Sabanigar vs Sameer

B. Veerappa, J—The wife filed the above petition against the order dated 01.03.2014, made in Crl. Misc. No. 242/2013 on the file of the Judge, Family Court, Belgaum granting Rs. 50,000/- per month from the date of the order.

When the matter posted for admission, the learned Counsel for the petitioner submits that petitioner is aggrieved only the operative portion of the impugned order passed by the Family Court granting maintenance from the date of order, and it should be from the date of the petition.

It is the case of the petitioner-wife before the family Court that the marriage between herself and respondent was solemnized on 29.5.2011 at Diamond Hall, Subhash Nagar, Belgaum as per the customs prevailed in their community. Thereafter, they led a happy married life for a period of one month and thereafter they went to Spain. She has no issues. It was agreed between the parents of the petitioner and the respondent that within three months of the marriage, she will be taken to Spain by the respondent. Within one month of the marriage, it was surprised that respondent suddenly demanded Rs. 2,00,000/- for VISA and the same has been given by her parents. The respondent went to Spain to join a Job. After one month he called the respondent's mother Smt. Naseem W/o. Mehaboob Bagewadi that an additional amount of Rs. 1,00,000/- is required for VISA. The respondent's mother told the petitioner to bring the said amount if she wishes to join the respondent to lead a married life in Spain. When she refused to bring the amount the respondent's mother started ill treating her. She stayed in the house of respondent for a period of 14 months. During the stay in the said period, the respondent and his family members have harassed physically and mentally to her. In the month of July 2012, the respondent came to India to take her to Spain. At the time of going to Spain, her mother-in-law taken all the golden ornaments in her custody. On 16.07.2012, the petitioner and respondent went to Spain. During the petitioner stay in Spain, she realized that the respondent is not a Software Engineer but hotelier and owns hotel in Spain namely Taj Mahal Restaurant, Marbella. She realized that the respondent is a heavy drunker and used to torture her both by mentally and physically by abusing in filthy language. She tolerated all the attitude of the respondent and the same has been informed to her parents. As per the instructions of the respondent, she came to India and he took some signatures on blank papers. Her father-in-law did not take care of her when she came to India. She went to her parental house, Belgaum. On 15.09.2012 her father died. The respondent has not taken care and provided basic needs despite of demanding dowry. He is running a hotel and earning Rs. 5 to 6 lakhs per month. He is sending Rs. 1,00,000/- to his mother. He is financially sound enough to having capacity to pay the maintenance of Rs. 80,000/- per month to her. Hence, she filed the petitioner.

Notice issued to the respondent through Airmail and also through police to the local address but the notice was served on the mother of the respondent. Again the petitioner taken notice though Airmail to Indian Embassy, which was duly served upon him but he did not appear before the Family Court and placed ex-parte.

In order to establish her claim, she herself examined as P.W. 1 and got marked documents at Ex. P1 to P12.

After considering the entire material on record, the Family Court recorded a specific finding that, the petitioner-wife has proved that the respondent is having sufficient means and she is entitled for maintenance of Rs. 50,000/- per month from the date of the order. Against the said operative portion of the order, the present revision petition is filed.

Notice was issued to the respondent through paper publication on 28.04.2015 and also permitted to take hand summons to the learned Counsel for the respondent before the Trial Court. In spite of the same, no representation is made on behalf of the respondents. Hence, service to respondent was held sufficiently an order of this court on 16.7.2015.

I have heard the learned Counsel for the petitioner Sri. Santosh B. Rawoot, learned Counsel for the petitioner has made out only solitary ground that the Family Court while awarding maintenance has ordered from the date of the order and not from the date of petition, which is against the provisions of Section 125(2) of Code of Criminal Procedure. Therefore, he sought to modify the impugned order passed by the Family Court to the effect that the petitioner is entitled maintenance of Rs. 50,000/- from the date of the petition not from the date of order. Therefore, he sought to allow the civil revision petition.

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

The admitted fact is that there is no dispute with regard to marriage between the petitioner and respondent and it is also not in dispute that the wife has filed petition under Section 125 of Code of Criminal Procedure before the Family Court claiming maintenance of Rs. 80,000/- per month. The notice issued to the respondent by the Family Court was served through Airmail to Indian Embassy which was duly served but he did not appeared before the Court. Therefore, placed ex-parte.

The Family Court taking into consideration the evidence adduced by the petitioner as P.W. 1 and considering the documents Exs. P1 to P11, has come to the definite conclusion that she is the legally wedded wife of the respondent and the respondent is running a Taj Mahal Restaurant Marbella in Spain as per Ex. P4 and Ex. P10 the letter of Karnataka Bank, Belgaum discloses that the respondent was sent a money transfer of Rs. 33,000/-, Rs. 45,000/- and Rs. 1,00,000/- on various months to his father. Ex. P11 discloses that the respondent sending the money through money transfer in Spain to his father. He has sent the money of Rs. 2,42,294/-, Rs. 1,27,000/-, Rs. 7,21,261/- Rs. 31,000/-, Rs. 46,000/- on different dates to his father. Ex. P12 extract of the money transfer by the respondent to his father. Further the said documents discloses that he has maintained two cars. The said document discloses that he is earning more than Rs. 3,00,000/- to Rs. 4,00,000/- in a month. The said documents have not been challenged. Admittedly, the petitioner has no avocation and means to maintain herself. Ex. P7 discloses that she is a student studying in Ist year Diploma in Pharmacy and she has paid tuition fees of Rs. 10,000/- out of Rs. 25,000/- to the college of Pharmacy. She required food, shelter, timely medical attendant and basic necessities to lead her life. The Family Court based on the oral and documentary evidence has recorded a finding that respondent is financially sound and earning Rs. 3 to 4 lakhs per month by running a hotel in Spain. Therefore, the Family Court has awarded monthly maintenance of Rs. 50,000/- from the date of the order. The Family Court while passing the order has failed to notice Section 125(2) of Code of Criminal Procedure and it reads as under:

Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.

Hence, the petitioner-wife is entitled the maintenance from the date of the petition and not from the date of the order. The material documents disclose that the respondent is having sufficient income to maintain his wife and the petitioner has no means to maintain herself. Therefore, it is the duty of the husband to maintain his wife.

The Hon'ble Supreme Court while considering the provisions of Section 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 has held 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 aforesaid reasons and taking into consideration of the facts and circumstances of the present case, this Court is of the considered opinion that the petitioner is entitled maintenance of Rs. 50,000/- from the date of the petition and not from the date of the order.

Accordingly, the revision petition is allowed in part and modified the impugned order passed by the family court.

Ordered accordingly.