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2000 DIGILAW 393 (KAR)

Renuka Shankar v. Shankar Narsingh Warute

2000-06-09

H.N.TILHARI

body2000
ORDER Hari Nath Tilhari, J.—This petition is directed against the judgment dated 22.12.1995 passed by Sri S.B. Hugar, Judge, Family Court, Belgaum, in Criminal Miscellaneous No. 187 of 1994. 2. The petition under Section 125 of the Code of Criminal Procedure was made by the Petitioners (revision Petitioners herein) for claiming maintenance for herself and her daughter. 3. The Family Court rejected the claim of Petitioner-1 (revision Petitioner-1) and awarded a sum of Rs. 100/- p.m. to Petitioner-2 (revision Petitioner-2) from the date of the petition. 4. Feeling aggrieved of the said order of the Family Court, the Petitioners have come up before this Court in revision under Section 19(2) of the Family Courts Act. 5. I have heard the learned Counsels appearing for the parties. 6. There is no dispute that Petitioner-1 and the Respondent were husband and wife. The family Court found that there is no evidence on record to show that there has been divorce. The Family Court, no doubt, mentioned that her husband i.e., Respondent has failed to prove the allegations that Petitioner had married second husband. He has also failed to prove that Petitioner-1 was living adultery, but no doubt the allegations were made against the lady that she had married second husband or that she was living in adultery. Making of bald allegations of adultery or the like definitely is tantamount to harassment and furnish sufficient grounds for the wife to live separately and claim maintenance and it is the husband-Respondent's liability to maintain his wife. That as per Section 18 of the Hindu Adoption and Maintenance Act, the wife has got a right to be maintained by her husband. Petitioner-1 has stated as mentioned in the order that her mother was looking after her, and she had denied that she was earning or doing vegetable vending business. It has nowhere come in evidence of the Respondent that the Petitioner has been earning sufficient income to maintain her. After marriage of the daughter it is not the responsibility of the parents to maintain her. May be that due to truth love and affection when the daughter is in trouble that the parents give shelter, but that does not amount to say that she is able to maintain her. In this case, there is no evidence to show that Petitioner-1 was able to maintain. May be that due to truth love and affection when the daughter is in trouble that the parents give shelter, but that does not amount to say that she is able to maintain her. In this case, there is no evidence to show that Petitioner-1 was able to maintain. The Family Court has only tried to draw conjectural finding that she is able to maintain her. The Family Court observed that in the petition itself it has been written that the cause of action arose in the year 1987, then why Petitioner kept mum from non-filing of the petition since then. It is sufficient to prove that she is able to maintain herself and the subsequent conduct of Petitioner-1 was justified. This finding is no finding in the eye of law. The finding has to be based on appreciation of evidence and the materials placed on record. How much amount one wants or requires to live, how much he is earning and whether that earning could be sufficient for his/her living in the context of the cost of life. If the earning is insufficient to meet the needs for the wife to maintain her even for her single life, then it cannot be said that she is able to maintain herself human dignity. No such thing has been shown to have been established. The Family Court recorded the finding that she is able to maintain her, because she didn't move the application for maintenance from 1987 till 1994. There could be many reasons. Poverty may be the reason. She had to contact a Lawyer to seek advise and guidance and pay lawyer's charges and there may be other circumstances for non-filing of the petition till 1994. The finding recorded by the Family Court appears to be conjectural finding arrived and based on no evidence as well as without application of its mind. In my opinion, the evidence of the Petitioner-1 clearly proves that she is living only on the mercy of her parents, that cannot be said that she is being maintained. Thus considered in my opinion, the finding of the Family Court that she is able to maintain herself suffers from error of law and the order rejecting her claim for maintenance suffers from jurisdictional error. Thus considered in my opinion, the finding of the Family Court that she is able to maintain herself suffers from error of law and the order rejecting her claim for maintenance suffers from jurisdictional error. I find that the evidence referred in the judgment clearly shows that the revision Petitioner No. 1 was unable to maintain herself as she was not doing any business and she was living on the mercy of her parents. As such, in my opinion, the revision petition has to be allowed and is hereby allowed and is allowed by exercise of jurisdiction under Article 227. 7. Looking to the present day living in my opinion atleast revision Petitioner No. 1 should be and hereby awarded a sum of Rs. 400/- per month as maintenance. So far as the child is concerned i.e., revision Petitioner No. 2 the maintenance awarded by the Family Court to a sum of Rs. 100/- per month also appears to be insufficient. Therefore, the same has to be enhanced from Rs. 100/- p.m. to Rs. 250/- p.m. from the date of the petition.