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Judgment
The unsuccessful respondent filed this revision case, under Sections 397 & 401 of the Code of Criminal Procedure, 1973, (‘the Code’) assailing the order, dated 15.02.2017, of the learned XIV Additional District & Sessions Judge-cum-Judge, Additional Family Court, Vijayawada, passed in M.C.No.208 of 2014.
I have heard the submissions of Sri Y.Ramatirtha, learned counsel appearing for the petitioner, and of Mrs. K.Pallavi, learned counsel representing Sri T.Ravi Kumar, learned counsel appearing for the 1st respondent. I have perused the material record.
For convenience and clarity, the parties in this revision shall hereinafter be referred to as the petitioner-wife and the respondent-husband as arrayed in the maintenance case.
At the outset, it is to be noted that the petitioner/wife filed the aforesaid maintenance case under Section 125 of the Code requesting to award maintenance @ Rs.15,000/- per month besides costs. The respondent/husband by filing a counter resisted the said maintenance case. At trial, the petitioner/wife and her supporting witness were examined as PWs 1 and 2 and exhibits P1 to P5 were marked on her side. Exhibit P1 is the wedding invitation; exhibit P2 is a pair of wedding photos; exhibit P3 is the Photostat copy of the FIR; exhibit P4 is the office copy of legal notice; and, exhibit P5 is the postal acknowledgment. The respondent/husband deposed as RW1 and exhibited R1 and R2, the LIC premium receipts, dated 25.12.2014 and 10.12.2015 respectively.
4.1 On merits and by the orders impugned in this revision, the learned Judge, Additional Family Court, Vijayawada, awarded maintenance @ Rs.9,000/- per month to the petitioner from the date of the order, that is, 15.02.2017. Thus, the maintenance case was partly allowed. Aggrieved thereof, the respondent preferred this criminal revision case.
The case of the petitioner/wife and the submissions made on her behalf, in brief, are as follows:
The marriage of the petitioner and the respondent was performed on 19.03.2011. Since the date of marriage, the respondent has been going to Lucknow on the pretext of camps and staying there for 20 to 30 days. He had been avoiding the petitioner; and, for that reason the marriage was not consummated. He had been postponing and avoiding consummation stating that his horoscope is not good. His sister-in-law Santhi was also necked out of the house, on 11.09.2009, by subjecting her to unbearable cruelty and by making a demand for additional dowry. The respondent’s brother is impotent. The parents of the respondent beat the petitioner and sent her away, on 26.01.2014, by taking all her jewellery, viz., chain, sutras chain and black bead chain. When the petitioner was attempting to report the matter to the police, the respondent and his parents came to her. Again, she joined the respondent, on 23.03.2014. When the petitioner and the elders requested the respondent to consult a doctor to know the problems, he postponed the same. The respondent and his parents used to beat the petitioner and threaten her by saying that they will put an end to her life if she conducted a panchayat. Further, the respondent and his parents demanded Rs.1,00,000/- for his medical tests at Hyderabad. She gave a report to the Station House Officer, Machavaram Police Station, Vijayawada, on 22.05.2014. On her said report, a case in Crime No.40 of 2014 was registered against the respondent for the offences punishable under Sections 498-A and 506 IPC. The respondent is an impotent. The petitioner has been staying with her parents. She has no means or capacity to maintain herself. The respondent is doing a job in Efftronics Company and is drawing a salary of Rs.36,000/- per month. And, he is having sufficient means to maintain the petitioner. But, he neglected to maintain her. The petitioner got issued a legal notice, on 09.07.2014, demanding the respondent to pay Rs.15,000/- per month towards food, shelter and daily necessities. The respondent received the said notice, on 10.7.2014. But, he did not pay any maintenance. Hence, she filed the maintenance case against the respondent. The allegations in the counter of the respondent that she demanded him to put up separate family and that she was earning an amount of Rs.20,000/- by working in India Child Guidance Clinic and also getting Rs.8,000/- per month towards rents and paying LIC premium @ Rs.16,200/- per annum and that she used to quarrel with him unnecessarily are all false. The respondent filed OP for restitution of conjugal rights against her after she filed the report in Machavaram Police Station, Vijayawada. Later, the respondent had withdrawn the said OP out of fear that she may file a petition requesting to send him for a medical test with regard to his potency. The Court below partly allowed MC 208 of 2014 by granting maintenance @ Rs.9,000/- per month, by order, dated 15.02.2017. The Court below rightly observed that the respondent did not produce any documents to prove that the petitioner is working in Hinduja Layland Finance Company Limited and drawing a salary of Rs.15,000/- per month and is also getting Rs.8,000/- as rents. The Court below rightly gave a finding that the LIC premium was being paid by the father of the petitioner and that there is no evidence on record to accept that the petitioner is having independent source of income to maintain herself. The Court below granted only Rs.9,000/- per month against the claim of Rs.15,000/- per month. The contentions of the husband that she never cooperated for having conjugal life from 15th day of marriage and that she further expressed her disliking for staying with the respondent are incorrect.
