Raveesha vs N. Shobha and Others

B.S. Patil, J.—This revision petition is filed under Section 19(4) of the Family Court Act challenging the order dated 11th August 2014 passed by the V Additional Principal Judge, Family Court, Bangalore directing the revision petitioner to pay monthly maintenance of Rs. 5,000/- to each of the respondent Nos. 1 to 3 herein from the date of petition. Revision petitioner is the husband, respondent No. 1 is his wife, respondent Nos. 2 and 3 are the children born out of wedlock between revision petitioner and first respondent. Petition under Section 125 of Cr.P.C. was filed by the first respondent wife along with her two minor children seeking maintenance contending inter alia that marriage between revision petitioner and the first respondent was solemnized on 10.05.2001; after marriage both of them lived together in the matrimonial home; first respondent gave birth to petitioner Nos. 2 and 3; her husband started ill-treating her; he was not providing any basic needs. Her husband pledged the gold ornaments belonging to her though he was having landed properties and was owning she buffaloes and was getting income of Rs. 50,000/- per month; he refused to look after the needs of the wife and her children; she was forced to stay separately on account of the ill-treatment meted out by him and was constrained to seek monthly maintenance for herself and school going children.

The petition was resisted by the husband denying the allegations of ill-treatment and demand of dowry, etc. However, he admitted solemnization of marriage and birth of two children from the wedlock. It was urged by him that his wife left the matrimonial home with her children without his knowledge and started staying with her parents at Koudlay Village in Koppa Hobli, despite several attempts made to persuade her to come back to the matrimonial home, she refused on account of her adamant attitude. He further contended that his wife had already filed M.C. No. 2534/2008 before the I Additional Family Court, Bangalore seeking dissolution of marriage, which petition was contested by him. He has urged that though the matter was referred to mediation and although his wife initially agreed to join him, she later refused to join him and thereafter the present petition has been filed. He has denied the assertions made by the wife that he owned landed properties and she buffaloes from which he was earning income of Rs. 50,000/- per month. He further contended that his wife had several sources of income; she was an educated lady whereas he being an illiterate person was not in a position to pay any money towards maintenance of his wife and children.

In support of her case, respondent - wife examined herself as PW 1, another witness by name Vedananda was examined as PW 2 Exs. P1 to P52 were produced and marked. On behalf of the respondents, husband examined himself as RW 1 and another witness by name Shivanna was examined as RW 2, Exs. R1 to R20 were produced and marked.

On consideration of oral and documentary evidence on record the court below has held that first respondent herein - wife was able to establish that her husband had refused to maintain her and the children and she was therefore entitled for separate maintenance from the respondent - husband. It has come to the conclusion that revision petitioner was liable to pay monthly maintenance of Rs. 5,000/- to the wife and also in a sum of Rs. 5,000/- each for both the children till they attained majority. Aggrieved by this order the present revision petition is filed by the husband.

I have heard learned counsel for both parties. On perusal of the impugned order, pleadings and other materials on record the only question that falls for my consideration is-

Whether the order under challenge suffers from any illegality warranting interference in exercise of the revisional jurisdiction?

PW 1 - wife of the revision petitioner has stated in categorical terms that she was not ready to stay with her husband because he had contracted second marriage and had a child from the second marriage. The birth certificate of the said child was produced at Ex. P51 which disclosed that one Anitha, W/o. Raveesha gave birth to a son. In the light of these allegations made against her husband the court below has justifiably come to the conclusion that there were sufficient grounds for the first respondent - wife to stay away from the company of her husband.

It is also borne-out from the findings recorded by the court, below that there were several proceedings pending between both the parties and since 2008 wife was not residing with her husband. Indeed, a matrimonial case in M.C. No. 2534/2008 filed by the wife against her husband seeking dissolution of marriage has been subsequently withdrawn. Suffice to observe that because of the strained relationship between husband and wife and on account of mistrust between both of them, wife has been staying separately and the two children are staying along with her.

Admittedly both the children are going to school. The age of the two children as shown in the revision petition makes it clear that respondent No. 2 - R. Nithin was aged about 12 years in 2014 whereas respondent No. 3 - R. Deeksitha was aged about 10 years in 2014. Both of them are now, aged about 13 and 11 years respectively. There is no material to show that first respondent wife is gainfully employed and is in a position to sustain herself.

It is the duty of the husband to maintain his wife and two children. Evidence on record shows that family of husband own certain agricultural lands. In the course of her evidence the first respondent - wife has produced RTC extracts of the lands held by the family of the husband at Exs. P27 to P42. These documents clearly establish that several agricultural lands stand in the name of the father of the revision petitioner husband. He has also produced documents in the form of RTC which show that his father-in-law i.e., father of the respondent herein also owns and possesses agricultural lands. Though it is contended by the wife that husband owns and possesses she buffaloes and has other source of income, no material is forthcoming to prove this assertion. Suffice to observe, at this stage, that husband of the first respondent being an'' agriculturist, his family owns several immovable properties including agricultural lands. The question now is-

Whether he is in a position to pay monthly maintenance to his wife and two minor children?

In fact it is his obligation to maintain his wife and the two minor children. The question then would be - Whether the amount of Rs. 5,000/- ordered to be paid to each of the respondents, totally amounting to Rs. 15,000/- per month deserves any interference?

A perusal of the findings of the court below do not show the total extent of land held by the family of the revision petitioner. In his evidence RW 1 has stated that in the partition effected as per the final decree obtained in O.S. No. 235/2012 1 acre 2 1/2 guntas of land has come to his share. In fact, he has produced the compromise decree passed in O.S. No. 235/2012 which was instituted by the sister of the petitioner against the petitioner, his father and another brother. The total extent of land owned by the family is about 4 acres apart from the house property situated at Thagahalli village of Koppa Taluk in Mandya District. Thus it emerges that the family of the revision petitioner - husband owns only 4 acres of land and there is no material to show that he has been running any business and he had any other source of income. In such circumstances the court below was not right and justified in awarding maintenance of Rs. 5,000/- each to the wife and two children. At the same time it cannot be forgotten that the two minor children have to be educated and their education expenses have to be met. The wife has to support herself and two children. Hence, in my view the monthly maintenance awarded requires to be modified and reduced to Rs. 3,000/- each. Petitioner has not paid any amount so far towards maintenance of his wife and two minor children. The petition is accordingly allowed in part. The maintenance amount awarded is modified and fixed at Rs. 3,000/- to each of the respondents. The maintenance amount shall be paid to the children till they attain majority.