Andhra Pradesh High Court - Amravati
C.Krishna Kishore, vs M.Lakshmi Devi And 2 Others, on 26 July, 2022
THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
CRIMINAL REVISION CASE No.1661 OF 2008
ORDER:-
This criminal revision case is filed under Sections 397 & 401 of Criminal Procedure Code, 1973 (for short "Cr.P.C") challenging the order dated 03.10.2008 passed in M.C.No.46 of 2005 on the file of the Judge, Family Court-cum-V Additional District and Sessions Court, Tirupati whereby the Court below has granted maintenance of Rs.1,500/- per month to the respondents 1 and 2.
2. The brief facts of the case are that the marriage of the petitioner/husband and 1st respondent/wife was performed on 18.08.2000 as per Hindu rites and customs and at the time of their marriage, parents of 1st respondent paid Rs.2,00,000/- besides giving 15 tulas gold as the petitioner/husband was a civil engineer executing contract works. After the marriage, they lived happily for some time and they blessed with 2nd respondent. It is further stated that, the petitioner addicted to vices and incurred debts and demanded amounts from 1st respondent and harassed her for further dowry and he also teased and harassed the sister of 1st respondent/wife by name Haripriya when she was living in their house for education. Due 2 to unbearable harassment of the petitioner/husband, the 1st respondent/wife filed criminal case in Cr.No.42 of 2005 under Section 498-A, 406, 147, 148, 323, 324 read with 149 IPC against the petitioner/husband and she also filed H.M.O.P.No.77 of 2005 for divorce. As she has no properties or source of income for their livelihood, as such, she filed M.C.No.46 of 2005 for maintenance as the petitioner/husband has lands and is getting income not less than Rs.75,000/- per month by doing contract works.
3. The petitioner/husband filed counter in M.C.No.46 of 2005 admitting the relationship with the respondents 1 and 2 and denied the allegations such as receiving dowry, demanding additional dowry, harassment, cruelty to 1st respondent herein and teasing her sister Haripriya and about doing contract works, chit business and earning Rs.75,000/- per month, as pleaded by the 1st respondent. It is further contended that, they lived happily till begot of 2nd respondent and after giving birth to 2nd respondent, the 1st respondent changed her attitude comparing his financial status with one Devakumar under whom she working as attendant while she was pregnant and developed illicit intimacy with Devakumar and 1st respondent is living with him after necked out from the house on 01.03.2005. 1st 3 respondent is residing in door No.16-1-41, Varadaraja Nagar, Tirupati along with Devakumar and she removed thali and wearing Christ cross in her neck and is leading adultery and she is earning Rs.7,000/- per month as trustee of a Christian organization getting lakhs of rupees from foreign countries, as such, 1st respondent/wife is not entitled for maintenance. Accordingly he sought for dismissal of the said petition.
4. Basing on the said pleadings, the Court below framed the following point for consideration:
"Whether the petitioners are entitled for maintenance from respondent as prayed? If so what amount?"
5. The 2nd respondent herein/wife was examined herself as PW.1 besides PW.2 and marked Exs.P1 to P5 and the petitioner herein/husband was examined himself as RW.1 besides RWs.2 and 3 and marked Exs.D1 to D11, to substantiate their case.
6. The Court below, after considering the averments made by both sides, allowed the petition by directing the petitioner herein to pay Rs.1,500/- each to respondents 1 and 2 as monthly maintenance from the date of the said petition. Aggrieved by the same, the petitioner/husband filed this revision.
7. Heard learned counsel for the petitioner and learned counsel for respondents 1 and 2.
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8. Learned counsel for the petitioner/husband submits that 1st respondent/wife is earning about Rs.3,000/- per month and she has sufficient means for her livelihood and she is living in adultery with Deva Kumar and she went to an extent of removing thali and started wearing Christ cross and living in adultery and she also filed criminal case and divorce OP against the petitioner and trying to see that the petitioner is removed from his job and on the other hand claiming maintenance from the petitioner. The petitioner adduced evidence before the Court below but the Court below without giving any importance to the said evidence granted maintenance, hence, he requests to set aside the order impugned.
9. Learned counsel for 2nd respondent/wife submits that the pleas of petitioner's cannot be a ground to absolve his responsibility of maintaining his wife and children since he is an able bodied person. The Court below has passed a reasoned order. Therefore, he prays for dismissal of this revision.
10. Before dealing with the merits of the matter it is appropriate to look at Section 125 Cr.P.C. which reads thus:
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or 5
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself,
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother.
11. In this regard the law is well settled as the Hon'ble Supreme Court in Shamima Farroqui vs. Shahid Khan1 observed that:
"15. ... There can be no shadow of doubt that an order under Section 125 Cr.P.C. can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometime, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 of Cr.P.C. unless disqualified, is an absolute right."
12. In Rajnesh vs. Neha2 the Hon'ble Supreme Court held as:
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2015 (5) SCC 705 6 "66. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Prakash Bodhraj v. Shila Rani Chander Prakash3 the onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.
64. In sunita Kachwaha and Ors. v. Anil Kachwaha4 the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.
65. The Bombay High court in Sanjay Damodar Kale v. Kalyani Sanjay Kale while relying upon the judgment in Sunita Kachwaha (supra), held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meager, is sufficient to deny the claim of maintenance."2
2020 (3) ALT (Crl) 464 (AP) 3 Manu/de/0028/1968:AIR 1968 Delhi 174 4 Manu/SC/0964/2014 : (2014) 16 SCC 715 7
13. On perusal of the record, it shows that the petitioner/husband failed to rebut the allegations made by 1st respondent/wife that she was harassed by her husband for additional dowry amount. In the counter, the petitioner made a grave allegation that the 2nd respondent was leading adulterous life with one Devakumar in Varadaraja Nagar. Despite making such a grave allegation, the petitioner failed to prove the same by placing sufficient oral or documentary evidence except filing photographs of his wife with another person, which are not at all sufficient to prove the allegation of adultery. Thus, the Court below has rightly rejected the contentions raised by the petitioner/husband holding that the allegation of adultery is made only to escape from his liability to pay maintenance to his wife and daughter. Therefore as per the observations made in the citations referred above, the petitioner/husband cannot be discharged from his obligation of maintaining respondents 1 and 2.
14. There are no grounds warranting interference of this Court with order dated 03.10.2008 passed in M.C.No.46 of 2005 on the file of the Judge, Family Court-cum-V Additional District and Sessions Court, Tirupati as the Court below has considered both oral and documentary evidence available on record and has 8 applied the law applicable in proper perspective and came to the right conclusion.
15. In view of the above discussion, this Court finds no infirmity in the order impugned. Hence, this revision deserves to be dismissed.
16. Accordingly the Criminal Revision Case is dismissed.
As a sequel, all the pending miscellaneous applications are closed.
___________________________ JUSTICE RAVI CHEEMALAPATI Date : 26.07.2022 SPP 9 THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI CRIMINAL REVISION CASE No.1661 OF 2008 Date : 26.07.2022 SPP