The said allegations are contrary to the evidence on record. The petitioner stayed with the respondent since the date of her marriage and till the date of lodging of the police report, i.e., for more than three years and the Court below rightly gave a finding in that regard. The Court below rightly returned the petition in CFR 163 of 2017, which was filed, on 31.01.2017 for summoning the Manger, Hinduja Layland Finance Company Ltd., Vijayawada, as the said petition was filed after the MC was posted for final orders. The respondent having taken the plea that she has been doing a job has not taken any steps for proving his alleged defence. The respondent has not taken any steps for summoning the witness since 2014 onwards and till the matter is posted for orders. The petitioner is residing with her parents. Her father is depositing amount in RD (recurring deposit) and is paying the premia in her name. The trial Court after appreciating the facts correctly and the evidence in proper perspective rightly held that there is nothing on record to prove that the petitioner/wife is having independent sources of income to maintain herself and that the respondent/husband did not even pay the interim maintenance awarded to the petitioner. The Court below also rightly held that the respondent neglected to maintain the petitioner. The learned Judge, Additional Family Court, also held that nothing is elicited in the cross-examination of PW1 to accept that she is receiving rents from two house portions and also held that there is no clinching evidence on record to prove that the petitioner is working and earning any salary and that on the other hand, the petitioner established that the respondent is working and earning a salary of Rs.36,000/- per month and is having means and resources to pay adequate maintenance to the petitioner. Hence, the Court below rightly awarded maintenance to the petitioner. The well-considered order of the trial Court is just and fair and the respondent has not made out any grounds warranting interference with the order of the Court below. Hence, the revision is liable to be dismissed.
Per contra, the case of the respondent and the submissions made on his behalf, in brief, are:
The petitioner did not beget any children. The petitioner never cooperated for conjugal life from the 15th day of the marriage. She expressed her disliking for staying with the respondent. On the 16th day from the date of marriage, she went away to her mother and demanded for setting up a separate family and threatened by saying that she would commit suicide. In the month of July, 2012, as per her wish, separate family was set up; and, even thereafter, she did not stop quarrelling with the respondent. She demanded the respondent to stay with her, at her parents’ house as illatom son-in-law. In the month of March, 2013, both of them attended a medical test. The petitioner did not show her medical report. On one occasion she stated that she was pregnant; and, on another occasion she stated that she lost her pregnancy. Contrary to the said facts, the petitioner is alleging that the respondent is impotent. At a time when the father of the respondent was admitted in KIMS hospital, the petitioner demanded for setting up separate family. When the respondent expressed his inability to do so, in view of the health condition of his father, he was scolded by the petitioner and her parents. Thereafter, the petitioner was taken away by her parents. On 22.05.2014, that is, eight months after the said incident, the petitioner filed a report before the Police against the respondent and his brother for the offences punishable under Sections 498-A and 506 IPC. The respondent filed O.P.No.598 of 2014 under Section 9 of the Hindu Marriage Act. He became a patient of psychiatry on account of the harassment meted out to him. The petitioner is having sufficient means. By the time of the marriage, she was working as a Teacher. At the time of filing counter, she was working in India Child Guidance Clinic and earning an amount of Rs.20,000/- per month. The petitioner is also getting a sum of Rs.8,000/- per month as rents from two house portions given to her by her parents. She has been paying Rs.16,200/- as LIC premium. She is also getting the pension of her father. She is having financial security. A plot has been purchased by her parents in her name in the month of April, 2014. The respondent has to look after his old aged parents, who are suffering from BP & Diabetes. He has to incur an amount of Rs.2,000/-per month on his medical expenses. He is paying Rs.7,281/- per month to the HDFC Bank as instalment for the debt contracted by him. He is not having any movable or immovable properties. The petitioner/wife has been working in Hinduja Laylands Finance Company, at Vijayawada and has been drawing a salary of Rs.15,000/- per month. To establish the said fact, this respondent filed Crl.M.P.Nos.216 and 217 of 2016. But, the said petitions were dismissed by the Additional Family Court without giving an opportunity to this respondent to prove his defence. Earlier, the petitioner/wife was working in India Child Guidance Clinic and was drawing an amount of Rs.20,000/- per month. However, later, i.e., at the time of trial, she is working in Hinduja Laylands Finance Company, at Vijayawada, and therefore, the said petitions were filed by this respondent. Another petition, vide CFR No.163 of 2017 was also filed, on 31.01.2017, requesting to summon the