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THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL REVISION CASE NO.1947 OF 2010
&
CRIMINAL REVISION CASE NO.38 OF 2011
COMMON ORDER:-
The Criminal Revision Case No.1947 of 2010 is filed on
behalf of the petitioner, who is the respondent in M.C.No.178 of
2004 i.e., the husband, under Section 397 and 401 of the Criminal Procedure Code („Cr.P.C.‟ for short) with a prayer to revise the order made in M.C.No.178 of 2004, dated 06.09.2010, on the file of the Family Court-cum-IV Additional District & Sessions Judge, Vijayawada.
2) The Criminal Revision Case No.38 of 2011 is filed on behalf of the petitioner herein, who is the petitioner in M.C.No.178 of 2004, dated 06.09.2010, on the file of the Family Court-cum-IV Additional District & Sessions Judge, Vijayawada, to modify the order so as to grant the maintenance of Rs.20,000/- (Rupees twenty thousand only) per month instead of Rs.10,000/- (Rupees ten thousand only) per month as awarded by the learned Family Court-cum-IV Additional District & Sessions Judge, Vijayawada.
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3) The petitioner in Criminal Revision Case No.1947 of 2010 is the husband of the 1st respondent therein and the petitioner in Criminal Revision Case No.38 of 2011 is the wife of the second respondent therein.
4) The petitioner in M.C.No.178 of 2004 on the file of the Family Court-cum-IV Additional District & Sessions Judge, Vijayawada, filed the case under Section 125 of Cr.P.C., seeking maintenance of Rs.20,000/- (Rupees twenty thousand only) per month against the respondent and the brief averments before the trial Court according to the petition under Section 125 of Cr.P.C. are as follows:
(i) Petitioner stated that her marriage with respondent was performed on 27.05.1999 according to the Christian Rites and customs at Dondapadu village in the house of respondent by Pastor K.J. Jaswanth Rao. She further stated that her engagement was performed on 25.03.1999 and her parents agreed to pay Rs.2 lakhs cash, gold ring, an amount of Rs.10,000/- towards Adapaducyhu Katnam and the house site to an extent of two and half cents situated at Mangalagiri and a Lime Garden to an extent of Ac.0-30 cents situated at Chiluvuru village. She further stated that her marriage was fixed 3 at 10-30 AM but her parents failed to give Adapaduchu Katnam of Rs.10,000/- and that respondent‟s mother took away Mangalasutram and kept under her control. Then her parents and relatives rushed to Vijayawada and brought the said amount and paid the same to the mother of respondent and later her marriage was performed at 5.15 PM instead of 10.30 AM. Immediately after the marriage the petitioner joined her in-laws and stayed there till 14.06.1999 and then both petitioner and respondent reached DIGBOI on 18.06.1999. Both of them stayed there in a guest house for six days. The respondent used to come in the late hours and used to ill-treat her, and he was addicted to all vices like drinking, gambling and debauchery. She further stated that he was not allowing her to go outside. He abused her in filthy language and also beat her on 27.06.1999. On 10.07.1999 her mother and brother went to Digboi and gave household articles worth of Rs.10,000/-. At that time respondent beat her and even on 12.07.1999 on the eve of birthday of petitioner also the respondent beat her and also totally neglected her. The respondent told her that he used to send Rs.23,500/- to his parents and his maternal aunt and uncle and kept Rs.1,500/- with him from his salary. The respondent 4 also informed her that he gave Rs.3 lakhs to his mother and Rs.2 lakhs to his maternal aunt, after marriage he did not send any amount to them and that they developed grudge against the petitioner. Then on the instigation of mother and maternal aunt by phone, the respondent beat, kicked her with his legs and her stomach and also threatened her that he would see her end. The petitioner gave telegram to her parents on 28.10.1999 and that her father came and took her away on 31.10.1999. They also gave a complaint to the officials of I.O.C. Even after returning to their place her father tried for mediation at Digboi, but it was not settled. Then she also got issued a registered letter and telegram to the officials of I.O.C. on 12.10.1999, 25.01.2000 and 15.05.2000 and also issued a legal notice to respondent on 22.06.2000. Then respondent filed O.P.No.16 of 2001 for divorce at Tinsukia, Assam State. Later the petitioner approached the Supreme Court and transferred the said O.P. from Assam State to Guntur District Court. She further stated that the respondent is working as Officer Rank in I.O.C. and getting salary of Rs.20,000/- per month. Before marriage she studied M.Sc. and worked as a Lecturer in Montessori College, Vijayawada. After marriage she left her job and joined the 5 respondent at Digboi. Therefore, she requested the Court to grant an amount of Rs.5,000/- per month.
