Andhra Pradesh High Court - Amravati
Nallani Sambasiva Rao vs Smt. Nallani Varalakshmi And Another on 27 June, 2019
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*HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
HON'BLE SRI JUSTICE M.VENKATA RAMANA
+ FAMILY COURT APPEAL No.383 of 2017
% DATED 27th JUNE, 2019
# Sri Nallani Sambasiva Rao
.. Appellant
Vs.
$ Smt. Nallami Varalakshmi and another
.. Respondents
<Gist:
>Head Note:
! Counsel for the appellant : Sri T.D.Phani Kumar
^Counsel for respondent No.1 : Sri K.V.Muralidhar Patnaik
? CASES REFERRED:
1. LAWS(CHH) 2012 4 63.
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HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
HON'BLE SRI JUSTICE M.VENKATA RAMANA
FAMILY COURT APPEAL No.383 of 2017
JUDGMENT:(per Hon'ble Sri Justice A.V.Sesha Sai)
1. Heard Sri T.D.Phani Kumar, learned counsel for the appellant, and Sri K.V.Muralidhar Patnaik, learned counsel for respondent No.1.
2. The appellant and respondent No.1 are husband and wife respectively. In the present appeal, challenge is to the order dated 22.08.2017 passed by the learned Judge, Additional Family Court, Visakhapatnam, in F.C.O.P.No.1285 of 2013. The first respondent-wife filed the said Original Petition before the Family Court, under Sections 18 and 20 of the Hindu Adoptions and Maintenance Act, 1956 (for short, 'the Act'), for the following reliefs:-
"a) to direct the 1st respondent to pay a sum of Rs.5,40,000/-
(Rupees five lakhs and forty thousand only) towards past maintenance from 1-12-2010 to 1-12-2013 to the petitioner?
b) future maintenance @ Rs.15,000/- per month;
c) costs of the petition;
d) such other reliefs for which the Honourable court deems fit
and proper, in the interests of justice."
The learned Judge partly allowed the said petition by granting maintenance at the rate of Rs.5,000/- per month, including the maintenance awarded earlier, from the date of filing of the petition i.e., 23.12.2013, and directed the appellant-husband to pay the maintenance amount along with arrears in ten (10) equal monthly instalments. The learned Judge, however, dismissed the claim of the first respondent-wife for past maintenance.
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3. The principal contention advanced by Sri T.D.Phani Kumar, learned counsel for the appellant-husband, is that when there is an order granting maintenance under Section 125 Cr.P.C. by a competent Court, an application under Section 18 of the Act cannot be maintained by the first respondent-wife. While referring to Section 18 of the Act, it is also vehemently contended by the leaned counsel for the appellant that unless the mandatory requirements of sub-section (2) of Section 18 of the Act are established, the applicant under the said provision of law is not entitled for the relief. In this regard, learned counsel for the appellant relied upon the judgment of the High Court of Chhattisgarh in Geeta Soni v/s. Omprakash Soni1.
4. On the other hand, it is contended by the learned counsel for the first respondent-wife that there is no provision either under Section 18 of the Act or under Section 125 Cr.P.C., which disentitles the wife to avail the remedies under both the provisions of law as mentioned above. It is also the submission of the learned counsel for the first respondent-wife that having categorically found the existence of the element of abandonment, the Court below granted maintenance.
5. In the above background, now the issues that emerge for consideration of this Court are as follows:
1) Whether the first respondent-wife can be non-suited under the provisions of Section 18 of the Act on the ground that she already availed remedy under Section 125 Cr.P.C.?1
LAWS(CHH) 2012 4 63.
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2) Whether the first respondent-wife established the necessary ingredients of sub-section (2) of Section 18 of the Hindu Adoptions and Maintenance Act?
6. With regard to issue No.1, it is to be noted that neither the provisions of Section 125 Cr.P.C. nor the provisions of Section 18 of the Act prohibit the applicant from availing both the remedies under the above said provisions of law. Therefore, the contention advanced by the learned counsel for the appellant-husband to the contrary is liable to be rejected and is accordingly rejected.
7. Coming to issue No.2 - it would be appropriate and apposite to refer to the provisions of Section 18 of the Act, which read as under:
"18. Maintenance of wife:- (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish or of wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying her living separately. (3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or cases to be a Hindu by conversion to another religion."5
It is required to be noted that the Court below, having found the existence of the element of abandonment, granted maintenance in favour of the first respondent-wife. Therefore, it cannot be said, by any stretch of imagination, that the first respondent-wife failed to establish the necessary ingredients of sub-section (2) of Section 18 of the Act. Thus, having regard to the facts and circumstances of the case on hand, the judgment of the High Court of Chhattisgarh in Geeta Soni (1 supra), relied upon by the learned counsel for the appellant, would not render any assistance to the appellant.
8. It is also significant to note that the learned Judge granted maintenance at the rate of Rs.5,000/- per month, by including the amount of maintenance already granted by the learned Magistrate under Section 125 Cr.P.C, and also declined to grant past maintenance. Therefore, this Court does not find any valid reason to interfere with the order impugned in the present appeal.
9. Accordingly, the appeal is dismissed, confirming the order under challenge, and the appellant-husband shall act strictly in accordance with the said order. No order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
_______________ A.V. SESHA SAI, J ____________________ M. VENKATA RAMANA, J Dt: 27.06.2019 Note:- LR copy to be marked.
(B/o) IBL 6 HON'BLE SRI JUSTICE A.V.SESHA SAI AND HON'BLE SRI JUSTICE M.VENKATA RAMANA FAMILY COURT APPEAL No.383 of 2017 Dt: 27.06.2019 IBL