husband namely the father. Wife has been perforced to stay in her parents house. As rightly observed by the Family Court, merely because she is being residing in her father''s house, she cannot lead her life as a destitute by depending upon her parents and it is the responsibility and duty of the husband to maintain his wife and son as per their status and dignity in the Society.

Family Court taking into consideration the documentary evidence namely Ex. P.3 and Ex. P.4-R.R. extracts relating to the agricultural land in Sy. No. 22/2B measuring 4 acres and land bearing Sy. No. 192 measuring 1 acre 4 guntas standing in the name of husband, has ordered for payment of maintenance. Though Mr. Somapur, learned counsel appearing for husband would vehemently contend that it is a dry land, no material whatsoever was produced in this regard. On the one hand, wife contended that it is fully irrigated land which came to be refuted by the husband. Thus, it was the case of oath against oath. In the absence of any material produced by the respondent-husband to demonstrate that it is a dry land and does not generate any income, the statement made on oath by the wife that her husband had leased these lands to third parties and earning Rs. 3 to 4 lakhs rightly came to be accepted by Family Court. No infirmity can be found in the said finding recorded by the Family Court. Even otherwise, husband is possessing landed properties at Hombaradi village and as such, there being a legal obligation on the part of the husband to maintain his wife and son, he cannot shrug off this responsibility. As such, I find no merit in the revision petition filed by the husband namely RPFC 100022/2014. Same is liable to be rejected.

Insofar as the claim of the wife to award higher maintenance is concerned, when examined in the background of evidence tendered by her before the Family Court, it does not detain this Court to reject the contention of Mr. Narasammanavar. In the absence of any cogent and positive evidence being placed or record to establish the actual annual income that was being earned by the husband, Family Court has rightly taken into consideration plea of the husband also which was to the effect that he was without any avocation. However, by taking into consideration that husband possessed landed properties has awarded maintenance at the rate of Rs. 2,000/- per month to each of the petitioners. However, it fell into error in awarding the maintenance from the date of order. There is no reason assigned by the Family Court as to why wife and the son should be deprived of their right to claim maintenance from the date of petition. In the absence of any such reasons having been assigned by the Family Court, this Court is of the considered view the order passed by the Family Court to the said extent deserves to be modified or in other words, it has to be held that petitioners would be entitled to maintenance from the date of petition and not from the date of order.

Yet another factor which was taken note of by the Family Court was the fact that wife on behalf of her son and representing him as guardian has also filed a suit for partition and possession in O.S. No. 172/2009 which came to be decreed and the said decree has been sought to be executed by initiating final decree proceedings by wife which is yet to reach finality as one of the factors to limit the payment of maintenance at Rs. 2,000/- per month to each of the petitioners. In that view of the matter, I do not find any good ground to enhance the maintenance awarded by the Family Court except to the extent of modifying the same as already indicated hereinabove.

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

ORDER

i) RPFC 100022/2014 is hereby dismissed.

ii) RPFC 100079/2014 is hereby partly allowed.

iii) Order passed in Crl. Mis. 15/2013 dated 10.10.2013 by the Family Court, Gadag, stands modified and it is hereby ordered that the respondents namely the wife and son are entitled for maintenance as ordered from the date of filing of the petition.

iv) In all other aspects, order of the Family Court stands affirmed.

v) No costs.