Manager of the said Finance Company to prove the said fact. But, the trial Court erroneously returned the same by assuming that the respondent is changing the version stated in the counter and that the petitions are filed belatedly. In fact, the order impugned was pronounced on 15.02.2017. Hence, the observation of the Court below that the petitions filed, on 31.01.2017, were filed at a belated stage is not correct. The Court below completely ignored the necessity of allowing the said petitions and failed to consider that sufficient grounds existed for giving an opportunity to the respondent to prove the occupation, income and financial resources of the petitioner/wife. The Court below failed to consider that such evidence, which the respondent intended to adduce, is necessary for adjudicating the issues involved in the maintenance case, particularly the issue related to the quantum of maintenance to be awarded, if any, to the petitioner/wife. The Court below was of the view that the respondent is introducing a new version with regard to the vocation/occupation of the petitioner and that the said new version is contrary to the stand taken in the counter. The Court below completely ignored the factual situation and failed to note that by the time the counter was filed, the petitioner was working in India Child Guidance Clinic and that by the time of giving evidence, she is working in Hinduja Laylands Finance Company. In the order impugned, there is a reference to the submission made by the respondent that the petitioner has been working in Hinduja Laylands Finance Company. However, the Court below failed to take note of the events subsequent to the filing of the counter and simply referred to the contents of the counter and observed that there is a contradiction in the defence and that the contention of the respondent cannot be believed. The Court below without considering the case of this respondent and without giving an opportunity to prove that the petitioner is working in Hinduja Laylands Finance Company and was drawing a monthly salary of Rs.15,000/- per month, erroneously allowed the MC 208 of 2014, partly. The trial Court erroneously came to the conclusion that the evidence of PW1 and her sister PW2 and the fact that a criminal case was taken on file for the offences punishable under Section 498-A IPC and other penal provisions is sufficient to hold that the petitioner was harassed by the respondent for additional dowry though it is not the case of the petitioner/wife before the trial Court. The learned Judge, Additional Family Court, ought to have seen that the petitioner/wife falsely alleged that this respondent is impotent and caused mental cruelty to him. The Court below ought to have seen that the said allegation is false and that the said allegation is not established by the petitioner/wife. On the said aspect, the Court below held that there are rival versions and that there is no record to substantiate the respective versions. Having so observed, the Court below ought not to have accepted the case of the petitioner/wife and ought not to have awarded any maintenance to her. The trial Court failed to see that the case set up by the petitioner is a deliberate falsehood and that she mislead the trial Court and the trial Court further failed to consider the conduct of the petitioner/wife in misrepresenting the facts with regard to her occupation and income. The order awarding maintenance, that too, in a huge sum of Rs.9,000/- per month was passed erroneously without giving a reasonable and fair opportunity to the respondent/husband. The learned Judge, Additional Family Court, failed to appreciate the facts correctly and the legal position in proper perspective. The order impugned is unjust and unfair and warrants interference. Hence the order impugned is liable to be set aside.
Now the points for determination in the Criminal Revision Case are as under:
1) Whether the petitioner made out valid and sufficient grounds for awarding maintenance?
2) Whether the quantum of maintenance awarded to the petitioner is on the higher side and, is liable to be reduced in the facts and circumstances urged by the respondent/revision petitioner?
3) To what relief?
POINTS:
In the considered view of this Court, there is no reason to deny award of maintenance to the wife unless it is sufficiently established that the income of the wife, if any, is sufficient for the sustenance of the wife. Unless the husband establishes that his wife has income of her own and needs no financial support from him, she cannot be denied maintenance from the husband. The maintenance awarded shall be adequate for sustenance, and sufficient for meeting expenses towards food, clothing and shelter, besides essential incidental expenses. The law is well settled that the maintenance has to be awarded keeping in view the social status and economic & living conditions of the family; and, the maintenance awarded to the wife must be sufficient to enable them to live in reasonable comfort. The provision for maintenance was enacted with the avowed object of preventing vagrancy and destitution. The proceeding for maintenance is not intended for a full and final determination of the personal rights and matrimonial disputes between the spouses and the order of maintenance under the Code of Criminal Procedure is subject to final determination of their rights in a civil Court. The provision provides for speedy remedy for providing maintenance to the wife.
