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2021 DIGILAW 515 (KAR)

Thirumalaswamy S/o Govindaiah v. Saraswathi W/o Thirumalaswamy

2021-03-31

N.K.SUDHINDRARAO

body2021
ORDER : With the consent of the learned counsel appearing for the parties, petitions are taken up for final disposal. RPFC No.100111/2017 is filed by husband against order dated 05.07.2017 passed in Crl.Misc.No.265/2016 wherein first and second petitioner were granted maintenance of Rs.5,000/-per month each. RPFC No.100121/2017 is filed by wife and minor daughter before trial court and they seek enhancement of maintenance. 2. Both the petitions arise from common order passed in Crl. Misc. No.265/2016 wherein one Smt.Saraswathi, aged 36 years, wife of Sri.Thirumalaswamy and Kum.Pallavi, aged 14 years, daughter of Saraswathi and Thirumalaswamy filed petition under Section 125 of Cr.P.C. seeking maintenance at Rs.20,000/-for the first petitioner and Rs.15,000/-for the second petitioner. 3. In order to avoid confusion petitioner-wife is hereinafter referred as petitioner No.1 and petitioner No.2 in the trial court is addressed accordingly and respondent Thirumalaswamy shall be referred as respondent who is ranked in the trial court. 4. Petitioner No.1 claims that she is the legally wedded wife of the respondent. Their marriage was solemnized 18 years back as on the date of petition in front of respondent’s residence at Nagarahalu Village, Siruguppa Taluk, in the presence of elders and well wishers and through the wedlock petitioner No.2 was born. Petitioner claims at the time of marriage dowry was given in the form of gold and other household articles. The respondent was not satisfied and happy towards petitioner No.1 as she gave birth to female child because he was keen on male child and rest is that petitioners were ill-treated finally respondent threw the petitioners to the street. It is stated that petitioner No.1 is an unemployee and not in a position to maintain herself. Besides petitioner No.2 is a minor girl. 5. The respondent who filed his objection denied the allegations made by the petitioner and he claims that he was very much interested to lead marital life with the petitioner No.1 and spent money for the sole purpose of his child. Petitioner No.1 took Petitioner No.2 with her spoiled education of petitioner No.2 and threatened him that if he does not transfer the property in her name she will lodge another complaint. Petitioner No.1 took Petitioner No.2 with her spoiled education of petitioner No.2 and threatened him that if he does not transfer the property in her name she will lodge another complaint. Respondent is having 5 acres of agricultural land and petitioner claim is that respondent is the only son for his parents and has got irrigated land, house property and open sites and he gets Rs.20,00,000/-by way of income every year and leading luxurious life but without providing maintenance atleast to buy necessaries. 6. Learned counsel for petitioners in RPFC No.100121/2017 submits that petitioner No.1 with minor daughter and she requires house for her residence for which purpose she has to pay rents and in the present day of shooting up of prices right from basic requirement to meet the enhancement and her present rate of maintenance requires to be enhanced so also petitioner No.2 she is a small girl and cannot go even to labour work. On the other hand expenditure from different kind for basic requirement such as food and clothing and other materials that are exclusively required for a lady. Learned counsel further submits that petitioners are falling short of the requirements more over petitioners have not been paid maintenance from 08.11.2017. 7. Learned counsel for respondent submits that respondent claims that he has only 5 acres of land and is unable to pay Rs.5,000/-maintenance for each of the petitioners and that it has to be reduced. Learned counsel would submit stay order was granted by this court subject to deposit of 50%. 8. In the circumstances, the concept of maintenance and means has to be understood in a larger perception than going for its liberal meaning. It is a known fact necessaries are those which are necessary for keeping the soul and body together. They differ from class to class, place to place and time to time. What is necessary for a particular class of people may be luxury for other class of people at the next corner. However it is a part of society and it is a way of life. Means to maintain not as a person the capacity of the person to work and what amount he gets. Suppose a well built person does not go to job to avoid maintenance and then takes up a plea he does have means. 9. However it is a part of society and it is a way of life. Means to maintain not as a person the capacity of the person to work and what amount he gets. Suppose a well built person does not go to job to avoid maintenance and then takes up a plea he does have means. 9. Means is the capacity to work not how much he earns, if a skilled person who has pleaded he earns Rs.5,000/-a day and if he works for Rs.5,000/-and if he deliberately avoids working beyond one hour and gets Rs.1,000/-cannot be called as a person who can earn only Rs.1,000/-per day and at the same time insofar as ladies who are neglected by the present petitioner also have requirement which are necessary for one class and luxury for the next class. When they go on for shopping everyday or alternate day or even once in a week for buying those things apart from maintenance and necessaries any amount would be insufficient. However in the context and circumstances considering the conduct of the respondent for not having paid the maintenance till now after November, 2017 is not proper in the sense arrears might have been stayed but considering the petitioners who are his wife and child he could have volunteered to help them. 10. The order passed in Crl. Misc. No.265/2016 is liable to be set aside as though the learned Judge was right in ordering maintenance failed in his duty to quantify the proper amount. In the circumstances, I find the petitioner No.1 is entitled for maintenance of Rs.12,000/-per month and petitioner No.2 is entitled for Rs.8,000/-per month right from the date of petition till payment. Insofar as arrears of maintenance it is stated that petitioners have already withdrawn the amount of maintenance of Rs.60,000/-which was deposited before this court. Thus, arrears of maintenance when calculated at the rate of Rs.12,000/-per month for petitioner No.1 and Rs.8,000/-per month for petitioner No.2 it would be Rs.8,00,000/-less amount already paid. 11. Considering all the circumstances, I proceed to pass the following: ORDER Order dated 05.07.2017 passed in Crl.Misc.No.265/2016 by the learned Principal Judge, Family Court, Ballari, is hereby set aside. The maintenance is enhanced to Rs.12,000/-per month to petitioner No.1 and Rs.8,000/-per month to petitioner No.2. Insofar as petitioner No.2 is concerned it is payable till she gets married. 11. Considering all the circumstances, I proceed to pass the following: ORDER Order dated 05.07.2017 passed in Crl.Misc.No.265/2016 by the learned Principal Judge, Family Court, Ballari, is hereby set aside. The maintenance is enhanced to Rs.12,000/-per month to petitioner No.1 and Rs.8,000/-per month to petitioner No.2. Insofar as petitioner No.2 is concerned it is payable till she gets married. Arrears of maintenance by the respondent shall be paid in four equal monthly installments and first payment shall be on 15.04.2021 with a single default clause. Accordingly RPFC No.100111/2017 is dismissed and RPFC No.100121/2017 is allowed in part.