Karnataka High Court
Eranna vs Kalyani @ Lalita W/O Eranna Pattar on 18 April, 2017
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
R.P.F.C.NO.200046/2017
Between:
Eranna
S/o Parasappa,
Age : 36 Years,
Occ : Agriculture,
R/o Bagalwad Village,
Tq. Manvi,
Dist. Raichur.
... Petitioner
(By Sri Mahantesh Patil, Advocate)
And:
Kalyani @ Lalita
W/o Eranna Pattar,
Age 28 Years,
Occ : Household,
R/o Kamalapur Village,
Tq. and Dist. Raichur- 584101.
... Respondent
This RPFC filed under Section 19 (4) of the Family
Courts Act, praying to call for the entire records in
Crl.Misc.No.141/2016 on the file of Principal Judge, Family
Court at Raichur and set aside the order dated 27.02.2017
passed by the Principal Judge, Family Court, at Raichur in
Crl. Misc. No.141/2016.
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This petition coming on for Admission this day, the
Court made the following:
ORDER
The husband filed the present revision petition against the order dated 27.02.2017 made in Criminal Miscellaneous No.141/2016 on the file of the Prl. Judge, Family Court, Raichur granting maintenance of Rs.4,000/- per month to the wife.
2. Parties are referred to as per their ranking before the Family Court.
3. The present respondent who is the petitioner before the Family Court filed the petition under Section 125 of Criminal Procedure Code for maintenance contending that she is the legally wedded wife of respondent therein and her marriage took place with the respondent on 27.04.2008 at Sri Basaveshwara temple of Vattagal village Manvi Taluk Raichur. At the time of marriage petitioner's parents gave articles worth 3 of Rs.50,000/- including gold and dowry to the respondent-husband. After the marriage petitioner started to reside in the house of respondent at Bagalwada along with his father, mother and brother. The marriage was consummated about 1 or 2 years, the petitioner lead happy married life. Though the mother- in-law, father-in-law, brother-in-law and sister-in-law were taunting her indirectly, she tried to adjust with them but the respondent at the instigation of his mother-in-law, brother-in-law and sister-in-law started to abuse her in filthy language, they were assaulting her for dowry and also stated that she is not conceived. Since their behaviour became intolerable, she filed a complaint before Kavithal village police, Manavi and FIR No.11/2013 was registered against the respondent. The police have filed the charge sheet before the JMFC Manvi in CC No.64/2013. As per the advice of well wishers, since the respondent-husband agreed to behave properly, the matter was compromised. The 4 respondent was acquitted in CC No.64/2013 on 14.08.2014. Later on the family members of the respondent after one year stared taunting and abusing her in filthy languages, assaulting her stating that she does not know cooking and cannot have children. They were asking her to leave the house so that the respondent-husband can go for second marriage. Therefore, petitioner has lodged a complaint before the Kavithal Village Police Manvi, the same is registered in FIR No.48/2016 for the offences punishable under Section 498-A and 323 of IPC, the same is still pending for investigation.
4. It is her specific case that since respondent- husband has neglected to maintain her, she was living in her sister's house and she was unable to maintain herself. The respondent is a goldsmith and earns Rs.10,000/- to Rs.15,000/- per month and having a share in the agricultural land bearing Sy.No.52 at 5 Bagalwad village Manvi Taluk, Raichur Dist measuring 9 acres 20 guntas and he got income of Rs.3 lakh per annum from the irrigated land. The petitioner - wife is residing at Kamalapur, Raichur District and the court at Raichur has got jurisdiction. Hence, she prays for maintenance.
5. The present petitioner/respondent-husband filed the objection before the Family Court. Relationship is admitted but the averments made in para-2 to 14 of the petition are denied. According to the respondent, petitioner was not ready to look after the aged parents of the respondent, she wants separate house, she filed the complaint only to compel the respondent. Even though he had been to the parents' place of petitioner and requested her to come and join the company of the respondent, all the efforts went in vain. Respondent's sister filed O.S. No.474/2014 before the Civil Judge, Sindhanur for partition, it was ended in compromise petition. In the said compromise respondent got only 1 6 acre of land and he has no other source of income. Therefore, sought for dismissal of the petition.
