Karnataka High Court
Dhanraj S/O Vaijinath Nilange vs Smt.Veeramma W/O W/O Dhanraj Nilange on 23 April, 2018
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR.JUSTICE B. VEERAPPA
CRIMINAL PETITION No.200105/2017
Between:
Dhanraj S/o Vaijinath Nilange
Now aged 53 years, Occ: Agriculture,
R/o Khatgaon village, Tq. Aurad(B),
Dist.Bidar, now at Crazy Bakery Complex,
3rd Floor, Nagarajuna Ring Road,
L.B.Nagar, Main cross, Hyderabad.
... Petitioner
(By Sri Anilkumar Navadagi, Advocate)
And:
Smt. Veeramma W/o Dhanraj Nilange
Now aged 40 years, Occ: Household,
R/o Vidyanagar Colony, Bidar
... Respondent
(By Sri Sheshadri Jaishankar M., Advocate
for Sri K.M.Ghate, Advocate)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to set aside the order dated 27.09.2016
passed in Crl.R.P.No.35/2015 enhancing the maintenance
amount of Rs.3,000/- granted to the respondent herein in
Crl.Misc.No.356/2011 to Rs.6,000/- and set aside the order
dated 27.09.2016 dismissing the Crl.R.P.36/2015 filed by
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the petitioner/husband herein and consequently be pleased
to set aside the order dated 06.07.2015 passed by the
Principal Civil Judge and JMFC-II Bidar in
Crl.Misc.No.356/2011.
This petition is coming on for order this day, the Court
made the following:-
ORDER
The husband filed the present criminal petition against the order dated 27.09.2016 made in Crl.RP No.35/2015 on the file of the Prl. District & Sessions Judge, Bidar enhancing the maintenance from Rs.3,000/- to Rs.6,000/- and dismissing the revision petition filed by the husband.
2. Parties are referred to as per the ranking before the trial Court.
3. The present respondent who is the petitioner before the before the trial Court filed Crl.Misc. No.356/2011 against the present petitioner-respondent under Section 125 of Cr.P.C. claiming monthly 3 maintenance of Rs.10,000/- per month contending that she is the legally wedded wife of the respondent/present petitioner and their marriage was performed on 19.03.1991 at Khatgaon village, Tq. Aurad (B), Dist. Bidar. Out of their wedlock two children were born and they have led happy marital life till birth of their daughter by name Deepika. Thereafter, the respondent started harassing the petitioner physically and mentally to bring gold and money from the parents of the petitioner. As the parents of the petitioner are poor, they have failed to satisfy the said demands of the respondent, for that the respondent harassed the petitioner drove out her from his house. The respondent and his family members have got landed properties. The respondent has got large extent of ancestral property and is getting Rs.1,00,000/- per annum from the lands. Respondent is also the owner of the house bearing GPC No.4/9 at Khatgaon village. He has got poultry farm in the market yard of Hyderabad, 4 from which he is getting income of Rs.25,000/- per month. Therefore, she filed the petition.
4. Respondent-present petitioner husband filed objections admitting the relationship between the petitioner and denied other averments made in the petition. He has contended that the petitioner colluding with her brother got transferred the house situated at Vidyanagar colony. He has further contended that he is doing private work and has lost sight of one of his eye. The petitioner uses to give torture to him and his parents. He had purchased one plot in the name of petitioner at Pratapnagar, Bidar. He has further contended that he is residing at Hyderabad to eke out his livelihood. Therefore, he sought to dismiss the petition.
5. In order to establish her case, the wife examined as PW.1 and marked documents Ex.P.1 to P.10. The husband examined as RW.1 and not 5 produced any material document. The trial Court considering the both oral and documentary evidence on record, recorded a finding that petitioner-wife has made out a ground that the respondent has neglected and refused to maintain her and she is entitled for maintenance. Accordingly, by an order dated 06.07.2015 the learned Prl. Civil Judge & JMFC-II, Bidar awarded maintenance of Rs.3,000/- per month to the wife from respondent till her life time. Aggrieved by the said order passed by the Family Court, the wife filed Crl.RP No.35/2015 for enhancement and husband filed Crl.R.P. No.36/2015 for reduction of maintenance. The learned Prl. District & Sessions Judge, Bidar after hearing both parties, by the impugned order allowed Crl. Revision Petition No.35/2015 filed by the wife in part and enhanced maintenance of Rs.6,000/- per month from Rs.3,000/- per month till her life time. The revision petition filed by the husband for reduction came to be dismissed. Hence, the present revision 6 petition is filed by the husband for reduction of enhanced maintenance amount granted by the revisional Court. The wife has not filed any revision for enhancement against the impugned order.
