Shivanand vs Jayamala

B. Veerappa, J.—The husband filed RPFC No. 100083/2014 for reduction of maintenance and the wife filed RPFC No. 100083/2015 for enhancement, against the impugned order passed by the Family Court dated 29.05.2014, made in Criminal Misc. Case No. 11/2013, on the file of the Family Court, Gadag, granting maintenance of Rs. 4,000/- per month to the wife.

Parties will be referred to as per their ranking before the Family Court, for convenience.

The facts of the case are:

It is the case of the petitioner that the petitioner and respondent were married on 21.04.2000 at Bagalkot and after the marriage, the petitioner went along with the respondent to lead marital life at Kerur village. The petitioner was very much cooperative with her in-laws and also the respondent. Inspite of that, the respondent at the instigation of his relatives started harassing the petitioner for simple reasons. The petitioner has tolerated all the ill-treatment. The petitioner became pregnant. Inspite of that, the respondent has not stopped his ill-treatment and he has subjected the petitioner to utmost physical and mental cruelty. During that period, the petitioner gave birth to a female child and the child died after four hours. It is the further case of the petitioner that the respondent, his parents, his brothers and sisters used to harass the petitioner frequently and they have also thrown her out of the house without allowing her to lead marital life with the respondent. The respondent has also given life threat to the petitioner and he has also informed the petitioner that he will take away her life if she comes to his house. The respondent and his family members have completely neglected the petitioner and also contended that she came to know that the respondent has contracted second marriage with one Shobha and he has got two daughters by name Kallavva and Parvati. The respondent has also subjected the petitioner to utmost cruelty by taking second wife. She further contended that the respondent has a wholesale grocery merchant and he owns 3-4 houses and he is receiving monthly rents and he is earning more than Rs. 50,000/- from all the sources and he has capacity to pay monthly maintenance of Rs. 10,000/- to the petitioner, etc. Therefore, she filed the petition.

The respondent filed objections before the Family Court, admitting the relationship and denied all other averments and also contended that the petitioner was not at all cooperative with the respondent and his family members during her stay in the matrimonial house. It is the specific contention of the respondent that she has forced the respondent to make a separate house during 2004 and the respondent has made a separate residence in the year 2004 and he has started residing with the petitioner by leaving his parents, sisters and brothers, even though he is the eldest son of his parents. The parents of the respondent has given a share to the respondent and after taking his share, the respondent started residing separately with the petitioner from 2004. Thereafter, she insisted the respondent to go and stay in her parents house. When the respondent has refused to come and stay with the petitioner in her parents house, he has also made a separate house at Kerur. The respondent separated from the family at the instigation of the petitioner. Inspite of the efforts made by the respondent to bring back the petitioner to lead martial life, the petitioner refused to stay with the respondent and she insisted the respondent to come and stay with her parent''s house. Thereafter, the petitioner filed the petition making false allegations against the respondent, etc.

In order to establish her case, the petitioner/wife has examined herself as PW-1 and marked documents Exs. P-1 to 24 and examined one more witness as PW-2. On the other hand, the respondent examined himself as RW-2 and two more witnesses as RW-1 and RW-3 and also produced Exs. R-1 to 13.

After considering the entire material on record, the Family Court by its impugned order, has granted Rs. 4,000/- per month as maintenance to the wife. Hence, the present petitions are filed by the husband for reduction of maintenance and by the wife for enhancement of maintenance.

I have heard the learned Counsel for the parties to the lis.

Sri Shivaraj P. Mudhol, learned Counsel for the husband contended that the impugned judgment and order passed by the Family Court awarding Rs. 4,000/- as maintenance to the wife is contrary to the material documents on record and there is no acceptable legal evidence on record. In fact, the Family Court failed to notice that the husband is doing coolie work and he has constructed a house from the Government fund. He further contended that if the petitioner/husband had any source of income, then the Government would not have been selected him as beneficiary. The Family Court while granting maintenance has not considered this aspect of the matter. He also contended that the petitioner/husband has to maintain his large family. Therefore, he is not in a position to pay maintenance as ordered by the Family Court. Therefore, he sought for setting aside of the impugned order passed by the Family Court.

Per contra, Sri S.C. Bhuti, learned Counsel for the petitioner/wife in connected petition No. 100083/2015 contended that the impugned judgment and order passed by the Family Court awarding meager monthly maintenance of Rs. 4,000/- is inadequate and the Family Court ought to have granted a sum of Rs. 10,000/- per month. He also contended that the conclusion reached by the Family Court for fixing the quantum of maintenance is also without basis. Therefore, the Family Court has erred in fixing a meager monthly maintenance of Rs. 4,000/- and the same is liable to be modified and the husband/petitioner is entitled to pay the maintenance as prayed for. He also contended that the respondent has married another lady, who has got four children. He owns two houses. He is doing wholesale business of grocery shop. The same has not been taken into consideration by the Family Court while awarding maintenance and hence, he sought to allow the petition filed by the wife and dismiss the petition filed by the husband.

I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties to the lis.

It is not in dispute that the marriage between the parties took place on 21.4.2000 and subsequently due to the dispute between them, respondent/wife filed a petition for maintenance. The Family Court considering the oral evidence of the parties viz., P.Ws. 1 and 2 and R.Ws. 1 to 3 and all the material documents Exs. P.1 to 24 and Exs. R.1 to 13 has come to the conclusion that the husband is capable of paying maintenance to his wife and accordingly, fixed a sum of Rs. 4,000/- as monthly maintenance to her. The same is based on the legal evidence on record.

However, it is brought to my notice that during the course of arguments by the learned Counsel Sri Shivaraj P. Mudhol appearing for the husband that his client has already got second wife with 5 children and he has to maintain the said family members and he also has to look after his aged mother.

Taking into consideration the peculiar facts and circumstances of the case and taking into consideration the income arrived at by the Family Court and non-production of material to show the definite income of the husband and the husband has also not produced any material to show that his wife is capable of maintaining herself, in view of the same, awarding of maintenance at Rs. 4,000/- per month by the Family Court is in accordance with law.

In so far as the question whether maintenance should be granted from the date of petition or from the date of order, the material documents and evidence on record discloses that the husband is also in difficult since he has to maintain large family and he has to pay the interim maintenance granted by this Court by an interim order fixing at Rs. 3,000/- per month up to date and considering the facts and circumstances of the case, this Court is of the considered opinion that the discretion granted by the Legislature under Section 125(2) of Cr.P.C., has to be exercised in modifying the impugned judgment and order passed by the Family Court only to an extent of fixing the maintenance from the date of order and accordingly, it is modified that the wife is entitled to the monthly maintenance from the date of order and not from the date of petition.

Accordingly the revision petition - RPFC 100083/2015 filed by the wife is dismissed and RPFC 100083/2014 filed by the husband is disposed of modifying the impugned judgment and order passed by the Family Court only to the extent that the wife is entitled to the maintenance of Rs. 4,000/- per month from the date of the order and the remaining portion of the impugned order is undisturbed.

The husband is directed to pay the maintenance of Rs. 4,000/- per month regularly to the wife, from the date of the order, failing which it is always open to the wife to file execution petition and attach his immoveable properties, in accordance with law.

Ordered accordingly.