Andappa vs Madavva claiming to be the wife of Andappa Kumbar and Others

B. Veerappa, J—Petitioner filed the above revision petition against the order dated 22.08.2014 made in Crl. Mis. No. 180/2013 on the file of Principal Judge, Family Court at Gadag, granting maintenance of Rs. 3,000/- with litigation expenses of Rs. 10,000/- from the date of petition. For the sake of convenience parties will be referred to as per their ranking before the Family Court.

Respondents who are the petitioners before the Family Court, Gadag, filed Crl. Mis. No. 180/2013 claiming maintenance against the respondent-husband-petitioner herein, alleging that the first petitioner is the legally wedded wife of the respondent and their marriage was solemnized on 31.03.1998 at Rest House, APMC Yard, Gadag as per the customs prevailing in the Hindu community. Out of their wedlock second petitioner was born. After the marriage the petitioner lead the marital life with the respondent for two years. During that time the respondent used to insult and he used to make fun of her without any reason. Parents of the respondent and also his elder brother and his wife are always abusing the petitioner by showing her the household articles given by her parent''s house and they used to make fun of her on every available occasion. The respondent and his family members are always demanding additional dowry from the parents of the petitioner. They have subjected her to utmost cruelty demanding additional dowry by way of cash and gold. Parents of the first petitioner are very poor and they have given gold and cash to the respondent at the time of the marriage itself. The parents of the petitioner are also not at all in a position to give any cash or gold as per the demand made by the respondent and his family members. After knowing the inability of the petitioner and her family members the respondent has thrown out the petitioner alleging that he will not allow her to stay in the house and he has not at all given any food and thrown her out of the house. When the petitioner could not tolerate the harassment given by the respondent and his family members she has returned to her parents house at Handigol village and she has started staying in her parents. It is also contended that after she left the matrimonial house the respondent has contacted a second marriage with one Neelavva at the instigation of his elder brother and his wife. After coming to know of the second marriage of the respondent, the petitioner has also lodged a complaint before Naregal Town Police. At that time the respondent and his family members and also the elders and well wishers of both parties have convened a panchayath and they have prepared an agreement. The respondent and his family members have agreed to look after the petitioner with love and affection and they have taken back the petitioner to the matrimonial house. The respondent and his family members have again started ill treating the petitioner after few days. They made the 1st petitioner to leave the house when she was pregnant. Again the petitioner returned to her parent''s house and she gave birth to 2nd petitioner. Even after the birth of the 2nd petitioner the respondent and his family members have not turned up. They have not even attended the naming ceremony of the 2nd petitioner. In spite of that, the parents of the 1st petitioner have sent the petitioners to the respondent house along with the elders and the well wishers. At that time, the respondent has thrown out the petitioners when the 2nd petitioner was 8 months old. It is further contended that recently her mother died and her father is aged and her financial condition is very bad. Second petitioner is now aged about 18 years. Under the circumstances, it is very difficult for them to lead their life. Therefore, they require a minimum of Rs. 3,000/- each per month for their maintenance. The petitioner also issued a legal notice on 23.06.2012 to the respondent and the respondent has sent a reply by making false allegations and refused to give any maintenance. Therefore, they are constrained to approach the Family Court.

After receipt of notice from the Family Court, the respondent appeared and filed objections denied all the objections. He specifically denied his marriage with the first petitioner took place on 31.03.1998 at A.P.M.C. Yard, Hamali Rest House and also birth of the second petitioner out of their wedlock. He further contended that the first petitioner is the daughter of the elder sister and she born on 01.10.1977. Under those circumstances the alleged marriage on 31.03.1988 did not arise. The marriage invitation card is a created document. The petitioner was aged only 10 years 5 months and 30 days as on 31.03.1988. When the petitioner was minor the question of marrying her does not arise. Therefore, he sought to dismiss the petition on the ground that he has not married the first petitioner at all.

In order to establish her case, the first petitioner-wife examined as P.W. 1 and examined as her father as P.W. 2. She also examined an independent witness as P.W. 3 and produced documents as per Ex. P. 1 to Ex. P. 6. Respondent-husband examined himself as R.W. 1 and got marked a document as per Ex. R. 1.

After considering the entire material on record the Family Court by its impugned order 22.08.2014 has allowed the petition in part granting monthly maintenance of Rs. 3,000/- from the date of petition to the first petitioner and litigation expenses of Rs. 10,000/- and dismissed the claim of second petitioner-daughter for maintenance. Aggrieved by the said order the present petition is filed.

I have heard learned counsel appearing for the petitioner Sri Deepak. S. Shetty.

Learned counsel for the petitioner has vehemently contended that the Family Court has committed a grave error in granting monthly maintenance of Rs. 3,000/- to the first petitioner when the first petitioner was not at all married to the respondent-husband at any point of time. Therefore, the impugned order passed by the Family Court is erroneous and contrary to law. Learned counsel also contended that as per the specific defence taken by the husband in the objection before the Family Court that the first petitioner who is the daughter of his elder sister and she was born on 01.10.1977 the alleged marriage on 31.03.1988 at the age of 10 years 5 months does not arise at all. Therefore, granting maintenance is without any basis. He also contended that the Family Court failed to consider that Ex. R. 4 and Ex. R. 5 the R.T.C. extracts produced by the respondent clearly disclose the land is not in the name of the petitioner. Therefore, granting maintenance of Rs. 3,000/- to the first petitioner-wife is exorbitant. Therefore, he sought to set aside the order passed by the Family Court.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the petitioner and perused the entire material on record.

