Karnataka High Court
Jaganna vs Smt.Renuka on 19 September, 2019
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
RPFC No.200092/2019
C/w RPFC No200103/2019
IN RPFC No.200092/2019:
BETWEEN:
Jaganna S/o Mahadevappa Indi,
Age: 49 Years, Occ: Service in Cement Factory,
R/o Shree Cement Ltd., Kodla - 585222,
Tq: Sedam, Dist: Gulbarga.
... Petitioner
(By Sri. Basavaraj R. Math, Advocate)
AND:
Smt. Renuka W/o Jaganna Indi
Age: 46 Years, Occ: Household
R/o Rajajinagar, Vijaypur
Tq: Dist: Vijayapur-586101.
...Respondent
(By Sri. Biradar Viranagouda, Advocate)
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This RPFC is filed under Section 19 (4) of Family
Court Act praying to set aside the impugned order dated
28/06/2019 passed by the learned I Addl. Prl. Judge,
Family Court, Vijayapura in Criminal Misc.No.417/2018.
IN RPFC No.200103/2019:
BETWEEN:
Smt. Renuka W/o Jaganna Indi,
Age: 46 Years, Occ: Household Work,
R/o Rajaji Nagar, Dist:Vijayapur 586 101
... Petitioner
(By Sri. Biradar Viranagouda, Advocate)
AND:
Sri. Jaganna S/o Mahadevappa Indi
Age: 49 Years, Occ: Private Service,
R/o Shree Cement Ltd. Kodla
Tq: Sedum,Dist: Kalaburagi 585 222.
...Respondent
(By Sri. Basavaraj R. Math, Advocate)
This RPFC is filed under Section 19 (4) of the Family
Courts Act 1984 praying to allow this Revision Petition by
modifying the judgment/Order dated 28/06/2019 passed
by the I-Addl. Prl. Judge Family Court, Vijayapur in Crl.
Misc Petition No.417/2018.
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These petitions coming on for orders, this day, the
Court made the following:-
ORDER
RPFC No.200092/2019 is filed by one Jaganna who is the former husband of one Renuka. Similarly, the said Renuka has filed RPFC No.200103/2019.
2. The petition filed by Jaganna in RPFC No.200092/2019 petitioner seeks for dismissal of the order passed in Criminal Misc.No.417/2018 dated 28.06.2019 on the file of I-Addl. Prl. Judge, Family Court, Vijayapur, RPFC No.200103/2019 is preferred by wife- Renuka seeking modification of the order passed on 28.06.2019. Thus, in the first petition by the husband he seeks setting aside the order of maintenance granted in Cril.Misc.No.417/2018 and second one by the wife seeking enhancement.
3. In order to avoid overlapping and confusion, the parties are addressed in accordance with their 4 relationship to each other as former wife and former husband.
4. The brief facts are -
The parties are spouses. Their marriage was performed as per the norms of Hindu customs on 22.12.1999 at Indi.
5. In the beginning Renuka-wife filed petition under Section 125 Cr.P.C in Crl.Misc.No.248/2003 seeking maintenance from her husband Jaganna claiming that she was neglected by her husband to maintain her. Despite the fact that she was unable to maintain herself. Insofar as means are concerned, which was stated that he was working in CRPF as a Police Constable and was getting handsome salary.
6. Thereafter, the wife-Renuka filed one more petition in Cril.Misc.No.305/2004 against Jaganna. The second petition filed by the wife in Cril.Misc.305/2004 5 ended in compromise, wherein the husband agreed to pay half of his salary as maintenance to the wife.
7. The order under the present revision is from the Cril.Misc.No.417/2018 dated 28.06.2019 seeking maintenance of Rs.10,000/-. After the contest, the petition came to be allowed in part and the learned Family Court, Vijayapura, directed to pay Rs.5,000/- per month by way of compensation.
8. Per contra, RPFC No.200103/2019 is filed by wife-Renuka seeking modification of the order in Cril.Misc.No.417/2018 dated 28.06.2019.
9. The order dated 28.06.2019 is questioned by both the parties. RPFC No.200103/2019 is filed by Renuka-wife seeking enhancement. RPFC No.200092/2019 is filed by Jaganna seeking cancellation of maintenance.
