Jangalapalli Krishnaiah vs Jangalapalli Rajeswari 2 Others
2023 Latest Caselaw 2076 AP

           HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

           CRIMINAL REVISION CASE No.655 OF 2009

ORDER:

This Criminal Revision Case, under Sections 397 and 401 of

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

filed by the petitioner, who was the respondent (husband) in

Maintenance Case No.2 of 2006, on the file of the Court of Judicial

Magistrate of First Class, Vayalpad, Chittoor District (for short,

'the learned Magistrate'), challenging the order in Criminal

Revision Petition No.58 of 2008, dated 18.02.2009, where under

the learned II Additional District and Sessions Judge, Chittoor at

Madanapalle (For short, 'the learned Additional Sessions Judge)

disposed of Criminal Revision Petition No.58 of 2008 as well as the

Criminal Revision Case No.65 of 2008 setting-aside the order of

the learned Magistrate insofar as the 1st petitioner in Maintenance

Case No.2 of 2006 is concerned, thereby granted maintenance of

Rs.1,000/- p.m. to the first petitioner in M.C. No.2 of 2006, who

was the first revision petitioner in Criminal Revision Petition No.58

of 2008.

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2. The parties to this Criminal Revision Case will hereinafter be

referred to as arrayed before the trial Court, for the sake of

convenience.

3. The Maintenance Case No.2 of 2006 was filed by three

petitioners viz., 1) Jangalapalli Rajeswari, wife of Krishnaiah, 2)

Jangalapalli Naresh Kumar, son of Krishnaiah, aged about 5 years

and 3) Jangalapalli Gowtham Kumar, son of Krishnaiah aged

about 3 years, seeking maintenance under Section 125 Cr.P.C.

against Jangalapalli Krishnaiah. Their case, in brief, before the

learned Magistrate is as follows:

First petitioner is the legally wedded wife of the respondent.

Their marriage was performed on 29.08.1999 as per Hindu rites

and customs. Necessary dowry and launchanams were given at the

time of marriage. During their wedlock, first petitioner gave birth

to two male children namely Naresh Kumar and Gowtham Kumar

i.e., petitioners 2 and 3. The respondent used to harass the first

petitioner stating that he would have got dowry of Rs.1,00,000/- if

he marries another woman. He used to insist the first petitioner to

bring additional amounts. The parents of the respondent used to

support his cause. First petitioner expressed her inability to pay

additional amounts. Respondent ill-treated first petitioner and

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beat her. However, the first petitioner stayed there with great

patience. As she was unable to bear the torture, she approached

her mother in October, 2003 and intimated about the harassment.

Her mother borrowed Rs.10,000/- and gave the amount to the

first petitioner. The first petitioner in turn gave the said amount to

the respondent. After 15 days again he demanded the first

petitioner to bring the balance of Rs.40,000/- for which she

replied that her mother had no capacity. On 20.12.2005, the

respondent, his brothers and mother beat the first petitioner

brutally and necked out her. As she had no other go, she came to

her parents' house along with other petitioners. Her mother

approached the respondent and requested him to take back the

petitioners but he did not agree to take back them. Petitioners 2

and 3 are minors and they are under care and protection of their

mother i.e., the first petitioner. Respondent voluntarily deserted

the first petitioner and petitioners 2 and 3 for no fault. They are

unable to maintain themselves. Respondent has Ac.4.00 cents of

dry land and Ac.2.00 cents of wet land and used to get annual

income of Rs.70,000/-. He is doing pearl business and is getting

Rs.1,00,000/- per annum. The first petitioner requires Rs.1,200/-

p.m. for her maintenance and petitioners 2 and 3 requires

Rs.700/- p.m. each for their maintenance. Hence, the Petition.

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4. Respondent before the Court below got filed a counter

denying the averments in the Petition and resisting their prayer

and his contention in substance is that after the marriage

respondent and first petitioner put up separate family at

Kothapalle i.e., at the respondents house, Kalikiri Mandal and

lived there for one year. During the said period, first petitioner

gave birth to one male child namely Pavan Kishore but the first

petitioner changed his name as Naresh Kumar. After first issue,

the first petitioner left the respondent's house along with child and

gold jewels of 80 Grams and a sum of Rs.10,000/-, when the

respondent was not in the house. After first issue, respondent and

first petitioner never lived as wife and husband. So, for the second

child, respondent has no knowledge. On 02.04.2003, registered

legal notice was issued to the first petitioner for which she did not

give any reply. He never ill-treated the petitioner. Petitioner

invented false allegations in this regard. He never beat the

petitioner. After marriage, first petitioner developed indifferent

attitude towards the respondent. Respondent learnt that the first

petitioner was under aged and mentally not sound. She used to

harass the respondent and insist the respondent to sell away his

entire properties. Respondent refused to do so. Hence, the first

petitioner developed enmity with the respondent. The income

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attributed against the respondent is denied. On the other hand,

