Karnataka High Court
Mahanthamma W/O Chandrashekarayya ... vs Chandrashekarayya Swamy on 5 October, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL PETITION NO.200734/2014
Between:
1. Mahanthamma
W/o Chandrashekarayya Swamy
Age: 41 years, Occ: Household
R/o Hanchinal (U) village
Now residing at parents house
At Sindhanur
PWD Camp, Near Shakadri Darga
Sindhanur, Dist. Raichur
2. Shivaleela
D/o Chandrashekarayya Swamy
Age: 9 years
3. Veereshayya Swamy
S/o Chandrashekarrayya Swamy
Age: 7 years
Petr. Nos.2 & 3 are minors represented by
Their natural mother Petr. No.1
Mahanthamma W/o Chandrashekarayya Swamy
R/o PWD Camp, Near Shakadri Darga
Sindhanur, Dist. Raichur
... Petitioners
(By Sri Mahantesh Patil, Advocate)
2
And:
Chandrashekarayya Swamy
@ Shekarayya Hiremath S/o Basayya
Age: 45 years, Occ: Agriculture
R/o Hanchinal (U) village
Tq. Sindhanur, Dist. Raichur
... Respondent
(By Sri Basavaraj R. Math, Advocate)
This criminal petition is filed under Section 482 of
Code of Criminal Procedure, praying to allow the petition by
quashing the impugned order dated 03.09.2013 insofar as
first para of the order is concerned, passed by the learned
I-Addl. Sessions Judge, Raichur, in Crl.R.P.No.41/2013 and
consequently enhance the monthly maintenance from
Rs.1,000/- to Rs.2,000/- each to petitioner Nos.2 & 3.
This petition having been heard and reserved on
03.09.2020, coming on for pronouncement of orders this
day, the Court made the following:
ORDER
This criminal petition is filed under Section 482 of Cr.P.C. for setting aside the order dated 03.09.2013 passed in Crl.R.P.No.41/2013 by the I Addl. Sessions Judge, Raichur insofar as setting aside the order of granting interim maintenance to petitioner No.2 is concerned and for further relief to enhance the monthly 3 maintenance from Rs.1,000/- to Rs.2000/- each to petitioner Nos.2 and 3.
2. Brief facts of the case are that, it is stated that petitioner No.1 is the wife of the respondent and their marriage was solemnized on 21.10.2004 at Somanatha Temple, Pura of Kushtagi Taluk and after marriage, petitioner No.1 went to the house of the respondent for consummation of marital life. It is stated that out of their wedlock, petitioner Nos.2 and 3 were born. It is stated that after about three years and six months, the respondent has started giving ill-treatment both physically and mentally and has driven out the petitioners from the house. Therefore, petitioner No.1 along with her children are constrained to reside in her parents house.
3. It is stated that since the respondent had neglected to maintain the petitioners, the petitioners have filed petition under Section 125 of Cr.P.C. claiming 4 monthly maintenance of Rs.2,000/- each from the respondent. The learned Magistrate, after considering the evidences on record has passed the order dated 11.03.2013, allowing the petition in part and granting monthly maintenance of Rs.1,000/- each to petitioner Nos.2 and 3 till they attaining the age of majority, from the date of the petition by directing the respondent herein to pay the said maintenance.
4. Being aggrieved by the said order of granting maintenance, the respondent herein has preferred Crl.R.P.No.41/2013 before the Court of I Addl. Sessions Judge, Raichur and the learned Sessions Judge has passed the order dated 03.09.2013, setting aside the order of granting maintenance to petitioner No.2 passed by the learned Magistrate in Crl. Misc. No.23/2009 and thereby granting maintenance of Rs.1000/- per month only to petitioner No.3 by directing the respondent 5 herein to pay monthly maintenance to petitioner No.3 as stated above.
5. Being aggrieved by the said order of the learned Sessions Judge, the petitioners, who are wife and children of the respondent have preferred the present petition praying to restore the order passed by the learned Magistrate and for enhancement of monthly maintenance from Rs.1,000/- to Rs.2,000/- each to petitioner Nos.2 and 3.