In order to prove the marriage alleged by the first petitioner-wife on 31.03.1988, she has examined herself as P.W. 1 and she has specifically stated on oath that she has married with the respondent-husband on 31.03.1988 and he has produced Ex. P. 1 marriage invitation card and in order to prove marriage she has examined two independent witnesses. She further stated that she has not gone to the school and she is illiterate and she does not know to read and write. In the cross-examination of P.W. 1 she clearly stated that she married the respondent as per the customs prevailing in the community on 31.03.1988 and marriage was solemnized at Rest House, APMC Yard, Gadag. After the marriage she went to the house of respondent and lead marital life with cordial relationship with the respondent for two years. In addition to her evidence she has examined P.W. 2 who is none other than the father of the petitioner who stated on oath that the marriage of the first petitioner was celebrated with the respondent about 22 years back. The marital life of the petitioner and respondent was cordial for one year. After one year the parents of the respondent started harassing her. They have subjected her to utmost cruelty without giving any food and basic necessities. He also stated that after knowing the said fact the petitioner lodged complaint before the Police. The respondent appeared before the Police and gave an undertaking before the Police that he will look after the petitioner well. Thereafter the petitioner was taken back to the matrimonial home. He specifically stated that, at the time of marriage the petitioner was 18 years and she is an uneducated lady and illiterate. In the cross-examination he has denied the suggestion that respondent has not married the first petitioner and second petitioner is not at all their daughter. He has further denied that he has created Ex. P. 1 marriage invitation card even though there is no marriage solemnized between them.

The petitioner-wife examined P.W. 3 who is an independent witness. He has clearly stated on oath before the Family Court that he has attended marriage of the first petitioner with the respondent about 23 years back and the marriage was solemnized at Rest house, APMC Yard, Gadag and after that he has also gone to advise the respondent for more than 2 times. At that time the respondent has not heeded to the advise. After that, the 1st petitioner has lodged complaint before Gadag Police. The Police have called the respondent to the Police Station. After that he and the father of the petitioner and the petitioner and the respondent have all gone to the house of the Advocate who is appeared on behalf of the respondent in the case Sri S.C. Hosamani. The Advocate was also informed that he will decide the dispute between the petitioner and the respondent and after that he has not contacted the Advocate. He has also clearly stated before the Court that the 1st petitioner was more than 18-19 years old at the time of the marriage. P.W. 3 was seriously cross-examined by the counsel for the respondent but nothing was elicited in the cross-examination. He also clearly stated in the cross-examination that in the marriage of the first petitioner and the respondent was celebrated in the mass marriage and he cannot say how many marriages was celebrated on that day. He also stated that he has not seen the first petitioner going to the school in the village.

The Family Court considering the entire material on record specifically recorded a finding that the evidence of P.W. 1 to P.W. 3 clearly disclose that the petitioner has lodged complaint before the Police after the respondent taken second wife namely Neelavva. After that the Police have called the respondent and the respondent appeared before the Police with his elders, panchayath was convened and he also given undertaken before the Police. Xerox copy of the agreement entered into between before the Police was produced. The agreement clearly disclose about the marriage solemnized between the first petitioner and the respondent at A.P.M.C. Yard, Gadag in the presence of the elders and well wishers. The Family Court also recorded a finding that P.W. 2 who is also one of the signatory to the agreement entered into before the Police. If the respondent-husband was not really married the first petitioner and that the second petitioner was not at all their daughter, he could not have appeared before the Police and could not have given undertaking before the Police. Therefore, the Family Court come to the conclusion that the first petitioner-wife has established that she is the legally wedded wife of the respondent and while granting maintenance u/s. 125 of Cr.P.C. is purely a summary proceedings based on the available documents the maintenance is granted.

Admittedly, till today the petitioner herein has not filed any suit before any Court of law or has lodged any complaint that the petitioners are not the wife or daughter and he ha snot produced any contra evidence except denying in the statement of objections. In the absence of any contra material document produced by the husband, the Family Court was justified in holding that the first petitioner was the wife and based on the oral evidence of P.W. 1 to 3 and material documents at Ex. P. 1. to Ex. P. 6.

The first petitioner has categorically stated that the respondent is owning landed property and also getting Rs. 5.00 to Rs. 6.00 lakhs income and also from business. In support of the same she has produced R.T.C.s at Ex. P. 4 and Ex. P. 5. The respondent specifically denied the very relationship between him and the first petitioner and the respondent owning more than 4-5 acres of land at Naregal village. Taking into consideration the respondent is having sufficient landed property and having capacity to pay maintenance to the petitioner, the Family Court granted monthly maintenance of Rs. 3,000/- to the first petitioner along with litigation expenses of Rs. 10,000/-. The same is in accordance with law.

The Hon''ble Supreme Court while considering the provisions of Sec. 125 of Cr.P.C. in the case of Bhuwan Mohan Singh Vs. Meena, AIR 2014 SC 2875 : (2014) AIRSCW 4201 : (2014) 8 JT 359 : (2014) 8 SCALE 573 at paragraph No. 3 has held as under:

"3. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short "the Code") was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson 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 whereunder 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."

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After careful consideration of the entire pleadings, oral and documentary evidence on record and the dictum of the Apex Court stated supra, this Court is of the opinion that the impugned order of the Family Court is perfectly justified and same is in accordance with law and the petitioner has not made out any ground to interfere with the same exercising revisional jurisdiction of this Court. Accordingly, the revision petition is dismissed.