Karnataka High Court
Ramesh S/O Chanbasappa Adeppa vs Dr. Laxmi W/O Ramesh Adeppa & Ors on 21 March, 2014
Equivalent citations: 2014 (4) AKR 505
Author: Rathnakala
Bench: Rathnakala
1
IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
DATED THIS THE 21ST DAY OF MARCH, 2014
BEFORE
THE HON'BLE MRS. JUSTICE RATHNAKALA
RPFC No.578/2013
BETWEEN:
RAMESH
S/O CHANBASAPPA ADEPPA
AGED ABOUT 57 YEARS
OCC. NIL, R/O WALANDI
DIST. LATUR MAHARASHTRA
NOW R/AT KARAN COMPLEX
N2A 22A CIDCO JALANA ROAD
AURANGABAD-431006
MAHARASHTRA STATE
... REVISION PETITIONER
(BY SRI KALYANI B BIRADAR, ADV.)
AND:
1. DR. LAXMI W/O RAMESH ADEPPA
AGED ABOUT 52 YEARS
OCC. MEDICAL PRACTITITONER
2. POOJA D/O RAMESH ADEPPA
AGED ABOUT 22 YEARS
OCC. STUDENT
3. KARAN S/O RAMESH ADEPPA
AGED ABOUT 16 YEARS
OCC. STUDENT
U/G OF RESPONDENT NO.1
REAL MOTHER
2
ALL THREE PREVIOUSLY
C/O PAMPATHY REDDY
JP EXTENSION BEHIND
DIST COURT GULBARGA
NOW R/AT FLAT NO. 202
CHINTAMANI APARTMENT
MODEL COLONY SHIVAJI NAGAR
PUNE-411016, MAHARASHTRA STATE
... RESPONDENTS
(BY SRI KRUPA SAGAR PATIL, ADV. FOR R1 & R2
R3 IS MINOR REPRESENTED BY R1)
THIS RPFC FILED U/S. 19(4) OF THE FAMILY COURTS ACT,
1984, AGAINST THE ORDER DATED 02.04.2013 PASSED IN CRL.
MISC. NO. 50/2012 ON THE FILE OF THE DISTRICT JUDGE, FAMILY
COURT AT GULBARGA. WHEREIN, THE PETITION WAS PARTLY
ALLOWED.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 14.03.2014 AND COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, RATHNAKALA, J., MADE THE FOLLOWING:
ORDER
This revision petition is filed assailing the order dated 2.4.2013 passed by the District Judge, Family Court, Gulbarga on his file Crl.Misc.No.50/2012 in allowing the petition in part, filed by the respondents herein under Section 125 of Cr.P.C. By the impugned order the Court below has directed the petitioner herein to pay monthly 3 maintenance of Rs.15,000/- to the first respondent during her life time, Rs.10,000/- per month to the second respondent till her marriage, Rs.20,000/- per month to the third respondent till he attains majority.
2. The fact is 'the revision petitioner is the husband of the first respondent and father of the second and third respondents. The wife and children filed petition for maintenance in the Court below: their allegation was the first petitioner and the respondent are married for about 22 years. Sometime after the marriage, the husband started ill-treating the wife and he was addicted to alcohol. Since the husband was working in Abudabi as an engineer, the family resided at UAE. The wife being a MBBS graduate wanted to pursue her further education and came over to India, meanwhile she sustained leg fracture and she could not return to her matrimonial home at U.A.E. Then the husband wanted to divorce her. However, by obtaining fresh visa, the wife returned to Bahrain. The second 4 petitioner was prosecuting her study at Pune, during June 2010. The husband declared that he resigned his job. The couple returned to India. When the wife had came to Gulbarga to her parents house, during October 2010, the husband without informing the wife vacated the rented house at Pune and carried away all her testimonials. His whereabouts could not be traced. Hence, the wife had to file a missing complaint during September 2011 at Pune police station. She received notice of a divorce petition on 13.10.2011 from Civil Judge (Sr.Dn) Udagir, Maharashtra instituted by her husband. The wife has no independent income of her own. She has to maintain the petitioners 2 and 3 and bear their educational expenses, medical expenses etc. The husband has monthly income of Rs.1,20,000/- and rental income of rupees 7,00,000/- per annum and also he has agricultural income. He owns flats, commercial shops in Maharashtra State and own house and two residential sites at Bangalore.' 5
3. The husband contested the petition. Though, he admitted his relationship with the petitioners, his counter allegation was it was wife who was frequenting India and allegations made by her in the petition are false. She wanted to break down the marriage. Between October 2008 to March 2009 she demanded divorce repeatedly four times and finally ran away from the matrimonial house on 23.03.2009. She is a highly qualified woman. She has deserted her husband and children.
4. The trial court on appreciation of evidence and on hearing both counsels allowed the petition and directed the husband to pay monthly maintenance of Rs.15,000/- to the first petitioner, Rs.10,000/- to the second petitioner until she gets married and Rs.20,000/- to the third petitioner until he attains majority.
