Andhra Pradesh High Court - Amravati
S.K Mohidden vs S.Parveen on 11 December, 2019
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Revision Case No.853 of 2019
ORDER:
The challenge in this criminal revision case at the instance of the petitioner/respondent is to the order dated 28.06.2019 in M.C.No.22/2014 passed by the learned Additional Judicial Magistrate of First Class, Addanki, Prakasam District, granting maintenance to respondent/petitioner @ Rs.3,000/- per month from the date of filing of the M.C.
2. The respondent/petitioner filed M.C.No.22/2014 on the allegations that her marriage with petitioner/respondent took place about 22 years prior to the filing of M.C. and that he developed illicit intimacy with one Sundari of Vetapalem and in spite of her repeated requests, he did not mend his ways and on the other hand he started torturing her by burning on her legs with iron rod and pouring hot tea on her and ultimately he drove her away from the house after the birth of a female child and having no other option, she took shelter in her brother's house at Addanki. Later her husband had a second marriage with one Shaik Sahiron and living with her at Vetapalem village. She further alleged, on 16.09.2013 the marriage of her daughter was performed by herself, her husband and her mother, but on the very next day of the marriage she was beaten indiscriminately and again driven out of the house at Vetapalem with a threat not to return to his house. Having no other go she again went back to her brother's house at Addanki. The elders convened Panchayat and advised him to take 2 back her and provide maintenance but he did not listen to elders. She is unable to maintain herself and she has no resources either. Her husband is having a turbo lorry, mini lorry and one auto which he engaged in transport business. He is having a two portioned dhaba house worth Rs.30.00 lakhs, a vacant site of Ac.0.20 cents worth Rs.20.00 lakhs and bank deposits. He is getting income of Rs.10,000/- per month in his transport business and in all he is having properties worth Rs.2.00 Crores and hence, he is having capacity to maintain her. Thus, with those allegations she claimed Rs.20,000/- per month towards maintenance.
3. The petitioner/respondent, while admitting the marital relationship between parties inter alia contended that his wife often used to leave him and go to her parental home and she used to harass him in many ways and with great difficulty he used to bring her back. She got illicit intimacy with one Shaik Madarvali of Addanki and when he questioned her attitude, she openly proclaimed that she had intimacy with her paramour long prior to her marriage and only due to the pressure of her parents she married him. In the absence of himself and his family members she took away seven sovereigns of gold and Rs.50,000/- of cash from the house and went away to Addanki by leaving 9 months old daughter to her fate. At his request the elders like Medikonda Kondala Rao, Shaik Mabu and Shaik Ahamad had mediations, but his wife curtly stated that she did not want to lead marital life with her husband and she decided to detach herself from him once for all. The elders again tried to conduct mediations with 3 her father, but her father and brother have informed the elders that she has been living with one Narasimha Rao of Addanki town. Having come to know that his wife had completely deserted him, he married a woman by name Shaik Sahiron at the advice of the elders and begot two male children through his second wife. He was only working as a lorry cleaner and with his resources he performed the marriage of his daughter Sahira Banu on 15.09.2013 by selling his house at Vetapalem. He is a diabetic patient and suffering with ill-health. He has a large family to fend and therefore, he has no means to provide maintenance to her. He thus prayed to dismiss the M.C.
4. PWs 1 to 3 were examined on behalf of the petitioner in M.C. and RWs 1 to 6 were examined and exhibits R1 to R8 were marked on behalf of the respondent/husband.
5. A perusal of the order in M.C. would show that so far as the allegations and counter allegations regarding illegal intimacy attributed by both parties are concerned, the trial Court observed neither party could produce cogent evidence in that regard and hence, disbelieved the said allegation. However, having regard to the own admission of the husband the Court took note of the fact that he had second marriage. Then the allegation that the wife deserted the husband without any plausible cause is concerned, the trial Court observed that since he had second marriage and meted her with physical harassment, she had good ground to leave his company. So far as the means of the wife to maintain herself are concerned, the trial Court observed she was forced to do manual labour to eke out her 4 livelihood despite being a Pardanashin lady and therefore, she deserved maintenance. The trial Court rejected the argument of the husband that since the wife was getting widow pension she was not entitled to maintenance holding that as the husband drove her away she was forced to apply for widow pension and therefore, he cannot take advantage of the said fact to deny her maintenance. The trial Court considering the means of the husband and his performing the marriage of his daughter by spending sumptuous amount, held that he was capable of maintaining his wife and accordingly, awarded maintenance @ Rs.3,000/- per month.
Hence, the Criminal Revision Case.
6. Though notice was served on the respondent, there is no representation on her behalf. Hence, heard Sri Ch.Jayanta Rao, learned counsel for petitioner.
7. The order of the trial Court is severely fulminated firstly on the ground that the respondent herself left the society of the petitioner and deserted him by leading adulterous life and therefore, she is not entitled to maintenance. Secondly, it is argued that the respondent has been getting widow pension from the Government and besides she has been attending labour work and earning money and therefore, she does not deserve maintenance. Thirdly, it is argued that the petitioner is in hand to mouth condition and has big family to maintain and that he is suffering from ill-health and hence, he cannot pay maintenance to her.
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8. I gave my anxious consideration to above submissions and perused the record. At the outset, it must be said the arguments putforth by the petitioner are not formidable to dispel the factual scenario.
9. Though it is contended on behalf of the petitioner that the respondent has been leading illicit intimacy with one Shaik Madarvali and Narasimha Rao of Addanki town even before her marriage, as rightly observed by the trial Court except the oral assertion of the petitioner there is no believable testimony to establish the said fact. On the other hand, what surfaces on the caldron of allegations is that admittedly the petitioner had second marriage with Shaik Sahiron and begot children through her. In that view, the respondent has justifiable cause to leave his society and live independently. Desertion is not a mere act of moving from one place to another place, but it is the act of detaching from one set of circumstances, however, cogent and conducive to live and switching to another set of chosen circumstances, however legally and morally objectionable may be. In that angle, when the conduct of the respondent is tested, there is no proof that she voluntarily deserted the petitioner due to her adulterous conduct, but it appears she was forced to leave him as he had second marriage. Therefore, she is entitled to maintenance as observed by the trial Court. So far as the capacity of the respondent to earn livelihood by herself is concerned, the record shows she was no doubt getting widow pension from the Government. However, more than how much amount she was getting as pension, what is pertinent is, under 6 what circumstances she was getting the pension. Since she was driven out from the matrimonial home, she must have applied for the pension. In the broader circumstances of the case, the act of getting pension cannot be found fault and cannot be taken as a ruse to disallow maintenance. Similarly, her attending coolie work to eke out livelihood cannot be taken as a ground to discard her claim for maintenance. So far as the petitioner is concerned, even according to his own admission he was earning Rs.5,000/- to Rs.6,000/- per month. He performed the marriage of his daughter in a pompous manner by presenting Rs.3.00 lakhs cash and gold ornaments worth Rs.3.00 lakhs and household articles worth Rs.1.50 lakhs. Besides, he is having a dhaba house worth Rs.8.00 lakhs to Rs.10.00 lakhs at Vetapalem. All these facts would establish his financial ability to provide maintenance to the respondent. So viewing in any manner, the order of the trial Court awarding maintenance @ Rs.3,000/- per month to respondent from the date of filing application cannot be found fault. There is no illegality or irregularity in the order impugned. I find no merits in the Criminal Revision Case.
10. Accordingly, this Criminal Revision Case is dismissed.
Interlocutory applications, if any, pending in this Criminal Revision Case shall stand closed.
__________________________ U. DURGA PRASAD RAO, J 11.12.2019 MVA