Vijaykumar and Others vs Nagaveni and Others

S.N. Satyanarayana, J.—1. These 3 petitions arise out of the marital discard between Vijaykumar and his wife Nagaveni. 3 Revision petitions are filed, out of which two are by the husband and one by wife. They are the off-shoot of second round of litigation between them in Crl. Misc. No. 291 of 2011 on the file of JMFC, Dharwad.

The first round of litigation between them was in Crl. Misc. No. 194 of 2008 on the file of the JMFC, Dharwad which was initiated by the wife against her husband under Section 12(1) of the Domestic Violence Act wherein she had invoked Section 20 of the DV Act for maintenance from her husband. It is not in dispute that the said proceedings in Crl. Misc. No. 194 of 2008 came to be allowed awarding maintenance to wife in a sum of Rs. 2,000/- per month and sum of Rs. 1,000/- per month to her daughter against which it is seen that an appeal was filed by the wife in Crl.A.16 of 2009 on the file of Sessions Court, Dharwad wherein the maintenance granted at Rs. 3,000/- per month was enhanced to Rs. 5,000/- per month.

The said order was challenged by her in Crl.R.P. No. 2279 of 2009 on the file of this Court wherein the coordinate Bench of this Court dismissed the said revision petition holding that the maintenance enhanced by the Sessions Court in Crl.A.16 of 2009 is just and proper. Therefore, further enhancement cannot be granted. While dismissing that it was made clear under the changed circumstance revision petitioner is entitled to seek further relief in a petition to be filed by her and the same may be considered based on the evidence to be furnished. It is seen that in view of the observation made by Co-ordinate Bench of this Court, the second round of litigation in Crl.Misc. No. 291 of 2011 is launched under Section 127 (1) of the Cr.P.C. seeking enhancement of maintenance.

Resting here, this Court would look into the background of the relationship between the parties to this proceedings. The marriage of Vijaykumar and Nagaveni has taken place in the year 1993. Admittedly, Nagaveni is the daughter of Tahasildar, who was working in Hubli town and besides Nagavaneni, his father has other sons and daughters whereas Vijaykumar is the only son of his aged parents and he was a bank employee at the relevant point of time. The records would disclose in the marital relationship between Vijaykumar and Nagaveni they have in all 3 issues. Out of that, two are sons who are elders and 3rd one is the daughter she is the youngest of the children of the parties to this proceedings. When the relationship between the parties stood as above, it is seen that the wife Smt. Nagaveni went out of the marital house in the year 2008 on the allegations that she is subjected to harassment by her husband and in-laws.

While going out of the matrimonial house she took the minor daughter along with her and her two sons continued to live under the care and custody of the husband where the parents of the husband was also residing. Thereafter, the first round of litigation is initiated in Crl.Misc. No. 194 of 2008 under Section 12(1) of DV Act as stated above. In the said proceedings, several allegations are made by the wife against her husband. The sum and substance of the allegations are that the husband and in-laws of Nagaveni had confined her to the house from the date of marriage till 2008 when she left the house. She was not allowed to go out of the house to meet her father, brother and sister. She was subjected to physical and mental torture by the husband and in-laws and she was subjected to sexual harassment by husband and on all occasions when she conceived, she was subjected to undergo abortion; she has suffered hell in the company of her husband in the house where her in-laws were living. In the said proceedings, one and only prayer that she sought is grant of maintenance. In the said proceedings, the defence that was taken by the husband is to the effect that his wife is a Science graduate, she is the daughter of an influential person who is well placed in the society and she is dancing to the tune of her father and the intention of his wife and father-in-law is to ensure that the husband would send his parents out of the house and it is only he and his wife would continue in the house along with the children, several attempts were made by his father-in-law through his daughter in disturbing the cordial atmosphere of his family where he, his parents and children along with his wife were in harmonious situation.