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10. Learned counsel Sri Basavaraj R. Math, appearing for the revision petitioner/husband in RPFC No.200092/2019 would submit that the order passed by the Family Court, Vijayapur, which is far away from truth and probabilities of the case on hand. Further, the wife/respondent-Renuka has misused and abused the legal provisions for claiming maintenance with the whims and fancies.
11. Learned counsel would further submit that the wife-revision respondent has neither sought for resorting to recovery proceedings under Section 125(3) claiming non-payment of maintenance that was ordered in Cril.Misc.No.305/2004, wherein husband has agreed to pay 50% of his salary. However, the said thing did not happen. Meanwhile, she chose to file a petition under Section 125 Cr.P.C. as if the neglect has happened for the first time.
12. Learned counsel also would submit that it was open for the wife Renuka to move an application under 7 Section 127 Cr.P.C. seeking change of circumstances in case she was entitled for enhancement of maintenance. However, the same also did not happen. Giving a go bye to the substantial and the procedural law. However, on contest the matter came to be allowed in part by the learned Judge, Family Court, wherein he allowed the petition in part and granted compensation of Rs.5,000/- per month from the date of petition during her life or till she gets remarried whichever is earlier.
13. Learned counsel for the wife/revision petitioner in RPFC No.200103/2019 Sri Biradar Viranagouda would submit that the husband-Jaganna has made false assurance and was successful in getting maintenance petition closed on the first occasion. Similarly, when she present the petition for the second time, then also after certain period the matter was ended in compromise.
14. Thus, it is to be seen that the present revision wherein the orders passed are challenged is from the third round of litigation.
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15. Having heard the learned counsel the job of the Court is to find out as to whether maintenance petition by the wife was tenable in the second and third round of litigation in the light of the first round of proceedings in Cril.Misc.No.248/2003.
16. In the context and circumstances, it is necessary to make a cursory glance on Section 125 and 127 Cr.P.C.
125. Order for maintenance of wives, children and parents.-
(a) If any person having sufficient means neglects or refuses to maintain-
(b) His legitimate or illegitimate minor child,
whether married or not, unable to
maintain itself, or
(c) His legitimate or illegitimate child (not
being a married daughter) who has
attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or 9
(d) His father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother at such monthly rate [***], as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.
127 Alteration in allowance.-
(1) [On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance for the maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as case may be.] (2) Where it appears to the Magistrate that, in consequence of any decision of a 10 competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the magistrate shall, if he is satisfied that-
(a) The woman has, after the date of such divorce, remarried, cancel such order as from, the date of her remarriage;
(b) The woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order-
(i) In the case where such sum was paid before such order, from the 11 date on which such order was made,
(ii) In any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;
(c) The woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to [maintenance or interim maintenance, as the case may be] after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom (monthly allowance for the maintenance and interim maintenance or any of them has been ordered) to be paid under section 125, the Civil Court shall take into account that sum which has been paid to, or recovered by, such person (as monthly allowance for the maintenance and interim maintenance or any of them, 12 as the case may be, in pursuance of) the said order.
17. The relationship between the parties is admitted and the question is non-availability of means of maintenance and the negligence by husband to maintain his wife was considered in the compromise proceedings in Crl.Misc.No.248/2003, wherein the parties instead of agitated decided to put end to the differences.
18. It was thereafter characters developed further Renuka filed a claim petition for maintenance under Section 125 Cr.P.C. (regard being had to the fact that she did not chose to seek for recovery) under Section 125(3) or for modification by way of enhancement.
19. The said petition also came to be ended in compromise. However, the change in the mode of compromise was that husband agreed to pay half of his salary to his wife and in this connection the amount of Rs.2,000/- to Rs.3,000/- (not precise and certain). 13
20. It was in this connection the parties have made mutual allegation wherein the wife Renuka claimed that maintenance was paid only upto 2008, which is neither denied nor admitted by the husband.
21. The moot question in the facts and circumstances of the case at this stage would be whether non-resorting the mode recognized by the statute in the form of Section 125(3) or Section 127 Cr.P.C. vitiates the right to claim maintenance and the holder of order for maintenance cannot go for a fresh petition for maintenance as if she is claiming for the first time.
22. In the context and circumstances of the case, it is to be seen that Section 126(3) provides for recovery of the maintenance ordered under Section 125(1) Cr.P.C. However, under Section 127 Cr.P.C. it provides for modification or alteration of the quantum of maintenance under changed circumstances beat in the form for enhancement or change in terms or cancellation. 14
23. The difference would be crucial for consideration. Cr.P.C. is procedural law and substantive effect as a mark social justice is seen in Section 125 Cr.P.C.
