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2019 DIGILAW 1866 (KAR)

Channabasappa v. Nandini @ Renuka

2019-08-21

K.S.MUDAGAL

body2019
ORDER : 1. These petitions arise out of the common order dated 16.02.2019 passed by the Sessions Judge, Yadgiri, in Criminal Revision Petition Nos. 17/2016 and 25/2016. Respondent No.1 is the second wife and respondent No.2 is the daughter born out of the marriage of petitioner and respondent No.1. Respondent Nos. 1 and 2 filed Criminal Miscellaneous No.63/2008 against the petitioner under Section 125 Cr.P.C. seeking maintenance of Rs.2,000/- each per month. 2. For the purpose of convenience, the parties are referred to henceforth with their ranks before the trial Court. 3. Petitioner alleged that the respondent having sufficient mense failed and neglected to maintain them and they have no source of income to maintain themselves. 4. Respondent contested the petition contending he has divorced the first petitioner as per the customs prevailing amongst them and in full settlement of claim of petitioner Nos. 1 and 2, he has transferred some property in the name of second petitioner and paid cash, gold and silver articles to the first petitioner. He further contended that he has four children out of his first marriage and the petitioner herself has abandoned him and she has undergone second marriage with one Dyamanna Naikodi, therefore, the petitioners are not entitled for maintenance. 5. The trial Court rejecting the defense of the respondent, awarded maintenance of Rs. 1,500/- per month to the first petitioner and Rs. 1,000/- per month to second petitioner from the date of order. Respondent challenged the said order before the Sessions Court, Yadgiri in Criminal Revision Petition No. 17/2016. Petitioners filed Criminal Revision Petition No.25/2016 challenging the order of the trial Court on the ground of inadequacy of maintenance and awarding maintenance only from the date of the order. 6. The Sessions Court on hearing the parties, the impugned order dismissed the petition of respondent-husband and partly allowed the petition enhancing the maintenance to the daughter to Rs. 1,500/- per month and awarding the maintenance from the date of the petition in stead of from the date of the order. 7. Miss. Veerani V. Nandi, counsel for respondent / husband submits that the Sessions Court has failed to appreciate the defence evidence regarding the second marriage of the first petitioner, that she herself was guilty of desertion and settlement of claim of petitioners by him. 8. 7. Miss. Veerani V. Nandi, counsel for respondent / husband submits that the Sessions Court has failed to appreciate the defence evidence regarding the second marriage of the first petitioner, that she herself was guilty of desertion and settlement of claim of petitioners by him. 8. Per contra, learned counsel for the petitioner submits that the Court below rightly appreciated the evidence and law on the point correctly and there are no grounds to interfere. 9. This being the petition under Section 482 Cr.P.C., this Court can interfere in the impugned order only if it is shown that the order amounts to abuse of process of Court or leads to failure of ends of justice. 10. The respondent did not dispute the relationship between the parties. Though, he contended that wife herself was guilty of desertion, he himself admitted that he has another wife and four issues out of the said wife. There are allegation that he has married another wife after the marriage with the petitioner No. 1. 11. Explanation to Section 125(3) says that, if husband has married another women that shall be ground for refusal to wife to live with him. So far as daughter, there is no ground to refuse to maintain her. The only ground respondent urged is that he has given some property to her. The only document he has produced to show that was some record of right containing the entry of the name of the daughter. The property was not transferred to her under any registered document. Even if he transfers property under any registered document, since petitioner No.2 is the minor, he transferring property to her does not absolve him of his liability to maintain her. 12. The contention of the respondent that himself and petitioner No.1 got divorce as per the customs and by consent, the Re visional Court rightly held that the respondent failed to prove any such custom and divorce under Ex.D23. First of all, the respondent failed to prove that there is any such custom in their community enabling divorce out side Court and that he was not governed by the Hindu Marriage Act 1955. Under such circumstances Ex.D23 does not carry any legal sanctity under law even assuming the same is proved. 13. According to the respondent himself, M.C.No.23/2008 filed by him and the first petitioner for divorce by mutual consent was dismissed for non prosecution. Under such circumstances Ex.D23 does not carry any legal sanctity under law even assuming the same is proved. 13. According to the respondent himself, M.C.No.23/2008 filed by him and the first petitioner for divorce by mutual consent was dismissed for non prosecution. 14. So far as the alleged second marriage of the first petitioner, the respondent relied Ex.D24 and Ex.D26 receipts and Ex.D35 voter list for the year 2014. Ex.D24 and Ex.D26 were purportedly the receipts for having received Rs.501/- from father of Dyamanna Naikodi for performing the marriage in the temple. As rightly held by the Court below, those documents were not proved by examining the person issuing the same. Even Ex.D35 was not proved by producing the primary evidence. Considering these aspects, the Court below rightly rejected the said defence of the respondent. 15. Further on quantum also, the records show that, Criminal Misc.No.63/2008 was filed in the year 2008. That was disposed of after eight years on 14.07.2016. The learned Magistrate did not assign any reasons for not granting maintenance from the date of the petition. The Sessions Court considering the fact that the respondent indulged in several other litigations, modified the order of the trial Court, awarding maintenance from the date of the petition. 16. Further regarding quantum of maintenance, since some deductions in salary were optional/voluntary, the Sessions Court held that the trial Court was not justified in giving deduction to them in computing the income. This Court does not find any illegality or impropriety in the impugned order or any abuse of process of the Court. Therefore, petitions are dismissed.