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2019 DIGILAW 1842 (KAR)

Sateesh Kumar Nadivi v. H S Shakti @ Adiprashakti

2019-08-14

P.G.M.PATIL

body2019
JUDGMENT : P G M Patil, J. The husband being aggrieved by the order dated 25.01.2014 passed in Crl.Misc.No.106/2013 by the Principal Judge Family Court, Bellary has filed this revision petition. 2. The parties are referred to as per their ranks before the Family Court as petitioner and respondent. 3. The respondent-wife Smt. H. S. Shakti @ Adiprashakti filed the petition under Section 125 of Code of Criminal Procedure seeking maintenance of Rs.20,000/- p.m. from the revision petitioner-husband. 4. It is the case of the petitioner-wife before the family Court that she is the legally wedded wife of the respondent and their marriage was performed on 24.06.2010. After the marriage, they lived happily for a period of 3 to 4 months. Her parents had given cash of Rs.3,50,000/- and Rs.50,000/- for purchasing of dress materials, 2 k.g. of silver articles and 60 grams of gold jewels as dowry. Thereafter, she went to her parents house for 'Ashadha Masa' and then returned to her husband's house. Thereafter, the respondent started ill-treating her demanding additional dowry of Rs.5,00,000/- and gold jewels of Rs.3,00,000/-. He also demanded a four-wheeler. The petitioner expressed her inability to provide all these things, as her parents are poor. The respondent continued to illtreat her. On 08.12.2010, the respondent drove her out of the house and as such, she came back of her parents' house at Bellary. Then on 24.10.2012, she issued a legal notice to the respondent. By that time, the respondent had filed petition for divorce under false grounds in Matri.C. No.31/2011 before the family Court, Raichur. The respondent willfully deserted her without any valid reasons. She is unable to maintain herself. The respondent is not paying any maintenance. The respondent is a BE Graduate in Textile. He has worked in Scotland for 3 years and he is running a Textile business in Raichur. His family is having one jewelry shop by name Shri Guru Jewelers. He is also doing business under Sanuco Global Manufacturers and Trading Company (Textiles) at Raichur. He is also having two houses, plots and agricultural lands and he is getting income of more than Rs.3,00,000/- per month. The petitioner is in need of Rs.20,000/- p.m. towards her maintenance. 5. In response of notice, respondent-husband appeared before the Family Court and filed his objections to the main petition and has denied all the allegations made against him. He is also having two houses, plots and agricultural lands and he is getting income of more than Rs.3,00,000/- per month. The petitioner is in need of Rs.20,000/- p.m. towards her maintenance. 5. In response of notice, respondent-husband appeared before the Family Court and filed his objections to the main petition and has denied all the allegations made against him. However admitted the marital relationship with the petitioner. He has contended that he had gone to Scotland for higher studies and he did not do any job in Scotland for 3 years. After returning to India, he married the petitioner. She was always demanding modern dresses, jewels, cosmetics, wrist watches and other articles from Scotland, he did not agree for the same. Therefore, she went to her parents' house and never bothered to take care of him. She was not doing domestic work and she was cruel towards him and her in-laws. Since January 2011, the petitioner is taking shelter in her parents' house. She was sending threatening messages to him on mobile. Once she threatened him that she will commit suicide by making allegations against him. The petitioner herself left the matrimonial home without any valid reasons. Hence, she is not entitled to any separate maintenance and prayed for dismissal of the petition. 6. The petitioner-wife in support of her claim got examined herself as PW1 and got marked 22 documents at Ex.P1 to P22. The respondent got examined himself as RW1 and got examined one more witness as RW2 and got marked 6 documents at Exs.R1 to R6. 7. The learned Judge of the family Court after hearing both the parties passed the impugned order awarding maintenance of Rs.15,000/- p.m. to the petitioner against the respondent from the date of the order during her life time or till she re-marries. 8. The husband being aggrieved by the impugned order has filed this revision petition on the ground that the order passed by the Court below is bad in law for the reasons that it was passed without considering oral and documentary evidence on record. The revision petitioner has stated that he studied in Scotland and he started the Textile business by raising loan from the Financial Institution, he sustained huge loss, he closed the said business. Therefore, the impugned order is liable to be set aside. 9. Heard the learned counsel for the petitioner and the respondent. 10. The revision petitioner has stated that he studied in Scotland and he started the Textile business by raising loan from the Financial Institution, he sustained huge loss, he closed the said business. Therefore, the impugned order is liable to be set aside. 