(ii) Subsequently, she filed Crl.M.P.No.116 of 2009 for enhancement of maintenance from Rs.5,000/- to Rs.20,000/- per month but it was dismissed on 13.09.2009, as such she approached the Hon‟ble High Court in Crl.P.No.5939 of 2009 and the Hon‟ble High Court allowed the petition on 24.11.2009. Accordingly, amendment was carried out in the main petition.
5) The respondent got filed a counter denying the averments stated in the petition, but, admitted the marriage between him and the petitioner and his further contention is as follows:
He further stated that he is not Indian Christian and he was not drawing salary of Rs.20,000/- per month and he never neglected her. He further stated that the petitioner deserted him voluntarily on 01.11.1999 and also addressed several letters to his officials with baseless allegations, as such he filed O.P.No.86 of 2002. Then she filed M.C.No.27 of 2000 at Tenali on 18.07.2000 but it was dismissed for want of jurisdiction. Then she gave private complaint against him in Crime No.145 of 2000 on 06.11.2000 and the same was registered as 6 C.C.No.262 of 2001 and it was ended in acquittal. She also filed O.S.No.50 of 2001 for permanent alimony, and got interim maintenance of Rs.750/- per month. Later it was dismissed on 06.10.2004 as not maintainable. In the meanwhile the petitioner also filed O.P.No.200 of 2003 for restitution of conjugal rights and it is pending. She filed cases at Guntur and Vijayawada and he was compelled to attend before the Courts all the way from Assam State due to which he was suffering physically and mentally. She made several allegations against him though he was appointed on merit basis. She lead marital life with him only for short period i.e., from 14.06.1999 to 01.11.1999. She has not even cooperated with him for consummation of marriage and developed aversion towards him and his family members as they are illiterates. She developed extra marital relationship at Vijayawada and made his life miserably, she was compelling him to get transfer to Vijayawada and deserted him voluntarily. He further stated that she studied M.Sc. and thus she has capacity to earn money. She is also having property in her name. Therefore, he requested the Court to dismiss the petition.
6) On behalf of the petitioner in the maintenance case before the trial Court, she got examined herself as PW.1 and 7 further got examined PW.2, who is her father and got marked Exs.P.1 to P.3. The respondent examined himself as RW.1 and further examined RW.2 and got marked Exs.B.1 to B.10.
7) The learned Family Court-cum-IV Additional District & Sessions Judge, Vijayawada, after hearing both sides and on considering the oral as well as documentary evidence on record, gave findings that there is no dispute about the marriage of the petitioner and respondent and that the respondent therein neglected to maintain the petitioner and that the respondent had sufficient means to provide maintenance to the petitioner and that though the petitioner was doing some job but the same is not sufficient to maintain herself, as such, on over all appreciation of the evidence on record, allowed the petition in part directing the respondent to pay a sum of Rs.10,000/- (Rupees ten thousand only) per month to the petitioner towards the maintenance from the date of filing of the application and that the maintenance amount should be paid on or before 10th day of every month without fail.
8) Aggrieved by the said order of the learned Family Court-cum-IV Additional District & Sessions Judge, Vijayawada, the respondent filed Criminal Revision Case No.1947 of 2010 8 and petitioner therein filed Criminal Revision Case No.38 of 2011. Both the Criminal Revision Cases can be disposed of conveniently in the light of facts and circumstances.
