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2021 DIGILAW 304 (KAR)

Nagaraj, S/o Rangappa v. Nirmala, W/o Nagaraj

2021-02-24

H.B.PRABHAKARA SASTRY

body2021
ORDER : The respondents herein had instituted a case in Crl.Misc.204/2014 against the present petitioner in the Family Court at Davanagere(for brevity, the ‘Family Court’) under Section 125 of Code of Criminal Procedure (for brevity, ‘Cr.P.C.’) seeking monthly maintenance at the rate of Rs.10,000/-per month payable to them by the respondent therein. 2. The summary of the case of the petitioners in the Family Court was that the first petitioner was the legally wedded wife of the respondent having married to the respondent about twenty years back according to the customs and traditions prevailing in their community. Out of the wedlock, three sons namely Madhusudhan, Manoj and Sandeep (petitioner No.2 in the Family Court) were born to them. The first two sons namely Madhusudhan and Manoj are residing with the respondent. The third son Sandeep (petitioner No.2) is under the care and custody of petitioner No.1 and he is pursuing his studies. Only for about two years of their marriage, petitioner No.1 could be able to lead a happy married life with the respondent. Thereafter the respondent/husband started assaulting petitioner No.1 under intoxication and also suspecting her chastity. He was also demanding dowry from her parents. The conciliation efforts made did not yield any result. About two years prior to the date of filing of the petition, the respondent after assaulting the first petitioner took out all the household utensils and gold ornaments and left them. He refused and neglected to maintain the petitioners. It is also stated in the petition that the respondent is the only son to his parents and owns four acres of agricultural land and earns about Four to Five Lakh Rupees per annum. Stating that they are unable to maintain by themselves, the petitioners prayed for an order of maintenance payable to them by the respondent. 3. In response to the notice, the respondent in the Family Court (petitioner herein) appeared through his counsel and filed his statement of objections wherein he denied that he has ill-treated and harassed the first petitioner. He admitted that the first petitioner was his legally wedded wife and stated that she is the daughter of his sister. He further stated that his wife (petitioner No.1) did not wanted to reside in the village and pressurised him to shift the residence to Bengaluru to enable her to work in a garment factory there. He admitted that the first petitioner was his legally wedded wife and stated that she is the daughter of his sister. He further stated that his wife (petitioner No.1) did not wanted to reside in the village and pressurised him to shift the residence to Bengaluru to enable her to work in a garment factory there. Since he refused to meet her demand, she left her matrimonial home and started residing in her parental house to work in a garment factory. He further alleged that while working in the garment factory she developed illicit relationship with some other person. She did not yield to the advice made to her to discontinue the alleged illicit relationship. He contended that the first petitioner is now residing with one Mallikarjuna, son of Chandrahas of Jali nagara, Davanagere. He also stated that the first petitioner has caused a notice on 25.03.2013 for dissolution of marriage. He has stated that he has also filed a petition before the Superintendent of Police, Davanagere seeking protection from the first petitioner and said Mallikarjuna. He further stated that the first petitioner is running finance business and also doing tailoring work and earns not less than fifteen to twenty thousand Rupees per month, as such, she is capable to maintain herself and also to maintain petitioner No.2. 4. In support of her case, petitioner No.1 got herself examined as P.W.1 and got marked documents from Exs.P1, P2 and P3. The respondent got himself examined as R.W.1 and got examined two more witnesses Smt. Gangamma and Sri B.M. Ramaswamy as R.W.2 and R.W.3 respectively and got marked exhibits R1 to R3. After hearing both side, the Family Court by its Order dated 28.03.2015 partly allowed the petition filed by the petitioners and ordered that the first petitioner before it was entitled for monthly maintenance of Rs.1,000/-and the second petitioner was entitled for monthly maintenance of Rs.800/-, payable by the respondent from the date of the petition. Aggrieved by the said order, the respondent in the Family Court has preferred the present petition. 5. Perused the memorandum of petition, impugned Judgment and the materials placed before the Court including the Family Court records. 6. This Court on 21.01.2021, by a detailed order, considering the nature of the litigation and the age of the petition, since the respondents though served had remained unrepresented, appointed an amicus curiae to represent their case. 7. 5. Perused the memorandum of petition, impugned Judgment and the materials placed before the Court including the Family Court records. 