Andhra Pradesh High Court - Amravati

Devarinti Venkatramana, ... vs P.P., Hyd Ano on 15 June, 2022

   THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

             CRIMINAL PETITION No. 12933 of 2016


ORDER:-

        This Criminal Petition, under Section 482 of the Code of

Criminal Procedure, 1973 (for short, 'CrPC'), is filed seeking to

quash the Order dated 22.01.2016 passed in Criminal

Revision Petition No.72 of 2015 by the learned II Additional

District and Sessions Judge, Chittoor at Madanapalle,

whereby the learned Sessions Judge set aside the order dated

30.09.2015 passed by the learned II Additional Judicial

Magistrate of First Class, Madanapalle in M.C. No.14 of 2007

and granted maintenance @ Rs.2,500/- per month to 2nd

respondent herein from the date of filing of the Maintenance

Case.

2. Brief facts of the case are as follows:

Petitioner herein is husband of 2nd respondent herein.

Their marriage took place in the year 1990. They have no

children. Petitioner herein addicted to vices and started

harassing 2nd respondent herein by demanding amount

towards additional dowry and also demanded her to accept

for his second marriage. Mediations took place between

them, but in vain. Thereafter, 2nd respondent herein, unable

to bear the harassment, resorted to file Maintenance Case

No.7 of 1994 and the same was dismissed. She carried the

matter in revision and the said revision also was dismissed by

the learned Sessions Judge. It is categorically stated by the

2nd respondent in the present Maintenance Case that no

amount has been received from the petitioner herein. The

petitioner herein married one Eswaramma and they are

having children and are residing together. The petitioner

herein has landed property and sufficient income and 2nd

respondent herein is unable to maintain herself. Hence, she

filed the present Maintenance Case seeking maintenance of

Rs.3,250/- per month from the date of the petition.

3. The learned Magistrate, vide order dated

30.09.2015, dismissed the Maintenance Case holding that 2nd

respondent herein is not entitled for any maintenance. 2nd

respondent herein filed Criminal Revision Petition No.72 of

2015 before the learned Sessions Judge against the order

passed by the learned Magistrate, and the revision was

allowed by the learned Sessions Judge, granting maintenance

@ Rs.2,500/- per month to 2nd respondent herein from the

date of filing the maintenance case.

4. Heard the learned counsel for the petitioner and

the learned counsel for 2nd respondent.

5. This Court perused the record. Relationship

between petitioner herein and 2nd respondent herein is not in

dispute. Petitioner herein deposed as R.W.1 that 2nd

respondent herein agreed for settlement of the matter for

Rs.12,500/- and he had given the said amount to the 2nd

respondent towards full settlement of maintenance.

Admittedly, no proof is filed by the petitioner herein in

support of his contention. R.W.1 also deposed that he paid

Rs.30,000/- to 2nd respondent herein towards divorce. But,

no document is filed to substantiate the same. Further, a

perusal of the records shows that the contentions of

petitioner herein with regard to settlement of maintenance or

divorce have no sanctity, as he lived with 2nd respondent even

after that, as per his own version. No documents have been

filed by the petitioner herein to show that he paid alimony to

2nd respondent herein. It is evident, on a perusal of the

record, that 2nd respondent is unable to maintain herself.

This Court feels that there is change in circumstances which

enables the petitioner to take of his wife as she is not able to

maintain herself.

6. It is borne on the face of the record that the

petitioner herein has been informing orally that he paid

amounts to 2nd respondent herein. Oral evidence cannot take

the place of legal proof. Even assuming for a moment that

the petitioner herein paid the amount of Rs.12,500/- to 2nd

respondent for settlement of the issue, by any stretch of

imagination, the said amount would not be sufficient for any

person to eke out her maintenance and the said amount is

not reasonable also.