9) Now in deciding these Criminal Revision Cases, the points that arise for consideration are as follows:
1) Whether the petitioner in M.C.No.178 of 2004 is able to prove before the Family Court-cum-IV Additional District & Sessions Judge, Vijayawada that respondent neglected to maintain her in spite of the means he has and the petitioner is unable to maintain herself?
2) Whether the contention of the Revision Petitioner in Criminal Revision Case No.1947 of 2010 that the order of the Family Court-cum-IV Additional District & Sessions Judge, Vijayawada in M.C.No.178 of 2004, dated 06.09.2010, is not sustainable under law, is tenable?
3) Whether the contention of the Revision Petitioner in Criminal Revision Case No.38 of 2011 that she ought to have been granted maintenance of Rs.20,000/- (Rupees twenty thousand only) per month instead of Rs.10,000/- (Rupees ten thousand only) per month is tenable?
10) The learned counsel for the petitioner in Criminal Revision Case No.1947 of 2010, who is also appearing for the respondent in Criminal Revision Case No.38 of 2011, did not advance any arguments.
9POINTS 1 TO 3:
11) The learned counsel for the petitioner in Criminal Revision Case No.38 of 2011 would contend that there is no dispute about the marriage between the both parties and the Family Court-cum-IV Additional District & Sessions Judge, Vijayawada, in so far as neglect shown by the husband so as to maintain the petitioner is concerned, gave proper findings, but, the learned trial Judge did not award the proper maintenance in spite of the fact that the respondent was drawing huge salary and that the petitioner was not able to met with the living by virtue of the meager salary she was getting. In other words, he would contend that the quantum of maintenance prayed by the petitioner to a tune of Rs.20,000/- (Rupees twenty thousand only) per month is just and reasonable, as such, the order of the Family Court-cum-IV Additional District & Sessions Judge, Vijayawada, is liable to be revised.
12) In support of his contention, he would rely upon the judgment of the Hon‟ble Supreme Court in Chaturbhuj vs. Sita Bai 1 and he would further contend that simply because the petitioner was drawing some amount that too for a short spell, it 1 (2008)2 Supreme Court Cases 316 10 does not warrant the trial Court to refuse the quantum of maintenance as sought for in the petition.
13) Though the learned counsel for the respondent in Criminal Revision Case No.1947 of 2010, who also appeared for the respondent in Criminal Revision Case No.38 of 2011, did not argue in spite of the opportunities given, this Court on 14.09.2022 found that as both Criminal Revision Cases arise out of common order, it is desirable to dispose of both the matters on merits instead of disposing the Criminal Revision Case No.1947 of 2010 by default, as such, having heard the learned counsel for the petitioner in Criminal Revision Case No.38 of 2011 and having heard the learned counsel for the respondent in Criminal Revision Case No.1947 of 2010, reserved the matter for orders on merits.
14) P.W.1 before the trial Court was no other than the petitioner and PW.2 was her father. In the evidence before the trial Court, she adverted to the allegations as contained in the petition. Apart from that, her deposition is very lengthy detailing about the minute things and admittedly the evidence that was adduced in the form of PW.1 was on certain improvements. Apart from this, PW.2, the father of PW.1, 11 deposed in support of the case of the petitioner. RW.1 was no other than the respondent, who adverted to his contentions according to the petition and he examined RW.2 to prove the means of petitioner to maintain herself.
15) There is no dispute about the relationship between the parties. Their marriage was performed on 27.05.1999 according to rites and customs of Christian religion. There is no dispute that both parties lived together in the house of the husband for 17 days and later lived together at Digboi for 4 months and 12 days. During the course of cross examination, PW.1 deposed that it is true that on 14.06.1999 they departed from Vijayawada to go to Digboi and reached there on 18.06.1999. On 31.10.1999 her husband sent her out. They lived together at Digboi for about 4 months 11 days. After she came out from his house, they did not lead marital life. In this regard, the evidence of PW.1 during the course of chief examination is also that on 31.10.1999 her husband thrown out all her belongings from her house and retained all of her gold jewellery and thrown out the suitcase outside the house and ultimately the neighbours advised her husband to resist from such an attitude, but, he did not hear their advise. Thereupon 12 her father came and the neighbours dropped them at Gowhathi from Digboi and this is the evidence of PW.1 as regards the so called neglect made by the respondent.
