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2021 DIGILAW 537 (KAR)

Kamala N. v. Satisha K.

2021-04-07

H.B.PRABHAKARA SASTRY

body2021
JUDGMENT : H.B. Prabhakara Sastry, J. The present petitioners are also the petitioners in Criminal Misc.No.398/2013, on the file of the learned Principal Judge, Family Court at Tumkur (hereinafter for brevity referred to as the Family Court) which was filed by them against the present respondent under Section 125 of the Code of Criminal Procedure, 1973, (hereinafter for brevity referred to as the Cr.P.C.), praying for maintenance at the rate of Rs. 10,000/- per month to each of them from the respondent. The Family Court by its impugned judgment dated 04-02-2016, partly allowed the petition, wherein it dismissed the petition of petitioner No.1- wife and partly allowed the petition of petitioner No.2 - son and the respondent - husband was directed to pay maintenance to the petitioner No.2 at the rate of Rs. 2,000/- per month. Being not satisfied with the said judgment, the petitioners in the Family Court have preferred this revision petition, wherein the petitioner No.1 has sought for allowing her petition as prayed and petitioner No.2 has prayed for enhancement of maintenance ordered in his favour and for an order as prayed in his petition. 2. Xxx xxx xxx 3. In spite of service of notice in this revision petition, since the respondent had remained un-represented, this Court by its order dated 07-01-2021, appointed learned counsel Sri.Rakshit R., as Amicus Curiae for the respondent to defend his case. 4. Though the petitioners initially were being represented by their counsel, however, since the said learned counsel had remained absent on several dates of hearing, this Court by its reasoned order dated 05-02-2021, appointed learned counsel Smt. Archana K.M., as Amicus Curiae for the petitioners. As such, both the parties are being represented by learned Amicus Curiae. 5. The summary of the case of the petitioners in the Family Court was that, the first petitioner is the legally wedded wife and the second petitioner is their son born from out of the said wedlock. The marriage of the first petitioner with the respondent was solemnized on 13-09-2007 as per the customs prevailing in their community. The demand for valuables made by the respondent at the time of marriage was met by the parents of the petitioner No.1. The marriage of the first petitioner with the respondent was solemnized on 13-09-2007 as per the customs prevailing in their community. The demand for valuables made by the respondent at the time of marriage was met by the parents of the petitioner No.1. However, when the petitioner No.1 went to her matrimonial home, after the marriage, though she was taken care of well by her husband for an year, but thereafter, he started demanding her for additional valuables to be brought from her parental home. Apart from the same, he also started ill-treating the petitioner No.1 and developed the habit of consuming alcohol and gambling. After the birth of the second petitioner, at the instigation of his parents, the respondent intensified his demand for some more amount of not less than a sum of Rs. 2,00,000/- to be brought by his wife from her parental house. When she had been to her parental house for delivering the child, she was not called back or brought by the respondent thereafter, as such, he totally neglected her and deserted her. Awaiting for her husband to take her back, she spent for about five years and after convincing that she was permanently been deserted by her husband and since she was unable to maintain herself, she instituted the present Crl.Misc. before the learned Family Court against the respondent. 6. In response to the summons served upon him, the respondent appeared through his counsel in the Family Court and submitted his statement of objections, wherein, he admitted the marital relationship with the first petitioner and also admitted that petitioner No.2 is born to him from out of his wedlock with the first petitioner. However, he specifically denied that he had subjected his wife to cruelty or ill-treated her or that he had made any demand for additional valuables or dowry. He also denied that he had intentionally deserted his wife and was not taking care of his family. 7. In order to prove their case, the first petitioner got herself examined as PW-1 and got examined one Sri. M.R. Jayakeerthi as PW-2 and got marked documents from Exhibits P-1 to P-3. In spite of granting sufficient opportunities, the respondent neither chose to cross-examine the petitioner witnesses nor entered the witness box nor even got marked any documents from his side. 8. M.R. Jayakeerthi as PW-2 and got marked documents from Exhibits P-1 to P-3. In spite of granting sufficient opportunities, the respondent neither chose to cross-examine the petitioner witnesses nor entered the witness box nor even got marked any documents from his side. 8. The Family Court thereafter, by its impugned order dated 04-02-2016, dismissed the petition of the first petitioner and partly allowed the petition of petitioner No. 2 and held that the petitioner No.2 is entitled for maintenance from the respondent at the rate of Rs. 2,000/- per month, from the date of petition till he attains the age of majority. Aggrieved by the same, the petitioners have preferred the present petition wherein the petitioners have prayed for allowing their petition in its entirety and as prayed for by them. 9. The Family Court s records were called for and the same are placed before this Court. 