Somappa Lamani vs Rajarajeshwari Lamani and Others

B. Veerappa, J—The husband filed the above revision petition against the order dated 26.04.2014 made in Criminal Misc. No. 483/2012 on the file of the Principal Judge, Family Court, Hubli, directing him to pay maintenance of Rs. 4,000/- per month to the wife and Rs. 2,000/- each to both the sons per month from the date of the petition till realization. The respondents, who are the petitioners before the Family Court, are the wife and children of the petitioner herein.

It is the case of the respondents before the Family Court that the marriage between the 1st respondent and the petitioner herein is solemnized on 26.04.2001 in the house of petitioner as per the Hindu customs and rituals and out of their wedlock the respondent Nos. 2 and 3 are born. The petitioner took the respondent to Hubli as he was doing Ph.d. at Karnataka University Dharwad. Since the first night of the marriage the petitioner used to drink and doubt on the 1st respondent and having some illicit relationship with others and tortured her physically and mentally. When the torture became intolerable the 1st respondent was forced to return back to her parental house along with the children and residing at a rented house at Hubli. The elders of respondents'' family tried to set right his behaviour, but he never bothered to heed elders advise. He has completely neglected to take care of the respondent and even he has refused to take back the children. The respondents also contended that the petitioner is financially sound, since he is working as a Guest Lecturer in 3-4 colleges after awarding Ph.D. and by running tutorials he was earning a sum of Rs. 50,000/- per month approximately. Apart from this he is also getting good agricultural income every year and he is capable to pay maintenance to them. Respondents are suffering financial crises to lead their normal livelihood and are thrown under the mercy of her aged parents. Therefore, she constrained to lodge a complaint on 08.10.2012 before Women Police Station Hubli, in Crime No. 78/2012. After this complaint being filed the petitioner has filed a petition for restitution of conjugal rights on 30.11.2012 at Ramadurg Court. The said case is still pending and therefore she has filed a maintenance case.

The petitioner filed objections to the main petition before the Family Court, denying all the allegations except admitting the relationship of the parties and contended that the 1st respondent being an educated lady started non-cooperation even to the basic needs of him and his family without there being any cogent reason recently even after living with him and his family members for more than 10 years and even after having two children. Because of the adamant and unruly attitude of the 1st respondent the petitioner was compelled to shift down his local place to Hubli-Dharwad and even has to change houses from one to another on the compulsion of the respondent. Therefore, he sought for dismissal of the petition.

In order to establish their claim, the wife examined herself as P.W. 1 and marked Exs. P1 to P8. Husband has not adduced any oral evidence, but three documents are marked as Exs. R1 to R3 during the course of cross-examination of petitioner No. 1. After considering the entire material on record, the Family Court granted a maintenance of Rs. 4,000/-per month to the wife and Rs. 2,000/- each to both the sons by impugned order dated 26.04.2014. Against said order, the husband has filed the present writ petition.

I have heard the learned counsel for both the parties to the lis.

Sri Neelendra D. Gundi, learned counsel for the petitioner has contended that the impugned order passed by the Family granting maintenance to the respondents is without any basis and exorbitant and contrary to the law. Therefore, the same is liable to be set aside. He also contended that, though the petitioner''s wife and children having deserted the petitioner themselves, have presented the criminal miscellaneous case under Section 125 of the Code of Criminal Procedure and the Family Court has not considered the said aspect. He further contended that the respondents have not produced any oral or documentary evidence before the Family Court to prove that the petitioner is working as a Lecturer. In the absence of any material document on record, impugned order passed by the Family Court is only on the basis of presumption that the petitioner is working as a Guest Lecturer in 3-4 colleges, cannot be accepted. Therefore, he sought to set aside the impugned order passed by the Family Court.

Per contra, Sri Subhash J. Baddi, learned counsel for the respondents sought to justify the impugned order and vehemently contended that the averments made by the wife in the claim petition has not been denied by the petitioner by entering into witness box. Therefore, he submitted that the impugned order passed by the Family Court is perfectly justified.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.