6. This Court on 21.01.2021, by a detailed order, considering the nature of the litigation and the age of the petition, since the respondents though served had remained unrepresented, appointed an amicus curiae to represent their case. 7. Heard the submissions of learned counsel for the petitioner and the learned amicus curiae for the respondent in the matter. 8. The only point that would arise for my consideration is whether the impugned order of the Family Court suffers from any illegality, irregularity or perversity warranting interference at the hands of this Court? 9. For convenience sake, the parties would be referred to in relation to their rank before the Family Court. 10. Learned counsel for the petitioner herein, in his arguments submitted that the marital relationship of the petitioner No.1 with the respondent as well the fact that respondent is the father of Sandeep, the second petitioner in the Family court is an admitted fact. However, he submitted that the wife (petitioner No.1) had voluntarily left her matrimonial home and she is living an adulterous life as projected in the evidence of R.W.2 and R.W.3 as such, she is not entitled for any maintenance. He further submitted that the present petitioner i.e. the husband cum father respectively of petitioners 1 and 2, is suffering from cervical rib problem and therefore, he is unable to maintain his wife and the son. 11. Per contra, learned amicus curiae for the respondent in her arguments submitted that the alleged living of wife in adultery is not proved and that a mere oral evidence of R.W.2 and R.W.3 is not sufficient to hold that the wife has been living continuously in adultery leading to denial of maintenance to the petitioners. In her support, she relied upon some of the Judgments of the hon’ble Apex Court and two Judgments of a Co-ordinate Bench of this Court which would be referred to at the relevant places hereafter. Learned amicus curiae further submitted that since the wife was subjected to physical and mental cruelty and also serious aspersions were casted against her by none else than her husband alleging that she is leading an adulterous life, she is justified in living separately away from her husband. Learned amicus curiae further submitted that since the wife was subjected to physical and mental cruelty and also serious aspersions were casted against her by none else than her husband alleging that she is leading an adulterous life, she is justified in living separately away from her husband. She further submitted that the respondent owns a very vast extent of agricultural land earning an income of not less than Four to Five Lakh Rupees per annum. The wife and son are entitled for their maintenance by the husband and father respectively of the petitioners in the Family Court. 12. It is not in dispute that the present respondent No.1 is the legally wedded wife of the present petitioner and present respondent No.2 is the third son born out of the wedlock between the petitioner and respondent No.1 herein. It is also not in dispute that respondent No.2 is minor under the guardianship of her mother i.e. respondent No.1 and that he is pursuing his studies in 10th standard schooling. It is also not in dispute that respondent No.1 his wife is living separately away from her husband in a place at Davanagere. It is in the light of these undisputed facts the case is required to be analysed. 13. The only contention of the petitioner herein to deny maintenance to his wife is that she has been living in adultery. In that regard the petitioner/respondent apart from examining himself as R.W.1 in the Family Court where he reiterated the same contentions taken up by him in his statement of objections, also examined one Smt. Gangamma as R.W.2 and Sri B.M. Ramaswamy as R.W.3. 13A. Admittedly, said Smt. Gangamma is none else than the mother of respondent No.1 herein and she is also the elder sister of the petitioner herein. In her examination-in-chief in the form of affidavit, R.W.2 has stated that her daughter i.e. the present respondent No.1 when had gone out on the pretext of work has developed illicit relationship with one Mallikarjuna a resident of Davanagere. Several panchayats were held in that regard but she (her daughter) did not yield to the advice of the elders. Denial suggestions made to her in her cross examination were not admitted as true by the witness. Several panchayats were held in that regard but she (her daughter) did not yield to the advice of the elders. Denial suggestions made to her in her cross examination were not admitted as true by the witness. However, it was elicited in her evidence that the alleged Panchayatdars who held the Panchayat were available and are residing at Davanagere and she has no difficulty in bringing them to lead their evidence in the Court. She also stated that no complaint was given against her daughter for her alleged living in adultery with one Mallikarjuna. 