16) It is a fact that both parties indulged in litigation prior to the filing of this maintenance case. She deposed in cross examination that prior to filing of divorce case before the Family Court by her husband, she filed maintenance case before the Additional Judicial Magistrate of First Class, Tenali on 17.07.2000. On 26.09.2000, she filed a private complaint against her husband and his paternal family members before the Addl. Judicial Magistrate of First Class, Tenali and the police laid charge sheet against the respondent alone and ultimately the respondent was acquitted. It is also brought in evidence that in the year 2003 she filed a case against the respondent for restitution of conjugal rights in O.P.No.200 of 2003 and it was dismissed on merits. It is also brought in evidence that when the husband filed a petition for divorce before the III Additional District Judge at Guntur, it was also dismissed on merits. The dismissal of earlier litigations filed by the parties cannot be a ground to deny the maintenance, if she is otherwise entitled to the maintenance upon establishing the essential ingredients of 13 Section 125 of Cr.P.C. To prove the allegations of neglect made by the husband to maintain the wife one need not prove the allegations either pertaining to a criminal case under Section 498A of IPC or bundle allegation that were canvassed in other litigation. So, the Court has to confine itself to decide as to whether petitioner in the maintenance case has no sufficient means to maintain herself and the respondent in the maintenance case neglected to maintain her in spite of having sufficient means.
17) To succeed in the same, the petitioner examined herself as PW.1 and got examined her father as PW.2. Similarly, the respondent himself examined as RW.1 and got examined RW.2. The evidence of PW.1 and PW.2 means that several efforts were made by the father of the PW.1 to settle the issue, but in vain. PW.1 is gone to the extent of deposing in chief examination that in the year 1999 after she was driven out from the house, the respondent did not visit Dondapadu till 15.05.2000. In the month of June, 2000 she received a letter from the office of her husband, that actually her husband was granted leave in the month of December, 1999. She caused enquiry about the arrival of her husband and came to know that 14 her husband visited Dondapadu in the month of December, 1999 itself and his visit was not brought to her notice. As regards so called addressing of letters by the petitioner to the respondent, the contention of the respondent is that she used to address letters to his higher officials with baseless allegations. The petitioner cannot be found fault for addressing letters to the higher officials of the respondent to come on leave for the purpose of settlement or otherwise. Anyhow, the respondent did not bring in evidence the contents of the said letters so as to show that how they effected his reputation or otherwise. When PW.1 specifically deposed in the chief examination that she received a letter from the superiors of the respondent that the respondent was granted leave in December, 1999, no contra version was suggested during the course of cross examination. So, there is no dispute that when the respondent visited his village, he did not choose to pay a visit to the house of the petitioner. Here is a case that the testimony of PW.1 was supported by the evidence of PW.2. On the other hand, the evidence of RW.1 is self-serving and it has no corroboration at all. In a case of this nature, the preponderance of probabilities that are to be taken into consideration to adjudicate the issue. 15
18) It is crucial to note that the petitioner got marked Ex.P.1 to Ex.P.3. The contents of Ex.P.1 are attributing neglect against the respondent and with request to join with the petitioner, otherwise, the petitioner would be constrained to institute proceedings for restitution of conjugal rights. In Ex.P.2-reply the respondent did not put forth any proposal to join with the petitioner or requesting the petitioner to join with him. On the other hand, he was ready for giving divorce. Needless to point out here that the prayer of the respondent to grant divorce in O.P.No.86 of 2002 was denied as the same was dismissed on merits. Having regard to the above, I am of the considered view that the petitioner before the trial Court was able to prove that the respondent neglected to maintain her and the evidence on record squarely proves that the respondent did not take any care for any reconciliation or re-union. On the other hand, he was ready to give divorce to the petitioner.