6. Learned counsel for the petitioners submitted that petitioner No.1 is legally wedded wife of the respondent and petitioner Nos.2 and 3 are their children. But, the learned Magistrate has granted maintenance only to petitioner Nos.2 and 3. He further submitted that even though the learned Magistrate has observed that petitioner No.1 is the second wife of the respondent, but petitioner No.1 is also entitled to monthly maintenance, otherwise she would be deprived 6 of monthly maintenance permanently. He further submitted that the learned Sessions Judge without there being any base and evidence has set aside the order of granting maintenance to petitioner No.2. Further he submitted that the petitioners are entitled to monthly maintenance of Rs.2,000/- each from the respondent. Therefore, he prays to allow the petition and issue direction to the respondent to pay the monthly maintenance of Rs.2,000/- each to the petitioners.
7. In support of his submissions, learned counsel for the petitioners has placed reliance on the following judgments:
1. AIR 2016 SC 4245 (Prabhu Chawla Vs. State of Rajasthan and Ors.
2. AIR 2020 SC 1064 (Sanjeev Kapoor Vs. Chandana Kapoor and Ors.)
3. AIR 1997 SC 987 (Krishnan and Ors. Vs. Krishnaveni and Ors.) 7
4. (2014) 1 SCC 188 (Badshah Vs. Urmila Badshah Godse and another)
8. Per contra, learned counsel for the respondent vehemently argued that the petitioners are not concerned to the respondent, as they are not wife and children of the respondent. He further submitted that these petitioners are completely alien to the respondent and their entire claim is false one. Further he submitted that the petitioners have not produced any evidence to show that petitioner No.1 is the legally wedded wife of the respondent and petitioner Nos.2 and 3 are his children. Further he submitted that the respondent has wife, but petitioner No.1 is not his wife and petitioner Nos.2 & 3 are not his children. Therefore, both the learned Magistrate and the learned Sessions Judge have correctly held that petitioner No.1 is not the legally wedded wife of the respondent. However, the learned Magistrate has granted monthly maintenance of Rs.1,000/- each to petitioner Nos.2 & 3, 8 but that is rectified by the learned Sessions Judge in Crl.R.P.No.41/2013 by setting aside the order of granting interim maintenance to petitioner No.2. Therefore, he submitted that there is no need to interfere with the order passed by the learned Sessions Judge.
9. In support of his submissions, learned counsel for the respondent has placed reliance on the following judgments:
1. (2005) 3 SCC 636 (Savitaben Somabhai Bhatiya vs State of Gujarat and Ors.)
2. 2011 (3) JCR 21 (Jhr) (Vineeta Devi vs Bablu Thakur)
3. (2000) 3 SCC 753 (Khemchand Om Prakash Sharma v. State of Gujarat)
4. 2008 (1) ALJ 752 (Sakiri Vasu v. State of U.P)
5. AIR 2013 Supreme Court 2248 (Mohit alias Sonu and Anr. v. State of U.P. and Anr.) 9
10. Learned counsel for the petitioners has relied on the judgment of Hon'ble Apex Court in Badshah's case (supra), wherein the husband has married the second wife concealing the fact of first marriage. Under those circumstances, it was held that even though the wife is second wife, but suppressing his first marriage and when the first wife was alive, the husband had married the second wife. Therefore, the second wife is also entitled for maintenance under Section 125 of Cr.P.C.
11. Further, the learned counsel for the petitioners has relied on the judgment of Hon'ble Apex Court in Prabhu Chawla's case, Sanjeev Kapoor's case and Kirshnan and Ors.'s case (supra). The Hon'ble Apex Court in these judgments was pleased to deal with the powers of High Court under Sections 397 and 482 of Cr.P.C. It is the ratio laid down in the above said three cases that where orders of the courts below 10 leading to miscarriage of justice, then the High Court can interfere with the said orders.
12. Learned counsel for the respondent has relied on the judgment of Hon'ble Apex Court in Mohit alias Sonu's case and Sakiri Vasu's case (supra), which deals with the inherent and revisional powers of the High Court as per Sections 482 and 397 of Cr.P.C. and under Article 226 of the Constitution of India.
13. Further, learned counsel for the respondent has relied on the judgment in Vineeta Devi's case (supra), which is in respect of considering the matters where Section 125 of Cr.P.C. is invoked.