9. Heard the learned counsel for the petitioner and the respondent. 10. A short question which arise for consideration before this Court is, as to whether the petitioner has made out grounds that the maintenance awarded by the Court below is liable to be set aside or reduced. 11. The learned counsel for the revision petitioner submitted that the respondent wife has stated in her evidence before the family Court that she require Rs.10,000/- p.m. for her maintenance. However, the family Court has awarded maintenance of Rs.15,000/- p.m., which is perverse and against the material on record. 12. The learned counsel further submitted that the revision petitioner borrowed loan of Rs.23,00,000/- for his business and as he suffered loss in the business, he closed the said business 3 years back and that he did not have any property. 13. Learned counsel further submitted that the interim maintenance is also awarded under Section 24 of the Hindu Marriage Act in the divorce petition filed by the husband and therefore the wife-respondent herein is not entitled to claim maintenance under Section 125 of Cr.P.C. In support of his contention, the learned counsel has relied on the judgment in the case of Sanjay Kumar Sinha Vs. Asha Kumari and Anr., (2018) 1 Matrimonial Law Judgment (SC) 451. 14. Learned counsel further submitted that the revision petitioner has filed zero income return under the Income Tax Act as per Ex.P21. Therefore the impugned order is liable to be set aside. 15. Per contra learned counsel for the respondent-wife submitted that the revision petitioner-husband filed divorce petition just after 4 months of the marriage, which was dismissed. The interim maintenance awarded in the said case was also not paid by the revision petitioner to the respondent-wife, as he challenged the same before this Court in writ petition and obtained order of stay. Thereafter the revision petitioner filed second petition for divorce, which was also dismissed and now he has filed miscellaneous first appeal against the said judgment and decree which is pending before the High Court of Karnataka, Kalburgi Bench. 16. Thereafter the revision petitioner filed second petition for divorce, which was also dismissed and now he has filed miscellaneous first appeal against the said judgment and decree which is pending before the High Court of Karnataka, Kalburgi Bench. 16. Learned counsel further submitted that the revision petitioner worked for 3 years in Scotland and thereafter he started his own business by availing loan of Rs.23,00,000/-. Further he has not disclosed his income before the Court below. The very contention of the revision petitioner that he has repaid entire loan of Rs.23,00,000/- goes to show that he is capable of paying maintenance as awarded by the family Court. 17. The learned counsel further submitted that the respondent-wife has stated in her evidence that she requires Rs.10,000/- p.m. which is minimum for her maintenance. However, the Court has to award maintenance to the wife, keeping in mind the standard of living and status of the husband and in that view of the matter, the order of maintenance awarded by the family Court is on the lower side. However, she has not sought for enhancement for the present. 18. The relationship between the revision petitioner and respondent is admitted. Their marriage was solemnized on 24.06.2010, is admitted. It is also admitted that just after 4 months of the marriage, the husband filed divorce petition against the wife on the file of family Court, Raichur in Matri.C. No.31/2011, which was later re-numbered as Matri.C. No.106/2013. The copy of the petition in the said case is produced, which goes to show that revision petitioner herein has pleaded in paragraph 2 of the petition that he studied Clothing Management at Herriot Watt University, Scotland (U.K.) and he did job in Scotland for 3 years. He has further stated that he is from a very reputed business family at Raichur. Now the revision petitioner is denying all these things. He has contended that he went to Scotland only for higher studies and never did any job, which is against his own pleadings in Matri.C. No.31/2011. It is true that respondent-wife has stated in her evidence before the trial Court that, she is in need of Rs.10,000/- p.m. for her bare necessity. This evidence of the wife has to be further considered in view of her next statement that maintenance of Rs.7,000/- p.m. was also awarded in the matrimonial case filed by the husband for divorce. It is true that respondent-wife has stated in her evidence before the trial Court that, she is in need of Rs.10,000/- p.m. for her bare necessity. This evidence of the wife has to be further considered in view of her next statement that maintenance of Rs.7,000/- p.m. was also awarded in the matrimonial case filed by the husband for divorce. Therefore, the statement made by the wife that she is in need of Rs.10,000/- p.m. for maintenance cannot be considered in isolation. On the other hand, the revision petitioner has stated that he went to Scotland only for studies and he did not do job there which cannot be accepted in view of his own pleadings in Matri.C. No.31/2011. 