6. Based on the pleadings of the parties, the Family Court framed the following points:
1. Whether the petitioner has made out ground for granting maintenance as prayed ?
2. What Order?
7. The wife examined herself as PW-1 and another witness was examined as PW-2, got marked the documents Exs.P-1 to P-5. Husband got himself examined as RW-1 and got marked the document Ex.R-1.
8. The Family Court considering the entire material on record, recorded a finding that the petitioner has made out ground for grant of maintenance. Accordingly by the impugned order dated 27.02.2017 awarded a maintenance of Rs.4,000/- per 7 month from the date of petition till her life. Hence, the revision petition by the husband.
9. I have heard the learned counsel for petitioner.
10. Sri Mahantesh Patil, learned counsel for the petitioner vehemently contended that impugned order passed by the Family Court granting maintenance of Rs.4,000/- per month to the wife is without any basis. He further contended that in view of provisions of Section 125 (1) (5) of Cr.P.C. the wife is not entitled for maintenance, since she is living separately. He further contended that the Family Court has no jurisdiction to pass the maintenance order in view of the fact that the wife is residing at Bellary as admitted in her cross- examination. Therefore, the criminal miscellaneous filed before Raichur is not maintainable. He further contended that the petitioner-wife is not co-operating with the respondent- husband to reside along with the 8 parents of respondent. Therefore he sought to set aside the impugned order passed by the Family Court.
11. In view of the aforesaid contentions advanced by the learned counsel for the petitioner-husband, the only point that arises for consideration in the present revision petition is:-
"Whether the Family Court is justified in granting maintenance of Rs.4,000/- to the wife - present respondent in the facts and circumstances of the present case?"
12. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioner and perused the material on record carefully.
13. It is admitted fact that the present petitioner and respondent married on 27.04.2008 at Bavaveshwara temple of Vattagal village, Manvi Taluk Raichur District. It is also not in dispute that there was dispute between the husband and wife and complaint 9 was filed in FIR No.11/2013 and ultimately it was ended in the compromise petition on 14.08.2014. It is specific case of the respondent-wife that her husband deserted her without paying any maintenance, she has no means to maintain herself and husband has neglected and she is residing with her sister. She further contended that respondent-husband present petitioner is a goldsmith and earns Rs.10,000/- to Rs.15,000/- per month and he is having share in the agricultural land in Sy.No.52 at Bagalwad Village Manvi Taluk, Raichur District. Respondent-husband has filed objections. He has not disputed the relationship between the parties. The only dispute is that she herself went away from the respondent and in spite of repeated request, she never joined and he is having only 1 acre of land and he has no source of income. Though the learned counsel for the petitioner - husband contended that the wife is not entitled for maintenance in view of Section 125 (1) (5) of Cr.P.C. on the ground 10 that without sufficient reasons, she refuses to live with the husband. The said contention cannot be accepted while plain reading of Section 125 (1) of Cr.P.C. clearly indicates that:
"If any person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself"
Section 125 (5) Cr.P.C. deals with:
" On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or they are living separately by mutual consent, the Magistrate shall cancel the order. "
Any of the three ingredients of Section 125 of Cr.P.C. stated supra has not been proved before the Court by producing any proof to that effect, in the absence of the same, the contention of the petitioner - husband cannot be accepted.
14. It is the specific contention of the learned counsel for husband that wife is resident of Bellary 11 and she has admitted the same in the cross- examination. The said contention also cannot be accepted, for the simple reason, as can be seen from the cause title of the petition filed before the Family Court and before this court which clearly indicates that she is resident of Kamalapur village Raichur District. In the petition also it is specifically stated that the petitioner - wife is residing at Kamalapur village in Raichur District and Family court has got jurisdiction. To disprove the said contention, the husband has not produced any material document to prove that she is resident of Bellary. Merely a stray word stated by PW.1 that she is living in Kamalapur, Bellary District, admittedly Kamalapur is not in Bellary District and Kamalapur is within the Raichur District, no material is produced by the husband to show that petitioner - wife is resident of Bellary district. Therefore the said contention cannot be accepted.