19) Coming to the contention of the petitioner that she had no means to maintain herself, the said contention was flatly denied by the respondent and the respondent examined RW.2 to prove that the petitioner was working and she was drawing considerable salary. In this regard, he got marked Ex.B.1 to 16 Ex.B.10. Admittedly, even according to the petitioner, she studied M.Sc. She was working as Lecturer in Montessori College, Vijayawada at the time of marriage and according to her, she left the job and joined the respondent at Digboi. It is the case where the petitioner instituted the maintenance case before the Family Court-cum-IV Additional District & Sessions Judge, Vijayawada, in the year 2004. Subsequent to the filing of the said case, she appears to have joined in St. Andrews College of Education, Vijayawada. So, the respondent examined the Principal of St. Andrews College of Education, Vijayawada as RW.2 and through him Ex.B.1-Acquitence Register from 14.12.2007 to 08.04.2008 and the relevant entry in serial No.8 pertaining to December, 2007 (Ex.B.2) and entry in January, 2008 (Ex.B.3), Ex.B.4 entry at serial No.7 relating to February, 2008 and entry in Ex.B.5 from 14.12.2007 to 20.03.2008, were brought in evidence. Further, Ex.B.6 to Ex.B.9, the relevant entries were also brought in evidence. According to Ex.B.10, the appointment of the petitioner was only temporary. So, the fact that in the year 2007 or 2008, the petitioner was working on temporary basis was proved by the respondent. Apart from this, the entries in the acquaintance register shows that she 17 attended the college from December, 2007 to middle of February, 2008 and she received a salary in the month of December, 2007 and in the month of January, 2008 @ Rs.8,500/- per month. It is interesting to note that the date of examination of RW.2 before the trial Court was on 08.04.2008, but, the respondent was able to prove that only pertaining to two months the petitioner drew the salary @ Rs.8,500/- each.
20) On the other hand, the petitioner before the trial Court was able to place the necessary material to show that at the time of marriage, the respondent was drawing salary of Rs.20,000/- per month. According to the salary particulars relating to March, 2010, the respondent was drawing salary of Rs.1,16,624/- per month and the pay slip for the month of March, 2010 was relating to other allowances to a tune of Rs.29,054/- and his net salary was Rs.75,520/-. This finding of fact recorded by the trial Court is not under challenge in the Criminal Revision Case No.1947 of 2010. On the other hand, the grounds pertaining to Criminal Revision Case No.1947 of 2010 are totally different, which will be dealt with hereinafter. The Revision Petitioner in Criminal Revision Case No.1947 of 2010 found fault with the order of the Family Court-cum-IV 18 Additional District & Sessions Judge, Vijayawada, by contending that the learned Judge ought not to have allowed the petition from the date of application. Such a contention is not tenable as under Section 125 of Cr.P.C., the order can be made either from the date of application or from the date of order and the learned judge exercised the discretion to grant the maintenance from the date of application. So, the contention of the respondent in the maintenance case was to deny the case of the petitioner on the ground that she was working as Lecturer and drawing salary of Rs.8,500/- per month, but the respondent failed to show any consistent income to the petitioner from the date on which the petitioner and the respondent were residing separately.
21) At this juncture, it is pertinent to look into the decision cited by the learned counsel for the petitioner in Criminal Revision case No.38 of 2011. In Chaturbhuj case (1 supra), the Hon‟ble Supreme Court held that the expression "unable to maintain herself" in Section 125 of Cr.P.C. does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 of Cr.P.C. It is a case where the appellant, who filed the appeal before the Hon‟ble Supreme Court, placed some material to show that his wife was 19 earning some income. The Hon‟ble Supreme Court held that, that is not sufficient to rule out application of Section 125 of Cr.P.C. and the appellant had to prove that with that amount, the wife was able to maintain herself. So, it is clear that the expression "unable to maintain herself" does not mean that wife must be absolutely destitute before she can apply for maintenance under Section 125 of Cr.P.C. So, in the light of the above, the contention of the respondent in the maintenance case that the petitioner was having sufficient income, as such, she was not entitled for maintenance cannot be countenanced.