19. The revision petitioner has mainly contended that he suffered loss in his business and therefore he repaid the entire loan of Rs.23,00,000/- borrowed by him for his business and now he is working in some concern and getting salary of Rs.8,000/- p.m. and therefore he is not capable of paying the maintenance awarded by the family Court. This contention was not taken before the family Court by the revision petitioner. He has only denied the allegations made by the petitioner that he is doing Textile business and earning Rs.3,00,000/- p.m. and that he is having two houses, plots and agricultural lands and family business in the name of Shri Guru Jewelers. The very fact that the revision petitioner closed the business and repaid the entire loan of Rs.23,00,000/- goes to show that he is capable of paying maintenance as awarded by the family Court. 20. The petitioner wife had claimed maintenance of Rs.20,000/- p.m. However, the family Court on the consideration of the material on record has awarded Rs.15,000/-p.m. It is also on record that the revision petitioner husband filed Matri.C. No.31/2011 just after 4 months of the marriage seeking decree of divorce on the ground of cruelty and the said petition was subsequently dismissed. It is also not disputed that interim maintenance of Rs.10,000/- p.m. was awarded in the said case under Section 24 of the Hindu Marriage Act. He did not pay the same and therefore the wife filed execution petition for the recovery of the interim maintenance and thereafter the revision petitioner filed writ petition before this Court and got stayed the proceedings in the execution case. He did not pay the same and therefore the wife filed execution petition for the recovery of the interim maintenance and thereafter the revision petitioner filed writ petition before this Court and got stayed the proceedings in the execution case. It is also not disputed that subsequently, the revision petitioner filed MC No.45/2017 before the family Court, Raichur for divorce on the same grounds of cruelty and the said petition was dismissed by the family Court, Raichur on 28.04.2018 and therefore as on the date of awarding maintenance in the present case and even as on this date, the respondent wife is getting maintenance only as per the order passed in her petition filed under Section 125 of Cr.P.C. namely the present petition. 21. Under these circumstances, the judgment relied on the learned counsel for the revision petitioner in the case of Sanjay Kumar Sinha stated supra, has to be considered. 22. As can be seen in the said case, the Hon'ble Supreme Court considered the facts that the husband had filed the divorce petition under Section 13 of the Hindu Marriage Act against the wife and in that proceedings the wife had filed application under Section 24 of the Act for interim maintenance. The family Court awarded Rs.8,000/- p.m. to the wife and Rs.4,000/- p.m. to the minor daughter as interim maintenance and Rs.2,500/- towards litigation expenses. At the same time, the wife had also filed the application under Section 125 of Cr.P.C. seeking maintenance before other family Court in which maintenance of Rs.4,000/- p.m. to the wife and Rs.2,000/- p.m. to the minor daughter was awarded. Under those circumstances, the Hon'ble Supreme Court while disposing of the matter held that firstly the family Court has to decide the main divorce case, secondly, consequent upon passing of maintenance order under Section 24 of the Act, the order passed by the family Court under Section 125 of Cr.P.C. stands superseded and now no longer holds the field. Indeed this fact is conceded by the learned counsel appearing for the respondent wife. Therefore, the observations made by the Hon'ble Supreme Court are based on the facts in the said case and no law is laid down in the said case stating that the order passed under Section 125 of Cr.P.C. mergers with the order under Section 24 of the Hindu Marriage Act which is in the nature of interim relief. Therefore, the observations made by the Hon'ble Supreme Court are based on the facts in the said case and no law is laid down in the said case stating that the order passed under Section 125 of Cr.P.C. mergers with the order under Section 24 of the Hindu Marriage Act which is in the nature of interim relief. Therefore this decision will not help that revision petitioner herein. Admittedly no matrimonial case is pending between revision petitioner and the respondent as of now and as on this date no interim maintenance is awarded and paid by the revision petitioner under Section 24 of the Hindu Marriage Act. On the other hand, the order passed under Section 24 of the Hindu Marriage Act in Matri.C.No.31/2011 awarding interim maintenance of Rs.10,000/- p.m. was never paid by the revision petitioner and when the respondent filed the execution petition for the recovery of the said interim maintenance, he filed writ petition before the High Court and got stayed the execution proceedings. 