Karnataka High Court
Mr. Babu Poojary vs Mrs. Vasanthi on 2 March, 2015
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MARCH 2015
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
R.P.F.C. NO. 166/2014
BETWEEN:
MR. BABU POOJARY
S/O LATE MUNDAPPA POOJARY,
AGED 64 YEARS,
RESIDING AT MUDDANADKA HOUSE,
MEEYAPADAVU POST,
MANJESHWAR (VIA),
KASARGOD DISTRICT-671 323.
... PETITIONER
(By Sri: RAVISHANKAR SHASTRY G)
AND:
MRS. VASANTHI
W/O M BABU POOJARY,
AGED ABOUT 55 YEARS,
RESIDING AT CHERPE HOUSE,
NEERMARGA VILLAGE AND POST,
MANGALORE TALUK, D.K.-575008.
... RESPONDENT
(By Sri: P KARUNAKAR, ADV.)
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RPFC FILED U/SEC.19(4) OF FAMILY COURT ACT,
AGAINST THE ORDER DATED: 31.07.2014 PASSED IN
CRL.MISC.21/2013 ON THE FILE OF PRL. JUDGE,
FAMILY COURT, D.K., MANGALORE, PARTLY
ALLOWING THE APPLICATION FILED U/SEC.125 OF
CR.P.C
THIS RPFC HAVING BEEN HEARD AND
RESERVED FOR FINAL DISPOSAL COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY,
A.V.CHANDRASHEKARA, J., MADE THE FOLLOWING:
ORDER
The order dated 31.7.2014 passed by the Family Court, Mangalore, in Crl.Misc.21/13 is called in question in this revision petition.
2. The present revision petitioner was the respondent in the said case and the respondent herein was petitioner in the said case. Parties will be referred to as petitioner and respondent as per their ranking before the trial court.
3. The petitioner-Vasanthi is the legally wedded wife of the respondent-Babu Poojary and their marriage was solemnized on 2.2.1978 at Balmatta, Mangalore, as per the customs prevailing in their community. The petitioner has given birth to three children 3 out of the said wedlock. Binuth Kumar and Ajith Kumar are the two sons and Bindhya is the daughter.
4. It is averred that he did not give any education to the children and did not even provide basis amenities to her and her children. On her request, her brother took the children to Neermarga and provided them education at Mangalore itself.
5. It is alleged that after the birth of her second son, the respondent used to visit them once in a week and the petitioner used to stay in the house of her brother who used to meet all their requirements. The respondent is stated to be addicted to alcohol and used to abuse the petitioner in the most filthy language. As such he forced her to leave the matrimonial home. He is stated to have married another lady by name Gulabi, and the family members of the respondent instigated him to harass and torture her.
6. The petitioner is stated to have gone to the house of her parents during her maternity period and the respondent consented 4 for the same. After two months, when the petitioner returned to her matrimonial house, he did not allow her to enter the house and abused and assaulted her and even forced to leave the house. Having no other alternative, she had to take shelter in the house of her parents and was hopeful of re-union. Two/three months later she once again came to the matrimonial house with her children, but the respondent did not allow them to enter the house.
7. The petitioner came to know that the respondent had married a lady by name Gulabi, daughter of Honnamma, of Bantwal Taluk. On 14.11.2012, when she and her brothers and other relatives went to the house of the respondent while he was celebrating the reception of his second marriage, the relatives of the bride suggested to convene a meeting. On 16.11.2012, the respondent approached the petitioner in the house of her parents and threatened to kill her if she were to come back to the matrimonial house.
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8. Being left with no other alternative, she filed a complaint before the jurisdictional court at Mangalore against the respondent for taking a second wife and torturing her. The respondent is stated to be an able bodied man carrying on business in areca nut and coconut and also has agricultural lands. He is stated to be earning more than Rs.20,000/- p.m. Since the petitioner does not have any source of income, she is living in the house of her parents. . Therefore she requested the court to grant Rs.6,000/- p.m. as maintenance.
9. The respondent chose to file written objections before the Family Court. He has admitted his marriage with the petitioner on 2.2.1978 and the three children born to them. The averment that he has neglected her and her children and did not even provide basic amenities including education has been specifically denied.
