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2021 DIGILAW 184 (KAR)

Shantavva, W/o Shivappa @ Shivaputrappa Kudavakkaliger v. Shivappa @ Shivaputrappa, S/o Gangappa Kudavakkaliger

2021-01-29

RAVI V.HOSMANI

body2021
ORDER : Challenging the order dated 11.09.2018 passed by the Principal Family Court, Dharwad, in Criminal Miscellaneous No.189/2015, this petition is filed. 2. Brief facts leading to this petition are that, the petitioner is the wife of the respondent. Their marriage was solemnized on 02.05.1975 as per Hindu customs. After marriage, the petitioner resided with the respondent for about six months happily. Thereafter, she was subjected to cruelty and harassment by the respondent as he was addicted to bad vices like gambling. After about two years of marriage, the petitioner was thrown out of the house by the respondent. From the said date, she is residing with her parents at Hebballi village. Despite several efforts by elders to settle the dispute, the respondent did not agree and did not provide for livelihood of the petitioner. Until recently her brother was taking care of her but the said brother has left Hebballi village and moved on to Bengaluru. Therefore, the petitioner is without any source of earning. The respondent is having landed property and house property and is earning about 6 lakhs per annum. Despite the same, the respondent has failed and neglected to provide the petitioner with maintenance. On the said grounds, the petitioner filed a petition for maintenance under Section 125 of Code of Criminal Procedure, 1973, (hereinafter referred to as ‘Cr.P.C’.). 3. On receipt of notice of petition, respondent entered appearance and filed objections denying entire petition averments. The respondent also disputed marital relationship with the petitioner. He denied that she was unable to maintain herself and also the allegation that despite having sufficient means, he had failed and neglected to maintain her. The respondent specifically contended that he is a permanent resident of Hosayallapur, aged about 85 years and he had married a lady from Gobbaragumpi village and as he did not beget any children from her, she had left him. He further contended that, the petitioner taking advantage of this situation had filed this false petition. 4. In support of her petition, the petitioner examined herself as P.W.1 and another witness as P.W.2 and got marked Ex.P.1 to Ex.P.10. The respondent also examined himself and another witness as R.W.1 and R.W.2 and marked one document as Ex.R.1. 5. Thereafter, the trial Court framed following points for its consideration: 1. Whether the petitioner prima facie proves that she is the legally wedded wife of the respondent? 2. The respondent also examined himself and another witness as R.W.1 and R.W.2 and marked one document as Ex.R.1. 5. Thereafter, the trial Court framed following points for its consideration: 1. Whether the petitioner prima facie proves that she is the legally wedded wife of the respondent? 2. If so, whether she proves the alleged willful neglect by the respondent in maintaining her? 3. Whether the petitioner is entitled to seek maintenance from the respondent as sought for? 4. What order? 6. After consideration of the evidence on record, the trial Court answered point Nos.1 to 3 in the negative and answered point No.4 by dismissing the petition. Aggrieved thereby the petitioner has filed this petition. 7. Sri. R.H. Angadi, learned counsel for the petitioner submitted that, the petitioner presently aged more than 58 years was married to the respondent in the year 1975 and led marital life with him for about two years. Thereafter, respondent has driven out petitioner as he was given to gambling and other vices and has totally failed to provide her with any maintenance. It was further submitted that, respondent was having immoveable properties and annual income of more than Rs.6 lakhs. Until recently, the petitioner was living with her brother. As her brother moved to Bengaluru, she is left to fend for herself. Learned counsel submitted that, the petitioner produced marriage invitation card as Ex.P.1, RTC extracts of properties owned by respondent as Ex.P.2-3, property register card of his house as Ex.P.4. She also produced her voter I.D. card as Ex.P.5; marriage yadi as Ex.P.6, copy of voters list during 2016 as Ex.P.7, Certificate of training issued by KMF as Ex.P.8; copy of Ration Card as Ex.P.9 and joint photo as Ex.P.10 to establish her case. Learned counsel submitted that the trial Court though concluded that the petitioner had proved her marital relation with the respondent in its reasoning, but had erred in recording a finding in the negative on point No.1. Learned counsel further submitted that, the respondent had also questioned the order impugned herein in RPFC No.100083/2019 insofar as the finding with regard to marriage of the petitioner and the respondent. The said petition was dismissed reserving liberty to avail alternative remedy insofar as the said finding. Hence, the issue regarding marital relation between the petitioner and respondent stood concluded. Learned counsel further submitted that, the respondent had also questioned the order impugned herein in RPFC No.100083/2019 insofar as the finding with regard to marriage of the petitioner and the respondent. The said petition was dismissed reserving liberty to avail alternative remedy insofar as the said finding. Hence, the issue regarding marital relation between the petitioner and respondent stood concluded. Learned counsel therefore submitted that the only point for consideration is about entitlement for maintenance and the quantum. 