5. Sri Kalyani Biradar, learned counsel for the revision petitioner/husband submits that the impugned order is passed on assumption and presumption: the wife though 6 highly qualified is adamantly refusing to utilize the said qualification and to engage herself in her profession. Though the Trial Judge has taken note of the fact that the wife does not have residential address in Gulbarga, he did not dismiss the petition for want of jurisdiction. There was material on record that the husband had made Fixed Deposit in the name of the second respondent, still the learned Judge has recorded a finding that the husband neglected the family members. It was the wife who deserted the revision petitioner but not vice-versa. She is earning interest from the Fixed Deposits made in her name by her father.
6. Sri Krupa Sagar Patil, learned counsel for the respondents/family members in his reply substantiates the impugned order. He submits "the Family Court, Gulbarga has jurisdiction to entertain the petition under Section 126(1)(b) of the Cr.P.C. As evidenced by the Divorce petition (Ex.P-85) filed by the husband before the Civil Judge Court, 7 Udagir, the wife's residential address is at Gulbarga only. The husband himself got the divorce petition dismissed from the said Court to file a divorce petition in Family Court at Gulbarga by filing a memo (as per Ex.P.86). Now he cannot question the jurisdiction of the Family Court at Gulbarga. Address mentioned in the cause title under section 125 of Cr.P.C. is that of her parents."
7. As regards the entitlement of wife to claim maintenance from the husband, Sri Krupa Sagar Patil further submits "though she is a highly qualified lady, she is not earning: she is aged about 50 years: there is no evidence on record indicating that she is gainfully employed anywhere, she is presently diagnosed for Invasive duct carcinoma and the Hospital at Bahrain, where she previously worked is giving her treatment free of cost. Since the husband has sufficient income to maintain the wife, the order of the Family Court in granting maintenance is justified. As regards the second petitioner, now she is a 8 practicing Advocate. As per Hindu law, the father is obliged to maintain the daughter till he performs her marriage. As regards the maintenance of the third petitioner is concerned, he is a minor though it is stated that the father has deposited Fixed Deposit in his name, being a minor he cannot withdraw the amount on his own. It is only after he attains majority he can utilize the interest portion of the deposit till then he is liable to be maintained by the father."
8. Having heard the respective submissions from both sides and on going through the impugned order following points arise for my consideration:
1) Whether the Family Court at Gulbarga had no jurisdiction to entertain the petition?
2) Whether the impugned order awarding maintenance amount to the petitioners is justified?
9. As such the relationship between the couple is sufficiently strained. It is not in dispute that the c/o 9 Address of the petitioners at Gulbarga mentioned in the cause title of the petition filed before the Family Court is that of the father of the wife. The husband had shown the very same address in his divorce petition filed before the Udagir Court. By filing a withdrawal memo before the said Court, stating that he will file Divorce petition at Gulbarga, he implicitly admits the jurisdiction of Family Court Gulbarga to entertain the petition.
10. The relevant provisions which contemplates territorial jurisdiction of a Court to entertain a petition under Section 125 of Cr.P.C. is Section 126(1)(b) which reads as under:
a) xxxxx
b) where he or his wife resides, or
c) xxxxx Thus the Gulbarga Court has jurisdiction to entertain the petition where the wife presently is put up.10
11. The next question is, the entitlement of the wife who herself is a specialist in gynecology, in seeking maintenance from the husband. When the wife says that she is not earning, same is not disproved by the husband either during her cross-examination or during the rebuttal evidence. If really the wife was practicing Doctor, definitely same could have been easily traced in this age of advanced Technology and easy access to any information under statutory right. It would not have been a big deal to collect details if she really had any independent earning. During the cross-examination the husband admits to the effect that he is not paying rent to the house where the petitioners are presently residing and after the filing of the petition he has not paid anything to his children. Actually he does not know where his wife is residing.
12. The very scheme of Section 125 Cr.P.C. is to prevent destitution and vagrancy of the dependents. The statute operates within a narrow campus. It is not necessary to go 11 deep in to analysis of matrimonial offences alleged against each other. These issues can be conveniently transferred to the jurisdiction of matrimonial Court where the couple are litigating. For the purpose of the present case it is sufficient that relationship is admitted and negligence is not disputed.
13. The very fact that the husband filed petition for divorce before a Court of law at Maharashtra is sufficient to infer that he wanted to severe his relationship from his wife. It has come in evidence that subsequently he withdraw the said petition and filed another petition for divorce before the Court at Pune. In one breath he expresses his love and concern for his children and in another breath admits that he is not maintaining the children. The merits and the demerits of the allegations made by the husband in his Divorce petition, are yet to be proved during full pledged trial. Till then he cannot excuse himself from his obligations to maintain his family. 12
14. Who all are entitled for the shelter under the umbrella of 125 Cr.P.C. is contemplated under Section 125(1) of Cr.P.C. Accordingly among others
(a) wife unable to maintain herself;
(b) legitimate or illegitimate minor child whether married or not, unable to maintain itself are the beneficiaries.