10. Heard the learned counsel for the parties. Perused records.
11. After going through the records, the following points arise for consideration by this court:
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1) Whether the trial court is justified in granting maintenance of Rs.3,000/- p.m. to the respondent herein?
2) Whether any interference is called for and if so, to what extent?
R E A S O NO S
12. Point nos.(1) and (2): The respondent-Vasanthi is the legally wedded wife of the revision petitioner-Babu Poojary and their marriage was solemnized on 2.2.1978 at Mangalore as per the customs of their community, and out of the wedlock, she has given birth to three children. Out of them two are sons and one is daughter. Both the sons are employed and the daughter is already married. The fact that Vasanthi is living in the house of her brother at Neermarga, Mangalore, is not seriously disputed. It is not her own residence, rather, it is her parental house. The revision petitioner is living in a village in Manjeshwar, Kasargod District, Kerala. Learned counsel for the petitioner has vehemently argued that he is unable to pay any maintenance and therefore, he had to file a petition under Section 125, Cr.P.C. in M.C.125/13 at Kasargod. It is argued that after considering the 7 evidence of the parties, ultimately the Family Court at Kasargod has allowed the petition and granted maintenance of Rs.3,000/- to be paid by his sons. The certified copy of the final order passed in M.C.125/13 by the Family Court is marked as Ex.R3. Binuth Kumar and Ajith Kumar have been directed to pay Rs.1,000/- and Rs.2,000/- respectively p.m. as maintenance from the date of filing the petition.
13. The said petition was filed before the Family Court at Kasargod on 29.8.2013 and this is evident from the first page of Ex.R3. The final order was passed on 26.3.2014. It is relevant to note the date on which Vasanthi chose to file the petition under Section 125, Cr.P.C. before the Family Court, Mangalore. The said petition was filed on 14.6.2013 at Mangalore 2½ months prior to the presentation of the petition under Section 125, Cr.P.C. by Babu Poojary before the Family Court at Kasargod. A reasonable inference that could be drawn from this is that Babu Pooojary chose to file a petition for maintenance in order to take up defence in the petition filed by his wife before the Family Court at Mangalore. He has chosen to file a petition under 8 Section 125 of Cr.P.C. only after a criminal case was registered by Kankanady Police.
14. It is true that Vasanthi has been examined as PW1 and Babu Poojary is examined as RW1. This is nothing but oath against oath. Whose evidence is more credible and probable will have to be looked into. Vasanthi has specifically averred in her petition as well as deposed in her examination-in-chief that her husband-Babu Poojary has married a lady by name Gulabi and is living with her. Whether she has been able to probablise the same is the question. In a case like this, she is not expected to prove the alleged second marriage beyond reasonable doubt. It is sufficient if she is able to prove that her husband is living with a lady unconnected with the family.
15. Vasanthi has further deposed that she came to know of her husband marrying Gulabi and herself and her children and relatives went to his house and at that time, a feast was going on. Her husband is stated to have told her that he had already taken a second wife and did not want her to be in his house. She has been cross-examined at length on this aspect. A suggestion put to 9 her that her son was very close to Kankanady police and got registered a case on a reference made by the JMFC Court, has been denied. She has deposed that she has not filed any report before the Manjeshwar police against her husband for taking Gulabi as his second wife. A suggestion put to her that her own daughter had appointed Gulabi to work in the house of her husband during her absence and that she has not been able to substantiate her assertion in regard to this by producing documentary evidence, is probablised by the wife-Vasanthi.
16. In the objection statement filed before the Family Court, Mangalore, Babu Poojary has averred that his daughter-Bindhya has appointed Gulabi to look after him in the absence of her mother and therefore she is living with him in the said house. The said Bindhya had been made as 2nd respondent in the petition filed before the Family Court at Kasargod in M.C.125/13. If really Bindhya had appointed Gulabi as a maidservant to look after him, nothing had come in his way to have examined his own daughter, Bindhya. In the light of non-examination of Bindhya, who is stated to have appointed Gulabi as a maidservant, the 10 probability is that he is living with the said lady in his house and the same is a good ground to seek maintenance under Section 125, Cr.P.C.