the respondent has no capacity to maintain the petitioners. First

petitioner is DWCRA (Development of Women and Children in

Rural Areas) group leader and she is getting income of

Rs.24,000/- p.a.. She has landed properties of Ac.5.00 cents of

dry land and Ac.3.00 cents of wet land and she used to get an

income of Rs.1,50,000/- p.m. Hence, the petition is liable to be

dismissed.

5. Before the learned Magistrate, on behalf of the petitioners,

first petitioner herself was examined as PW.1 and got marked

Ex.P-1. On behalf of the respondent, respondent himself was

examined as RW.1 and got marked Ex.R-1.

6. The learned Magistrate, Vayalpad on hearing both sides and

on considering the oral and documentary evidence on record,

dismissed the Maintenance Case insofar as the first petitioner is

concerned but allowed the same insofar as petitioners 2 and 3 are

concerned awarding monthly maintenance of Rs.700/- each to the

petitioners 2 and 3.

7. Felt aggrieved of the same, the unsuccessful first petitioner

filed Criminal Revision Petition No.58 of 2008 before the learned

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Additional Sessions Judge, Chittoor at Madanapalle challenging

the dismissal order insofar as her claim is concerned. The

unsuccessful respondent insofar as the claim of the petitioners 2

and 3 is concerned, filed Criminal Revision petition No.65 of 2008

questioning the judgment of the learned Magistrate in awarding

monthly maintenance of Rs.700/- each to the petitioners 2 and 3.

8. The learned Additional Sessions Judge, Chittoor at

Madanapalle by virtue of the common order, dated 18.02.2009,

allowed the Criminal Revision Petition No.58 of 2009 setting aside

the order of the learned Magistrate thereby awarded a sum of

Rs.1,000/- p.m. to the first petitioner payable by the respondent

and further modified the order of maintenance insofar as the

petitioners 2 and 3 is concerned as that of Rs.500/- p.m. each

instead of Rs.700/- p.m. each to the petitioners 2 and 3. So, felt

aggrieved of the order in Criminal Revision Petition No.58 of 2009,

the unsuccessful respondent therein filed the present Criminal

Revision Case.

9. The present Criminal Revision Case is filed challenging the

order in Criminal Revision Petition No.58 of 2008 only and the

order in Criminal Revision Petition No.65 of 2008 is not at all

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under challenge as evident from the grounds of Criminal Revision

Case.

10. So, now in deciding this Criminal Revision Case, the point

that arises for consideration is whether the order, dated

18.02.2009, in Criminal Revision Petition No.58 of 2008 on the file

of the Court of II Additional Sessions Judge, Chittoor at

Madanapalle in awarding maintenance of Rs.1,000/- to the first

petitioner in M.C. No.2 of 2006 suffers with any illegality,

irregularity and impropriety and whether there are any grounds to

interfere with the impugned order?

11. POINT: Sri V. Surender Reddy, learned counsel appearing

for the revision petitioner, would contend that the learned

Additional Sessions Judge, with erroneous reasons un-necessarily

set-aside the well reasoned order in M.C. No.2 of 2006 on the file

of the Court of Judicial Magistrate of First Class, Vayalpad and

thereby granted maintenance to the first respondent in this

Criminal Revision Case without proper reasons. PW.1 admitted in

M.C. No.2 of 2006 regarding her private employment and monthly

remuneration etc., and when that is the situation awarding

maintenance in her favour in Criminal Revision Petition No.58 of

2008 is without jurisdiction. The Revisional Court, without proper

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analyzation of the evidence, gave un-necessary findings so as to

entitle the wife to get maintenance. PW.1 did not explain as to why

she did not file the Maintenance Case till the year 2006, when she

was residing separately right from the year 2003. She did not

prove the income attributed against the respondent. The learned

Additional Sessions Judge has no power to modify the order of

maintenance to the children without proper evidence. The learned

Additional Sessions Judge could not answer the important issue of

paternity of the second child i.e., third petitioner, as the

respondent denied that the third petitioner was born due to their

wedlock. At any rate, the order of maintenance granted in favour

of the first respondent in this Criminal Revision Case cannot stand

to any reason as such the impugned order is liable to be set-aside.