14. Further, the learned counsel for the respondent has relied on the judgment of the Hon'ble Apex Court in Savitaben Somabhai Bhatiya's case and Khemchand Om Prakash Sharma's case (supra), which are also dealing with the cases where Section 125 11 of Cr.P.C. is invoked. One of the aspect considered in the above said judgments is, whether the second wife is entitled for maintenance and it is held that the second wife is not entitled for maintenance under Section 125 of Cr.P.C. But, in Badshah's case (supra), it is held that by concealing his first marriage with the first wife and even when his first wife is alive and the first marriage is also in subsistence, if the husband has married the second wife, then the second wife is also entitled for maintenance.
15. Therefore, the principles laid down by the Hon'ble Apex Court in the above said judgments, as relied on by both the learned counsel are followed while considering the present petition.
16. I have perused the evidence on record adduced before the Prl. Civil Judge & JMFC, Sindhanur, wherein petitioner No.1 was examined as PW.1 and other four witnesses were examined as PWs.2 to 5 and 12 got marked 10 documents as Exs.P1 to P10. On the other hand, the respondent was examined as RW.1 and two witnesses were examined as RWs.2 and 3 and got marked 4 documents as Exs.R1 to R4.
17. Petitioner No.1 is claiming to be the legally wedded wife of the respondent and both were blessed with two children. It is the claim of petitioner No.1 that after marriage, she has lead married life for about three and half years and then the respondent has thrown out the petitioners from the house. Therefore, the petitioners are constrained to prefer the petition under Section 125 of Cr.P.C., seeking maintenance. PW.1 (petitioner No.1) has given evidence in this line. But, the PW.1 in her evidence has deposed that the respondent already has a wife and he kept the petitioner No.1 in Sindhanur and was looking after the petitioners by giving monthly expenses for maintaining family. It is deposed that when male child was born, then the 13 respondent started to give ill-treatment to petitioner No.1. Upon considering the cross-examination, it is revealed that petitioner No.1 had already solemnized first marriage and her husband died on 29.01.2000. In the cross-examination it is revealed that petitioner No.1 is the second wife of the respondent and the marriage of petitioner No.1 and respondent was solemnized on 21.10.2004. It is also proved that the first wife of the respondent is still alive.
18. PWs.2 to 5 have deposed that petitioner No.1 is the wife of the respondent and out of the wedlock between petitioner No.1 and the respondent, petitioner Nos.2 and 3 were born.
19. PW.2 is the owner of the house, who had given his house on rent basis to petitioner No.1 and respondent from January 2005 to June 2007 and he deposed that in the said house petitioner No.2 was born.
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20. PW.3 has stated the same evidence stating that both petitioner No.1 and the respondent are living as husband and wife and from June 2007 to August 2008 they have resided in the house of PW.3 on rent basis and out of this wedlock, petitioner No.3 was born.
21. PW.4 has deposed that the respondent is her younger brother and petitioner No.1 is to be construed as a daughter as per relationship. The first husband of petitioner No.1 died. Therefore, the respondent has solemnized marriage with petitioner No.1 and out of this wedlock, petitioner Nos.2 & 3 were born.
22. PW.5 has also stated the same evidence.
23. Upon considering the cross-examination of these PWs.2 to 5, nothing is impeached to the effect that petitioner No.1 is not the second wife of the respondent and petitioner Nos.2 & 3 are not the children of the respondent . Therefore, upon considering the evidence 15 of these witnesses, it is unequivocally proved that the respondent has already a first wife and when the first wife is alive, the respondent has solemnized second marriage with petitioner No.1 and out of wedlock between the respondent and petitioner No.1, the children namely petitioner Nos.2 and 3 were born.