6. I have heard the learned counsel for the parties to the lis.
7. Sri Anilkumar Navadagi, learned counsel for the revision petitioner-husband vehemently contended that the impugned order passed by the revision Court enhancing maintenance of Rs.6,000/- from Rs.3,000/- is manifestly illegal, arbitrary and against the material on record. He would further contend that the wife herself left the company of the petitioner and she is not entitled for maintenance as contemplated under the provisions of Section 125(4) of Cr.P.C. He would further contend that the petitioner husband has to take care and protection of children and the amount of maintenance awarded by the revisional Court is 7 exorbitant and contrary to the material on record. He would further contend that the impugned order passed by the revisional Court enhancing maintenance is without any basis and liable to be set aside by allowing the revision petition.
8. Per contra, Sri Sheshadri Jaishankar M., learned counsel appearing for Sri K.M.Ghate, Advocate for respondent-wife sought to justify the maintenance granted by the revisional Court and specifically contended that the petitioner has not produced any material documents before the Court that the respondent-wife is capable of maintaining herself. In the absence of any material document produced by the petitioner-husband, it is the bounden duty to maintain his wife as contemplated under Section 125(1) (a) of Cr.P.C. He would further contend that it is the specific allegation of the wife that even after birth of two children out of the wedlock, the petitioner driven out the 8 present respondent and demanded further dowry and without consent of the present respondent, he got second marriage. In that connection the respondent- wife filed Private Complaint No.34/2017 under Section 200 of Cr.P.C. now converted into CC No.289/2017 for the offences punishable under Sections 323, 494, 504, 506 R/W Section 149 of IPC. The said matter is still pending. Therefore, he sought to dismiss the revision petition.
9. Having heard the learned counsel for the parties, there is no dispute with regard to the relationship between the parties as wife and husband and their marriage was performed on 19.03.1991. It is the specific allegation of the wife that after two children were born out of their wedlock, the petitioner-husband started harassing the respondent-wife both physically and mentally for demand of dowry. The said demand was not able to fulfill by the parents of the respondent- 9 wife. Therefore, she was driven out from the house along with children. He has got sufficient landed properties and he is capable of maintaining the petitioner. He is also owner of house bearing GPC No.4/9 situated at Khatgaon village and he has got poultry farm in the market yard, Hyderabad and getting income of Rs.25,000/- per month and Rs.1,00,000/- from agriculture. Therefore, he is bound to maintain his wife. The husband filed written statement, made allegations against the wife that she used to torture him and his parents and purchased one plot in the name of petitioner-wife at Pratap Nagar, Bidar and one house situated at Vidyanagar colony, Bidar has been transferred in the name of petitioner-wife colluding with her brother. He is residing at Hyderabad for eking out his livelihood and he has performed marriage of his daughter.
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10. Based on the evidence adduced by both the parties, the learned Prl. JMFC, Bidar awarded maintenance of Rs.3,000/- per month holding that the relationship between the parties is not disputed and she is entitled maintenance. On the revision filed by both wife and husband, the revisional Court recorded a finding that, Ex.P.2, P.3, P.4 and P.5 are the certified copy of the record of rights which shows that the respondent-husband is the owner of landed property about 13 acres of land and also recorded a finding that the respondent-husband is driven out the petitioner- wife from his family and family properties are got divided and husband obtained landed properties and house property at Khatgaon village and the said aspect has not been denied by the respondent-husband and same is proved by the petitioner that he has got sufficient income from his house property and landed properties and also doing business. He has denied that he is doing business, but only stated that he became 11 bankrupt. There is no evidence by the respondent/husband that he became bankrupt. It is proved that the respondent/husband is doing business and is a businessman and he is owner of immovable properties. Therefore, considering the said material aspect, the revisional Court recorded a finding that maintenance of Rs.3,000/- granted by the learned Magistrate is meager one and the petitioner requires at least Rs.6,000/- per month for getting basic livelihood. Accordingly, the learned District Judge, Bidar enhanced the maintenance from Rs.3,000/- to Rs.6,000/- per month to the wife and revision petition filed by the husband came to be dismissed.
