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2004 DIGILAW 1462 (AP)

V. Santosh Kumar v. Anasuya @ Latha

2004-12-03

T.CH.SURYA RAO

body2004
T. SURYA RAO, J. ( 1 ) THE revision petitioner seeks to assail the order dated 23-12-2002 passed by the learned Judge, Family Court, visakhapatriam, in M. C. No. 222 of 2002 and the consequential orders passed in M. P. No. 61 of 2003 and M. P. No. 841 of 2003. ( 2 ) THE first respondent herein filed m. C. No. 222 of 2002 under Section 125 of the Code of Criminal Procedure claiming; monthly maintenance of Rs. 5,000/- per month from the date of petition. Her case in the said petition seems to be that she and the revision petitioner are wife and husband their marriage having been performed at Turnel Choultry, Visakhapatnam, on 26-04-2001 as per Hindu Caste Custom and ritual rites; and that the marriage was consummated: and that subsequently since may, 2001 he started ill-treating her physically and mentally and sent her out to her parents house in the month of January, 2002 and thereafter despite several mediations he refused to take her back and therefore, she had to stay at her parents house; and that she was unable to maintain herself and her husband has been drawing a salary of Rs. 15,000/- per month working as lecturer in Shadan College of Engineering and Technology at Hyderabad. Ultimately, she claimed maintenance at the rate of rs. 5,000/- per month. Since the revision petitioner was called absent before the court below, he was set ex parte. Upon considering the evide nce of the first respondent herein, who filed the affidavit in lieu of her chief-examination, the Court below directed the revision petitioner to pay monthly maintenance of Rs. 5,000/- to her from the date of petition. ( 3 ) SINCE the revision petitioner did not comply with the order of maintenance, the first respondent herein filed initially crl. M. P. No. 61 of 2003 for enforcement of the maintenance order and for recovery of arrears of Rs. 10,000/- by arrest and detention of the revision petitioner. It is not known as to what orders have been passed on that application. Subsequently, she filed m. P. No. 841 of 2003 for realization of arrears by attachment of the salary of the revision petitioner. The learned Judge, family Court, directed the attachment of salary by remitting an amount of rs. 5,000/- from out of his salary to the first respondent herein every month. Subsequently, she filed m. P. No. 841 of 2003 for realization of arrears by attachment of the salary of the revision petitioner. The learned Judge, family Court, directed the attachment of salary by remitting an amount of rs. 5,000/- from out of his salary to the first respondent herein every month. As aforesaid, the revision petitioner is assailing the said order. ( 4 ) THE revision petitioner appeared in person before this Court. After having heard him, this Court appointed one Mr. Ravi shinde, Advocate, as legal aid counsel to defend the revision petitioner. Since the revision petitioner failed to appear before this court, his revision case was dismissed for non-prosecution on 16-09-2004. It appears that the revision petitioner got the matter listed under the caption "for Being mentioned" before this Court. On 24-09-2004 this Court directed, when the revision petitioner complained of non-cooperation from the legal aid counsel, the matter to be listed before the Lok Adalat of high Court Legal Services Authority and both the parties were directed to appear before the Lok Adalat. The learned Judge presiding the Lok Adalat expressed no possibility of settlement in between the parties and, therefore, directed the matter to be sent back to this Court for taking further steps. ( 5 ) AT that stage, the revision petitioner appeared before this Court and argued the matter in person. Therefore, the learned judge directed the Registry to list the case once again before the Court soon after receipt of record from the Lok Adalat. Impliedly, therefore, the earlier order dismissing the Revision Case was set aside. ( 6 ) A perusal of the record shows that the revision petitioner did not appear before the court below and was set ex parte. The contention of the revision petitioner that he had not been served with notice in the maintenance case merits no consideration inasmuch as he did not file any petition to set aside the ex parte order passed by the Court below and thereby allowed that order to attain finality. The learned Judge, Family court, after having considered the evidence of the claimant who filed affidavit in lieu of her chief-examination felt convinced that her claim was proved. In ordinary course, therefore, there is nothing to assail the said order on merits. The learned Judge, Family court, after having considered the evidence of the claimant who filed affidavit in lieu of her chief-examination felt convinced that her claim was proved. In ordinary course, therefore, there is nothing to assail the said order on merits. However, on an intrinsic examination of the impugned order, it appears that when the claimant claims maintenance at the rate of Rs. 5000/- per month from the date of petition, the learned judge allowed the same. Entitlement for monthly maintenance is one aspect and at what quantum the allowance shall have to be granted is yet another aspect. Quantum shall have to be decided on a different criteria having regard to the properties and the income of the husband and the need and necessity of the claimant. The object behind section 125 of the Code of Criminal procedure is to prevent vagrancy. The maintenance to be granted under the said provision should be neither luxurious nor penurious. Therefore, the quantum must have necessarily a relation to the capacity of the husband and the need and necessity of the wife. The impugned order is silent on this aspect. The claimant claimed maintenance on the premise that the revision petitioner was working as Lecturer and drawing a monthly salary of Rs. 15,000/- in a private engineering College. That the revision petitioner is a private employee, there has been no gainsaying. In M. P. No. 61 of 2003, the revision petitioner has been described as librarian in Shadan College of Engineering and Technology at Hyderabad by the claimant herself. The revision petitioner claims himself to be a private employee. According to him, he has been working as librarian in Shadan College of Engineering and Technology and drawing a gross salary of Rs. 9,000/- per month. As he has mother and other dependents to be maintained, in that view of the matter, granting maintenance at the rate of Rs. 5,000/- per month appears to be on high side. If an amount of Rs. 2, 5001- per month is granted that would subserve the interests of both the parties. To that extent, the impugned order shall have to be modified. 5,000/- per month appears to be on high side. If an amount of Rs. 2, 5001- per month is granted that would subserve the interests of both the parties. To that extent, the impugned order shall have to be modified. ( 7 ) IN the result, the Criminal Revision case is allowed in part and while confirming the order of granting maintenance against the revision petitioner passed by the learned judge, Family Court, Visakhapatnam, the quantum of maintenance is hereby modified by directing the revision petitioner to pay a monthly maintenance of Rs. 2,500/- (Rupees two thousand and five hundred to the first respondent herein, as directed by the Court below.