The marriage between the 1st respondent-wife and the petitioner-husband solemnized on 26.04.2001 is not in dispute. It is also not in dispute that out of the wedlock two children were born to them. The 1st respondent, who was examined as P.W. 1 on oath before the Family Court has produced Exs. P1 & 2-Marriage Photos, Ex. P3-Consent Deed, Ex. P4 to P6 RTC Pahani Patras, Ex. P7 Letter written by the Tahsildar, Ramdurg and Ex. P8-Information given by the Village Accountant under R.T. Act and has categorically stated the petitioner having 20 acres of agricultural land earning Rs. 1,50,000/- per annum and also by working as a part time lecturer in 3-4 colleges he is earning Rs. 25,000/- to Rs. 30,000/- per month, but admitted that the petitioner is not doing any government employment. P.W. 2 the father of the P.W. 1 has specifically stated on oath that the petitioner by working as a Lecturer in 4-5 colleges earning Rs. 25,000/- and Rs. 30,000/- per month and also getting Rs. 1,50,000/- per annum from agricultural source. The statements made by the P.W. 1-wife and P.W. 2 father-in-law of the petitioner on oath has not been denied by him by cross-examining them nor stepped into witness box. Therefore, the Family Court accepted the statements made by P.Ws. 1 and 2, on the ground that, though the husband has filed objection to the main petition he has not ventured to appear before the Court in order to cross-examine the witnesses by stepping into witness box. The Family Court recorded the finding of fact that, in the absence of cross-examination and in the absence of any evidence leading contra to the petition, there is absolutely nothing on record to disbelieve the oral and documentary evidence produced by the respondents. Further, observed that the petitioner has not denied the averments by stepping into witness box that he is not working as a Lecturer and he has no source of income. Therefore, it is clear that there is no dispute with regard to the relationship of the petitioner with the 1st respondent as wife and with the 2nd and 3rd respondents as father. The petitioner being a husband, cannot avoid his liability on the ground he has no source of income. In the absence of any material evidence adduced orally or documentary by the petitioner, the evidence P.Ws. 1 and 2 has to be accepted. The Family Court considering the entire material on record come to the conclusion that the petitioner is capable of earning income and he is enable to maintain the respondents and accordingly granted Rs. 4,000/- per month to the wife and Rs. 2,000/- per month to each sons, in total Rs. 8,000/- per month and the same is in accordance with law.

In a latest decision, the Apex Court while considering the provisions of Section 125 of the Cr.P.C., in the case of Bhuwan Mohan Singh Vs. Meena, AIR 2014 SC 2875 : (2014) AIRSCW 4201 : (2014) 8 JT 359 : (2014) 8 SCALE 573 has held as under:

"2. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short "the Code") was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds."

Considering the entire material on record and in the absence of any contra material produced by the petitioner-husband to deny the source of income and the dictum of the Hon''ble Supreme Court stated supra, this Court is of the considered opinion that the impugned order passed by the Family Court is just and proper and does not call for any interference in exercise of the powers under Section 19(4) of the Family Court Act and accordingly, revision petition is dismissed.

It is also relevant to mention at this stage that in the present petition, this Court on 25.07.2014 issued emergent notice to respondent Nos. 1 to 3 and granted stay as prayed for subject to the condition that the petitioner shall deposit entire arrears amount within three weeks from the date of the order and shall continue to pay Rs. 2,000/- each to the respondent Nos. 1 to 3 from August 2014 onwards until further orders and also made it clear that the if petitioner failed to deposit the arrears or pay maintenance as ordered, interim order stands vacated automatically. Inspite of the order passed by this Court it is stated by the learned counsel for both the parties at Bar that the petitioner has not paid a single pi till today and disobeyed the order passed by this Court. In view of the conduct of the petitioner, it is for the respondents to initiate necessary proceedings to execute the order passed by the Family Court in accordance with law.