Prakash vs Shashikala and Others

K.N. Phaneendra, J.

The present petition is filed calling in question the order passed by the Principal Judge, Family Court, Raichur in Crl. Mis. No. 91/2013 directing the petitioner herein to pay maintenance of Rs. 4,000/- to the petitioner No. 1 and Rs. 2,000/- per month to the petitioner No. 2 from the date of the petition.

I have heard the arguments of Smt. Hema L. Kulkarni, learned counsel for the petitioner and also Sri Sudhir Kulkarni, learned counsel appearing on behalf of Sri R.V. Nadagouda for respondent No. 1 and I have also carefully perused the records.

There is absolutely no dispute with regard to the relationship between the parties to the proceedings. For the purpose of convenience, I would like to retain the ranks of the parties as per their ranks before the Trial Court.

The first petitions Shashikala claiming to be the wife of respondent Prakash contended that the respondent has neglected and refused to maintain her and therefore, she appears to have filed a case in Crl. Misc. No. 100/2006 before the Trial Court. Earlier, it appears, there was a compromise between the parties. By virtue of the same, petitioners went to the matrimonial home and consequently, the said petition was dismissed on 29.11.2006 as not pressed. Thereafter, it appears, they lived happily for about one month. During the said period, the petitioner No. 1 gave birth to petitioner No. 2. The relationship between petitioner Nos. 1 and 2 with the respondent are also not in dispute. Thereafter, the respondent started ill-treating and harassing the petitioner and therefore the petitioner filed Crl. Misc. No. 48/2011 before the Principal Judge, Family Court, Raichur. Due to conciliation once again before the Court, the parties have joined together. Upto 2013, it appears, they lived ignoring differences and difficulties. But ultimately, the matrimonial tie has been broken and consequently, the petitioners stayed in the house of her parents.

It is alleged that the respondent - husband has not made any arrangements for the maintenance of the petitioners. She filed an application seeking maintenance in Crl. Misc. Case No. 91/2013, in which, the Court has passed an order granting maintenance which is impugned in this petition.

The learned counsel for the respondent - husband strenuously contends the granting of maintenance to the petitioners at the rate of Rs. 6,000/- per month. Further, it is contended before this Court that the Family Court has not properly appreciated the materials on record and the Family Court has exorbitantly awarded an amount of Rs. 6,000/- per month in total in favour of the petitioners which is liable to be set aside or reduced considering the capacity and liability of the respondent.

Per contra, the learned counsel for the petitioners contended that the second petitioner is a small kid/boy and his future has to be looked after by petitioner No. 1. Considering the welfare of the petitioners and also medical expenses in the present condition, atleast a person need a sum of Rs. 3,000/- per month. Considering the minimum requirement, the Trial Court has ordered an amount of Rs. 6,000/- per month, at any stretch of imagination cannot be said to be called as exorbitant. Therefore, the petition is liable to be dismissed.

On perusal of the records, it reveals that the respondent was examined himself before the Trial Court. In fact, so far as the neglect and refusal is concerned, in view of the differences between the parties, the conciliation for two times before the Court, lodging of the complaint against the respondent by the wife petitioner No. 1, later the petitioners are residing separately from the respondent itself is sufficient to hold that there was neglect and refusal by the respondent. More over, in the grounds of petition, nothing has been spelt out or called in question challenging the finding given by the Trial Court with regard to the neglect and refusal by the respondent, so far as petitioners are concerned. Therefore, this Court is confined to consider--

Whether the amount awarded by the Trial Court is exorbitant?

Admittedly, in the course of examination, the respondent - Husband has stated that he is employed in Hatti Gold Mines and drawing salary of Rs. 30,000/- per month and has got sufficient means to pay. The respondent has also examined himself as RW 1. Apart from that, he has stated that he has to look after his parents, sisters, younger brothers who are depending upon him. His mother is suffering from Asthama and other ailments. The contention is that he has to maintain his parents, sisters and younger brothers who are depending upon him. But he has not spelt out as to what is the avocation of his father, sisters and whether they are married or not and his brothers age and avocation to come to a definite conclusion that they are all depending upon him. But, all these materials or information are conspicuously absent in the present case. On the other hand, the respondent himself has produced some receipts before the Court about the fees paid towards the studies of the second petitioner. I do not think that these documents would come to his help. Of course, as a dutiful father, he might have paid the fees. Therefore, the Court has to see, whether the amount of maintenance ordered by the Trial Court is commensurate with the capacity, ability and liability of the respondent. The respondent has produced four salary slips which are marked as Ex. R5. On perusal of the same, they reveal that he has been drawing an amount of not less than Rs. 15,000/-, an average in the year 2013-14, though it is stated that he is drawing gross salary of Rs. 14,771/- to Rs. 17,243/- with a deduction of Rs. 8,183/-. But, apart from the statutory deductions, he is getting an amount of more than Rs. 10,000/- per month. Looking to the above said circumstances, I am of the opinion that the wife and children who became destitutes after being neglected by the respondent and the petitioners are entitled for a sum of Rs. 6,000/- per month as ordered by the Trial Court considering the status of the parties and the place where they are living and also the cost of living. However, it is made it clear that the respondent has got any other grounds for reduction of the maintenance by means of any circumstances which have not been pleaded before the Trial Court and basing on the subsequent events if any, he is at liberty to approach the Trial Court for reduction u/s. 127 of Cr.P.C.

With this observation, I am of the opinion that there is no factual or legal error occurred in the judgment and award passed by the Family Court in awarding a sum of Rs. 4,000/- to the first petitioner and a sum of Rs. 2,000/- to the second Petitioner. Hence, the petition deserves to be dismissed at the admission stage itself.

Consequently, the petition stands dismissed. As the matter is heard on merits with the consent of both the parties, the pending consideration of I.A. No. 1/2014 for stay does not survive for consideration and the same stands dismissed.