10. Heard the arguments from the learned Amicus Curiae for the petitioners and learned Amicus Curiae for the respondent. Perused the materials placed before this Court including the Family Court s records. 11. Learned Amicus Curaie for the petitioners, in her arguments submitted that, when the evidence of PW-1 and PW-2 has remained un-denied and undisputed, the learned Family Court ought not to have supplied its own view or version which was not supported by any material while rejecting the maintenance to the wife and ought not have awarded meagre amount of maintenance to the son. In her support, learned Amicus Curiae relied upon the judgment of the Hon’ble Apex Court in the case of Bhuwan Mohan Singh Vs. Meena Learned Amicus Curiae for the petitioners further stated that the status of the wife is also required to be considered while awarding maintenance and the husband cannot give excuse of his non-income as a reason for not paying any maintenance to his dependents. She further submitted that even with respect to the alleged desertion and ill-treatment meted out to PW-1 by her husband (respondent herein), the evidence of PW-1 and PW-2 has remained un-denied and un-disputed. She further submitted that mere non-filing of a petition under Section 125 of the Crl.P.C. for some length of period would not deprive or deny the entitlement of an un-supported wife and son from claiming maintenance by their husband/father respectively. 12. She further submitted that mere non-filing of a petition under Section 125 of the Crl.P.C. for some length of period would not deprive or deny the entitlement of an un-supported wife and son from claiming maintenance by their husband/father respectively. 12. Learned Amicus Curiae for the respondent appearing through video conference submitted that, even though the respondent has not cross-examined PW-1 and PW-2 and even though he has not led any evidence from his side, but, by that itself, it cannot be held that, whatever is stated by PW-1 is a fact. No doubt, the respondent, in spite of granting sufficient opportunities, has failed to utilise the same, consequently, he did not cross-examine the petitioner witnesses, however, he denied the averments made by the petitioners in their petition by filing his detailed statement of objections. The learned Amicus Curiae for respondent further submitted that, an inordinate delay of five years in filing the petition under Section 125 of the Cr.P.C. and not producing corroborative materials or evidence to show the alleged ill-treatment meted upon the petitioners and not proving the regular or fixed income of the respondent in the Family Court has led the Family Court to pass the impugned judgment, dismissing the petition of petitioner No.1, as such, the same does not warrant interference at the hands of this Court. 13. After hearing both the learned Amicus Curiae for the parties, the points that arise for my consideration in this revision petition are: i] Whether the judgment under revision is perverse, illegal and erroneous, warranting interference at the hands of this Court? ii] Whether the petition of the petitioners deserves to be allowed in its entirety as prayed?" 14. It is not in dispute that respondent is the husband of petitioner No.1 and father of petitioner No. 2 and that the marriage of petitioner No.1 and respondent was performed on 13-09-2007 according to the customs prevailing in their community. It is also not in dispute that, from out of the wedlock of petitioner No.1 and the respondent, the petitioner No.2 was born to them. It is further not in dispute that, since about five years prior to the date of filing of the petition under Section 125 of the Cr.P.C. by the petitioners before the Family Court, both the petitioners were living separately and away from the respondent. It is further not in dispute that, since about five years prior to the date of filing of the petition under Section 125 of the Cr.P.C. by the petitioners before the Family Court, both the petitioners were living separately and away from the respondent. It is in this background of the un-disputed facts, the case of the petitioners is required to be analysed. 15. The petitioner No.1 as PW-1 in her examination, in the form of affidavit evidence has stated that, her husband apart from making illegal demand for additional valuables to be brought by her from her parents house, also developed bad vices including gambling and consuming liquor and started ill-treating her. She has further alleged that, when she was pregnant and had been to her parents house for delivery of the child, after delivery, the respondent did not bother to take her back to his house which was her matrimonial home, as such, she was made to continue to stay in her parents house. Even though the respondent has denied the same in his statement of objections, the fact remains that, apart from her pleading, the petitioner No.1 as PW-1, has entered the Witness box and deposed on the lines as to what she had stated in her petition. Thus, the statement in the form of oral evidence given by PW-1 on oath has not been rebutted or denied from the respondent s side. 16. A perusal of the order sheet maintained by the learned Family Court would go to show that, not just reasonable but sufficient opportunities were given to the respondent in the Family Court to cross-examine the petitioner witnesses. After granting sufficient time, some more opportunity was also given to him on terms by imposing costs. Still, the respondent did not choose to utilise the same and to cross-examine PW-1 and PW-2. Thus, when a party himself chooses not to cross-examine the other side witnesses, in spite of giving him sufficient opportunities and even on terms, then, it cannot be taken that, he was not given reasonable or sufficient opportunity to put forth his case and to cross-examine the other side witnesses. Thus, in the instant case, there is no point in remanding the matter, giving some more opportunity for the respondent for cross-examining the petitioner witnesses. 