Sharadabai vs Kalyanrao

K.N. Phaneendra, J.—The petition is filed by the petitioner calling in question the order dated 23.07.2014 in Criminal Misc. No. 59/2013 on the file of the District Judge, Family Court Gulbarga, in dismissing the petition filed by the petitioner under Section 125 of Cr.P.C. seeking grant of maintenance of Rs. 6,000/- per month from the respondent.

I have heard the arguments of the learned counsel for the petitioner and the respondent. Learned counsel for the petitioner made available the evidence of the respective parties recorded before the trial Court. I have carefully perused the judgment of the trial Court and the evidence.

On perusal of the entire materials on record the brief factual matrix that emanates from the record are that, the petitioner being the legally wedded wife of the respondent filed a petition claiming maintenance on the allegations that after marriage they led happy life for three years and thereafter respondent started quarreling with the petitioner with regard to the landed property of the petitioner and respondent forcing the petitioner to bring additional dowry etc. It appears, they separated and started living separately and thereafter the respondent addicted bad vices like drinking, gambling etc. Therefore, he neglected and refused to maintain the petitioner. It is contended that the respondent is having sufficient source of income and landed properties in his name and is working as Manager in Venktesh Wine Shop, Gulbarga, and getting Rs. 5,000/- salary. On the other though the petitioner is having 4 acres of land, when she is unable to maintain herself and due to the neglect and refusal by the respondent, she approached the Court for maintenance.

The petition was contested by the respondent contending that during the converture between the petitioner and the respondent, the respondent had purchased 4 acres of land in Sy. No. 149 in the name of the petitioner and Sy. No. 125/1 measuring 5 acres 14 guntas in the name of his son Basavaraj. The son of the petitioner and the respondent i.e. Basavaraj is also working in the Wine shop and getting more than Rs. 10,000/- and the petitioner has been residing along with her son and she has sufficient source of income therefore she is not entitled for any maintenance.

On the basis of the rival contentions, the trial Court has framed the following points for consideration;

"(a) Whether the petitioner proves that, the respondent had given ill-treatment to petitioner and he refused and neglected to maintain the petitioner?

(b) Whether petitioner proves that respondent has not provided maintenance to petitioner in spite of having sufficient means?

(c) Whether the petitioner proves that, she is unable to maintain herself?

(d) Whether the petitioner proves that she is entitled for maintenance? If so at what rate and from what date?

(e) What order?"

After recording the evidence of the parties and looking into the evidence produced before the trial Court, the Court has come to the conclusion and answered the point No. 1 in the affirmative and Point Nos. 2 to 4 in the negative and ultimately dismissed the petition. So far as the first point is concerned the trial Court has given its finding that the petitioner has proved that the respondent had given ill-treatment to the petitioner and he refused and neglected to maintain the petitioner. The respondent has not challenged the order of the trial Court so far as that finding against him is concerned.

In view of the above said factual aspects, relationship is admitted and that the petitioner and respondent are not residing together and they are living separately and it is also evident that the respondent has not made any arrangements for the maintenance of the petitioner at any point of time and he denied that she is entitled for any maintenance. In view of the above said facts and admissions of the parties the question before the Court is narrowed down to the question as to whether the petitioner is capable by maintaining herself and she has got sufficient income so as to deny the maintenance to her on the other hand whether the respondent is capable of maintaining his wife and he is having source of income and is liable to pay any maintenance, if so what is the quantum of maintenance. On perusal of the evidence and pleadings of the parties the petitioner in fact has admitted that she has got 4 acres of land in Sy. No. 149 as per the RTC extract marked before the Court as per Ex. D-1. But according to the petitioner the said land was given to the petitioner by her mother, according to the petitioner he purchased in the name of the petitioner but the respondent has not produced any material to show that he has actually paid consideration for the purchase of the said land no sale deed has been produced, the vendor of the said land has not been examined to substantiate this particular aspect. Therefore, it is only the oral evidence adduced by the respondent, which was denied by the other side and on the counter evidence the petitioner has stated that she acquired that property through her mother and she has been in possession to the extent of 04 acres of land. The other contention of the respondent that he purchased the land bearing Sy. No. 125/1 and 125/2 as per Exs. D2 and D3 in the name of his son Basavaraj. Again this aspect is concerned Basavaraj is not examined before this Court and the vendor of the said documents are not examined before the Court to show that petitioner has paid the consideration amount and purchased the property in the name of his son. Long back benami transactions are banned by the State so as to curb the benami transactions. Therefore, it is incumbent upon the respondent to prove this particular aspect, but except his sworn statement before the Court he has not taken up the burden of proving the said facts to show that he actually paid the consideration amount for purchase of those lands. At any stretch of imagination it can be said that they are the source of income to the petitioner, merely because some land is also there in the name of the petitioner. When the respondent is not proved that he actually gave that property to his wife in lieu of maintenance the liability of the husband is not absolved. If the mother of the petitioner is given that land then also the petitioner liability will not be absolved, he continued to be the husband and he has to maintain his wife by making some arrangements to her. However, the fact remains that the petitioner is having 4 acres of land in her name, she also never disclosed what exactly the income of the respondent and the respondent also did not disclose what exactly the income she is getting from the said land. However, the Court cannot directly come to the conclusion that there is lot of income from the said land and also it is a supportive source of income to the petitioner so that she can maintain without putting her hands before the respondent by way of seeking maintenance. In the absence of any material before the Court, in my opinion, some reasonable amount has to be awarded in favour of the petitioner in order to fix the liability of the respondent. Looking to the above factual aspects that there is some source of income to the petitioner out of 04 acres of land in her name therefore considering that some amount she could fetch from the said land still in my opinion, in order to give respect to the right of the petitioner to claim maintenance and also to remind the liability of the respondent, it is just and necessary to award reasonable compensation. Even considering the hike of prices and also social status, cost of living in the society a person at least requires Rs. 4,000/- per month as maintenance. However, as it is evident that the petitioner is already having 4 acres of land in her name, in my opinion, reasonably she requires at least Rs. 2,000/- per month at the hand of the respondent/husband. Hence, I am of the opinion, that the petitioner is entitled to get Rs. 2,000/-mamtenance per month from the hands of the respondent. However, it is only tentative amount fixed by this Court, if the petitioner is able to ascertain that the respondent is having lot of income and also landed properties, or he is working anywhere and securing any salary, by producing sufficient proof to that effect she can file a petition under Section 127 of Cr.P.C. for enhancement of the maintenance. Therefore, with these observations, I am of the opinion, the petition deserves to be partly allowed.

Hence, I pass the following:

"ORDER

The petition is allowed. The order passed by the District Judge, Family Court, Gulbarga, in Criminal Miscellaneous No. 59/2013 dated 23.07.2014, is set aside. Consequently, the petition filed by the petitioner before the trial Court is hereby partly allowed awarding the maintenance of Rs. 2,000/- per month to be payable by the respondent from the date of the order passed by the trial Court i.e. the respondent has to pay the entire arrears and maintenance from 23.07.2014 and he shall continue to pay the amount regularly till the death or remarriage of the petitioner."

Accordingly, the petition is disposed of.