24. Learned counsel for the respondent has much argued that these petitioners are not at all concerned to the respondent. The respondent has produced documentary evidences which are Ex.R1- Marriage Invitation Card of the marriage between the respondent and his first wife and Exs.R2 to R4-School Certificates, which show that the respondent and his first wife are having three children. The respondent has given evidence as RW.1 and also examined two witnesses as RWs.2 and 3. All these RWs.1 to 3 have deposed that the petitioners are not concerned to the respondent-RW.1 and petitioners are not the wife and 16 children of the respondent-RW.1. During the course of cross-examination, the respondent admitted that who is also called as Shekarayya Swamy. Therefore, when the evidences on record are taken into consideration and taken together cumulatively, upon considering the Election Voters list-Ex.P4, the name of the husband of the first petitioner is shown as Shekharayya. Further, upon considering Exs.P5 & P6 certified copies of birth certificates of petitioner Nos.2 and 3, it is revealed that for petitioner No.2 the father's name is shown as Shekharayya Swamy Hiremath and for petitioner No.3 the father's name is shown as Chandrashekharayya Swamy Hiremath. As RW.1 admitted that who is also called as Shekharayya Swamy, the name of father of petitioner No.2 is shown as Shekharayyaa Swamy Hiremath in the birth Certificate-Ex.P5.
25. The learned counsel for the respondent much argued that the respondent is not father of 17 petitioner No.2 by contending that the name of first husband of petitioner No.1 is also Shekharayya Swamy and the name of this Shekharayya Swamy is shown as father of petitioner No.2 in the Birth Certificate of petitioner No.2-Ex.P5. Therefore, he contended that respondent is not the father of petitioner No.2, which is also rightly considered by the learned Sessions Judge in Crl.R.P.No.41/2013. Considering the entire evidences on record and appreciating the same with cumulative effect that the first husband of petitioner No.1 died on 29.01.2002 as revealed in the course of cross- examination of PW.1 (petitioner No.1), the name of the first husband of petitioner No.1 is also Shekharayya S/o Basayya, but the date of birth of petitioner No.2 is 12.02.2006. The respondent is also called as Shekharayya Swamy S/o Basayya. Therefore, when the first husband of petitioner No.1 died on 29.01.2002 as his death certificate is produced as per Ex.P8, it cannot be said that the father of petitioner No.2 is the first 18 husband of petitioner No.1. The respondent while giving evidence as RW.1 has deposed his name as Shekharayya Hiremath S/o Basayya and he himself stated in the examination-in-chief that he is also called as Chandrashekarayya @ Shekarayya S/o Basayya. Therefore, upon considering Ex.P8 which is the death certificate of the first husband of petitioner No.1, who died on 29.01.2002 and petitioner No.2 was born on 12.02.2006 showing her father name as Shekarayya Swamy Hiremath and also the respondent is called by both names Chandrashekarayya Swamy and Shekarayya Swamy, it is proved from the evidence on record as stated above that the respondent is the father of petitioner No.2. In this regard, the learned Sessions Judge has not appreciated and discussed the evidence on record correctly and therefore setting aside the order of granting interim maintenance in favour of petitioner No.2 is not correct and it is contrary to the evidence on record.
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26. Therefore, upon taking into consideration the evidence on record as discussed above in its entirety and appreciated with cumulative effect, it is proved that the first husband of petitioner No.1 died on 29.01.2002, whose name was also Shekarayya Swamy. After the death of first husband, petitioner No.1 had solemnized second marriage with the respondent on 21.10.2004. The respondent has married petitioner No.1 even when his first wife is alive and the marriage of the respondent and his first wife was in subsistence. Therefore, petitioner No.1 is the second wife of the respondent and out of the wedlock between petitioner No.1 and the respondent, the petitioner Nos.2 & 3 were born. Therefore, considering all these factors and evidences on record, the learned Magistrate has not granted monthly maintenance to petitioner No.1, but has granted monthly maintenance of Rs.1,000/- each only to petitioner Nos.2 & 3 by forming an opinion that petitioner No.1 is proved to be second wife of the 20 respondent and therefore she is not entitled to maintenance.
27. The learned Sessions Judge, upon accepting the revision petition of the respondent in part has confirmed the maintenance granted only to petitioner No.3 and set aside the maintenance granted to petitioner No.2. Hence, the observation made by the learned Sessions Judge in setting aside the order of granting maintenance to petitioner No.2 is not correct and contrary to the evidence on record. The learned Sessions Judge has not appreciated the evidence on record correctly and in true perspective manner based on the evidences on record, thereby erroneously set aside the order of granting maintenance to petitioner No.2. Therefore, the order passed by the learned Sessions Judge so far as setting aside the order of granting maintenance in respect of petitioner No.2 is liable to be set aside and is accordingly set aside, by 21 confirming the order passed by the learned Sessions Judge not disturbing the maintenance granted to petitioner No.3. To this extent, the order passed by the learned Sessions Judge in Crl.R.P.No.41/2013 is set aside and modified.