17. If Babu Poojary was really unable to earn and maintain himself because of his old age, he would not have waited so long to file a petition under Section 125, Cr.P.C. before the Family Court at Kasargod. The date on which he has filed the said petition would speak in volumes about his conduct. It is his case that he had provided sufficiently for the education of his children. If this were to be true, definitely there would have been some material evidence in that regard. On the other hand, the assertion of PW1 that she had sent all her three children to Neermarga at Mangalore for providing education by her brothers is probablised because of their stay at Neermarga.
18. What is argued by the learned counsel for the revision petitioner is that if really Babu Poojary had deserted her for more than 30 years, she would not have kept quiet. Filing of a petition for maintenance long after desertion would not give rise to the legally wedded husband to contend that such conduct either 11 suffers from estoppel or acquiescence or waiver. In cases like this, there cannot be waiver or acquiescence. The delay in filing the petition for maintenance could be taken into consideration insofar as it relates to quantum of maintenance to be awarded, more particularly when her two sons are well off.
19. Admittedly the order of maintenance passed by the Family Court at Kasargod has already been stayed by the High Court at Kasargod. This has been admitted by Babu Poojary, as already discussed from the petition filed before the court long after receipt of notice issued by the court in Crl.Misc.21/13 by the Family Court, Mangalore. Admittedly Babu Poojary is in agriculturist and has some lands. Though his share might not have been specifically declared and carved out, he has an undivided interest in the family property.
20. The evidence produced by Babu Poojary would clearly depict that he has extensively cultivated and improved the lands. His assertion that they are waste and dry lands cannot be accepted. Pendency of the petition filed in Crl.Misc.21/13 and other materials were not placed before the Family Court at 12 Kasargod by the respondents therein. As already pointed out by the learned judge, a woman has to undergo different phases in her life. In her childhood, she would be in the protection of her parents; during youth, under the protection of her husband and in old age, in the protection of her children. Just because two children are well placed and capable of looking after her, her legitimate right to seek maintenance from her husband who has neglected to maintain her, is not taken away in any manner. Therefore the argument advanced by the learned counsel for the revision petitioner that she cannot seek maintenance from her husband and she is being maintained by her children, cannot be accepted.
21. If Vasanthi feels that she should live on her own, the right to claim maintenance from her husband cannot be curtailed in any manner. She has been able to satisfactorily prove that her husband has abandoned and neglected to maintain her. She has also been able to prove that she does not have any source of income to lead a decent life. In the light of her two children being caring towards her, there can be little variation in the quantum of 13 maintenance awarded. Suffice to state that the learned judge has dealt with the matter in detail in the light of the pleadings of the parties.
22. A married woman requires a reasonable amount for food, clothing, shelter, medical expenses and other expenses relating to normal pursuits of life. It is true that Babu Poojary was aged 63 years in the year 2013, and now he is aged 65 years. It does not mean that he is not hale and healthy. No material is placed before the court to show that he is not keeping good health to earn his living. Hence, the learned judge is justified in coming to the conclusion that Vasanthi is entitled to claim maintenance from her husband.
23. Insofar as the quantum of maintenance is concerned, there can be little reduction. Admittedly Babu Poojary is aged 65 years and his undivided share is not yet demarcated by metes and bounds. Therefore reducing maintenance of Rs.3,000/- p.m. awarded by the Family Court to Rs.2,500/- p.m. would meet the ends of justice, more particularly in the facts and circumstances of 14 the present case. Hence, point no.(1) and (2) are answered accordingly.
24. In the result, I pass the following order:
ORDER The revision petition is allowed in part, upholding the right of the wife-Vasanthi to claim maintenance from her husband- Babu Poojary (revision petitioner herein). The quantum of maintenance is reduced from Rs.3,000/- to Rs.2,500/- p.m. (rupees two thousand five hundred only). The arrears, if any, shall be paid by the revision petitioner within two months from today, lest, Vasanthi is at liberty to file execution petition under Section 125(3), Cr.P.C.
The order dated 31.7.2014 in Crl.Misc.21/13 by the Judge, Family Court, Mangalore, stands modified accordingly. Parties to bear their own costs.
Sd/-
JUDGE vgh*