While arguing further information was brought on record in citing that on one of the occasion when the father of wife was working as Tahasildar, he entered into the house of son-in-law and physically manhandled him which has resulted in a complaint being lodged by his daughter herself against her father in physically abusing her husband, which is tried to be under played by the learned counsel holding that there is no document produced to substantiate the same. However, it is seen with this background two points for consideration was framed in Crl.Misc. No. 194 of 2008 one of which is to consider whether the husband subjected his wife with cruelty and whether she is entitled to maintenance.

Though no evidence was produced to show harassment or cruelty by the husband, the said point was answered in the affirmative by the learned Magistrate. So far as entitlement of wife for maintenance is concerned, it was allowed partially and a sum of Rs. 3,000/- per month is ordered as maintenance at the rate of Rs. 2,000/- per month to the wife and Rs. 1,000/- per month to the child. As stated supra, the said order was challenged by the wife in Crl. Appeal No. 16 of 2009 where maintenance was enhanced to Rs. 5,000/- per month and confirmed in the Criminal Revision Petition. The wife being not satisfied with the same has filed the second round of litigation in Crl. Misc. No. 291 of 2011 of which is basically supported by the observation made by the co-ordinate bench of this Court in the judgment passed in Crl.R.P.2279 of 2009. Again in the second round of litigation also, the maintenance sought is Rs. 20,000/- which was again opposed by the husband. However, the court below after recording evidence proceeded to allow the same by enhancing the maintenance from Rs. 5,000/- to Rs. 7,000/-by its judgment dated 08/08/2013.

As against that, two criminal appeals came to be filed. One by the husband in Criminal Appeal No. 125 of 2013 seeking to set aside the enhancement which is made and another by the wife in Criminal Appeal NO.142 of 2013 wherein she sought for further enhancement from Rs. 7,000/- to Rs. 15,000/-. It is seen that the said two criminal appeals were clubbed together and disposed of by common order dated 28/02/2015 wherein the Criminal appeal filed by the husband is rejected and the criminal appeal which was filed by the wife is allowed in part in enhancing the maintenance from Rs. 7,000/- to Rs. 10,000/- per month.

Thereafter, these 3 revision petitions are filed. One by the wife in Criminal Revision Petition No. 100119 of 2015 seeking further enhancement to Rs. 20,000/- per month and two revision petitions by the husband in Crl.R.P. No. 100075 of 2015 is basically challenging enhancement of maintenance from Rs. 7,000/- per month to Rs. 10,000/- per month by allowing Crl.A.142 of 2013 and Criminal Revision Petition 100076 of 2015 is challenging the rejection of his prayer in Crl.A.NO.125 of 2013 seeking reduction of maintenance. All these 3 revision petitions are taken up and heard together.

Crl.A. Nos. 100075 and 100076 of 2015 are filed mainly on technical ground that the maintenance which is awarded earlier in Crl.Misc.NO.194 of 2008 being under Section 12(1) of the DV Act enhancement cannot be considered under Section 127 of the Code of Criminal Procedure. The provision which is made available to the wife seeking enhancement under Section 12(1) read with Section 20(1)(d) of the DV Act and Section 125 of the Cr.P.C. are two different provisions. The wife who has filed an application initially under Section 12(1) read with Section 20(1)(d) of the DV Act is not entitled to seek enhancement under Section 127 of the Cr.P.C. where enhancement can be considered only if the maintenance earlier is ordered under Section 125 and not otherwise. This ground cannot be considered for two reasons. (1) Section 20 of the DV Act reads as under:

"20. Monetary reliefs- (1) While disposing of an application under Sub-section(1) of Section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but is not limited to,-

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973(2 of 1974) or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

(4) the Magistrate shall send a copy of the order for monetary relief made under sub-section(1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides.

(5) the respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-Section(1).

(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-Section(1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent."

