Gudivada Seshagiri Rao, vs Gudiavada Ashalatha,
2022 Latest Caselaw 8000 AP

                                     1



     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.

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

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

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

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

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

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

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.

POINTS 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

(2008)2 Supreme Court Cases 316

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,

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

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

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

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.

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

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

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

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

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

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

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

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

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