12. As evident from the proceedings sheet, no arguments are

advanced on behalf of the respondents 1 to 3 and respondent 4 is

only a formal party.

13. There is no dispute about the marriage between the first

petitioner with the respondent in the Maintenance Case and there

is no further dispute from the part of the respondent that second

petitioner was born to him and the first petitioner during their

wedlock. Insofar as the third petitioner is concerned i.e., the

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second son, the contention of the respondent is that after she gave

birth to the second petitioner, on one fine day, first petitioner left

to her matrimonial house along with gold jewels and cash, without

his knowledge and after that she did not come back as such there

was no conjugal relationship between him and the first petitioner

as such he had no knowledge that the third petitioner was born

out of their wedlock.

14. Admittedly, before the Court below, the first petitioner

examined herself as PW.1 and got marked Ex.P-1, birth certificate

of third petitioner. Similarly, the respondent himself was examined

as RW.1 and got marked Ex.R-1, copy of legal notice. The crucial

contention of the first petitioner before the Court below is that

after she gave birth to second son i.e., third petitioner, respondent

subjected her to dowry harassment etc., and she was driven out in

the month of October, 2003. Later, the mother of the first

petitioner borrowed Rs.10,000/- and gave the same to her. In

turn, she gave the said amount to respondent. It is her further

allegation that later on 20.12.2005, she was driven out. So, the

case of the first petitioner before the Court below is that she was

necked out from the house on 20.12.2005 and by then petitioners

2 and 3 were born to her and the respondent due to their wedlock.

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On the other hand, the contention of the respondent is that after

she gave birth to second petitioner, she deserted him.

15. During the course of cross-examination of PW.1, she denied

the case of the respondent and during the course of cross-

examination of RW.1 he denied the case of the first petitioner.

16. Admittedly, a look at the order of the learned Magistrate in

M.C. No.2 of 2006 shows that the learned Magistrate did not

analyze the evidence in proper perspective. When a crucial

contention was raised by the respondent, disputing the fact that

the third petitioner was not born during their wedlock, no findings

were given by the learned Magistrate. On the other hand, just by

looking into the evidence of PW.1 and RW.1 and just by taking into

consideration the fact that the first petitioner did not give any

reply to Ex.R-1 notice, issued by the respondent, drawn an

adverse inference against the case of the first petitioner that she

voluntarily deserted the respondent and declined to grant

maintenance to the first petitioner. However, he granted

maintenance in favour of the petitioners 2 and 3 at the rate of

Rs.700/- p.m. and there were no findings, admittedly,

appreciating the case of the respondent that he disputed the fact

that he had no knowledge about the birth of the third petitioner

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through the first petitioner. It is this order which was challenged

before the learned Additional Sessions Judge by the petitioners in

the Maintenance Case in Criminal Revision Petition No.58 of 2008.

Further felt aggrieved of the order of maintenance granted against

the respondent, he filed Criminal Revision Petition No.65 of 2008,

which was disposed of by virtue of the common order which is

under challenge in this Revision.

17. Looking into the overall facts and circumstances, the first

aspect that has to be considered to decide the point for

determination is as to whether there was any justification for the

first petitioner to reside separately from the company of the

respondent. Both the first petitioner in the capacity of PW.1 and

the respondent in the capacity of RW.1 reiterated their allegations

before the Court below in their chief-examination. As seen from

Ex.P-1, it is the birth certificate of the third petitioner i.e., the

second child, which discloses that the second child was born to

the petitioner on 11.06.2003. There is no dispute that the first

child i.e., the second petitioner was born in the year 2001. So, the

whole contention of the respondent is that after giving birth to the

second petitioner, the first petitioner deserted his company and he

had no knowledge about the birth of the second child i.e., the third

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petitioner. Admittedly, as pointed out, the Court below on the

premise that the first petitioner did not give any reply to Ex.R-1

held that she has no justification to reside separately. Now a look

into Ex.R-1 reveals that it was issued by the respondent on

02.04.2003. The contents of Ex.R-1 are that about one month ago,

the petitioner had left to her parents house along with the child

without informing the respondent and by that time the respondent

was not in the house. So, if the contents of Ex.R-1 are interpreted

positively, it means that first petitioner must have left the house of

the respondent in and around 02.03.2003. There is no dispute

that by 02.03.2003 second child was not born. As pointed out in

Ex.P-1, second child was born to the first petitioner on

11.06.2003. So, it goes to prove that as on 02.03.2003, the first

petitioner must have been carrying pregnancy. So, the allegations

were that the first petitioner allegedly left the company of the

respondent in and around 02.03.2003. She gave birth to the child

on 11.06.2003. On the other hand, the counter of the respondent

means that just after giving birth to the second petitioner, first

petitioner left the company of the respondent in the year 2001. So,

admittedly, the contents of Ex.R-1 falsify the defence of the

respondent as pleaded in the counter. So, it is clear that the so

called allegations against the first petitioner, even according to

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Ex.R-1, is such that on 02.03.2003 first petitioner left the