22) To appreciate the above said contention, it is further necessary to look into the fact that according to RW.1, he was able to employ to maid servants for his comfort in his house. His net income was around Rs.75,000/-. The Hon‟ble Supreme Court in the above said decision also held that where the personal income of the wife is insufficient, she can claim maintenance under Section 125 of Cr.P.C. and to decide the same, the test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. So, it is clear that if the petitioner and respondent were at one place residing together, the petitioner would have been in 20 comfort zone because the respondent was getting net income of Rs.75,000/- and he was having the facility of employing to domestic servants to assist him, etc. So, this comfort zone admittedly is not available to the petitioner now. Needless to point out here that the evidence on record proves the fact that the respondent in the maintenance case neglected to maintain the petitioner. Considering the same, this Court is of the considered view that the contention of the respondent in the maintenance case, who is the Revision Petitioner in Criminal Revision Case No.1947 of 2010, to defeat the claim of the petitioner, cannot be countenanced.
23) Now coming to the contention of the petitioner in Criminal Revision Case No.38 of 2011, her contention is that the learned Family Court-cum-IV Additional District & Sessions Judge, Vijayawada ought to have granted maintenance of Rs.20,000/- per month because the respondent was earning an income of Rs.75,000/-. In my considered view, the learned Family Court-cum-IV Additional District & Sessions Judge, Vijayawada, having pointed out that the entries in the relevant registers to show the salary received by the petitioner was only two months and looking into the fact that further there was no 21 proof to show that the petitioner was drawing such an income right from the beginning, ought to have considered to grant more maintenance to the petitioner looking into the salary particulars of the respondent. But the learned Family Court- cum-IV Additional District & Sessions Judge, Vijayawada, could be able to grant only maintenance of Rs.10,000/- per month as against the prayer of the petitioner to award a sum of Rs.20,000/-. It is a case that the respondent was drawing net salary of around Rs.75,000/- per month. The finding of fact recorded by the trial Court is not in dispute now. Having regard to the above, I am of the considered view that the ends of justice will met, if the maintenance amount is modified to Rs.15,000/- per month from Rs.10,000/- per month and in my considered view the learned Family Court-cum-IV Additional District & Sessions Judge, Vijayawada, did not award the quantum of maintenance properly.
24) In the light of above reasons, I hold that the petitioner in the maintenance case before the trial Court is able to prove that the respondent neglected to maintain her in spite of the fact that he has sufficient means to maintain her and that she is unable to maintain herself. I further hold that the 22 contention of the Revision Petitioner in Criminal Revision Case No.1497 of 2010 to defeat the claim of the petitioner is not at all tenable and further the Revision Petitioner in Criminal Revision Case No.38 of 2011 is entitled to maintenance to that of Rs.15,000/- per month as against Rs.10,000/- per month.
24) All these points answered accordingly.
25) In the result, the Criminal Revision Case No.1947 of 2010 is dismissed and the Criminal Revision Case No.38 of 2011 is allowed in part modifying the order, dated 06.09.2010 in M.C.No.178 of 2004 by the learned Family Court-cum-IV Additional District & Sessions Judge, Vijayawada, by granting maintenance of Rs.15,000/- (Rupees fifteen thousand only) per month from the date of petition instead of Rs.10,000/- granted by the learned Family Court-cum-IV Additional District & Sessions Judge, Vijayawada and the rest of the order in M.C.No.178 of 2004 shall stands confirmed.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt.20.10.2022.
PGR 23 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU CRIMINAL REVISION CASE NO.1947 OF 2010 & CRIMINAL REVISION CASE NO.38 OF 2011 Date: 20.10.2022 PGR