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15. When the relationship of the parties being husband and wife is not in dispute, whose marriage took place on 27.04.2008, the husband is bound to maintain his wife in view of Section 125 (1) (a) of Cr.P.C. It is not the case of the husband that his wife has sufficient means to maintain herself. In the absence of any material document to prove that petitioner - wife has sufficient means, the duty to maintain his wife cannot be escaped. The Family Court considering the material documents Exs.P-3 and Ex.P-4 RTC and as per statement of PW.1 that husband is getting Rs.15 lakh per annum and he is a goldsmith and earns Rs.10,000/- to Rs.15,000/- per month has proceeded to grant maintenance of Rs.4,000/- per month. In fact, PW-1 in her cross-examination specifically stated on oath that she has no objection for the parents of the husband to live with her. Therefore, argument advanced by the counsel for the respondent - husband that petitioner - wife is refusing to live with the parents 13 of respondent, is contrary to material on record. Though the respondent made an allegation that petitioner is insisting for separate house, there is no material before the court to show that the petitioner is insisting for separate house. On the other hand, Ex.P1 produced by the wife and evidence given on oath by PW.2 who is resident of respondent's village that respondent is not looking after the wife properly after withdrawal of criminal case. Therefore it is clear that only for the purpose of influencing her for withdrawal of criminal case, respondent agreed to look after her wife properly and accordingly C.C. No. 64/2013 came to be ended in compromise on 14.08.2014. Thereafter, he has shown his real colour and proceeded to harass his wife. On all these grounds the Family Court granted Rs.4,000/- per month to wife which is hardly sufficient to lead her day-today life.
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16. The Hon'ble Supreme Court while considering the provisions of Section 125 of Code of Criminal Procedure in the case of Bhuwan Mohan Singh V. Meena and Others reported in AIR 2014 SC 2875 at para 3 held as under:
"3. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short "the code") was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case 15 of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created where under she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds."
17. The Hon'ble Supreme Court while considering the provisions of Section 125 Cr.P.C. held that even a divorce woman can apply for maintenance and also held 16 that the absolute right of wife cannot be defeated on the pleas that the husband does not have any means to pay, or he does not have job or business is not being well; if husband is able bodied, he is in a position to support himself, he is under legal obligation to support his wife. It is held by the Hon'ble Supreme court in the case of Shamima Farooqui vs. Shahid Khan reported in AIR 2015 SC 2025 as under:
"15. The High Court, without indicating any reason, has reduced the monthly maintenance allowance to Rs. 2,000/-. In today's world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs. 2,000/- per month. It can never be forgotten that the inherent and fundamental principle behind Section 125, CrPC is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she compelled to leave her matrimonial home. The statute commands there has to be some acceptable arrangements so that she can sustain herself. The principle of 17 sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A women, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125, CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125, CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have job or his business is not doing 18 well. These are only bald excuse and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support him self, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125, CrPC unless disqualified, is an absolute right. While determining the quantum of maintenance, this Court in Jabsir Kaur Sehgal V. District Judge Dehradun & Ors. has held as follows:-
"The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed can not be excessive or extortionate."19
16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj V. Sitabai, it has been ruled that:-
"Section 125, CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this court in Captain Ramesh Chander Kaushal V. Veena Kaushal falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife, It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya V. State of Gujrat.
This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is 20 unable to maintain the wife due to financial constraints as long as he is capable of earning.
18. For the reasons stated above, the point raised in the present revision petition has to be answered in the affirmative holding that the Family Court is justified in awarding the maintenance of Rs.4,000/- per month, the same is in accordance with law. The petitioner has not made out any ground to interfere with the impugned order passed by the Family Court exercising revisional powers of this Court under the provisions of Section 19(4) of the Family Courts Act.
Accordingly revision petition is dismissed with costs of Rs.5,000/- (Rupees Five Thousand Only) payable by petitioner - husband to the respondent -
wife.
Sd/-
JUDGE RSP /swk