Andhra Pradesh High Court - Amravati
Shaik Nagur Vali vs Shaik Gowsya And Others on 6 August, 2024
APHC010456082022
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
TUESDAY ,THE SIXTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
CRIMINAL REVISION CASE NO: 751/2022
Between:
Shaik Nagur Vali, ...PETITIONER
AND
Shaik Gowsya and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. PHANI TEJA CHERUVU
Counsel for the Respondent(S):
1. SRINIVASA RAO MODUKURI
The Court made the following:
2
Dr.VRKS,J
Crl.R.C.No.751 of 2022
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CRIMINAL REVISON CASE No.751 of 2022
ORDER:
1. Parties to the case are Mohammedans. The revision petitioner preferred this revision under sections 397 and 401 CrPC impugning the order dated 04.03.2021 of the learned Family Judge - cum - XII Additional District Judge, Guntur in FCOP.No.114 of 2017 which directed him to pay monthly allowance of maintenance to his wife and two minor children.
2. Respondent No.1 is the wife. Respondent Nos.2 and 3 are the minor children. Respondent No.4 is the State.
3. Sri Phani Teja, the learned counsel for revision petitioner and Sri Srinivasa Rao Modukuri, the learned counsel for respondents argued their respective contentions and cited rulings in support of their respective contentions. To appreciate the rival submissions, the following aspects are to be noticed.
4. The marriage between the man and the woman was solemnized on 07.12.2009 according to Mohammedan law and principles. During their wed lock, they were blessed with two children who are now attending their school education. The family went along till the year 2017 and it was in that year, the woman and her two minor children filed a petition under section 125 CrPC praying the learned Family Judge to grant a monthly 3 Dr.VRKS,J Crl.R.C.No.751 of 2022 allowance of Rs.15,000 to each of them to sustain themselves. The husband made his due appearance and filed his counter.
5. In that petition, it is stated that the woman lost her father ten years earlier to her marriage and she has her mother with her. The man married her. On his demand cash and gold were paid at the time of marriage and the marital life was happy for some time. It was thereafter found that concealing his earlier marriage with another woman and the fact that the same has been subsisting by then. There were persistent demands from the husband for more money. The wife had no source of earnings and was dependent on her mother and could not satisfy the demands of the husband. During passage of time, husband developed the vices and has been coming in a drunken state causing mental and physical violence. Reconciliation efforts through elders did not bring any remorse in the husband. It was in the year 2014, she and her minor children were necked out by the man and till the filing of the claim for maintenance she was depended on her mother who now has become old and could not maintain her. Finding no source of earning and being unable to maintain themselves, the claim for maintenance was filed. It is stated that the man is engaged in real-estate and finance business earning Rs.60,000 per month and owns a house and there has been serious neglect and refusal on his part in maintaining the family.
6. In her counter, the husband refuted these allegations and stated that the woman is adamant and she works in MeeSeva during day time and during the remaining period, she works as a 4 Dr.VRKS,J Crl.R.C.No.751 of 2022 nurse in a hospital and earns Rs.15,000 per month. She had no right to claim maintenance as per the law. Coming to his own income and assets, he stated that all that is stated in the petition is false and because of his health condition, he was not permitted to do any work, and he is unable to maintain his wife and children. His wife left him voluntarily. He further stated that earlier to marrying this woman, he disclosed them that he was already a married man, and it is because of that the mother of the woman demanded lot of money and gold articles and he gave them. The wife used to leave his house quite often and used to reach home late hours and, on some occasions, failed to come to home for one or two days. When he questioned her, he was kept in a room by her and her mother, and they used to beat him. He has his own old mother who was deserted by his father, and he has to look after her. He sought dismissal of the petition.
7. Learned family judge directed both parties to file their affidavits of assets and liabilities. For wife and children, it was filed but the man did not file any such affidavit.
8. At the enquiry, the wife alone testified as PW.1 and exhibited her marriage invitation card as per Ex.A1 and bunch of marriage photographs with C.D as per Ex.A2 and marriage certificate as per Ex.A3. No evidence was adduced by the husband. Considering the material on record, by the impugned order, the learned Family Judge directed the husband to pay Rs.5,500/- to the wife and Rs.3,500/- each to the children towards monthly maintenance on or before 10th of every month. It was directed that 5 Dr.VRKS,J Crl.R.C.No.751 of 2022 the maintenance is to be paid from the date of the petition. Towards litigation expenses, Rs.5,000 was granted.
9. It is the said order which is under challenge. This being a criminal revision case, the scope of consideration is restricted to the extent of examining the correctness, legality and propriety of the impugned order. Unless the impugned order is perverse in its findings, appreciation of evidence in this revision is not called for.