Section 20 of the DV Act clearly empowers the aggrieved person to seek maintenance not only on behalf of herself but for her children which is in addition to the order of maintenance under Section 125 if not already passed. If that is taken into consideration, the objection raised invoking Section 127 of the Cr.P.C seeking enhancement is unsustainable. Accordingly, the said ground is rejected. So far as other grounds raised by the husband is to the effect that he has a large family to take care of; that he has aged mother who is also ailing and that he has two college going sons one of whom is studying in engineering college at Belgaum where he is put up in a hostel and his hostel fees are met in addition to his educational expenses and he has one younger son who need to be educated in the place where he is residing. It is also stated that he does not have an independent house and he is living along with the family members in a rented house which is paid by him at Rs. 5,000/- per month. Besides all these things, he has responsibility to take care of their education, health, maintenance of the house and in addition to that he is paying the maintenance.

It is also stated that at no point of time, he has refused to take back his wife but it is his wife who is adamant and is staying away from the house only for the reason that she does not want to live in the house along his parents residing in the same house. His father is dead and he had to incur the expenses for his father''s ailment, last rituals and other expenses. Therefore, the maintenance which is awarded by the Tribunal at the rate of Rs. 10,000/- is on the higher side and the same is required to e reduced. Per contra, the wife would try to submit that she has to live separately along with her minor daughter and that maintenance of herself and her daughter in a city like Hubli, would be very excessive. For that a minimum which required is Rs. 20,000/- which the husband has to pay.

Heard the counsel for both parties and on going through the materials on record, it is seen that though the gross salary of husband is Rs. 72,000/- per month, it is not the take home salary, which is far less than that. Out of that he has to pay the rent, fees, maintain the house, medicine to his aged mother who is ailing and he has to take care of education of this two sons and maintain the family and more particularly when there is no support from a woman to run the house it would be much more difficult. In the entire material on record, there is nothing to show any substantial reason for discard between the husband and wife except that the wife is not willing to stay in the house along with her in-laws which is infact a cruel decision by the wife causing discomfort to the husband and causing discard in the family which cannot be supported by any court of law.

In any event she is entitled to maintenance, but not to the extent that she need to be pampered with all the benefits. Admittedly, the wife is a B.Sc. graduate. In a situation where she is educated and qualified she cannot seek maintenance as a destitute woman would seek. In fact, the provisions of Section 125 of Cr.P.C. and 12(1) and 20 of the DV act are to see that the woman who are not in a position to maintain themselves and destitute should be provided maintenance. It is not available for some one who decides to stay away from the company of her husband without any justifiable ground and unreasonably refuse the responsibility of taking care of the family of husband which includes looking after his aged parents. If this kind of frivolous litigation are encouraged it will damage the very fabric of the society. The same would instigate other woman to come out of the family, taking this as an example.

Therefore the courts will have to be cautious while considering this relief. In the fact and circumstance of the case, it is seen that the wife is willfully staying out of the matrimonial house at the instance of her father and other members of her family and staying comfortably amidst of them. She cannot be pampered with maintenance as she demands. In that view of the matter, the reasonable maintenance that the wife would be entitled is in a sum of Rs. 3,500/- for herself and Rs. 3,500/- towards education of her daughter i.e., a total sum of Rs. 7,000/- and not more than that as awarded by the Sessions Court. Therefore in the facts and circumstances of the case, the criminal revision petition filed by the wife in Criminal Revision Petition No. 100119 of 2015 does not merit consideration and the same is required to be rejected. While doing so, the Criminal Revision Petition Nos. 100076 and 100075 of 2015 are disposed with the aforesaid observation that the wife is entitled to revised maintenance in a sum of Rs. 7,000/- per month which is at the rate of Rs. 3,500/- per month to wife and Rs. 3,500/- per month for education of her daughter. With these observation all these 3 revision petitions are disposed of. Enhanced maintenance shall be from the date of filing of Crl.Misc. No. 291 of 2011 and it is made clear that the entire arrears if any on the enhanced maintenance shall be paid by the husband within 90 days from today and it shall be paid in not less that 3 installments. It is made clear that he shall not force the wife to file an execution for recovery of the amount.