23. Under these circumstances, the submission made on behalf of the revision petitioner that the respondent wife is not entitled to seek separate maintenance under Section 125 of Cr.P.C in view of the order passed under Section 24 of the Hindu Marriage Act has no merit and the same is liable to be rejected and further it is necessary to observe that the order passed under Section 24 of the Hindu Marriage Act is in the nature of interim order and it subsists till the disposal of the main petition. Thereafter the wife cannot seek interim maintenance in the case, however permanent alimony can be sought for. The Hon'ble Supreme Court in the case of Sanjay Kumar Sinha stated supra has also observed that depending upon the outcome of the main case, an appropriate order towards permanent maintenance and arrears also to be passed. Therefore the contention of the revision petitioner husband that the respondent is not entitled to seek maintenance under Section 125 of Cr.P.C. in view of the order passed under Section 24 of the Hindu Marriage Act is rejected. 24. The Courts while awarding maintenance under Section 125 of Cr.P.C. have to consider the earning capacity of the husband and his status in the society. The Hon'ble Supreme Court in the case of Bhuwan Mohan Singh Vs. 24. The Courts while awarding maintenance under Section 125 of Cr.P.C. have to consider the earning capacity of the husband and his status in the society. The Hon'ble Supreme Court in the case of Bhuwan Mohan Singh Vs. Meena and Ors., (2014) AIR SC 2875 has held as follows: "Section 125 was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance some where else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds." 25. Therefore the wife is entitled in law to lead life in the similar manner as she lived in the house of the husband that is where the status strata come into play and that where the obligations of the husband in case of wife become prominent one. The husband cannot deprive her of her benefit of living with dignity. Therefore the wife is entitled in law to lead life in the similar manner as she lived in the house of the husband that is where the status strata come into play and that where the obligations of the husband in case of wife become prominent one. The husband cannot deprive her of her benefit of living with dignity. Keeping in mind these principles, the family Court on the basis of the material on record, held that the respondent husband is capable of earning sufficient income from his business and the fact that he worked in Scotland for 3 years and borrowed loan of Rs.23,00,000/- for doing Textile Business and that there is also family jewelry business held that the petitioner wife is entitled for maintenance to lead her life in the same standard of living of her husband and his status in the society. It is admitted that the revision petitioner husband is a BE graduate in Clothing Management and he did his education at Herriot Watt University, Scotland (U.K.) and he did job there for 3 years. Under these circumstances, awarding maintenance of Rs.15,000/- p.m. to the wife considering the material on record cannot be held perverse or capricious. 26. The statement made by the wife in her evidence that she requires Rs.10,000/- p.m. cannot be construed as maximum for her maintenance, but it has to be construed as minimum for her maintenance, on consideration of the standard of living of the husband and his status in the society, that he is a BE graduate in Clothing Management at Herriot Watt University, Scotland (U.K.) and having family business in jewels, awarding maintenance of Rs.15,000/- p.m. to the respondent wife cannot be held as excessive and beyond the capacity of the revision petitioner. On the other hand, the material on record goes to show that the revision petitioner has made two attempts to get decree of divorce against the respondent and has also never paid the maintenance awarded in those proceedings. Even after filing revision petition, the revision petitioner was not regular in paying the maintenance. The record goes to show that immediately after filing this revision petition, interim stay was granted subject to payment of Rs.5,000/- p.m. to the respondent. Even after filing revision petition, the revision petitioner was not regular in paying the maintenance. The record goes to show that immediately after filing this revision petition, interim stay was granted subject to payment of Rs.5,000/- p.m. to the respondent. The respondent has filed memo of calculation during the course of this revision petition stating that the revision petitioner has not paid arrears of maintenance even as directed by this Court. Subsequently, the revision petitioner has made certain payments to respondent towards arrears of the maintenance. 27. Under these circumstances, this Court holds that revision petitioner has not at all made out any grounds either to set aside the impugned order or to reduce the maintenance awarded by the family Court. 28. The point for consideration is answered accordingly. In the result, this Court proceed to pass the following: ORDER The revision petition filed is hereby dismissed with costs of Rs.5,000/-. Consequently the order dated 25.01.2014 passed in Criminal Miscellaneous Case No.106/2013 on the file of the Principal Judge, Family Court, Bellary is hereby confirmed.