17. Thus, in the instant case, there is no point in remanding the matter, giving some more opportunity for the respondent for cross-examining the petitioner witnesses. 17. The petitioners, apart from leading evidence of the petitioner No.1 as PW-1, has also examined one Sri.M.R. Jayakeerthi, aged about 66 years, as on the date of his evidence, as PW-2. The said witness has stated that, he knows both the petitioner No.1 and the respondent. He had attended the marriage of petitioner No.1 with the respondent, which was held on 13-09-2007 in Vasavi Amruthamahal, Chikkapete, Tumkur. He has also stated that, the said marriage was performed under his supervision. He has further stated that, after their marriage, petitioner No.1 and respondent led their marital life for sometime in a village called Agaradahalli in Bhadravathi Taluk, due to which marital life, petitioner No.2 was born to them. However, since about five years, the respondent was not taking care of his wife and son properly. As such, both the petitioners started living in the parental home of petitioner No.1 in Tumkur. The witness has further stated that, the respondent being himself an Electrical contractor, having earning of not less than a sum of Rs. 30,000/- per month and having an agricultural income of Rs. 2,50,000/- per annum, still, for no valid reasons, has deserted his wife and son and not maintaining them by providing them the basic necessities in their life. He has also stated that, deserting his wife and son by the respondent was for no valid reasons and it is only to humiliate them. The said evidence of an independent witness who has given his evidence on oath also remains un-denied and un-disputed. Thus, the un-denied and un-disputed evidence of PW-1 and PW-2 and their non-denial by the respondent even in his statement of objections about the petitioners living separately and away from him since about five years, makes it very clear that, the petitioners are living separately from the respondent since about five years prior to the institution of the petition for a valid reason that the respondent was not taking care of them properly rather, he was subjecting the petitioner No.1 to ill-treatment. Therefore, the petitioner No.2 being admittedly a minor son is dependent upon his parents for his livelihood and naturally he was being taken care of by his mother since she was deserted by her husband. Therefore, the petitioner No.2 being admittedly a minor son is dependent upon his parents for his livelihood and naturally he was being taken care of by his mother since she was deserted by her husband. Thus, the said un-denied evidence shows that, the petitioners had reasons for living away and separately from the respondent and they were unable to maintain by themselves. The Hon’ble Apex Court in Bhuwan Mohan singh s case (supra) was pleased to observe in para-3 of its judgment as follows:- "3.... The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an un person to be thrown away from grace and roam for her basic maintenance somewhere 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 where under 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." However, the Family Court only for the reason that, according to the petitioners, the petition is said to have been filed about five years after she started living separately from her husband, presumed on its own that, if she could able to maintain herself for about five years, she is able to maintain herself in future also. As such, since she has approached the Court belatedly and has maintained herself for such a long period, she is not entitled for maintenance. The said reasoning given by the Family Court while rejecting the petition of the petitioner No.1 is not convincing and does not fit in the circumstances of the case. Merely because a deserted wife bears patiently for sometime, may be, for a few years, hoping that her husband would take her back, would not by itself disentitle her from claiming maintenance. Even in the instant case it is nobody's case that she had any source of income or was self-sufficient in maintaining herself and her son. On the other hand, she has stated that having no other way out she had to continue to stay with her parents. Merely because her parents were taking care of their daughter who was deserted by her husband (son-in-law), by that itself, it cannot be inferred that, the deserted wife could able to maintain herself. Thus, the reasoning given by the Family Court in rejecting the petition of petitioner No.1 is not convincing and is not sound, but it has to be necessarily held that, it is a perverse finding. As such, the said finding deserves to be set aside and reversed to be held that, the wife is entitled for maintenance. 18. The petitioners both in their petition as well in the evidence of PW-1 and PW-2 have stated that the respondent is earning sizeable income of a sum of Rs. 30,000/- per month by doing Electrical Contractor business and also having agricultural income of not less than a sum of Rs. 2,50,000/- per annum. No doubt, the respondent in his statement of objections has denied the same, but as already observed above, mere denial in the statement of objections itself would not be sufficient for the respondent, that too, particularly when the petitioners have got two witnesses examined as PW-1 and PW-2 on their behalf to prove their petition averments. 