Karnataka High Court
Adiveppa S/O Ulavappa Totager vs Smt. Ningavva W/O Adiveppa ... on 7 April, 2022
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 07 t h DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
R.P.F.C. NO.100025/2021
BETWEEN
ADIVEPPA ,
S/O ULAVAPPA TOTAGER
AGED ABOUT 60 YEARS,
OCC. A GRICULTURE,
R/O KAMALA PUR,
NARAYANPUR, DHARWAD.
...PETITIONER
(BY SRI. SHIVASA I M.PATIL, ADV.)
AND
SMT. NINGAVVA ,
W/O ADIVEPPA TOTAGER,
AGE 47 YEARS ,
OCC HOUSEHOLD WORK,
R/O HAROBELAVA DI,
TQ AND DIST . DHARWAD.
...RESPONDENT
(BY SRI. VADIRAJ P.VADAVI , ADV .)
THIS RPFC IS FILED UNDER SECTI ON 19( 4) OF THE
FAMILY COURT ACT, 1984, AGAIN ST THE JUDGMENT AND
ORDER DATED 22.04.2019, IN CRL.MISC. NO.174/ 2018, ON
THE FILE OF T HE PRINCI PAL J UDGE, FAMILY COURT ,
DHARWAD, PART LY ALLOWING THE PETITION FILED UNDER
SEC.125( 1) OF CR.P.C.
THIS RPFC COMING ON FOR ADMISSION THIS DAY,
THE COURT , MADE THE F OLLOWING:
2
ORDER
Challenging order dated 22.04.2019 passed by
Principal Judge, Family Court, Dharwad, in
Cri.Misc.No.174/2018, awarding monthly maintenance of
Rs.3,000/- to his wife, this revision petition is filed by
husband.
2. For sake of convenience, henceforth petitioner
and respondent herein would be referred as 'husband' and
'wife' respectively.
3. Brief facts as stated are that, parties hereto got
married on 01.06.1990 at Dharwad as per Hindu customs.
From their wedlock daughter Shivaleela was born, who at
present is married. After marriage, husband and wife lived
together at matrimonial home for sometime. Due to
harassment and ill- treatment meted out by husband, wife
was compelled to leave matrimonial home.
4. She filed an application under Section 125 of
Criminal Procedure Code, for maintenance alleging that
since delivery of female child, husband did not take her
back to the matrimonial house and not seen his daughter.
Thereafter he had come to contact with one Rudramma and
begot children and for last more than 20 years, he stopped
taking care of the family. She also stated that husband was
having agricultural income of Rs.3 lakhs to 4 lakhs per
annum and now she is aged, unable to do any work.
Despite having sufficient means, husband neglect to
provide maintenance. Hence she sought for maintenance of
Rs.15,000/- per month from husband.
5. On service of notice, husband entered
appearance and filed objections. It was contended that he
was not getting sufficient income from agriculture. He also
stated that his wife had already filed partition suit against
him through her daughter. He further contended that he
had married one Rudramma through whom he got two
children. He also stated that wife had not claimed any
maintenance for all these years as she was financially
capable to maintain herself and hence he sought dismissal
of petition.
6. On consideration, Family Court awarded monthly
maintenance of Rs.3,000/- to wife. Aggrieved by the same,
husband is before this Court.
7. Sri Shivasai M.Patil, learned counsel for husband
submitted that Family Court grossly failed to appreciate
evidence in right perspective. The husband had contended
that he has no sufficient source of income and due to ill
health he is not able to maintain himself and his parents.
He also submitted that husband was suffering from mental
problems and was unable to effectively defend before trial
Court. Therefore Family Court was not justified in awarding
Rs.3,000/- per month as maintenance and same was
exorbitant.
8. On the other hand, Shri Vadiraj P. Vadani
learned counsel for respondent submitted that husband was
duly served and had also engaged counsel to contest
matter before Family Court. He was afforded sufficient
opportunity as he deliberately failed to contest the matter,
he was now making lame excuse of mental illness. Learned
counsel submitted that no records were produced to
substantiate contentions even in this petition. It was further
contended that Rs.3,000/- p.m was bare minimum for
survival and there was no sufficient ground for interference.
9. Heard learned counsel and perused material
available on record.
10. The only point that would arise for consideration
in this petition is:
"Whether impugned order of Family Court
warranting interference by this Court?"
11. From above, it seen that though relationship was
disputed, contentions urged indicate that marriage is
admitted. In any case in a petition under Section 125 of
Criminal Procedure Code, wherein summary procedure
would be involved, validity of marriage cannot be decided.
The Hon'ble Supreme Court in the case of Dwarika Prasad
Satpathy v. Bidyut Prava Dixit, reported in (1999) 7
SCC 675 held as under:
"6........ In our view, validity of the marriage for
the purpose of summary proceedings under Section 125
Cr.P.C. is to be determined on the basis of the evidence
brought on record by the parties. The standard of proof
of marriage in such proceedings is not as strict as is
required in a trial of offence under Section 494 IPC. If
the claimant in proceedings under Section 125 of the
Code succeeds in showing that she and the respondent
have lived together as husband and wife, the court can
presume that they are legally wedded spouses, and in
such a situation, the party who denies the marital
status can rebut the presumption..........
13........Either of the parties aggrieved by the
order of maintenance under Section 125 Cr.P.C. can
approach the civil court for declaration of status as the
order passed under Section 125 does not finally
determine the rights and obligations of the parties."
Insofar as quantum of maintenance, wife pleaded
that husband had not taken her back to matrimonial home
after delivery of female child. She also pleaded that
husband possessed sufficient means to provide monthly
maintenance as he was earning agricultural income of Rs.3
lakhs to 4 lakhs per annum. She also stated that now she is
aged, unable to do any work and without source of any
income. She also produced wedding invitation card, EPIC
card, Aadhaar card and also deposition in O.S.No.52/2013
wherein he admitted relationship.
12. On the other hand, husband denied marital
status with his wife and he denied earning sufficient income
as alleged. He admitted that he has married one Rudramma
and got two children. He further stated that wife had not
claimed any maintenance for all these years; she is
financially capable to maintain herself. But no evidence is
led in this regard.
13. From above admitted facts, it is clear that
husband and wife are residing separately. As regard to
marital status between parties Exs.P1 to Ex.P3, prima-facie
shows that parties are legally wedded and Rudramma is
second wife. After birth of girl child, he left his first wife in
her parental house for last 20 years and thereafter
contracted second marriage during subsistence of his first
marriage. Hence there is willful negligence and refusal of
husband to maintain wife.
14. The only remaining aspect would be quantum of
maintenance. In this case husband has admitted that he
owns agricultural land. But he did not produce any
documents and examined witnesses to establish his income
or regarding his mental illness. Assertion of wife of
agricultural income of Rs.3 lakhs to 4 lakhs is not
established. As husband has failed to prove that he is
providing maintenance to his wife or to establish that she
has sufficient means to maintain herself, he cannot escape
from paying maintenance under provisions of Section 125
of Code of Criminal Procedure.
15. In the impugned order, Family Court has
awarded a meager amount of Rs.3,000/- per month which
considering present day cost of living cannot be stated to
be excessive. Therefore, neither of the grounds urged are
meritorious. I do not find any reason to interfere with
reasoned order passed by Family Court.
16. In the result, I pass the following:
ORDER
Petition is dismissed.
In view of dismissal of petition,
I.A.no.2/2022 is also dismissed.
SD/-
JUDGE
Bvk