8.1 Reverting to the facts of the case, it is to be noted that after considering the evidence of PW1 and that of her sister and of RW1 and the documents exhibited, which are referred to supra, the trial Court awarded maintenance @ Rs.9,000/- per month to the wife from the date of the order, that is, 15.02.2017, though the wife claimed maintenance @ Rs.15,000/- per month. The Additional Family Court rejected the contentions of the husband that the wife is having income and sources of income, which are more than sufficient for her sustenance. The trial Court also noted that in view of the evidence on record and the fact that the husband failed to pay interim maintenance awarded to the wife after paying the same for a period of six months eventually held that the maintenance at the afore-stated rate can be awarded to the wife keeping in view the social status of both parties and income sources of the respondent. The main grievance of the respondent is that there are no findings in the impugned order about his income and sources of income and that the Additional Family Court did not properly consider his contentions regarding the income and sources of income of the petitioner/wife. Though the respondent contended in his counter that the petitioner worked in India Child Guidance Clinic and was earning Rs.20,000/- per month, he did not adduce evidence to prove that at one point of time, the wife worked in the said clinic and earned the said income. Though his further case is that by the time of trial, she is working in Hinduja Laylands Finance Company, Vijayawada, and is earning Rs.15,000/- per month, he did not adduce evidence to prove even the said defence. No reasons are assigned for not adducing evidence at the appropriate stage. Though in his cross-examination, he stated that he is having documents to show that the petitioner is working in Hinduja Laylands Finance Company, he did not file and exhibit the said documents in his evidence. He did not confront the said documents to PW1 during her cross examination. However, his specific case is that the maintenance case was disposed of, on 15.02.2017, and that much prior to the said date, that is, on 31.01.2017, he filed miscellaneous petitions for summoning the Manager of the said finance company and had taken steps to prove the occupation and income of the petitioner/wife, but the learned Judge of the Additional Family Court dismissed the said petitions without giving an opportunity to him and that his application in CFR No.163 of 2017 under Section 311 of the Code filed on the same date, 31.01.2017, was also returned as not maintainable, and that therefore, he was not given reasonable and fair opportunity to establish his defence with regard to the income and sources of income of the petitioner/wife and also his income and sources of income. The fact of the matter is that the petitioner did not pay interim maintenance awarded to the petitioner/wife after paying some amount for six months and filed Crl.M.P.No.216 of 2016 under Section 127 of the Code to recall the orders, whereby, interim maintenance was awarded @ Rs.5,000/- by stating that he paid Rs.30,000/- till the date of filing of the said petition on 19.08.2016. Coming to his contention that the petitioner is having house portions given to her by her parents and is receiving rents, neither the details of deed of conveyance, if any, nor are the details of rents pleaded nor was any evidence of required standard was adduced to show that she owns house portions and is receiving rents. On consideration of the plight of the daughter, who was deserted and neglected by her husband, if her parents make some provision or give some property for her maintenance that does not absolve the husband of his legal liability to provide maintenance to his wife, in the considered view of this Court. In his cross examination, RW1 stated that he is working as Project Manager in Efftronics Company for the last four years and he has been drawing a salary of Rs.36,000/- per month and that his net salary is Rs.28,000/- per month. Though he stated that he can file his bank passbook and bank statement showing his salary particulars, he ultimately failed to produce the said documents or his salary certificate, despite the fact that the case of the petitioner is that his salary is Rs.36,000/- per month and that the said pleaded case of the petitioner is not specifically denied in his counter. Therefore, the trial Court determined his monthly income at Rs.36,000/- and held that he has got sufficient means. It is needless to state that the law provides a remedy to a husband to make a request for alteration/variation of allowance of maintenance awarded to a wife. Therefore, the respondent/husband, if so desires and is so advised, can move an appropriate application invoking the appropriate provision for alteration/variation of allowance of maintenance awarded to the wife provided the facts of the case permit him so to do; but, in the absence of required standard of evidence, his request for reduction of the maintenance allowance awarded to the wife needs no countenance.
On the above analysis of the pleadings and evidence, this Court finds that the order impugned does not warrant interference. Points are accordingly answered in favour of the petitioner/wife.
In the result and for all the reasons assigned supra, the Criminal Revision Case is dismissed. The respondent/husband shall pay all the arrears of maintenance in two equal monthly instalments, within two months from the date of receipt of a copy of this order and shall continue to pay to the petitioner the future monthly maintenance allowance on or before the 5th day of every calendar month or deposit the same to the credit of the MC. It is needless to state that the interim maintenance amounts or maintenance amounts, if any, already paid or deposited shall be given credit while calculating the arrears to be paid or deposited.
Pending miscellaneous petitions, if any, shall stand closed.