(c) xxxxx
(d) xxxxx are the beneficiaries.
15. A nice question of law is raised in the revision about the entitlement of the wife who being highly qualified and able to maintain herself and how can she maintain the petition. Similar question came for consideration in a case before the learned Single Judge of this Court reported in 2009 (3) KCCR 2245 in the case of Smt.Tejaswini vs. Aravinda Tejas Chandra after examining the possession of law under Section 125(1)(a) of Cr.P.C. as under: 13
"11. The fate of this petition rests mainly on the interpretation of the expression 'unable to maintain herself'. A plain reading of the expression keeping in view the meaning assigned to every word that appears in the said expression cannot lead any one to read such expression as to mean 'capable of earning'. In other words, the expression puts the emphasis on the wife being unable to maintain herself and the emphasis is not on the capacity of wife to earn for herself. As such, the potential earning of the wife is not in contemplation in the expression that is found in section 125(1)(a) of the Cr.P.C. As rightly argued by the learned counsel for the petitioner, if the expression 'unable to maintain herself' is to be interpreted as to mean 'capable of earning' then the very purpose of introducing Section 125 of the Cr.P.C. will be rendered redundant. This is because it is always possible to say in a given case where the wife seeks maintenance, that she has the potential to earn something or that she capable of earning for herself and if that interpretation is accepted, then it may be possible to reject almost every petition that is filed under Section 125 of 14 the Cr.P.C. and this is not the intention of the legislation."
Further it was observed as follows:
17. Keeping in view the aforesaid principle of interpretation of statute, in the instant case, as already observed by me earlier, plain reading of the expression 'unable to maintain herself' cannot lead to the meaning 'capable of earning for herself. Therefore, what is not contemplated by the legislature cannot be read into it by the Court. The expression which is under discussion does not take into account the potential earning capacity of the wife but all that it says is that if the wife is unable to maintain herself and if she satisfies other requirements of the section namely a person having sufficient means neglects or refuses to maintain his wife, the petition by the wife for maintenance cannot be rejected merely on the footing that a wife is capable of earning for herself.
18. This conclusion is also based on the reasoning that though the wife is a highly educated person in a given case and she does 15 not choose to go for work but wants to sacrifice her entire life for the well-being of the family even at the cost of a lucrative job, it cannot be said that in such a case, the wife will not be entitled to maintenance if her husband neglects or refuses to maintain her. As rightly pointed out by the learned counsel for the petitioner, despite holding a higher educational qualifications, it is not incumbent on the part of the wife to go for a job particularly when she is prepared to sacrifice a prospective career for the sake of her family.
16. In that view of the matter, absolutely no error is committed by the Family Court in awarding the maintenance to the wife and minor son who were unable to maintain themselves. But as regards the claim of the second petitioner/daughter was concerned, she was already aged 21 years as on the date of the petition. Being a major she is not qualified under section 125(1)(b) of the Act. The husband had admitted during his cross- examination his responsibility to maintain his daughter and to take care of her welfare. It has in evidence that the 16 daughter was studying under N.R.I. quota in a reputed law college. By this time she must have completed her law graduation. The trial court directing the husband to pay maintenance of Rs.10,000/- per month until she gets married is erroneous and contrary to the scheme of the statutory provision. Though obligation of the father to maintain a daughter until her marriage is recognized under Section 20 r/w section 21 of Hindu Adoption and Maintenance Act 1956, said legal right can not be enforced by the daughter in the present petition. Being a major she could not have maintained a petition against her father under Section 125 of Cr.P.C. The learned Judge in the body of his petition has dealt in detail the financial position and capability of the husband to maintain the petitioners. It is a finding of fact founded on judicious assail of evidentiary material and does not call for interference. The first petitioner having come from an affluent family and married to the respondent who was economically well of, 17 definitely entitled to maintain her standard of life she so far enjoyed with her husband.
17. The Apex Court in the judgment reported in (1975) 2 S.C.C. 386 in the case of Bhagwan Dutt and Kamala Devi and another held:
The wife should be in a position to maintain a standard of living which is neither luxuries nor penurious but what is consistent with status of family. The expression 'unable to maintain herself does not mean that the wife must be absolutely destitute when she apply for maintenance under Section 125 Cr.P.C.
18. In that view of the matter, the impugned order directing the husband to pay Rs.15,000/- per month during her life time and Rs.20,000/- to the third petitioner until he attains majority is justified. As such as on the date of the petition the third petitioner was aged of 15 years and his entitlement for maintenance from his father is only for a period of three years.
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19. Accordingly, the revision petition is allowed-in-part. The order of the Family Court in directing the revision petitioner to pay maintenance amount to the second respondent/daughter is set aside. The rest of the order is not disturbed.
Sd/-
JUDGE sdu