28. Further, upon considering the prayer and also the submissions made by the learned counsel for the petitioners regarding enhancement of monthly maintenance from Rs.1,000/- to Rs.2,000/- is concerned, it is needed to be enhanced as prayed for. The petitioners have produced R.T.C extracts as per Exs.P1 & P2 stating that the mother of the respondent is owning agricultural land and this fact is not disputed by the respondent. Even though the name of the respondent is not mutated in the record of rights, but it is fact that the mother of the respondent is standing as owner of the agricultural land and definitely the respondent is inherited the said properties by way of 22 succession. Further it is proved that petitioner Nos.2 & 3 are the children of the respondent. Therefore, it is the obligation and responsibility of the respondent to maintain his children. Therefore, in this regard considering now a days livelihood expenses including the educational expenses, maintenance amount of Rs.1,000/- per month to each child is insufficient and inadequate. Therefore, the same is needed to be enhanced and accordingly, as prayed for by the petitioners in the prayer, the monthly maintenance granted to petitioner Nos.2 & 3 of Rs.1,000/- each is enhanced to Rs.2,000/- each, directing the respondent to pay the maintenance amount to petitioner Nos.2 & 3 as directed above.
29. Therefore, in this regard the petition is liable to be succeeded and is accordingly succeeded.
30. The other submission made by the learned counsel for the petitioners is that the learned Magistrate 23 in Crl. Misc. No.23/2009 has not granted monthly maintenance to petitioner No.1 and therefore prays to award maintenance to petitioner No.1 also. Considering this aspect, the learned Magistrate has not granted maintenance to petitioner No.1 on the ground that petitioner No.1 is proved to be second wife of the respondent and marriage of petitioner No.1 and the respondent was solemnized when the first wife of the respondent was alive and first marriage was in subsistence. On these grounds, the learned Magistrate has not granted maintenance to petitioner No.1. Petitioner No.1 has not preferred any appeal/revision petition before the Sessions Court so far as not granting maintenance to her. The respondent has preferred revision petition. Whether the respondent has married petitioner No.1 concealing the fact of his first marriage with the first wife or petitioner No.1 after knowing the fact that the respondent has first wife then married the respondent is a question of fact to be determined during 24 the enquiry/trial. Therefore, upon considering this issue, while considering the petition under Section 482 of Cr.P.C. this Court cannot decide such question of fact and order for granting maintenance to petitioner No.1. Therefore, in this regard petitioner No.1 is given liberty to prefer petition/appeal before the appropriate Court of law seeking maintenance upon the issue to be decided whether the respondent concealed his first marriage while marrying petitioner No.1 or whether petitioner No.1 knew the fact that the respondent has already a first wife then married the respondent. Therefore, upon this aspect and issue to be resolved before the competent Court of law, the petitioner No.1 is reserved liberty to file another petition and adjudicate this issue, if she so wish. Therefore, the submission made by eth learned counsel for the petitioner that in this petition itself petitioner No.1 may be granted maintenance cannot be considered and accordingly this submission is rejected.
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31. Therefore, considering the prayer made in the present petition, as two prayers are made for setting aside the order of the learned Sessions Judge in canceling the maintenance granted to petitioner No.2 and for enhancement of monthly maintenance from Rs.1,000 to Rs.2,000/- each to petitioner Nos.2 and 3, on both these aspects, the present petition is liable to be allowed. Hence, I proceed to pass the following:
ORDER The criminal petition is allowed. The order dated 03.09.2013 passed in Crl.R.P.No.41/2013 by the I Addl.
Sessions Judge, Raichur so far as setting aside the order of granting maintenance to petitioner No.2 is hereby set aside and both petitioner Nos.2 & 3 are entitled to monthly maintenance from the respondent.
The monthly maintenance granted to petitioner Nos.2 & 3 of Rs.1,000/- each by the learned Magistrate 26 is hereby enhanced to Rs.2,000/- each which is to be payable by the respondent from the date of petition.
It is hereby directed that respondent shall pay monthly maintenance of Rs.2,000/- each to petitioner Nos.2 & 3.
Sd/-
JUDGE LG