7. It is borne on the face of the record that the

petitioner herein married one Eswaramma and out of the

second wedlock, a child by name Lavakumar was born. As

per Exs.P10 to P12, it is evident that petitioner herein is

husband of one Eswaramma. 2nd respondent herein is

categorically submitting that no amounts have been paid and

the petitioner herein has not filed any proof to fortify his

contention as to the payment of the amount. It is also

evident that the petitioner herein has also not filed any proof

to show that 2nd respondent herein is having means and

capacity to maintain herself. After marrying the said

Eswaramma, the petitioner herein deserted 2nd respondent

herein and she is not in a position to maintain herself.

8. Learned counsel for the petitioner herein relied on

a decision in Samta Naidu and another v. State of Madhya

Pradesh and another1, and strenuously contended that the

present M.C. No.14 of 2007 would amount a second

complaint and when the first complaint filed by 2nd

respondent herein has been dismissed, the question of

maintaining the second complaint would not arise. He has

taken this Court to several paragraphs of the said judgment

and submitted that in view of the said judgment, the Criminal

Petition has to be allowed in limini.

9. Learned counsel for 2nd respondent relied on a

judgment of the Hon'ble Supreme Court dated 19.09.2019 in

Criminal Appeal Nos.232-233 of 2015 in Dr. Swapan Kumar

(2020) 5 SCC 378

Banerjee v. State of West Bengal2. According to the said

judgment, it is borne that under sub-section (1) of Section

125 CrPC inter alia states that if any person, having sufficient

means, neglects or refuses to maintain his wife unable to

maintain herself, on proof of such neglect or refusal, monthly

allowance for the maintenance of the wife has to be granted.

10. Learned counsel for 2nd respondent herein also

relied on a decision in Mahua Biswas (Smt.) v. Swagata

Biswas and another3, wherein it is held thus: (paragraph 3).

"The matter can be viewed from either angle. It can be viewed that there was a genuine effort by the wife to rehabilitate herself in her matrimonial home but in vain. The previous orders of maintenance in a manner of speaking could at best be taken to have been suspended but not wiped out altogether. The other view can be that the maintenance order stood exhausted and thus she be left to fight a new litigation on a fresh cause of action. Out of the two courses, we would prefer to adopt the first one, for if we were to resort to the second option, it would lead to injustice. In a given case the wife may then be reluctant to settle with her husband lest she lose the order of maintenance secured on his neglect or refusal. Her husband on the other side, would jump to impromptu devices to demolish the maintenance order in duping the wife to a temporary reconciliation. Thus, in order to do complete justice between the parties, we would in the facts and circumstances activate the wife's claim to maintenance and put her

2019 AIR (SC) 4748

(1998) 2 SCC 359

in the same position as before. Evidently, she has obtained a maintenance order at a figure which was taken into account by the Court of the C.J.M. Taking that into account, we order the husband to pay to his wife and the daughter a sum of Rs 1000 each, effective from 1-10-1997. The sum of Rs 12,000 which was earlier ordered by this Court to be paid to the wife and her daughter as arrears of maintenance shall be taken to have been duly paid uptil 30-9-1997, irrespective of the rate of maintenance. This streamlines the dispute between the parties. It is made clear that it is open to the parties to claim such other relief as may be due to him/her by raising a matrimonial dispute before the matrimonial court."

He also relied on a decision of the High Court of

Bombay in Sou.Janabai v. Krishna Ravba Rithe 4 and

contended that under changed facts and circumstances, 2 nd

respondent herein is entitled for maintenance.

11. It is also pertinent to refer to a decision of the

Hon'ble Apex Court in Sanjeev Kapoor v. Chandana Kapoor &

others5, wherein the Hon'ble Apex Court categorically

mentioned that with regard to the order passed under Section

125 (1) CrPC, Magistrate may have to extend his jurisdiction

from time to time. Use of expression 'from time to time' is in

exercise of jurisdiction of the Magistrate in a particular case.

Definition of the expression 'time to time' is 'as occasion