V.B. Jagadish vs Shivamma

Aravind Kumar, J.—Heard Sri Krishnamurthy, learned Advocate appearing for petitioner and Sri M Ashok Kumar, learned Advocate appearing for respondent No. 1. Sri M. Ashok Kumar also submits that respondent No. 1 being mother of respondent No. 2 is taking care of interest of respondent-2, she represents him as guardian and as such, he would also undertake to appear on behalf of respondent-2. His submission is placed on record.

Facts in brief which has led to filing of this petition can be crystallized as under:

"Petitioner and first respondent got married on 07.02.1996. Second petitioner was born out of such wedlock on 17.02.1997. On account of marital disharmony between them, petitioner started living separately since August, 2000. It was alleged by her that respondent had forced to abort her pregnancy which she refused and after the child was born, he did not care to take her back to the matrimonial home and after much persuasion by the elders, he brought her to Bangalore and was always assaulting her physically after consuming alcohol. It was also alleged that he is having illicit relationship with his brother''s wife. She further contended that on 17.08.2000 she was beaten with police laati and bodily injuries were caused to her and on the next day, her brother and parents took her to their house and as such, she started residing in her parental house. Since respondent did not make provision for maintenance and completely neglected her, she filed the present petition for maintenance."

It is not in dispute that initially said petition came to be allowed on 25.04.2009 and later on, on revision petition being filed by the husband for setting aside ex-parte order, same came to be allowed and matter was restored back to the jurisdictional Court for being adjudicated on merits. Accordingly, petition came to be restored. In the meanwhile, husband had filed a petition for restitution of conjugal rights in M.C No. 1224/2000 which came to be dismissed and thereafter husband has not made any efforts to get the same restored before jurisdictional Court namely, Family Court, Bangalore. Parties have tendered evidence after order of remand and got marked documentary evidence as per Exs. P-1 to P-7 and Exs. R-1 to R-14 respectively. After evaluation of the evidence on record, petition filed under Section 125 Cr.P.C. came to be allowed by the Family Court, Bangalore by directing the respondent-husband to pay Rs. 2,000/- per month and Rs. 1,000/- per month to the wife and son respectively from 25.03.2005 to 06.08.2010 and at the rate of Rs. 3,000/- per month and Rs. 5,000/- per month respectively from 07.08.2010 till life time of the wife and till the son attains the age of majority vide order dated 04.02.2014. It is this order which is assailed in the present revision petition.

Sri Krishnaswamy, learned Advocate appearing for petitioner-husband has contended that Family Court erred in not considering the evidence in proper perspective and it is the wife who had withdrawn herself from the company of husband without any justifiable cause and as such, ingredients of Section 125 Cr.P.C. is not attracted and as such he prays for setting aside the order under revision. He would elaborate his submission by contending that wife is working in a school and earning salary of Rs. 5,000/- per month and non-consideration of this aspect has also vitiated the order in question. Hence, he prays for allowing of the revision petition.

Per contra, Sri M Ashok Kumar, learned Advocate appearing for respondents would support the order passed by family Court.

Having heard the learned Advocates appearing for parties and on perusal of the order under challenge, I am of the considered view that order in question does not suffer from any illegality calling for interference at the hands of this Court for the following reasons:

"There is no dispute with regard to relationship between the parties. It is also not in dispute that revision petitioner is working as a Constable in City Armed Reserve Police (CAR) and as per the pay slip produced before the family Court, he was drawing a salary of Rs. 22,738/- in the month of April 2013. Said salary slip also indicates that deduction of Rs. 5,599/- is being made and take home salary of revision petitioner is Rs. 17,139/-. Family Court has also noticed that in the month of November, 2013 he is getting salary of Rs. 22,300/-. In fact, husband has also admitted to this fact in his cross examination. That apart, evidence of the respondent namely, admission of the respondent-husband before Family Court indicated that his family owns 1 acre of agricultural land at his native place at Vaddarahalli. Respondent-husband attempted to contend before family Court that he has raised loan from Canara Bank and EMI of Rs. 4,202/- is being paid by him and to substantiate his claim, he produced Ex. R-11 which is the statement of account issued by the Canara Bank. Family Court has rightly discarded the same inasmuch as, said loan was raised in the year 2011 and the contention of respondent that he raised said loan for the purpose of marriages of his younger sister and brother was not believed by Family Court and rightly so, since in his evidence he had admitted that he had performed marriage of his younger sister in the year 1997 and that of his younger brother in the year 2000 which was much prior to borrowing of loan from Canara Bank. In those circumstances, defence of the husband that he is paying EMI and as such maintenance that has been awarded is on the higher side cannot be accepted and it is liable to be rejected. Accordingly, it is rejected."

Family Court has also noticed that though respondent- husband contended that petitioner - wife was gainfully employed namely, she was working in the Karnataka State Electrical Contractors Association, for want of any positive evidence, his plea was not accepted. However, evidence of the petitioner - wife itself indicated that in order to maintain herself and her younger son aged about 5 years, she was perforced to join private institution to eke out her livelihood. In the light of this admission, family Court has rightly awarded compensation which would suffice to maintain herself namely, Rs. 3,000/- per month which cannot be said or construed as being excessive or exorbitant. Second petitioner at the time of filing of the petition was a young boy of 7 years, his education had to be taken care of apart from his day to day requirements including school fee, books, uniform etc., by the mother. Now second petitioner is doing his ITI training course for which fees has to be paid and he is a young boy aged about 17 years and when there is no source of income to support himself, he would also be entitled to maintenance and sum of Rs. 5,000/- per month awarded by family Court is just and proper. Considering the employment of respondent-husband being Constable and he being in a permanent job and earning Rs. 23,300/- per month, maintenance awarded at the rate as noticed herein above by no stretch of imagination can be construed as excessive or exorbitant. Hence, I do not find any merit in this revision petition. Accordingly, revision petition stands dismissed.

In view of revision petition having been dismissed, I.A. No. II/14 does not survive for consideration and accordingly, same is hereby dismissed.