Maruti vs Bhagyashree and Others

B. Veerappa, J—The husband has filed the above revision petition against the order dated 30.03.2012 made in Crl.Misc. 595/2009 on the file of the learned Judge Family Court, Belgaum, granting maintenance of Rs. 2,500/- per month to the petitioner No. 1-wife and Rs. 1,500/- per month to the petitioner No. 2-daughter from the date of the petition and the Family Court also directed the respondent-husband to pay arrears of maintenance within one month from the date of the order subject to deduction of interim maintenance already paid by him and he shall go on paying the future maintenance as and when it becomes due.

It is the case of the petitioners before the Family Court that they are wife and daughter of the respondent-husband and the marriage between petitioner No. 1 and the respondent was solemnized on 17.12.1999 as per the Hindu rites and customs at Hidkal-Harugen and out of their wedlock the daughter was born on 4.2.2001 and subsequently the respondent-husband harassed the petitioner No. 1 demanding dowry of Rs. 50,000/- and subsequently, respondent has contracted a second marriage with one Mahadevi of Mudalagi and one male and two female children are born through his second wife. Therefore, petitioner No. 1 having no alternative is residing with her parents along with the petitioner No. 2 since last three years. The respondent has not made any provision for their maintenance. She is unable to maintain herself and petitioner No. 2. She requires minimum amount of Rs. 10,000/- per month for her maintenance and also for the maintenance of petitioner No. 2. The respondent is a doctor by profession and he is earning Rs. 30,000/- per month and owns 14 acres of irrigated land and is getting income of Rs. 10 lakhs per annum. Therefore, he is capable of paying maintenance as claimed by the petitioner, etc.

In response to the notice issued by the Family Court, the respondent/husband filed objections admitting the relationship between himself and petitioners-1 and 2 and denied the allegations of demanding dowry and harassment to petitioner No. 1. He also denied that petitioners 1 and 2 herein requires maintenance of atleast Rs. 10,000/- per month and that respondent-husband is earning Rs. 30,000/- per annum out of his medical profession and Rs. 10 lakhs per annum from agricultural lands. He has stated that he never refused to take back the petitioners. He alleged that petitioner No. 1 has left his house on her own and therefore she refused to join him despite several efforts made by him to bring back the petitioners. He also denied the allegation of petitioners that he has contracted a second marriage and has got a son and two daughters through 2nd marriage. Accordingly, he sought to dismiss the petition.

In order to establish their claim, petitioner-1 examined herself as PW. 1 and marked documents as Ex. P. 1 to P. 10. She has also got examined her mother Smt. Devayani as PW. 2. As against the evidence of petitioner, the respondent-husband examined himself as R.W. 1 and also got examined two more witnesses as R.W. 2 and RW. 3. and marked Exhibits as Ex. R1 and R. 2.

After considering the entire material on record, the Family Court by its impugned order dated 30.03.2012 has partly allowed the petition and granted maintenance of Rs. 2,500/- per month to the petitioner No. 1/wife and Rs. 1,500/- per month to petitioner No. 2/daughter, from the date of the petition till the date of her marriage, and also directed to pay arrears of maintenance within one month from the date of the impugned order.

Against the said order the present revision petition is filed.

I have heard the learned Counsel for the parties to the lis.

The learned Counsel for the petitioner reiterated the averments made in the revision petition and prayed to allow the revision petition by setting aside the impugned order dated 30.3.12.

Smt. Shruti Neelopant, learned Counsel for the respondents sought to justify the impugned order and contended that the petitioner being a medical practitioner is capable of maintaining his wife and daughter as he is earning more than Rs. 30,000/- per month and that apart, he owns 14 acres of irrigated lands and is getting income of Rs. 10 lakhs per annum. Therefore, she sought to justify the impugned order and request the court to dismiss the revision petition.