14. One Sri. B.M. Ramaswamy, a retired Group-D employee and resident of Davanagere who claims himself to be a relative of the petitioner who was examined as R.W.3 has stated in his evidence that petitioner No.1 in the Family Court (respondent No.1 herein), while was going to garment work had developed an illicit relationship with one Mallikarjuna, when this fact came to the notice of the family of her husband, a Panchayat was held and she was advised to mend her ways. He has stated that he was one among the Panchayatdars. In his cross examination denial suggestions were made denying all the statements made by the said witness however, he has not admitted those suggestions as true. On the other hand it was suggested to the witness that after the death of the husband of R.W.2 he has kept her as his mistress and leading life. However, the witness has denied the said suggestion. He also stated that he does not know as to which garment(establishment) P.W.1 was going for work. 14A. It is in the light of said evidence of R.W.2 and R.W.3, the learned counsel for the petitioner vehemently submitted that it has been clearly established that the respondent No.1 herein was living in adultery, however, the Trial Court failed to notice the same. 15. Learned amicus curiae in her arguments submitted that a mere oral testimony of some person cannot be the proof of adultery. In her support she relied upon the following reported Judgments: In Meihoubam (N) Okram Ongbi Uma Vs. Okram Robert reported in MANU/MN/0113/2019, the High Court of Manipur at Imphal was pleased to hold that in cases where adultery is alleged by the husband on his wife, the husband has to prove his case to the satisfaction of the Court. In her support she relied upon the following reported Judgments: In Meihoubam (N) Okram Ongbi Uma Vs. Okram Robert reported in MANU/MN/0113/2019, the High Court of Manipur at Imphal was pleased to hold that in cases where adultery is alleged by the husband on his wife, the husband has to prove his case to the satisfaction of the Court. Thus the position is clear that it is for the husband to prove that wife is continuously committing violation of the marriage bed indulging in adulterous life. In Mehbubabi Nasir Shaikh Vs. Nasir Farid Shaikh reported in MANU/MH/0258/1976, the High Court of Bombay was pleased to observe in para 7 of its Judgment that the Courts are not justified in suspecting the chastity of a woman merely because the husband casts aspersions on her chastity when opposing an application for maintenance. In Shivashankreppa Vs. Shaila and Others reported in MANU/KA/0520/2015, a Co-ordinate Bench of this Court, in a similar case where the husband had challenged the order granting maintenance to his wife under Section 125 of Cr.P.C. on the ground of alleged adultery, was pleased to hold that mere taking of a defence that the wife is living in adultery is not sufficient. It operates as a double edged weapon in the event of non proving of case alleged against his wife i.e. particularly adultery that would show the conduct of the husband in making such reckless character assassination allegations against his wife. If the Court is of the opinion that the said allegations are not proved to the satisfaction of the Court, the conduct of the husband would be met with an iron hand. The very same Co-ordinate Bench in Jagadevi Vs. Aravind reported in MANU/KA/1146/2015 at para 13 was pleased to observe as follows: “13. It is also to be borne in mind that the term adultery is used in popular sense a breach of matrimonial tie by either of the parties. In various circumstances, if single act or lapse from the virtue due to some circumstances is not sufficient to prove the adultery, if a lady is not living in continuous illicit relationship with the other person, other than her spouse. Therefore, it should be shown to the Court that soon prior to and as on the date of the petition, wife has been living in adultery. Therefore, it should be shown to the Court that soon prior to and as on the date of the petition, wife has been living in adultery. Even showing to the Court that on some previous occasion she had some illicit intimacy with some other person itself cannot be said to be a foundation to hold that wife has been continuously living in adultery and that even on the date of petition, she has been living in adultery. It is incumbent upon the respondent to prove that wife has continued her adulterous conduct even on the date of the petition and subsequently.” It was further observed in the very same Judgment at para 16 that the proof of adultery should be of such a standard quality that the Court should not suspect the materials placed before it. The evidence should be of sterling quality to come to a definite conclusion that the wife has been living in adultery. Otherwise the consequence would be very disastrous may lead to a criminal liabililty of the petitioner for which she is punishable under Section 494 of IPC. 16. The above Judgments as well a reading of Section 125(4) of Cr.P.C, makes it ample clear that to deny the maintenance to an eligible wife, the respondent/husband is required not only to take the plea that his wife is living in adultery but he has also to prove it to the satisfaction of the Court that she is living in adultery. As such, a mere imagination or an honest belief in simplicitor would not amount to or cannot be taken as proof of adultery to the satisfaction of the Court. 