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2023 DIGILAW 706 (KAR)

Rehaman Khan v. Amreen Taj

2023-05-25

H.P.SANDESH

body2023
ORDER : (H.P. Sandesh, J.) Heard the learned counsel for the petitioner and the learned counsel for the respondents. 2. This petition is filed assailing the order passed by the IV Additional Principal Judge, Family Court, Bengaluru, passed in Crl.Misc.No.526/2015 dated 27.05.2021, wherein maintenance of Rs.5,000/- per month is granted to petitioner No.1, who is the wife and Rs.3,000/- each per month to two children who are petitioner Nos.2 and 3 under Section 125 of Cr.P.C. 3. The factual matrix of the case of the wife and two children in Crl.Misc.No.526/2015 is that the marriage between petitioner No.1 and respondent was solemnized on 06.10.2008 and in the said wedlock, petitioner No.1 gave birth to two children i.e., petitioner Nos.2 and 3 born on 15.01.2010 and 17.06.2011. It is her case that at the time of marriage her parents had given a cash of Rs.50,000/- as dowry and gold ornaments were given and at the first instance they took care of her very well. Considering the family background of petitioner No.1, the parents of the respondent initially requested and then demanded her brother to get marry the younger sister of the respondent, namely Rehama Bi. Initially he refused to marry her, but due to the pressure of his parents he agreed to marry. Accordingly, they married on 19.09.2010. After the said marriage, the real problem started as the respondent and his parents insisted that her brother should reside in inlaws house and settle down. But, as the mother of petitioner No.1 was suffering from sugar, B.P., eyesight and other old age ailments, he refused to settle down in inlaws house. Thereafter, the respondent and his parents started ill-treating her by abusing and physically assaulted petitioner No.1 in such a way that she was compelled to go out of the matrimonial home. But, she tolerated the illtreatment. As their harassment increased, she lodged a complaint with Madiwala Police Station on 31.12.2012. Again petitioner No.1 lodged another complaint on 22.01.2013 before Basavanagudi Women Police Station. Then the respondent took petitioner No.1 and set up a rented home at Bandepalya, Bengaluru. Due to the instigation of his brother and sister, he intentionally used to pick up quarrels with petitioner No.1 and find fault and mistakes for each and every point of her way of doing work. He several times manhandled her, assaulted and abused in a filthy language. Due to the instigation of his brother and sister, he intentionally used to pick up quarrels with petitioner No.1 and find fault and mistakes for each and every point of her way of doing work. He several times manhandled her, assaulted and abused in a filthy language. He started to neglect to maintain the petitioners without providing the basic requirements to them. In this regard, several panchayaths were held between the family members of both sides in the presence of village elders. The respondent and his family members without justifiable reasons thrown her out of the matrimonial home and never taken back the petitioners. It is also an allegation that in the year 2015, she was assaulted and hence she has given the complaint. It is the contention of petitioner No.1 that she cannot depend on her old aged mother. Her brother is an autorickshaw driver and he is not in a position to maintain the petitioners. The respondent is a mechanic having his own well established mechanic garage at Attibele named as KGN Garage and having good income. He also does business of buying and selling the vehicles, he owns a Eicher, TATA A.C. 407 Tempo and from the said sources he has total income of Rs.80,000/- to Rs.1,00,000/- per month and hence claimed the maintenance. 4. The respondent appeared and filed the statement of objection and he admitted the marriage with petitioner No.1 and also petitioner Nos.2 and 3 are the children. He also admitted that the brother of petitioner No.1 has married his younger sister on 19.09.2010, but denied the other allegations. It is his contention that the brother of petitioner No.1 was harassing and torturing his younger sister for additional dowry. Therefore, she filed C.Misc.No.55/2014. It is also his case that her brother filed O.S.No.96/2013 for the relief of divorce against the respondent's sister and several meetings were also held. A complaint was also filed and there were differences between them, but he denied his income and earnings. He contended that petitioner No.1 on her own left the matrimonial home and deserted him only to harass him and his family members and hence not entitled for any maintenance. 5. In view of the pleadings of the parties, petitioner No.1 examined herself as PW1 and got marked the documents as Exs.P1 to 12. The respondent has not cross-examined the witness and also not adduced any evidence. 