10. On behalf of the petitioner various contentions are raised and they shall be dealt with now • The case was disposed of while Covid-19 pandemic was prevalent • The petitioner was never granted an opportunity to cross - examine PW.1 • Learned family judge had issued Non Bailable Warrant (NBW) which was neither executed nor cancelled but adjudicated the maintenance claim • Learned trial court struck off the defence in incorrect way
11. Learned counsel for respondents contends that there was interim maintenance that was granted which order became final as no revision was taken up by the present revision petitioner. For non-payment of interim maintenance, NBW was issued and the petitioner never moved an application for recall of it. Defence was 6 Dr.VRKS,J Crl.R.C.No.751 of 2022 struck off for failure to pay interim maintenance. There are no errors in the impugned order
12. The point that falls for consideration is "Whether the impugned orders can be said to be illegal or improper requiring interference?"
POINT : -
Material placed before this court and the impugned order would reveal the undisputed legal events. It was in the year 2017, the claim for maintenance was moved before the learned Family Judge. It went on for a few years without any progress. Finding difficulties in surviving the harsh realities of life, the wife and children moved an application for interim maintenance vide Crl.M.P.No.161 of 2019. After due hearing, it was allowed on 09.11.2019. By that order, the man was directed to pay Rs.3,500 per month to the wife and Rs.2,000 per month to each of his minor children. In paragraph No.4 of the order impugned here, the learned Family Judge mentions that since there were no payments of interim maintenance, the wife and children filed Crl.M.P.No.47 of 2020 praying the court to execute the orders and collect the maintenance amounts from the man. The Learned Family Judge granted notice to the respondent but he did not pay up the arrears. It was in those circumstances, on 05.03.2020 NBW was issued against him. It was on 11.02.2021, the learned Family Judge recorded that husband's right to contest the matter was forfeited due to his failure to pay interim maintenance to his 7 Dr.VRKS,J Crl.R.C.No.751 of 2022 wife and children. Be it noted, order for payment of interim maintenance remained final as none approached the superior forum as against that order. An order for interim maintenance was within the competence of the trial judge as per section 125(2) CrPC. As per sub-section (3) of section 125, on failure to comply with the order of interim maintenance a warrant could be issued for the recovery of amount and it prescribed a procedure.
Therefore, issuing a warrant by itself cannot be said to be incorrect. Learned counsel for petitioner contends that in terms of section 70(2) CrPC, every warrant shall remain in force until it is cancelled by the court which issued it and until it is executed. That in this case it was not cancelled and without canceling it, the learned trial court proceeded further and disposed of the main claim for maintenance.
13. In this regard, learned counsel cited Srikanth Upadhyay V. State of Bihar1.
That was a case of anticipatory bail filed by an accused. Facts on record indicate that when the trial court issued summons, he did not respond and when it issued bailable warrant, he did not respond and when it issued NBW, he did not respond and avoided legal process. Just before the trial court took up the proceedings for declaring him as proclaimed offender, he moved the anticipatory bail petition. While that petition was pending, the necessary enquiry before the trial court took place and he was declared a proclaimed offender. Dealing with such a 1 (2024) SCC Online SC 282 8 Dr.VRKS,J Crl.R.C.No.751 of 2022 case, their Lordships held that, in such circumstances, anticipatory bail could not be granted. During the process of reasoning their Lordships had occasion to refer section 70 CrPC. Their Lordships further stated that in the said case, those accused did not challenge the legality of issuance of warrants. The petitioner in the case at hand also did not challenge the legality and correctness of those warrants till disposal of the main claim for maintenance. They have not shown here that they made any application for its recall. Nothing prevented him from appearing before the court below and pay the interim maintenance and got the warrants cancelled. He neither pays the interim maintenance in the time frame that was prescribed by the court below nor responds to the notice and even avoids warrants issued against him and comes up contending that he did not appear because there was warrant pending. His defiance is apparent. Therefore, the ruling cited does not really help the petitioner in any manner. In Rajnesh V. Neha2, their Lordships after noticing the divergent views of the High Court as to whether defence could be struck off in any claim for maintenance. Finally, it held that striking off the defence could be passed as a last resort if the court finds default to be willful and contumacious to a dependent unemployed wife and minor children. Their Lordships further held that contempt proceedings for willful disobedience may be initiated before the appropriate court. In the case at hand, the learned counsel for petitioner contends that his wife is earning and employed and therefore striking off defence is incorrect. This argument does not hold good for two reasons. The interim 2 MANU/SC/0833/2020 9 Dr.VRKS,J Crl.R.C.No.751 of 2022 maintenance order directed him to pay monthly maintenance to his wife and two minor children also. He did not do it. He had not offered any reason for his failure. It may be true that during the long pendency of this litigation, he may have paid certain amounts which have been recorded by the courts but the fact remains that by the time the defence was struck off he was in huge arrears. When the minor children were put to such a grave risk and when the father did not offer any fact to excuse his failures, it is apparent that it was his willful default. If it was his willful default then striking off the defence was clearly permissible. Moreover, the man did not adduce any evidence to prove that his wife was employed. In such circumstances, striking off the defence by the learned trial court was completely in accordance with the law. Be it also noted that when his defence was struck off on 11.02.2021, FCOP.No.114 of 2017 was disposed of on 04.03.2021. Even within that time, he could have taken remedial measures either before the court below or here. He did not do that. Therefore, the contentions raised by the petitioner against the impugned order lacks merit.