17. In the instant case, the husband who got himself examined as R.W.1 has alleged that his wife i.e. petitioner No.1 in the Family Court was living in adultery with one Mallikarjuna. Except making such allegation, he could not give any further details as to who that Mallikarjuna was or on what basis he is making such an allegation that his wife is leading an adulterous life. On the other hand it was suggested to him in his cross examination that he was constantly subjecting his wife to cruelty suspecting her chastity. However, he has not admitted the said suggestion as true. On the other hand it was suggested to him in his cross examination that he was constantly subjecting his wife to cruelty suspecting her chastity. However, he has not admitted the said suggestion as true. It was also suggested to him that it is only to avoid liability to pay maintenance he has come up with a false plea of his wife living in adultery. Therefore, the evidence of R.W.1 independently is not sufficient to believe that his wife was living in adultery. 18. The next two witnesses i.e. R.W.2 and R.W.3 though in their statements have submitted that P.W.1 was living in adultery, however, neither of them have revealed as to the source of their knowledge or information. Even though R.W.2 Smt. Gangamma being the mother of P.W.1 has stated that her daughter was leading an adulterous life with one Mallikarjuna but it cannot be forgotten of the fact that she is also at the same time the elder sister of R.W.1. As such, her evidence cannot be accepted on its face value without a thorough scrutiny. R.W.2 nowhere has mentioned as to the source of her information or belief that her daughter was leading an adulterous life. Though it is argued by the learned counsel for the petitioner herein that generally a mother would not allege that her daughter was leading an adulterous life but on her such mere submission the Court cannot conclude that the allegation leveled against P.W.1 that she was living in adultery is established. Since the said allegation is a very serious allegation leading to serious consequences also, to hold that such an allegation is proved to be a fact, the Court is required to thoroughly scrutinize the evidence placed before it. Such a scrutiny the evidence of R.W.2 would not withstand which is for the reason as already observed that, R.W.2 nowhere mentioned as to on what basis she is suspecting the chastity of her daughter. Though the witness stated that a Panchayat was held in that regard, she has not given any details of the alleged Panchayat or the Panchayatdars. Further even though she stated that Panchayatdars were living at Davanagere, she could bring them to the Court and examine them as witnesses, but still no steps was taken in that regard. Though the witness stated that a Panchayat was held in that regard, she has not given any details of the alleged Panchayat or the Panchayatdars. Further even though she stated that Panchayatdars were living at Davanagere, she could bring them to the Court and examine them as witnesses, but still no steps was taken in that regard. Therefore, in the absence of any iota of corroborative evidence to prove the alleged allegation of adultery leveled against P.W.1, the mere oral submission of R.W.2 which does not inspire any confidence to believe in it is not sufficient to hold that the allegation made against P.W.1 regarding adultery is established. 19. The evidence of R.W.3 is a further weak evidence compared to that of R.W.2. Admittedly he is a third person and not a family member of the parties to the litigation. Though he claims that he was one of the Panchayatdars who are stated to have held Panchayat with respect to the alleged adultery of P.W.1, but nowhere his name was suggested to P.W.1 in her cross examination from the respondent’s side when several of the names of the alleged Panchayatdars were put to the witness. Had really R.W.3 was also one of the Panchayatdars then nothing had prevented for the respondent in the Family Court to suggest to P.W.1 in her cross examination that R.W.3 was also one among the Panchayatdars. This makes it clear that it is only as an afterthought said R.W.3 was introduced in the case of the respondent. Furthermore, even R.W.3 also could not give any further details as to the source of his information or on what basis he was making such an allegation that P.W.1 was leading an adulterous life. He does not even know the details of the alleged Mallikarjuna with whom P.W.1 was alleged to be living in adultery. On the other hand it was alleged against R.W.3 in his cross examination that after the death of husband of R.W.2, he has kept R.W.2 with him and living. Though R.W.3 denied the said suggestion, in the absence of any evidence to believe that his knowledge or information is trustworthy, the mere say of R.W.3 that P.W.1 was living in adultery would not take the case of the respondent any further. Though R.W.3 denied the said suggestion, in the absence of any evidence to believe that his knowledge or information is trustworthy, the mere say of R.W.3 that P.W.1 was living in adultery would not take the case of the respondent any further. As such, the only contention of the petitioner herein that P.W.1 was living in adultery, therefore, she is not entitled or eligible for maintenance is not acceptable. 