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2021 DIGILAW 607 (KAR)

T. Sudhakara v. Channakrishnamma

2021-05-24

N.K.SUDHINDRARAO

body2021
JUDGMENT : 1. Though this matter is posted today for Admission, with the consent of learned counsel for both the parties and in the facts circumstances of the case the same is taken up for final disposal. The present petition filed under Sec. 19(4) of the Family Courts Act, is directed against the order passed in Crl. Mis.No.179/2013 on 28/12/2013, by the Principal Judge, Family Court, Tumkur, wherein the petition filed by petitioner-wife-Channakrishnamma, respondent herein came to be allowed and the respondent-husband T. Sudhakar was ordered to pay a maintenance of Rs.4,000.00 per month from the date of the said order till her life time. Being aggrieved by the same, respondent-husband has presented this revision petition. 2. In order to avoid confusion, the parties are addressed with reference to their status before the Family Court and their relationship in the Family Court. 3. The substance of the entire case is that, Channakrishnamma, (respondent under this petition) is the legally wedded wife of T.Sudhakar, husband (petitioner under this petition) and their marriage was solemnized on 22/5/2003 at Yelahanka as per the rights and customs of Hindu religion. At the time of marriage, parents of the wife have given cash of Rs.1,50,000.00 watch, ring and one gold chain to the respondent-husband. After the marriage, their marital life was cordial for four years and thereafter, respondent-husband has addicted to alcohol and also suspected the character of his wife. The hopes of petitioner- wife/ revision respondent went in vain as respondent-husband did not get reformed and she was driven out of the house and she had to take shelter in the house of her brother. It is further complained that the respondent-husband is working as Operator in Wheel and i.e., Plant of Railways and drawing the salary of Rs.30,000.00 per month and also getting rent of Rs.10,000.00 per month from the house let out at Yelahanka and having sufficient income to maintain her. Thus, petitioner-wife claims that she was neglected by respondent-husband to maintain her despite she was not having means to maintain herself. 4. Respondent- husband- T. Sudhakar did not appear before the Family Court despite issuance of summons. In this connection, respondent-husband claims that the Family Court has passed the order without issuing notice. 5. Thus, petitioner-wife claims that she was neglected by respondent-husband to maintain her despite she was not having means to maintain herself. 4. Respondent- husband- T. Sudhakar did not appear before the Family Court despite issuance of summons. In this connection, respondent-husband claims that the Family Court has passed the order without issuing notice. 5. The Family judge was accommodated with the oral evidence of PW1 and documentary evidence of Exs.P1 to P4, namely Exs.P1 and 2 -Wedding card and its Kannada translation, Ex.P3-Voters list and Ex.P4-Photo. 6. The learned Family judge considering the absence of the husband and his employment in the Wheel and Axle Plant at Yalahanka and considering the relationship and allegations and averments made by the petitioner-wife and after considering the oral and documentary evidence available on file on behalf of wife, allowed the petition in part and directed the respondent-husband to pay monthly maintenance of Rs.4,000.00 to the petitioner-wife till her life time from the date of the said order. The same is challenged in this petition by husband claiming that his father is dead and mother is very sick and requires constant and immediate care and medical attendant and petitioner-wife is not justified in claiming maintenance. 7. Learned counsel Shri. Rajesh appearing for respondent-husband submits that petitioner-wife is adamant and has not discharged duties of a wife. It is further submitted that husband has never misbehaved or harassed his wife and it is she who is guilty of desertion of the husband. It was further submitted that husband was disappointed and frustrated because of the conclusion of the trial court in granting maintenance. 8. Insofar as petitioner-wife Channakrishnamma respondent herein is concerned, notice was served through paper publication, she remained absent and service of notice to her is held sufficient by order dtd. 7/11/2017. 9. From the facts and circumstances of the case, the following points are amply clear: The marital relationship between the parties is not in dispute as the revision petitioner herein is the husband and revision respondent herein is the wife and she has filed a petition for maintenance. It was also submitted by learned counsel for respondent -husband that husband has no knowledge of the proceedings before the trial court. It was also submitted by learned counsel for respondent -husband that husband has no knowledge of the proceedings before the trial court. * It is also seen that the husband filed MC No.904/2011 against the wife before the Additional Judge, Family Court-IV, Bangalore, seeking divorce by dissolving their marriage which came to be allowed on 12/1/2012 and the marriage between the revision petitioner and revision respondent came to be dissolved. 10. In the context and circumstances of the case, the husband/revision petitioner contends that no notice was issued to him by the trial court and he was unaware of the very filing of the claim petition for maintenance by his wife. As it appeared for the Family court that the wife has discharged the burden of proof cast on her on facts, granted the maintenance of Rs.4,000.00 per month. The revision petitioner/husband claims that he was not heard and opportunity was not given by the Family court and it has proceeded to allow the petition on the basis of the assertion of the revision respondent/wife. Thus the revision petitioner/husband states that he is not liable to maintain the revision respondent/wife. 11. The marriage between the husband and wife is not disputed. It is the duty of the husband to maintain his wife so long she is unable to maintain herself. Insofar as the case for decree of divorce is concerned, it was filed by the husband before the Additional Judge Family Court-IV Bangalore. Admittedly, it was not contested by the wife. The Family court considering the means of the husband/revision petitioner and meanslessness of the wife/revision respondent came to the conclusion to allow the claim for maintenance in part and ordered for payment of Rs.4,000.00 per month as maintenance to the wife. Now considering the present circumstances, the contention of the revision petitioner/husband is that he is not liable to maintain his wife as the marriage between them has been dissolved through a decree of divorce granted by the Family Court in MC No. 904/2011 which has nothing to do with the maintenance case. Even the divorced wife is entitled to claim maintenance. 12. The repeated submissions of the learned counsel for husband/revision petitioner is that, the order passed by the Family court is against the principles of natural justice and the husband is not liable to pay maintenance to his wife. Even the divorced wife is entitled to claim maintenance. 