Sri. Subhash Tengle vs Smt. Jayashree Subhas Tengle

D.V. Shylendra Kumar

This revision petition u/s 19(4) of the Family Courts Act, 1984 by the husband who has suffered the order before the Family Court at Bijapur in Crl. Misc. No. 477/2011 at the instance of the respondent-wife and has been ordered to pay a monthly maintenance of Rs. 3,000/- in favour of the respondent. Questioning the order, the present revision petition contending, inter-alia that awarding a maintenance in a sum of Rs. 3,000/- is not based on any material; that it was not at all justified; that the petitioner-husband is in fact taking care of three female children of the couple and in such situation, awarding maintenance in a sum of Rs. 3,000/- per month in favour of the respondent is not at all tenable; that the petitioner had raised the issue of the respondent having an illegal relationship with one Mallappa Shivappa Biradar of Shegaon Village; that the learned Judge of the Family Court overlooking this aspect and awarding maintenance is not tenable in law; that therefore the order under revision is liable to be set aside.

Appearing on behalf of the petitioner, submission of Sri. Koujalagi Chandrakant Laxman, Learned Counsel is that the learned Judge of the Family Court is not at all justified in awarding maintenance in a sum of Rs. 3,000/-much less any amount in favour of the respondent, as it is the respondent who has deserted her husband and because of her illegal relationship with a third person, she has also abandoned her children and it is only the petitioner-father who is taking care of the children and educating them; that in spite of the petitioner offering that he was ready and prepared to take care of the respondent, she was not ready to join him and therefore, she is disentitled for any maintenance even assuming, she is living separately and submits that the order under revision is not sustainable and is liable to be set aside.

Sri. Koujalagi, Learned Counsel has taken me through the evidence of the respondent, who had deposed as PW. 1 before the Family Court in support of her claim for maintenance and points out that she has admitted in the box that she had an illicit relationship with one Mallappa Shivappa Biradar and in particular, has drawn my attention and relies upon the statement of the respondent during the cross-examination as under:

and therefore submits that the learned Judge has committed an error in overlooking this clear admission.

A perusal of the deposition of the respondent during cross-examination while if the sentence alone is to be read, it may give such an impression, but, the preceding sentence indicates that she has denied the relationship as under:

In fact, the recording of the evidence does not make it clear that she had made an admission or she denied.

Be that as it may, it is found that the petitioner has admitted that he has taken a second wife and living with her. It is also admitted in his cross-examination that he had neither given any written complaint to anyone about his wife''s illicit relationships, nor had sued her for dissolution of the marriage. On the other hand, there is ample evidence to indicate that respondent had been put to harassment and ill treatment because she had born three female children continuously and did not produce a male child after marriage. The fact that the petitioner has taken a second wife being admitted and he living with the second wife, if the respondent refuses to join him, nothing much can be made out of the same. In fact, the offer to take back the respondent to matrimonial house is made only subsequent to the filing of the petition for maintenance, though, it is not in dispute that the respondent has been living separately for past about five years. Such an offer does not carry conviction, it is only a ruse to avoid the liability to pay maintenance.

Insofar as the quantum is concerned, while a sum of Rs. 3,000/- is in fact the bare minimum, the fact that the petitioner owns some eight acres of fertile land is indicative of his capacity to earn. In the circumstances, in a matter of this nature, having regard to the purpose and object of the provisions of Section 125 of Cr. PC, which is only to avoid vagrancy, if the respondent has been awarded Rs. 3,000/- for her maintenance, it cannot be said that it is either illegal or on higher side. Therefore, this revision petition is dismissed at the stage of admission. In view of dismissal of the petition, I.A. No. 1 of 2012 for stay does not survive for consideration and it is accordingly dismissed.