Ramanagouda vs Bharati and Others

R.S. Chauhan, J.—The petitioner, Mr. Ramanagouda, has challenged the legality of the order dated 22.12.2014, passed by the Principal Judge, Family Court, Dharwad whereby, the learned Judge has allowed the application filed by the respondent No. 1, Smt. Bharati under Section 125 Cr.P.C., and has directed the petitioner to pay monthly maintenance of Rs. 3,000/- to Smt. Bharati, and Rs. 2,500/- to Master Sagar and Master Sahitya, the two children of the couple.

Briefly, the facts of the case are that the petitioner and respondent No. 1 were married on 08.12.2002 at Dharwad as per the Hindu customs and rites. From 2002 till 2013, the couple stayed together. During the wedlock, the couple was blessed with two children, namely Master Sagar and Master Sahitya. However, as dispute arose between the petitioner and respondent No. 1, they parted their ways. Subsequently, the respondent No. 1 has been staying with her mother along with her two children. Unable to maintain herself and her two children, respondent No. 1 filed an application under Section 125 Cr.P.C., for maintenance. The said application was allowed by the order dated 22.12.2014. Hence, this petition before this court.

Mr. S.N. Banakar, the learned counsel for petitioner, has vehemently contended that the petitioner had clearly pleaded before the court that respondent No. 1 had left the matrimonial home without any rhyme or reason. Therefore, she has deserted the petitioner. Under Section 125 (4) Cr.P.C., a wife who deserts the husband during the subsistence of the marriage, is disentitled from claiming any maintenance from the husband. Despite the fact that this plea was raised before the learned court, the learned court has mis-assessed the evidence on this point and has committed an illegality by awarding maintenance to the respondent No. 1. Secondly, since the petitioner happens to be a poor person, he cannot afford the maintenance amount directed by the court. Therefore, the impugned order deserves to be set aside.

On the other hand, Mr. Srinand A. Pachchapure, the learned counsel for the respondents, has vehemently contended that the respondent No. 1 had clearly claimed that for eleven years she had lived with the petitioner. During this period, she was not only subjected to physical and mental cruelty, but was also locked up by the petitioner. Under these circumstances, and considering the future of the children and considering the fact that they need a better place for their education than a village, she had no other option but to leave the matrimonial home and return to her parental house at Dharwad. Thus, sufficient cause has been shown by the respondent No. 1 for leaving the company of the petitioner. Hence, the intention about deserting the petitioner does not exist. Therefore, one of the main ingredients to establish desertion is conspicuously missing in the present case.

Secondly that, although the petitioner claims to be a poor person, but, in his cross-examination, he has admitted the fact that he is the owner of 5 Acres 2 Guntas of land, and he receives good income from agriculture. Moreover, the petitioner had applied for a loan of almost Rs. 10 Lakhs from the KVG Bank. In case, the petitioner, were, indeed poor, no bank would have agreed to grant the said loan. Hence, it is merely a pretension that he happens to be a poor person.

Thirdly, the respondent is not only saddled with having to look after herself, but she has also the burden of looking after the welfare of her two children. As a mother she has to look after their education and even perform their marriage. Considering the high rise in the price of commodities, the monthly maintenance awarded at Rs. 3,000/- per month to respondent No. 1 and Rs. 2,500/- to respondent Nos. 2 and 3 is not such a huge maintenance amount which should be interfered with.

Lastly, that despite the order of the court, inspite of repeated orders by this court, the petitioner has not paid a single penny to the respondent Nos. 1 to 3. Therefore, they continue to be out in the cold, and having to be fend for themselves. It is only as a clever ploy the petitioner has filed an application for restitution of conjugal rights. If he had the welfare of his family in his mind, there is no reason as to why he has not complied with the impugned order, especially when the impugned order has not been stayed by this court. Hence, the learned counsel for petitioner has supported the impugned order.

It is, indeed, trite to state that desertion is not a physical abandonment of a person, but also has to be accompanied with the intention to desert a person. Therefore, the issue before this court is whether respondent No. 1 had sufficient reasons for leaving the company of the petitioner or not? Secondly, whether she has the intention to desert her husband or not?