5. In view of the pleadings of the parties, petitioner No.1 examined herself as PW1 and got marked the documents as Exs.P1 to 12. The respondent has not cross-examined the witness and also not adduced any evidence. The Trial Court after considering both oral and documentary evidence placed on record and also the pleadings of the parties and taking note of the non-denial of income of Rs.1,00,000/- per month by the respondent and he is having business, awarded maintenance of Rs.5,000/- per month to petitioner No.1 and Rs.3,000/- each per month to petitioner Nos.2 and 3. 6. The main contention of the learned counsel for the petitioner before this Court is that the Trial Court committed an error in awarding exorbitant maintenance. The learned counsel would contend that the Trial Court has not properly appreciated the income of the petitioner herein and blindly allowed the petition by granting maintenance and erroneously comes to the conclusion that he has got sufficient income and is capable of giving maintenance. It is also the contention of the learned counsel that no material is placed before the Court with regard to his income is concerned and also contend that criminal cases are also registered and only with an intention to harass the petitioner, criminal miscellaneous petition was filed. 7. Per contra, the learned counsel for the respondents submits that though criminal miscellaneous petition was filed in 2015, it was disposed of in the year 2021. Even though several opportunities were given to the petitioner/husband, he has not cross-examined PW1 and not adduced any evidence and made the tactics to deny the right of the respondents i.e., wife and children and even not taken care of them. Even though interim maintenance was ordered, he not paid the maintenance and only an amount of Rs.3,00,000/- is deposited before this Court in view of the direction given by this Court. 8. In reply to the arguments of the learned counsel for the respondents, the learned counsel for the petitioner submits that an opportunity has to be given to lead evidence by remanding the matter. 9. Having heard the respective learned counsel and also on perusal of the material available on record, there is no dispute with regard to the marriage and also no dispute with regard to two children are born in the said wedlock. 9. Having heard the respective learned counsel and also on perusal of the material available on record, there is no dispute with regard to the marriage and also no dispute with regard to two children are born in the said wedlock. When the petition was filed, the two children were aged about 5 years and 4 years and now they are aged about 13 years and 12 years. On perusal of the order sheet of the Trial Court dated 20.01.2018, the Trial Court granted the interim maintenance of Rs.3,000/- per month to petitioner No.1 and Rs.2,000/- each per month to petitioner Nos.2 and 3, in all Rs.7,000/- per month. It is the contention of the learned counsel for the respondents that interim maintenance was also not paid and though he had made the separate residence, he did not turn up after making the same. The records also discloses that several applications are filed under Section 311 of Cr.P.C. before the Trial Court and inspite of it, no cross-examination was done. The Trial Court also granted an opportunity to cross-examine PW1 by imposing cost of Rs.5,000/- vide order dated 17.09.2019 and thereafter also even though PW1 was present, the respondent was absent and there was no representation and not cross-examined PW1. When such being the case, the question of granting one more opportunity by remanding the matter to the Trial Court does not arise. The petitioner has not utilized the opportunity given to cross-examine the witness and even not led any evidence. 10. Having taken note of the material on record, there is a pleading in the petition that the petitioner is running a garage and doing vehicle business and earning Rs.1,00,000/- per month and though he denied the same, not adduced any evidence. Having taken note of the cost of living and also the expenses to be met to two children, who were aged about 5 years and 4 years at the time of filing the petition and who are now aged about 13 years and 12 years, the quantum arrived at by the Trial Court i.e., Rs.5,000/- per month to petitioner No.1 and Rs.3,000/- each per month to petitioner Nos.2 and 3 is not exorbitant as contended by the petitioner. It is very difficult to maintain two children at maintenance of Rs.3,000/- each per month and respondent No.1 has to meet the household expenses as well as accommodation and educational expenses. Hence, I do not find any merit in the petition to set aside the order of granting of maintenance of Rs.5,000/- per month to petitioner No.1 and Rs.3,000/- each per month to the petitioner Nos.2 and 3. There is no merit in the revision petition. 11. In view of the discussions made above, I pass the following : ORDER The petition is dismissed. Petition dismissed.