12. The repeated submissions of the learned counsel for husband/revision petitioner is that, the order passed by the Family court is against the principles of natural justice and the husband is not liable to pay maintenance to his wife. Learned counsel for husband/revision petitioner submits that the revision petitioner is having his own responsibilities and he has no capacity to pay the amount of maintenance to the wife/revision respondent as granted by the trial court. 13. On any length of discussion or assigning reasons, the bottom line is, husband/revision petitioner seeks that he may be given an opportunity to file his objections, to cross examine the wife/revision respondent to establish his case. 14. It is necessary to note that, in Chapter governing the maintenance under Sec. 125 of Cr.P.C., one of the principles is, social legislation. When the marriage was solemnized on 22/5/2003 and within a period of 9 years, husband/revision petitioner has presented the petition for divorce in MC No.904/2011. Insofar as an opportunity or principles of natural justice are concerned, any amount of opportunities are given, it may not be appreciated, but when a request for an opportunity is easily rejected considering ten failures, then the party holds the banner of principles of natural justice. The granting of opportunity is such a sensitive issue wherein the vested rights cannot be defeated. At this juncture, the following points are clear; Revision Petitioner and revision respondent are husband and wife, their marriage was solemnized on 22/5/2003 at Yelahanka; Parties are living separately and it is established by facts; It is not the case of the husband that wife is having sufficient means and that he is not liable to maintain her. 15. Insofar as the rights of a hindu wife under Sec. 125 of Cr.P.C. is concerned, it is necessary to go through the explanation (b) given to Sec. 125 (1) Cr.P.C., which reads as under: "....(a).............. (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried." 16. Even a divorced wife is entitled for maintenance from her husband and the fact of divorce cannot divest the wife/revision respondent of her rights of maintenance. 17. (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried." 16. Even a divorced wife is entitled for maintenance from her husband and the fact of divorce cannot divest the wife/revision respondent of her rights of maintenance. 17. The next aspect is, whether the husband/revision petitioner has established that the wife/revision respondent is having sufficient and independent source of income and that the husband/revision petitioner has no income to meet the assertion of the wife. In this connection, maintenance petition was filed before the Family court during the year 2013 and it was disposed of on 28/10/2013 and the present RPFC is filed before this court by husband against the order of maintenance by the Family court. No-doubt, the matter has to be adjudicated by exploring the act of verifying each and every facts which includes sufficient income by husband and unjustifiably residing separate from the other spouses. 18. It is also to be expected that though the husband does not neck out the wife, he may create such circumstances which may have its impact on the marital life in certain cases. 19. Per contra, in this case, petition for divorce was filed before the Family Court during the year 2011 in MC No.904/2011 by the husband/revision petitioner which came to be disposed of on 12-01- 2012, wherein the marriage between the husband and wife was disallowed. Even a divorced wife is entitled to seek maintenance. 20. In this case, the main grievance of the husband/revision petitioner is that, he was not given a chance or an opportunity to expose the falsehood of the wife. 21. On examining the facts, it suggests that the husband/revision petitioner may be given an opportunity to cross- examine wife/revision respondent and also permitting him to adduce oral and documentary evidence if he chooses to do so. 21. On examining the facts, it suggests that the husband/revision petitioner may be given an opportunity to cross- examine wife/revision respondent and also permitting him to adduce oral and documentary evidence if he chooses to do so. In that way, the order passed by the Family court is liable to be set aside and matter requires to be remanded to the Family court to dispose of the same afresh by affording the husband/revision petitioner an opportunity to file his statement, adduce and produced oral and documentary evidence on his behalf and to cross examine the wife as well and similarly, to permit the wife/ revision respondent to file her objections or affidavits and compliance of other legal formalities from her side keeping in view that the marital relationship of the spouses is admitted. But this order cannot be blanket one, but it is subject to payment of maintenance at the rate of Rs.4,000.00 per month till the disposal of the case by the Family court which may be considered as interim maintenance. 22. It is also clarified that husband/revision petitioner is under a legal obligation to pay the said amount of Rs.4,000.00 by way of interim maintenance till the disposal of the case and basing on the materials available and relevant legal provisions, the Family court shall dispose of the case. 23. For the afore assigned reasons the revision petition is allowed in part. The order dtd. 28/12/2013 passed by the Family Court, Tumkur, in Crl.Mis. No.179/2013 granting maintenance of Rs.4,000.00 per month to the wife is hereby set aside and the matter is remanded to the Family Court for consideration afresh, subject to condition that, husband/ revision petitioner paying a sum of Rs.4,000.00 per month as interim maintenance till the disposal of the case by the Family Court considering the fact that the matter is of the year 2013. The fixation of the maintenance, enhancement or other wise shall depend on the final order to be passed by the Family court. Insofar as the present petition of maintenance is concerned, husband/revision petitioner shall offer surety of a person who is possessing immoveable property worth Rs.10,00,000.00 for proper payment of interim maintenance. In order to avoid wastage of judicial time, both the parties are hereby directed that no separate summons will be issued to them. Insofar as the present petition of maintenance is concerned, husband/revision petitioner shall offer surety of a person who is possessing immoveable property worth Rs.10,00,000.00 for proper payment of interim maintenance. In order to avoid wastage of judicial time, both the parties are hereby directed that no separate summons will be issued to them. Both the petitioner and respondent shall appear before the Family Court on 28/6/2021 and the Family Court shall dispose of the matter within a period of three months there from after affording opportunity to both the parties as stated above and after enquiring into the petitioner and respondent regarding entitlement or otherwise of he rights of the maintenance of the petitioner-wife.