According to respondent No. 1, throughout her marital life, she had been maltreated by the petitioner. He would, in fact, lock her up in the house and would not permit her to step out of the house. He would not care for her, or for her children. It is in these circumstances, that the respondent No. 1, unable to bear the physical and mental cruelty inflicted upon her, had no other option, but to leave the matrimonial home. Moreover, according to her, she did not wish to bring up her children in the village where the educational infrastructure is poor. She, thus, would not be in a position to provide good education to her children. Considering the fact that Dharwad has better educational institutions, considering the difficult times that she had faced in the matrimonial home, she left the matrimonial home, and returned to her parental home at Dharwad.

A woman who stands up to domestic violence, a woman who tries to save herself and save her children from the trauma of domestic violence, a woman who tries to give a better education to her children cannot be faulted for having left the company of her husband. For, she has sufficient reasons for having left the sanctity of the matrimonial home. The courts cannot be oblivious to the fact that in India, for a woman to leave a matrimonial home, she invites numerous troubles and difficulties for herself. Abandoned by her husband, and uncared by her parental family, a woman leads a life of animated suspension. If the respondent No. 1 left the matrimonial home and has taken care of interests of her two children, obviously, she would not have walked out of the marriage without any rhyme or reason. She has no intention to desert; she has been forced to leave the matrimonial home. Thus, the contention raised by the learned counsel for petitioner that respondent No. 1 has deserted the petitioner is clearly untenable and unacceptable.

The petitioner has pleaded even before this court, as he pleaded before the learned leaned Family court, that he happens to be a poor person. Thus, he cannot afford to pay maintenance as sought by the respondents and as directed by the court. However, the said plea is self-contradictory. On the one hand, the petitioner claims that he is so poor as not be able to maintain his family, yet on the other hand, he has filed an application for restitution of conjugal rights. In case, he were to succeed in the said application, naturally, he has to maintain his family.

Moreover, the learned Family Court has clearly held that there is sufficient evidence to prove the fact that petitioner owns 5 Acres 2 Guntas of land. According to the certificate issued by the KVG Bank, the petitioner had sought loan from the said bank. According to the documents produced by the petitioner himself, he has sought a loan of Rs. 10 Lakhs form the bank. Since these admissions were made by the petitioner himself, there was no need for the respondent to prove the said fact. Considering the fact that the petitioner happens to be the owner of agricultural lands, considering the fact that he has been receiving substantial amount from the said land, considering the fact that he has sufficient income, considering the fact that he has obtained loan from the bank, the contention raised by the learned counsel for petitioner that petitioner is unable to pay maintenance as directed by the Court is without any merit.

Even otherwise, poverty is not a valid defense against the order of maintenance. For, both according to the morality and law, it is the primary duty of the husband to maintain his wife and children. The said duty cannot be escaped ostensibly on the ground that the person happens to be poor.

Considering the fact that the impugned order grants a maintenance of Rs. 3,000/- to respondent No. 1 and Rs. 2,500/- to respondent Nos. 2 and 3, the maintenance is not an unreasonable amount. After all, every year, the prices of essential commodities are increasing, the education of the children is sky-rocketing and the basic requirement of giving education has become more and more costly that too for a single parent. Moreover, the respondents have a right to live their life with dignity and honour. They cannot be expected to lead a life of animal existence. Therefore, awarding maintenance of Rs. 3,000/- to respondent No. 1 and Rs. 2,500/- to respondent Nos. 2 and 3 is most reasonable amount under the facts and circumstances of the present case.

The learned counsel has relied upon the case of Deb Narayan Halder Vs. Smt. Anushree Halder, however, the said decision does not come to the rescue of the petitioner. For, in the said case, the wife could not show any reason for having left the matrimonial home. However, in the present case, as discussed above, respondent No. 1 has shown ample and cogent reasons for having left the matrimonial home. Therefore, the present case is distinguishable from the facts of the case law cited by the learned counsel for petitioner.

For the reasons stated above, this court does not find any illegality or perversity in the impugned order dated 22.12.2014. This petition is devoid of merits. It is, hereby, dismissed.