Shaheen Sultana vs Akbarali

K.N. Phaneendra, J.—Heard.

Perused the records. The petitioners have approached this Court challenging the order passed by Addl. District and Sessions Judge at Bidar, in Criminal Appeal No. 46/2012 and made a request to this Court to set-aside the orders passed therein dated : 11-10-2013 and consequently to restore the order passed by the learned J.M.F.C. Basavakalyan in DVC No. 2/2011.

The brief factual matrix of the case emanate from the records are that:--

"The petitioners herein who are none other than the wife and children of the respondent, filed the case in DVC No. 2/2011 before the JMFC Basavakalyan, claiming maintenance against the respondent. After due contest, the said petition came to be allowed U/Sec. 12 of Domestic Violence Act, awarding monthly maintenance of Rs. 2,000/- in favour of petitioner No. 1 and Rs. 1,000/- each in favour of petitioner Nos. 2 and 3 therein and also awarded an amount of Rs. 1,000/- as medical expenses." 4. Aggrieved by the said Order, the respondent herein/husband preferred Criminal Appeal No. 46/2012 on the file of Additional District and Sessions Judge, Bidar. Vide Orders Dated : 11-10-2013, the Addl. District and Sessions Judge, Bidar, partly allowed the appeal, consequently, reduced the maintenance amount to Rs. 1,500/- to respondent No. 1 and Rs. 500/- each to respondent Nos. 2 and 3 from the date of the petition.

Aggrieved by the said Order, the wife and children (petitioners herein) have filed this revision petition. Now the Court has to see whether the first appellate Court in Criminal Appeal No. 46/2012 has committed any error in reducing the maintenance amount as ordered by the trial Court.

On perusal of pleadings of the parties before the trial Court, there is absolutely no dispute with regard to the relationship between the parties. The respondent has never denied the marriage between himself and the first petitioner on 28-5-2007 and thereafter begotten two children i.e. petitioner Nos. 2 and 3. It is also an admitted fact that, on the date of filing of the petition, the husband, wife and children were not residing together. The petitioners were residing away from the respondent for various reasons stated in the petition particularly with regard to ill-treatment and harassment by the respondent. After the evidence being led by the parties i.e. the petitioner No. 1 examined herself as P.W. 1 and she examined one Chand Pasha on her side as P.W.2 and got marked Ex. P-1 to Ex. P-12. The respondent also examined himself as R.W.1 and two witnesses on his side as R.W.2 and 3. After analyzing the oral and documentary evidence on record, the trial Court has came to the conclusion that the respondent has neglected and refused to maintain the petitioners and he has got sufficient means to maintain them and petitioners required an amount of Rs. 4,000/-for their maintenance. Hence the trial Court has awarded the same.

On evaluation of the oral and documentary evidence by this Court, it is seen that there is a categorical admission with regard to the relationship as well as the requirement of the financial assistance so far as the petitioners are concerned. The learned counsel for the petitioners made available the evidence recorded by the trial court. Particularly, the respondent No. 1 has admitted in his evidence that the petitioner requires an amount of Rs. 4,000/- per month for their day to-day expenses etc. In fact, with regard to the income and capacity of the respondent, the trial Court has categorically and in detail considered the evidence on record. On careful perusal of the records, it discloses that the P.W.1 has categorically stated that the respondent is having income of more than Rs. 15,000/- per month and he has been running a cycle repair shop, kirana shop and auto rickshaws. P.W.2 has also in fact supported the evidence of P.W.1. This particular aspect though denied in the cross examination, neverthless the evidence of R.W.2 and 3, if they are read in proper perspective, they in-fact admitted during the course of their cross examination that the respondent is having kirana shop in front of the house of R.W.2 and he is having income of Rs. 15,000/- per month and he also admitted that the petitioners require Rs. 4,000/- per month. R.W.3 though denied the exact income of the respondent but neverthless he also admitted that the respondent is having a tyre repairing workshop and he is also doing some scrap material business. Therefore, looking to the evidence of R.W.2 and 3, coupled with evidence of P.W.1 and 2, the trial Court has concluded that the respondent is capable of paying an amount of Rs. 4,000/- per month in favour of the petitioners. Therefore, the opinion expressed by the trial Court is not a foreign opinion but it is based on material on record.

Now coming to the order passed by the First Appellate Court, it is astonishing to observe that the first appellate Court has not at all analyzed the evidence placed before the Court by the parties to the proceedings. Without assigning sufficient reasons to differ from the trial Court''s opinion appellate Court has passed the order reducing the amount even without foreseeing the consequences of his order reducing the amount of maintenance. While awarding of maintenance in favour of the deserted wife and children, the Court has to see that they should not become orphans and ladies should not become protection-less destitutes. The very object of Section 125 Cr.P.C, and Section 12 of Domestic Violence Act is to avoid vagrancy and to protect the life, liberty and status of the wife in the society.

The learned Sessions Judge, in my opinion, has passed the order without appreciating the evidence on record. Just let me have a look as to how, the learned Judge had discussed the material on record. While discussing point No. 2, he has narrated with regard to quantum of maintenance. He has stated that wife has not produced any materials to prove the avocation and income of the husband and on taking into consideration of the age and occupation of the petitioner, the Court has to believe that he would earn only Rs. 150/- per day, by which, his income would come at Rs. 4,500/- per month. In fact, in the entire case, neither P.W. Nos. 1 and 2 nor R.W. Nos. 2 and 3 have stated this. On the other hand, in the evidence of R.W.2 and 3 have categorically stated about the business of the respondent. When such oral evidence is available, without looking into such oral evidence placed before the Court by the respondent himself, I do not understand as to how and why first appellate Court has reduced the maintenance amount. Further, added to that, the Appellate Court also stated that wife can earn Rs. 200/- per day. It is well recognized dominating factor in the society that men are stronger than women and women are always be under the protection of men. Therefore, it goes to show that, when wife can earn Rs. 200/- per day, how the Sessions Judge can imagine that husband can earn less than that, i.e. also in my opinion not stands to any logic. Looking to the above said circumstances, in my opinion, first appellate Court without bestowing its attention to the pleadings, evidence and documents produced before the trial Court by the parties but on imaginary grounds has reduced the maintenance amount which is in utter dis-regard to the law and facts of the case. Therefore, the said order deserves to be set-aside.

The trial Court in fact passed the award, granting maintenance of Rs. 4,000/- per month, but, not stated from which date the said payment has to be made. It goes without saying the magistrate has to pass an order from which date the maintenance amount has to be paid by the respondent. It is well settled principle of law that if the magistrate does not say anything in the order, it should be presumed that the petition was allowed right from the date of the petition. Therefore, the petitioners are entitled for maintenance from the date of the petition unless for specific reasons the Magistrate fixes the date that the maintenance shall be paid from the date of the order. Hence, in my opinion, the order of the learned Magistrate has to be restored as against the orders passed by the District and Sessions Judge in the above said Criminal Appeal. Hence this revision petition deserves to be allowed. Accordingly, following order is passed.

ORDER

The Revision Petition is allowed.

The order passed by Addl. District and Sessions Judge Bidar, passed in Criminal Appeal No. 46/2012 dated : 11-10-2013 is hereby set-aside.

Consequently, the order passed by the learned JMFC Basavakalyan in DVC No. 2/2011 Dated : 28-6-2012 is restored and the same is confirmed. The respondent is directed to pay the maintenance as ordered by the trial Court from the date of the petition.