company of the respondent by which time, she was carrying

pregnancy because she gave birth to the child on 11.06.2003. In

my considered view, the learned Additional Sessions Judge, rightly

disbelieved the case of the respondent with sound reasons in this

regard. So, it is clear that insofar as the paternity aspect of the

third petitioner is concerned, the learned Additional Sessions

Judge rightly dealt with the issue. There are no merits in the

grounds of Revision in this regard.

18. Even according to the counter, the respondent raised

baseless allegations against the first petitioner disputing the

paternity of the third petitioner without any proper reason. It is

not a case where the respondent named any person with whom

the first petitioner was having illicit intimacy. The findings of the

learned Additional Sessions Judge in this regard are tenable. So,

the contention of the first petitioner that in October, 2003, she

was driven out and later after obtaining Rs.10,000/- from her

mother, she joined the respondent and ultimately in December,

2005 she was driven out etc., are quietly proved by the first

petitioner by her evidence. On the other hand, the contents of the

counter of the respondent have no basis at all to dispute the

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paternity of the third petitioner. The learned Magistrate overlooked

all these aspects and erroneously dealt with the issue ignoring the

material on record and declined to grant maintenance to the first

petitioner. So, the first petitioner before the Court below

categorically proved her justification to remain with her parents.

So, the first petitioner proved the negligent act of the respondent

against her with consistent evidence.

19. It is to be noticed that the petitioner challenged the order in

Criminal Revision Petition No.58 of 2008 alone in this Criminal

Revision Case. Upon challenge of the order by the respondent in

Criminal Revision Petition No.58 of 2008, the learned Additional

Sessions Judge reduced the maintenance payable to the

petitioners 2 and 3 as that of Rs.500/- p.m. from that of Rs.700/-

p.m. When that is the case, the revision petitioner cannot contend

that revisional Court had no power to reduce the maintenance

granted to the children. In fact, it is the revision petitioner who

filed Criminal Revision Petition No.65 of 2008 before the Court

below and the learned Additional Sessions Judge accordingly

modified the order of maintenance insofar as petitioners 2 and 3 is

concerned to that of Rs.500/- p.m. from that of Rs.700/- p.m.

Without challenging the order in Criminal Revision Petition No.65

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of 2008, the petitioner cannot contend that the revisional Court

has no power to reduce the maintenance granted to the children.

20. With regard to the income of the respondent, the first

petitioner alleged that the respondent has landed property etc.

Even the respondent alleged that the first petitioner was doing

private employment and she has landed property. Both the first

petitioner and the respondent before the Court below did not

produce any documentary evidence to prove their properties.

However, the fact remained is that even according to the

respondent in the counter filed by him before the Court below,

first petitioner compelled him to dispose of his immovable property

etc. So, it means that the respondent has some properties. So,

even according to his admission, he had some properties. If that is

the situation, it is his bounden duty to explain the properties. So

he did not take any initiative to reveal the properties possessed by

him. Even otherwise, the respondent was able bodied person. First

petitioner is his legally wedded wife and the petitioners 2 and 3

were born out of their wedlock, according to the evidence available

on record. So, it is his bounden duty to provide maintenance to

the petitioners. He had attributed indirectly un-chastity to the first

petitioner by denying his paternity which he failed to establish as

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pointed out. So, it was a justifiable ground for the first petitioner

to reside separately. Even according to him, he had properties

which are evident from his counter. Having regard to the overall

facts and circumstances, this Court is of the considered view that

the amount of Rs.1,000/- p.m. granted to the first petitioner

payable by the respondent is reasonable in the facts and

circumstances because respondent is bound to maintain his wife

even by doing physical labour.

21. Having regard to the overall facts and circumstances, this

Court is of the considered view that the order, dated 18.02.2009,

in Criminal Revision Petition No.58 of 2008, on the file of the

Court of II Additional District and Sessions Judge, Chittoor at

Madanapalle does not suffer with any illegality, irregularity and

impropriety.

22. In the result, the Criminal Revision Case is dismissed. ]

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date: 19.04.2023 DSH