19. Though the petition averments were denied by the respondent in the form of statement of objections, it cannot be forgotten that, the very same petitioner No1 also entered the witness box and got herself examined as PW-1, wherein also she reiterated that, her husband, i.e. respondent is working as an Electrical Contractor with the monthly income of a sum of Rs. 30,000/- and agricultural income of a sum of Rs. 2,50,000/- per annum. No doubt, she has not produced any documentary evidence to show the avocation and monthly income of her husband (respondent) as an Electrical Contractor, but, she has produced two tax assessment records and got them marked at Exhibit P-3, which evidences that, the father of the respondent has got immovable property in the form of two residential houses. The evidence of PW-1 that the income of the said houses goes to the respondent, has not been denied by the respondent by cross-examining PW-1. Apart from the above, even PW-2 also in his evidence has stated that, the respondent is earning as an Electrical Contractor and has an income of not less than a sum of Rs. 30,000/- per month. PW-2 has further stated that, the respondent has also got an agricultural income of a sum of Rs. 2,50,000/- per annum. He being an independent witness, who claims to be knowing both the petitioner No.1 and the respondent, his evidence cannot be ignored easily. Had really the evidence of PW-1 and PW-2 was not true, the respondent by making use of the sufficient opportunities given to him, should have cross-examined them and put forth his defence, if any, on record. However, as observed above, the respondent did not evince any interest in that regard. As such, the un-denied and un-disputed evidence of PW-1 and PW-2 also would go to show that, the respondent has got a sufficient income not only to maintain himself but also sufficient to maintain the present petitioners who are his wife and son respectively. 20. The Trial Court, no doubt has awarded maintenance at the rate of a sum of Rs. 2,000/- per month in favour of petitioner No.2 - son. However, it did not notice the evidence of PW-1 that, she got admitted the petitioner No.2 to a School by name R.K.D.S. School at Tumkur for LKG, as long back as in the year 2014-15 and for which she had borrowed loan of a sum of Rs. 20,000/- from her relatives. The said aspect has remained undenied and un-disputed. Thus, the fact that the petitioner No.2 is studying in a Private School also goes to show that, petitioner No.1 incurs tuition fees and other incidental educational expenses towards petitioner No.2. Apart from that, she is also being required to maintain herself. 20,000/- from her relatives. The said aspect has remained undenied and un-disputed. Thus, the fact that the petitioner No.2 is studying in a Private School also goes to show that, petitioner No.1 incurs tuition fees and other incidental educational expenses towards petitioner No.2. Apart from that, she is also being required to maintain herself. Thus, considering the income of the respondent and the circumstances of the case I am of the view that, the petitioner No.1 being wife of the respondent and petitioner No.2, being the School going son of the respondent, are entitled for maintenance at the rate of a sum of Rs. 6,000/- per month and Rs. 5,000/- per month respectively from the respondent payable to them from the date of the petition filed by them in the Family Court during the life time of petitioner No.1 or till she remarries, whichever is earlier and to the petitioner No.2, till he attains the age of majority. Accordingly, I proceed to pass the following: ORDER [i] The revision petition of the petitioners is allowed in part; [ii] The judgment dated 04-02-2016 passed by the learned Principal Judge, Family Court at Tumkur, in C.Misc.No.398/2013, dismissing the petition of the first petitioner, is set aside and allowing the petition of petitioner No.2 in part, is modified; Accordingly, the petition of both the petitioners in the Family Court is allowed in part. The petitioner No.1 (wife) - Smt. Kamala N. is entitled for maintenance at the rate of Rs. 6,000/- per month from the respondent, from the date of petition in the Family Court, during her life time, or till the date of her re-marriage, if any, whichever is earlier; The maintenance ordered by the Family Court at the rate of Rs. 2,000/- per month in favour of petitioner No.2 - son, is modified and the said amount is enhanced to a sum of Rs. 5,000/- per month payable by the respondent from the date of the petition in the Family Court till he attains the age of majority. [iii] A sum of Rs. 6,000/- is also ordered to be paid by the respondent to the petitioners towards the legal expenses in this revision petition. The Court while acknowledging the service rendered by Smt. Archana K.M. - learned Amicus Curiae for the petitioners and also by Sri. [iii] A sum of Rs. 6,000/- is also ordered to be paid by the respondent to the petitioners towards the legal expenses in this revision petition. The Court while acknowledging the service rendered by Smt. Archana K.M. - learned Amicus Curiae for the petitioners and also by Sri. Rakshit R. learned Amicus Curiae for the respondent, recommends honorarium of a sum of not less than Rs. 3,000/- to each learned Amicus Curiae, payable by the Registry. Registry to transmit a copy of this order to the Family Court along with its records forthwith.