8. Learned counsel submitted that, the only reason assigned for rejection of the petition was that it was filed after 38 years. It was submitted that, the explanation on record that the petitioner was residing with her brother until recently and after he moved to Bengaluru, the petitioner has been rendered destitute has not been appreciated properly. Hence, the impugned order was liable for interference. 9. On the other hand, Sri. Laxman Mantagani learned counsel for the respondent opposed the petition. He submitted that, even in the absence of any reliable evidence to establish the marriage of the petitioner and respondent, the trial Court held their marriage was proved. Though the respondent had failed in his challenge to the said finding before this Court, in terms of the liberty reserved, the respondent had since filed suit for declaration against the petitioner that she is not the legally wedded wife. It was further contended that, the conduct of the petitioner in not making any claim against the petitioner during the last 38 years clearly indicated lack of marital relationship and in any case indicated that the petitioner was living separately on her own will, which disentitled her from claiming any maintenance. In support of his contention, learned counsel relied upon the following decisions: 1. Smt. Puspa Vs. Sri. Vasant Bangera, in Criminal Petition No.1318/2009, disposed of on 03.07.2013; 2. Smt. Susheela Kharvi and others Vs. Sri. Rama Kharvi in Criminal Petition No.1824/2010, disposed of on 03.07.2013; 10. From the above, it is not in dispute that since 38 years the petitioner and the respondent are not residing together. In view of the finding about marital relationship, and the liberty reserved to the respondent to avail alternative remedy with regard to such finding, the controversy in this case is at present confined only with regard to the entitlement and quantum of maintenance. 11. In view of the finding about marital relationship, and the liberty reserved to the respondent to avail alternative remedy with regard to such finding, the controversy in this case is at present confined only with regard to the entitlement and quantum of maintenance. 11. The trial Court has while rejecting the petition has stated that there is no explanation by the petitioner about how she managed herself during the past 38 years. It came to conclusion that the petitioner had slept over her legitimate rights and had not sought restitution of conjugal rights which was a right available to her. In view of the inordinate delay in approaching the Court, she was estopped from alleging that there was willful neglect on the part of the respondent to maintain her. 12. While considering a petition filed under Section 125 of Cr.P.C., the Hon’ble Supreme Court in the case of Rajathi Vs. C. Ganesan reported in 1999 (6) SCC 326 has held that, a statement by wife that she was unable to maintain herself would be sufficient and it would be for the husband to prove otherwise. It was further held that, burden lies on husband to prove that he has no sufficient means to discharge his obligation or he did not neglect or refuse to maintain her. In the case on hand, though the petitioner had indeed approached the Court for maintenance after 38 long years, but her explanation that after she was driven out of her matrimonial house by the respondent, she lived with her parents and thereafter with her brother and due to her brother shifting to Bengaluru, she was rendered destitute and hence, the claim for maintenance from the respondent. In the said petition, it has been averred that the respondent failed to take back the petitioner despite advise by elders on several occasions. The said explanation had been lost sight of by the trial Court. In the absence of any credible proof placed on record by the respondent to establish that, the petitioner had either stayed away from him due to consent or agreement or did so despite his efforts to get her back, the presumption regarding the failure and neglect on the part of the respondent has to be held established. Mere delay in seeking maintenance does not disentitle the petitioner to claim maintenance. Mere delay in seeking maintenance does not disentitle the petitioner to claim maintenance. The fact that it is payable only from the date of the petition, sufficiently mitigates hardship on the part of the respondent due to delay. 13. Reliance placed on the decisions of this Court in Smt. Pushpa (supra) is ill-advised as it was decided in different fact situation. In the said case, the sparring spouses had been living separately under mutual agreement which was a written agreement and was produced before the Court. In the instant case, the existence of any such agreement has not been established by the respondent. 14. Further, this Court in Smt. Sushila Kharvi (supra) had arrived at a conclusion that the wife therein was residing separately from her husband without any justifiable reason or cause and had admitted to be receiving a sum of Rs.2,000/-from each of her three brothers. Therefore, the said decision is not a precedent for the proposition of law that a petition for maintenance filed after 38 years of living separately is not tenable. Hence, the decisions relied upon by the respondent are of no avail to him. 15. The petitioner has claimed that the respondent is owning lands and house and having an income of Rs.6 lakhs per annum. However, no particulars are given nor the same is sufficiently substantiated. Taking note of the advanced age of the respondent and also the need for maintenance for survival by the petitioner, it is deemed fit to award monthly maintenance at the rate of Rs.5,000/- payable by the respondent within 10th of every month, from the date of the petition and to continue to do so. It is however clarified that this order shall be subject to the result of the suit said to be filed by the respondent seeking declaration against the petitioner. 16. In the result, petition is allowed in terms of the above.