20. The next point would be the entitlement of the respondents herein for maintenance. It is both the plea and as well in the evidence of P.W.1 that after two years of her marital life with the present petitioner (R.W.1), she was constantly subjected to physical and mental cruelty by her husband who was not only consuming liquor but also assaulting her suspecting her chastity. According to P.W.1, this made her to leave her husband and start living separately. 21. The evidence analysed above clearly goes to show that R.W.1 could not substantiate his allegation that P.W.1 was leading an adulterous life with one Mallikarjuna. Therefore, it can be inferred that the allegation cum defence of R.W.1 that his wife was living in adultery was a mere allegation and R.W.1 has failed to prove the said allegation leveled against his wife. 22. In similar circumstances, Punjab and Haryana High Court in Ajaib Din Vs. Janki reported in MANU/PH/0204/1993 at para 13 of its Judgment was pleased to hold that one more ground for the wife to live separately is her husband levelling false allegation of immorality against her. 23. A similar view was expressed by the High Court of Orissa in Anupama Pradhan Vs. Sultan Pradhan reported in MANU/OR/0138/1991, observing that an allegation of unchastity when made against a wife and payment of maintenance was sought to be avoided on the ground of her living in adultery, but such plea fails, as such plea by itself is sufficient to entitle her to remain apart from her husband and also to claim maintenance. 24. A similar view but with more force was expressed By the Co-ordinate bench of this Court in the case of Jagadevi (supra) where, in para 9 of its Order, this Court has held that heavy responsibility would be on the respondent to prove to the satisfaction of the Court beyond all reasonable doubt that the wife had been living in adultery. When plea of adultery is taken it is a serious defence of the respondent. If he failed to prove that particular aspect, then it amounts to character assassination of wife and consequently nothing is required to be proved by his wife with reference to neglect or refusal to maintain her and that false defence itself is sufficient to hold neglect and refusal, then the Court shall award maintenance to her. 25. In the instant case, as earlier observed above, apart from the above specific contention taken by P.W.1 both in her plea as well in her evidence that she was made to leave her matrimonial home due to the physical and mental cruelty inflicted upon her by her husband, it is also established that the husband (R.W.1) has failed to prove that his wife (P.W.1) was living in adultery. Therefore, making such a serious allegation against the chastity of his wife which he was unable to prove itself is sufficient for the wife to live separately away from him. As such, the petitioners in the Family Court were rightly held to be entitled for maintenance. 26. Regarding the quantum of maintenance it is in the evidence of the petitioners that the respondent therein has agricultural lands owned by his family to an extent of four acres with an income of Rupees four to five lakhs per annum. It is in their evidence that the respondent therein is the only son to his parents. Though the respondent as R.W.1 has produced a document shown to be a medical certificate at Ex.R1, X-ray film R3, but a perusal of the said medical certificate goes to show that it is shown to have been issued by an Orthopaedic Surgeon in his letterhead stating that the petitioner is suffering from L5 and L6 disc prolaps and he is in requirement of a long treatment. The said document was disputed by the petitioners in the Family Court. Admittedly the author of the said document has not been examined. Still, even if the contents of the said document is taken as true, the said certificate nowhere states that the patient (R.W.1) was unable to pursue any avocation to earn livelihood. The said document was disputed by the petitioners in the Family Court. Admittedly the author of the said document has not been examined. Still, even if the contents of the said document is taken as true, the said certificate nowhere states that the patient (R.W.1) was unable to pursue any avocation to earn livelihood. Such a contention of the petitioner herein that the respondents herein are not entitled for any maintenance and that he is also unable to maintain them is not acceptable in view of the detailed analysis made above. 27. Since the Family Court, after detailed analysis of the evidence has come to a correct finding holding that the petitioners before it were entitled for maintenance and has awarded a quantum of maintenance which cannot be called excessive in the circumstances of the case, I am of the view that the impugned order does not suffer with any illegality, irregularity or perversity warranting interference at the hands of this Court. Accordingly, I proceed to pass the following: ORDER The petition stands dismissed as devoid of merit. The Court while acknowledging the service rendered by Smt. Archana K.M., learned amicus curiae for the respondent, recommends an honorarium of a sum of not less than Rs.4,000/-, payable to her by the Registry. Registry to transmit a copy of this Order along with Trial Court records to the Family Court, Davanagere, forthwith.