24. It is necessary to keep in mind the nature and object of right of maintenance which is guaranteed not only under Section 125 Cr.P.C. but also under several personal laws.
25. When order of maintenance is a right made and when the quantum is ascertained and identified basing upon the applicability of the circumstances, considering the rights and duties of the parties is always open.
26. In this connection, no doubt it was not proper on the part of the wife to file a petition by not mentioning the previous proceedings. But her right of maintenance cannot go beyond the scope of legal provision contemplated under Section 125 Cr.P.C. to connected provisions.
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27. In the facts and circumstances of the case filing of the present application does not substantially prejudice the rights of the husband.
28. I find in the matter of social legislation for social justice, it is the cumulative aspect that has to be considered to find out whether prejudice occurs by following different mode. There is no impediment for the Court to consider the rights of the petitioner under Section 125 or 126 or even 127 of Cr.P.C., as the difference does not change the character of rights, shape of the proceedings and the outcome of the churning of rights and duties in the circumstances.
29. There is another point that was urged by the learned counsel for the husband Jaganna when the maintenance was claimed in the first petition in Criminal Miscellaneous No.305/2009 that ended in compromise. The wife had agreed that she would not resort for claiming maintenance.
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30. Thus, the criminal miscellaneous has ended in compromise before the Court of law in the judicial process, the wife agrees for forgoing the right of maintenance by virtue of the said compromise. Under the circumstances, the question before the Court would be whether such kind of undertaking before the Court in a judicial process would be permitted. The crux of the matter is that the right of maintenance is guaranteed under section 125 of Cr.P.C. and its variation either in the form of addition or otherwise also contemplated.
31. Thus, when a right is guaranteed or available or existing in the statute, which is the law of the land, agreeing for giving away the right of claiming maintenance does not sound good.
32. A statutory right of claiming maintenance by a wife who is entitled to claim maintenance or seek enhancement cannot be nullified or frustrated by virtue of a compromise, even in the presence of such compromise, 17 the statutory right cannot flattened and the recognition of maintenance goes undisturbed unless the brakes are applied by the circumstances recognized under section 127 of Cr.P.C.
33. It is stated that the parties have put an end to their marital relationship. Mr. Jaganna is no longer than the husband of Renuka as they have dissolved their marriage by compromise.
34. However, the divorce is not a full stop to claim the right of maintenance. It was also submitted that the wife Renuka lodged a complaint to the employer CRPF of her husband against the second marriage of her husband and the cognizance of the same was taken up by his employer and Jaganna had to face proceedings that culminated in his removal from the service and now he is left with no job. The said submission was disputed by the learned counsel for Renuka former wife and submitted that he is working as a contractor and earns handsome amount.
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35. Insofar as the capacity and competency to maintain and willingness to maintain are two different aspects. Thus, a person who claims that he has no means may have forwarded defence that he is not working and hence he cannot earn. This concept has to be examined with reference to the existing circumstances. Willingness to work is different from capacity to work. On the other hand, it is ability to work and getting opportunities to work are the aspects that have to be considered to find out means. A person who avoids work may be with a malafide intention to avoid maintenance cannot forward lame excuse from maintenance. In this condition, the right of getting maintenance of Renuka is not under challenge. However, it cannot also be nullified by unwillingness of Jaganna.
36. I find that as on today and hereafter there is hurry burry regarding the proceedings to be followed i.e. against Section 125, 125(3), 127. In the over all context and circumstances of the case, I find there is no legal 19 infirmity, illegality in the orders passed by the learned Family Judge in granting maintenance of Rs.5,000/- per month to the petitioner wife. Thus, it deserves confirmation and confirmed.
37. The revision petition preferred by former wife in RPFC No.200103/2019 is hereby allowed in part. Maintenance of Rs.5,000/- deserves to be increased by Rs.1,000/- Accordingly, the order is modified in the form of enhancement. It shall be at Rs.6,000/- per month from the date of the present petition till the marriage or death of Renuka whichever is earlier.
38. The petition filed by the former husband i.e. RPFC No.200092/2019 is dismissed.
39. Learned counsel Sri Basavaraj R.Math takes notice for respondent in RPFC No.200103/2019.
Sd/-
JUDGE Sdu/VNR