Rangaswamy vs Jayamma

Rathnakala, J.—This appeal is filed by the aggrieved husband against the impugned common order dated 29th February 2012 passed in M.C. No. 114/2008 on the file of the Judge, Family Court at Mysore.

As the facts unfurl, the husband filed a petition for divorce under the provisions of Section 13(1)(ib) of the Hindu Marriage Act on the ground of desertion. Subsequently, the wife filed a petition for maintenance against the husband under the provisions of Section 125 of Cr.P.C. in C. Misc. No. 204/2008.

The Trial Court clubbed both cases, recorded common evidence and has passed common order. While the petition seeking Decree of Divorce is dismissed, application filed under Section 125 of Cr.P.C. is allowed, thereby granting maintenance at the rate of Rs. 3,000/- per month to the wife. The allegation of the husband was that the parties were married on 24.3.2002 as per customs and lived together for some time at Doora Village, Mysore Taluk. Thereafter, the wife developed hostile attitude towards him. She started neglecting him and was frequently visiting her parents'' house and used to stay there for days together. She works as a ''Head Cook'' at Government Primary School, Doora Village. Since she got the said job and started earning on her own, she has neglected him and refused to return to the matrimonial home. His persuasion to make her return to his house has gone in vain. Several panchayats held, have not yielded result. In the panchayat, a document was executed by the wife on a stamp paper dated 29.10.2003 declaring that she is not willing to join him, etc. Now it is not possible for him to continue relationship with his wife.

The wife contested the petition. She denied all the allegations leveled against her in the petition except admitting the relationship. Her case was, her both daughters are under her care and custody; her husband developed bad habits of consuming liquor, gambling and started harassing her apart from demanding additional dowry; he deserted the family and failed to maintain the family members; in his drunken condition, he has assaulted her, subjected her to both physical and mental cruelty; he abandoned them and left them in Doora village and is staying with his parents at Kyathanahalli village; he has married one girl by name Radha of G.B. Sargur Village, Mysore Taluk and leading marital life with her. On coming to know about his second marriage, she filed a complaint before the Police and the case is registered, but so far no action is taken on the complaint. Petitioner is an agriculturist by profession, owns agricultural land and has substantial income. He is guilty of matrimonial office of desertion.

In her petition of C. Misc. No. 204/2008 filed under Section 125 of Cr.P.C. she sought for a direction to her husband to pay Rs. 3,000/- each to herself and her both daughters towards their maintenance.

The husband contested the C. Misc. Petition contending that the wife is gainfully employed. He has to look after his parents with his meager income and the maintenance petition is liable to be dismissed.

During trial, husband and wife were examined as PW-1 and RW-1 respectively and marked documents. On an overall consideration of the matter, while assessing the evidence, the trial court held, except making bald allegations against the wife, the husband has not come out with any explanation as to why the family shifted to Doora village. The trial Court further observed that, wife was forced to file complaint against the husband on coming to know of his marriage with another girl and the complaint filed by her against the husband is pending consideration.

The husband had produced notarized Xerox copy of the front sheet of the stamp paper/agreement Ex. P3 alleged to have been executed by the wife in the presence of Panchayatdars explaining as to why she voluntarily left him. Per contra, the wife produced whole of the document i.e., both front and back sheet of the Xerox copy of the stamp paper, which was marked as Ex. P3(a). She explained the circumstances under which Ex. P3 was executed by her. According to her, unable to bear with the harassment of her in laws, she along with her husband decided to leave Kyathanahalli and stayed together at Doora village-her native village. This proposal was acceptable to the husband also and he made an endorsement in his own handwriting agreeing to go with the wife by leaving Kyathanahalli village and he has put his signature. The signature, when confronted to the husband while in witness box, is admitted by him. Appreciating this piece of evidence, the trial court has held that the husband accompanied his wife to Doora village and thereafter the second daughter is born. The Trial Court inferred, by attempting to produce only front sheet of the agreement, the husband suppressed the real fact and attempted to mislead the court. On appreciation of the further evidentiary material, the learned Trial Judge has found that, it is the husband, who has treated the wife with cruelty and with a malafide intention he has filed a divorce petition. He himself has withdrawn his company from his wife and thereby deserted her. He has neglected to maintain his wife and children.

Further, with regard to Husbands financial capacity to pay maintenance amount to his wife and children, the learned Trial Judge has considered the admitted fact that he was employed in a factory, but subsequently left the job to escape from his liability to pay maintenance; he owns agricultural land yielding sufficient income and is able to maintain his wife and children. The learned Trial Judge took note of the fact that, though the maintenance was sought by the wife on behalf of herself and also on behalf of the two daughters, in the cause title, the daughters are not arrayed as petitioners. Since she is working without salary for a honorarium of Rs. 1,100/- and it is a temporary job, she is entitled for the maintenance from the husband @ Rs. 2,000/- per month from the husband. Accordingly, the matrimonial case filed by the husband is dismissed and the maintenance petition filed by the wife is allowed along with cost of litigation. In this appeal, the challenge is only in respect, of M.C. No. 114/2008.

We have heard at length Sri T.A. Karumbaiah, learned Counsel for the appellant.

On a travel through the impugned judgment, we are convinced that on judicious analysis of the evidence placed before him, the learned Judge has arrived at the conclusion. The material on record would suggest that the appellant himself is guilty of matrimonial offence and he cannot take advantage of his own wrong. Under the circumstances, we find that the impugned judgment is well reasoned and well founded. There is no valid ground to admit the appeal. Hence, the appeal is dismissed. In view of dismissal of the appeal, I.A. No. 1/2012 does not survive for consideration. Hence, I.A. No. 1/2012 also stands dismissed.