11. Though the learned counsel for the respondent-husband/petitioner herein contend with vehemence that wife herself left the company of the husband, therefore, she is not entitled for maintenance cannot be accepted for the simple reason that there is 12 no plea in the objections filed before the JMFC Court under Section125 of Cr.P.C. and the same was not taken before the appellate Court. In both the Courts below, there is no whisper about the wife herself voluntarily left the husband. In the absence of any pleading, the contention of the learned counsel for the respondent-husband cannot be accepted. It is also not in dispute that it is not the case of the husband that he had filed petition for restitution of conjugal rights under Section 9 of Hindu Marriage Act to get back his wife. Though he contended that he has taken care of his children and got married the daughter, no material document is produced. Even assuming that he has performed marriage of his daughter, it is his bounden duty as a father, that is nothing to do with the maintenance granted to his wife. Hence, the petitioner is capable to maintain himself and got sufficient means, he has bounden duty to maintain his wife under Section 125(1) (a) of Cr.P.C.
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12. The petitioner-husband has not produced any material document to show that the respondent- wife is capable of maintaining herself and there is no need to pay any maintenance. In the absence of any material documents, the husband is bound to maintain his wife. The material documents produced by the wife at Ex.P.2 to 5 clearly indicates that there are landed properties and house properties in the name of husband and he is doing business and he has got own poultry farm at Hyderabad is not disputed.
13. The Hon'ble Supreme Court, while considering the provisions of Section 125 of the Code of Criminal Procedure in the case of Bhuwan Mohan Singh vs. Meena and Ors. reported in AIR 2014 SC 2875 at para-3 held as under:
" It is well settled that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is 14 deprived of many a comfort Sometimes her faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this state, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance.
Grant of maintenance to wife has been apportioned as a measure of social justice. 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 a job or his business is not doing well. These are only bald excuses and nod, 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 CrPC, unless disqualified, is an absolute right. Thus, it is the obligation of the husband to maintain his wife, cannot be permitted to plead that he is unable to 15 maintain his wife due to financial crisis as long as he is capable to earn."
14. The same view is reiterated by the Hon'ble Supreme Court, while considering the provisions of Section 125 of the Code of Criminal Procedure and powers of revisional Court in the case of Shamima Farooqui vs Shahid Khan reported in AIR 2015 5 SCC 705 at Paras No.14, 16, 17 and 19 held as under:-
"Para No.14 :- Coming to the reduction of quantum by the High Court, it is noticed that the High Court has shown immense sympathy to the husband by reducing the amount after his retirement. It has come on record that the husband was getting a monthly salary of Rs.17,654. 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 16 Section125 CrPC is for amelioration of financial state of affairs as well as mental agony and anguish that a woman suffers when she is compelled to leave her matrimonial home. The statue commands that there have to be some acceptable arrangements so that she can sustain herself. The principal of 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 17 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 a job or his business is not doing well. These are only bald excuses and nod, 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 CrPC, unless disqualified, is an absolute right".
"Para No.16 :- Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj V. Sita Bai (2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356, it has been ruled that : (SCC p.320, para6) 18 "6. ... 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 Capt. Ramesh Chander Kaushal V. Veena Kaushal (1978) 4 SCC 70 :1978 SCC (Cri) 508, falls within the 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 vegrancy and destitution. It provided 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 Gujaraj (2005) 3 SCC 636:
2005 SCC (Cri) 787."
"Para No.17 :- 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 unable to maintain the wife due to financial constraints as long as he is capable of earning".19
"Para No.19 :- From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort Sometimes her faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this state, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance".
15. In view of the aforesaid reasons, the impugned order passed by the revisional Court granting maintenance of Rs.6,000/- per month to the wife is not exorbitant as contended by the learned counsel for the petitioner in these hard days for her shelter, clothing, livelihood and day-to-day expenses in view of the hike in the prices of essential commodities.
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16. The impugned order of the revisional Court awarding maintenance of Rs.6,000/- per month is hardly sufficient to maintain the respondent-wife. The petitioner has not made out any ground to interfere with the impugned order by exercising the powers under Section 482 of Cr.P.C. Accordingly, the revision petition is dismissed as devoid of merits.
Sd/-
JUDGE NSP