14. One of the main contentions of the revision petitioner is that he was not given proper opportunity to participate in the enquiry and was not permitted to cross-examine the witness. It is in this regard, learned counsel for petitioner cited
1. Ekene Godwin V. State of Tamil Nadu3 3 2024 SCC Online SC 337 10 Dr.VRKS,J Crl.R.C.No.751 of 2022 In this case, their Lordships found that the learned magistrate holding a criminal case for trial had examined twelve prosecution witnesses. Their evidence in chief was recorded. The accused was unrepresented by an advocate and the learned trial court did not grant legal aid. It was that fact situation, their Lordships considered and noticed that the presence of Advocates in a criminal trial to defend the accused is a matter of seminal importance. His presence obviates leading questions and irrelevant questions. Considering the flagrant violation of the law, their Lordships ordered de novo trial.
2. Laxmibai V. Bhagwantbuva4 In this case, their Lordships stated that if the statement of a witness is to be impeached or the credibility of the witness is to be impeached, the opposite party shall be permitted to cross- examine the witness and he should bring it to the notice of the witness what has been objected to by the either party and that would grant opportunity for the witness to explain. All this is essential to ensure fair play.
3. Qurban Ali V. State of Uttarakhand 5 That was a case where in a claim for maintenance, the statements of witnesses were taken up and the witnesses were not tendered for cross-examination. Such evidence was 4 (2013) 4 SCC 97 5 2017 SCC Online Utt 1492 11 Dr.VRKS,J Crl.R.C.No.751 of 2022 inadmissible as it was without cross-examination. Since the trial court considered inadmissible evidence, the order was upset.
15. All the propositions of the law are appropriate and what is required to be seen is whether they have any application here or not. It can at once be stated that these important rulings do not have relevance in the fact situation available at hand. The impugned order of the learned Family Judge indicates, and the minutes of the court also indicates that when the witness testified the man did not appear to question the witness in cross. It was in those circumstances, the cross-examination was closed. Therefore, it is not a case where opportunity was not given to the petitioner to cross-examine the witness. Section 138 of Indian Evidence Act on which the learned counsel for revision petitioner places reliance shows that witness shall be first examined in chief, then if the adverse party so desires cross-examine such witnesses. The petitioner did not choose to question the witness in cross-examination. He has not shown any reason for his failure to cross-examine. He cannot contend that because he did not examine the witness in cross, there is a flaw in the learned trial judge's enquiry. There is absolutely no merit in this revision.
16. Learned counsel for respondents cited Anju Garg V. Deepak Kumar Garg6. In that case, their Lordships held that when the husband failed to appear before the Family Court despite the issuance of warrants closing his right to cross- examination was in accordance with law. In the case at hand, 6 2022 SCC OnLine SC 1314 12 Dr.VRKS,J Crl.R.C.No.751 of 2022 same was the situation. Therefore, the procedure followed by the court below cannot be found fault with.
17. The contention of the petitioner that it was Covid time and he was unable to attend the court and another notice could have been issued to enable him to appear and contest. There is no merit in this contention. During the relevant time, there was hybrid hearing in all the courts in this State. He in fact, made his appearance and filed his counter. His wife and children were participating in the enquiry. Nothing prevented him in participating in the enquiry. Therefore, this contention is negatived.
18. For all the reasons mentioned above, it is recorded that the order impugned is right on facts and law and does not warrant interference. After giving due credit what the revision petitioner had already paid to his wife and minor children, he must pay the regular maintenance and arrear maintenance as ordered by the learned Family judge.
19. In the result, this Criminal Revision Case is dismissed.
________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 06.08.2024 Dvs 13 Dr.VRKS,J Crl.R.C.No.751 of 2022 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CRIMINAL REVISION CASE No.751 of 2022 Date: 06.08.2024 Dvs