Saroja vs Basappa

K.N. Phaneendra, J—The present petition is filed by the petitioner calling in question the order dated 23/12/2014 passed by the Principal Judge Family Court, Gadag, in Cr.Misc. 36/2014.

The respondent is served and represented by counsel.

I have heard learned counsel for the petitioner and as well as the respondent and perused the records.

There is no dispute with regard to the relationship between the petitioner and the respondent. I would like to retain the ranks of the parties as per their ranks before the trial Court to avoid confusion.

The petitioner-Smt. Saroja, filed a petition seeking maintenance under Section 125 of the Code of Criminal Procedure on the file of the II JMFC Court, Gadag, in Crl.Misc. No. 7/2000 on 18/01/2000. The respondent appeared in the said case and filed his objections. When the case was set down for petitioner''s evidence on 31/12/2001, the counsel for the respondent filed a memo that the said proceeding was stayed by the Civil Court in O.S. No. 133/2000 on the file of the Principal Civil Judge(Junior Division), Gadag, wherein the respondent has filed the said suit for declaration that the petitioner is not his wife. The said case was dismissed on 21/07/2004 and the counter claim of the petitioner-wife was decreed declaring that she is the legally wedded wife of the respondent. Being aggrieved by the said judgment, the respondent(husband) preferred appeals in R.A. Nos. 74/2004 and 75/2004 before the Principal Senior Civil Judge and CJM, Gadag. The said appeals were also dismissed on 16/07/2010. Thereafter, the petitioner has made sufficient efforts to put up the records before the criminal Court in Crl.Misc. No. 7/2000. After establishment of the family Court, the said records were put up and sent to the court and was re-numbered as Cr.Misc.36/2014.

The petitioner claims that the respondent has neglected and refused to maintain her; that not only he dragged her to the civil Court but also refused to pay maintenance to her. She examined herself as PW-1 and got marked Exs. P-1 to P-4.

The respondent has taken up the contention that he is not liable to pay any maintenance to the petitioner; that he never ill-treated and harassed her and in fact it is the petitioner, who has deserted and neglected him and therefore she is not entitled for any maintenance. He examined himself as RW-2 and got marked Exs. R-4 to R-15. RW-1-Manager of the Bank was examined and got marked Exs. R-1 to R-3.

The trial Court after considering the oral and documentary evidence on record, granted maintenance of Rs. 500/- in favour of the wife. Against which, the respondent has filed the present petition.

In view of the relationship being disputed earlier and subsequently, the civil court holding the existence of such relationship and that point is put to an end by the Civil Court, there is no question of considering whether there was any neglect or refusal by the respondent-husband. By his conduct that he questioned the relationship of the petitioner with him and dragged her to the civil court and made her to wait for such a long time, itself discloses that he never maintained her and made any arrangements for her maintenance at any point of time and thereby neglected her. Therefore, it should be held that the petitioner has proved that the respondent has neglected and refused to maintain her.

In view of the above said facts and circumstances of the case, I do not want to advert on these facts, then, what remains for consideration before this Court is that, whether the amount of maintenance awarded by the trial Court is just and adequate under the facts and circumstances of the case.

The petitioner in her evidence has categorically stated that the respondent is a pensioner and is drawing pension of Rs. 3023/- per month and it is also stated that he is having landed properties and has got annual income of more than Rs. 50,000/- and he is also getting income from the amount received by him after his retirement. Therefore, she claimed for an award for Rs. 8,000/- per month. The respondent has also stated that he received pension amount of Rs. 3,023/- and he is also having landed properties totally measuring 5 acres 30 guntas in which himself and all his family members have got shares and he would get 20 guntas to his share. In this regard, the parties have produced many documents before the trial Court. There is no much dispute with regard to the said factual aspect.

Learned counsel for the petitioner strenuously contends that at the time of retirement, the respondent has received a sum of Rs. 2,00,000/- and he is getting pension of more than Rs. 3,000/- per month and therefore he is capable of paying Rs. 8,000/- per month. The respondent''s counsel has also drawn my attention that it is elicited during the course of evidence that the mother of the petitioner has also filed a petition for maintenance and the Court has ordered for amount of Rs. 2,000/- per month as maintenance to the mother of the respondent. When such being the situation with regard to the total source of income of the respondent, though the respondent and petitioner have not specifically placed sufficient materials, the fact remains that the respondent is receiving approximately Rs. 3,000/- per month as pension and he is also having some income from the agriculture. Even accepting that he has received Rs. 2,00,000/-, at the time of his retirement, he may get Rs. 2,000/- more towards interest if that amount is presumed to be kept in fixed deposit and ultimately he may get around Rs. 5,000/- per month as his income. Out of which, he has to pay an amount of Rs. 2,000/- to his mother and he has to maintain himself and in the evening of his life.

Under the above said circumstances, though Rs. 500/- is no where sufficient for maintenance of a person, some amount has to be arrived at comparing the income of the respondent as well as the living standard of the wife. Admittedly, the wife is residing in the Lakkundi village in Gadag district and she is residing in her parental house. However, Rs. 500/- in my opinion is grossly inadequate to meet the two ends of the month. Considering the income of the respondent, his liabilities and that he has to maintain himself, in my opinion, a further amount of Rs. 500/- is awarded which would meet the ends of justice, by giving liberty to the petitioner to approach the trial Court once again for enhancement in the event of any changed circumstances. With these observations, I proceed to pass the following order:

"The petition is partly allowed. The petitioner is entitled for maintenance of Rs. 1,000/- from the respondent from the date of this order. Further, the respondent shall pay the entire arrears at the rate of 500/- from the date of petition filed before the trial Court till the date of this order. The petitioner is also entitled for litigation expenses of Rs. 5,000/- so far as this petition is concerned."