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

It is an admitted fact that the marriage between the petitioner-1 and the respondent was solemnized on 17.12.1999 as per the Hindu rites and customs and out of their wedlock petitioner-2 daughter was born on 4.2.2001. It is the specific case of the petitioner-wife that the respondent-husband is a doctor by profession and he is earning sufficient income and he is capable of paying maintenance. Petitioner No. 1 in support of her case, has produced documents, viz., school certificates at Ex. P. 1 and 2, photographs at Ex. P. 3 and 4 and RTCs at Ex. P. 5 to 10 and also examined her mother Smt. Devayani as PW. 2, who supported the case of the petitioner. Petitioner-1 who is examined as PW. 1 has stated on oath, that she is the legally wedded wife of respondent and out of their wedlock petitioner No. 2-daughter was born and she also admitted that since three years preceding the presentation of the petition, the petitioners are residing separately from the respondent and the respondent has not made any provision for their maintenance. It is not the case of the respondent that, petitioner-1 is earning her livelihood and therefore she is capable of maintaining herself and her daughter. The respondent has not denied in his objection statement that he is running a Clinic and hospital and owns irrigated agricultural lands. On the other hand, in the cross-examination of P.W. 1 it is suggested that respondent owns 8 acres 20 guntas of land, out of which half of the land is irrigated and remaining is dry land. Therefore, it is admitted by respondent that he owns 8 acres 20 guntas of land. It was also suggested to PW. 1 that the respondent has completed BAMS and BHMS and he was practicing as a doctor. She has denied that the respondent has not contracted second marriage. She is ready to join her husband if he takes a separate house and provide necessaries.

The respondent has not denied in his statement of objections that he is running a clinic and hospital and that he owns irrigated agricultural lands. However, at the time of evidence, RW-1 has stated that he has closed the clinic. When Ex. P1/photograph was shown to him, he has admitted that it is in respect of his Clinic namely: Shivalakshmi Clinic, Kankanawadi, his name is shown as Dr. M.M. Hanabar, BAMS. He further stated in the cross-examination that he has availed loan of Rs. 4,00,000/- to Rs. 5,00,000/- for the purpose of running the clinic. Even in Exs. R-1 and 2, the loan availed by the respondent is shown that it is advanced for running the clinic and his address is shown as Dr. Hanabar Maruti Masanaik, Kankanawadi. Therefore, the contention of the respondent that he has closed down his Clinic cannot be accepted. RW-2/Shri Bhimappa S/o. Gurusiddappa Konnur examined on behalf of the respondent has admitted in his cross-examination that the respondent is running his Clinmc in his house at Mudalagi.

It is admitted fact that when the respondent is able to repay the loan in monthly installments of Rs. 8,000/-, it cannot be held that he has no sufficient income. The Banks have advanced huge loan only on the basis of repaying capacity of the respondent. Therefore, considering the evidence of PWs-1 and 2 and Exs. P-1 to 10 and evidence of RWs-1 to 3 and Exs. R-1 & 2, the Family Court come to the conclusion that the wife of the respondent is entitled to maintenance of Rs. 2,500/- per month and the daughter is entitled to Rs. 1,500/- per month from the date of the petition, which is based on the legal evidence. The same is in accordance with law.

Taking into consideration the dictum of the Hon''ble Apex Court in the case of Bhuwan Mohan Singh Vs. Meena, AIR 2014 SC 2875 : (2014) AIRSCW 4201 : (2014) 8 JT 359 : (2014) 8 SCALE 573 , wherein the Hon''ble Supreme Court while considering the provisions of Section 125 of Code of Criminal Procedure, has held at para-2 as under:-

"2. 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."

In view of the above finding of fact recorded by the Family Court that the petitioner herein is capable of maintaining the respondents and the respondents have no income of their own, it is the duty and obligation of the petitioner, being the husband and father of the respondents to maintain them under the provisions of Section 125 of Cr.P.C. and in view of the dictum of the Apex Court stated supra, this Court is of the considered opinion that the impugned order passed by the Family court is just and proper. The petitioner has not made out any ground to interfere with the same under revisional jurisdiction.

Accordingly, the revision petition is dismissed.