Andhra Pradesh High Court - Amravati

G Rajasekhar vs Karururangamvijayasree, on 12 February, 2021

Bench: Lalitha Kanneganti

     THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI

           CRIMINAL REVISION CASE No.999 of 2019

ORDER:-

      The Criminal Revision Case under Sections 397 and 401 of

the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') is filed by

the petitioner aggrieved by the order dated 28.06.2019 passed in

Crl.M.P.No.6 of 2019 in F.C.O.P.No.234 of 2018 by learned Judge,

Family Court- Cum- Additional District and Sessions Judge,

Ananthapur wherein the petition filed by respondent Nos.1 and 2

seeking interim maintenance was allowed.

2. The case of the petitioner is:

Respondent No.1/wife filed F.C.O.P.No.234 of 2018 under

Section 125 of Cr.P.C. seeking maintenance on the ground that her

marriage was performed with the petitioner/husband and at the

time of marriage her parents presented cash of Rs.2,60,000/- and

ten tulas of gold as dowry, after the marriage, petitioner and his

family started harassing respondent No.1 by demanding additional

dowry. The petitioner herein filed O.P.No.41 of 2017 on the file of

Senior Civil Judge, Penukonda for dissolution of marriage. As

respondent No.1 has no source of income she filed said

maintenance case.

3. Subsequently respondent No.1 filed Crl.M.P.No.6 of 2019

seeking interim maintenance submitting that the parents of

respondent No.1 are sick and are not in a position to give her

financial assistance.

4. The petitioner herein resisted the said application stating

that respondent No.1 is a highly educated person who had

completed M.Sc., B.Ed., and previously she worked in Narayana

College, Hyderabad. At the time of filing the petition wife was

working in a private college and getting Rs.25,000/- per month

whereas the husband was only apprentice in Ayurvedic Clinic and

was getting stipend and prayed for dismissal of the said petition.

5. The Court below after considering the submissions of both

sides has allowed the petition directing the petitioner herein to pay

an amount of Rs.7,000/- per month to respondent No.1 and

Rs.3,000/- to respondent No.2 towards interim maintenance on

the ground that the husband was unable to prove that respondent

No.1/wife is working as a Lecturer as such the petitioner cannot

shirk his responsibility from payment of interim maintenance.

Though it is observed that he was removed from service at B.R.D

Memorial Hospital w.e.f. 31.12.2018, the Court below opined that

the petitioner herein could not plead his inability irrespective of the

fact whether he is working or not, he has to maintain his wife and

daughter. Aggrieved by the said order the petitioner/husband is

before this Court.

6. Heard Sri K.Simhachalam, learned counsel for the petitioner

and Sri C.Sharan Reddy, learned counsel for respondent Nos.1

and 2 and learned Additional Public Prosecutor for respondent

No.3-state.

7. Learned counsel for the petitioner submits that the interim

maintenance granted by the Court below is beyond the capacity of

the petitioner as he was terminated from the service and the Court

below without considering the memo filed by the petitioner has

granted interim maintenance. Hence, learned counsel for the

petitioner prays to set aside the order impugned.

8. Learned counsel for respondent Nos.1 and 2 has filed written

arguments and submitted that the plea of petitioner's

unemployment cannot be a ground to absolve his responsibility of

maintaining his wife and daughter i.e. respondent Nos.1 and 2

since he is an able bodied and well educated person. The fact that

previously the petitioner worked as an Ayurvedic Doctor at BRD

Memorial Hospital, Kuppam is sufficient to come to the conclusion

that the petitioner is capable of securing gainful employment and

therefore his denial for payment of maintenance on the plea that

he lost his job on 31.12.2018 is not tenable one. The learned

counsel for respondent Nos.1 and 2 submits that the petitioner is

an able bodied person as such he has the responsibility to

maintain his wife.

9. In support of his contentions, learned counsel for respondent

Nos.1 and 2 places reliance on Shamima Farroqui vs. Shahid

Khan1 wherein the Hon'ble Supreme Court held as under:

"15. ... There can be no shadow of doubt that an order under Section 125 Cr.P.C. can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometime, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 of Cr.P.C. unless disqualified, is an absolute right."

10. In support of his contention that petitioner being an able

bodied person with good qualifications cannot escape his

obligation to maintain respondent Nos.1 and 2, he places reliance

on Rajnesh vs. Neha2 wherein the Hon'ble Supreme Court held as:

"66. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife

2015 (5) SCC 705

2020 (3) ALT (Crl) 464 (AP)

and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Prakash Bodhraj v. Shila Rani Chander Prakash3 the onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.

64. In sunita Kachwaha and Ors. v. Anil Kachwaha4 the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.

65. The Bombay High court in Sanjay Damodar Kale v. Kalyani Sanjay Kale while relying upon the judgment in Sunita Kachwaha (supra), held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meager, is sufficient to deny the claim of maintenance.

11. Learned counsel for respondent Nos.1 and 2 therefore

submits that viewed from any angle the petitioner cannot be

discharged from his obligation of maintaining respondent Nos.1

and 2. It is alleged by the petitioner that respondent No.1 is

working as lecturer in a private college but no document is filed in

support of the said contention whereas with regard to his

avocation he admitted that he previously worked as an Ayurvedic

Doctor at BRD Memorial Hospital, Kuppam and he did not dispute

the fact that he was earning Rs.35,000/- per month. It is

submitted that the petitioner failed to make out valid grounds

Manu/de/0028/1968:AIR 1968 Delhi 174

Manu/SC/0964/2014 : (2014) 16 SCC 715