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1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF DECEMBER 2012
BEFORE
THE HON’BLE MR.JUSTICE C.R. KUMARASWAMY
RPFC No. 100 OF 2011
BETWEEN:-
HARISH KUMAR N S/O NEKRAJE M YELLIANNA GOWDA AGED ABOUT 38 YEARS PERMANENT RESIDENT OF SHANMUKA KODINEERU HOUSE KAREMANE KATTE ROAD MONDOOR VILLAGE PUTTUR TALUK PRESENTLY RESIDING AT SITE NO.152 “SANJANA” 6TH CROSS ROAD OF 3RD MAIN ROAD DUO HIGHTS LAYOUT DEVARACHIKKANAHALLI BANGALORE-76 ...PETITIONER
(BY SRI. B.S. SACHIN, ADV., FOR DHARMASHREE ASSTS., ADVS.,)
AND:-
BHAVYA H.L. W/O HARISH KUMAR N AGED ABOUT 30 YEARS R/O AT “LALITHA VIHAR” KADRI TEMPLE ROAD KADRI, MANGALORE-575004 ...RESPONDENT (BY SRI. M.B. PRABHAKAR, ADVOCATE)
THIS R.P.F.C. IS FILED UNDER SECTION 19(4) OF THE FAMILY COURTS ACT, AGAINST THE JUDGMENT DATED:02.08.2011 PASSED IN CRL.M.C. NO. 115/2011 ON THE FILE OF THE JUDGE, FAMILY COURT, D.K. MANGALORE, PARTLY ALLOWING THE PETITION FILED UNDER SECTION 125 OF CR.P.C.
THIS R.P.F.C. COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
This RPFC is filed under Section 19(4) of the Family Courts Act against the judgment dated 02.08.2011 passed in Crl.Misc.No.115/2011 on the file of the Judge, Family Court, Dakshina Kannada, Mangalore, partly allowing the petition filed under Section 125 of Cr.P.C.
With the consent of the learned counsel for the revision petitioner as well as the learned counsel for the revision respondent, this matter was heard on merits. The material placed on record is sufficient to dispose of this matter at this stage.
Parties will be referred with reference to the status in the trial Court.
Sum and substance of the findings of the trial Court is as under:
The petitioner is legally wedded wife of the respondent and their marriage took place on 06.05.2007. The petitioner is B.A.M.S. degree holder working at Prashanth Hospital, Kapu, resigned as per the request of the respondent. The respondent is running Instrument Technology Systems at Bangalore. The respondent threatened her to give resignation, otherwise they will put kerosene on her and report that she has committed suicide. It is also contended that there was ill-treatment by the husband. The parents of the respondent also started giving mental torture to her and asked her to bring Rs.5,00,000/- dowry and 10 pavan gold.
Therefore, the petitioner claims maintenance amount.
The respondent-husband filed objection statement. After the marriage, the petitioner never used to be close with the respondent. She never allowed the respondent to touch her. She was always in depressed
4 mood. She was working as a duty doctor at Abhaya hospital, Lakkasandra. She never used to co-operate for the household work in the house and she used to insist the respondent to take her to posh hotel for dinner and lunch. She has got sufficient means to maintain herself.
In the trial Court, the petitioner was examined as PW1 and Exs.P1 to P5 were marked on her behalf and respondent was examined as RW1 and Exs.R1 to R16 were marked on his behalf.
The trial court framed the following points for its consideration. 1) Whether the petitioner proves that the respondent has neglected or refused to maintain his wife/petitioner? 2) Whether the petitioner proves that she is unable to maintain herself? 3) Whether the petitioner proves that the respondent has sufficient means to maintain her? If so, what is the quantum of maintenance?
5 4) What order or decree?
The trial Court has answered above points as under: 1) In the affirmative 2) In the affirmative 3) In the affirmative. Rs.2,500/- p.m. 4) As per final order.
The trial Court has observed that, the petitioner is stated that the respondent used to demand money and used to ill-treat her. She has also produced Ex.P1-FIR which was lodged before the police station. She has stated that she was not ready to live with the husband, since she suffered mental torture and insult from the respondent, she has also stopped working. She has suffered mental and physical torture. She is unable to do the work.
The trial Court has observed that, it is evident that the petitioner has filed a criminal case
6 about the cruelty and also under Dowry Prohibition Act, the same is now pending. It is undisputed fact that she is not working and she has no income.
The trial Court at para 19 has stated that, the husband is Diploma holder in Electronics and he is income tax assessee. He has produced one income tax returns which is marked as Ex.R15 and it shows his income as Rs.42,006/-. He is a Permanent Account Number holder. The respondent-husband has not issued any notice to the petitioner nor he has filed any petition for restitution of conjugal rights. Since there is criminal case, the trial Court observed that the petitioner is justified in living separately from the respondent. There is no evidence to show that, she has worked as doctor at any point of time after she left the respondent. In the absence of any such evidence, the petitioner is unable to maintain herself. The trial Court has observed that, the respondent is income tax assesse and he is consultant, his minimum income is not less than Rs.1,60,000/- per year. If 1/5th of the said income
7 is taken, it comes to Rs.2,600/- per month. Hence, Rs.2,600/- was awarded as maintenance. Feeling aggrieved by the same, the husband has preferred this revision petition.
It is submitted by the learned counsel for the revision petitioner that, granting maintenance is illegal and the ingredients of Section 125 of Cr.P.C. has not been fulfilled. The husband has not neglected his wife. She is capable of maintaining herself as she is Doctor. Evidence of PW1 shows that the respondent living separately on her own accord with her parents. The grant of maintenance is not from the date of application. Therefore, the learned counsel for the revision petitioner prays to set aside the order.
Learned counsel for the revision respondent supports the impugned order. In support of his contention, he relies on the decision in the case of Shail Kumari Devi & Anr. v. Krishnan Bhagwan Pathak alias Kishun B. Pathank. reported in AIR 2008
8 SUPREME COURT 3006 (B)-Sections 125, 354(6)- Maintenance-Award of, from date of application-Court need not record special reasons.
He also relies on another decision in the case of Chaturbhuj v. Sita Bai. reported in AIR 2008 SUPREME COURT 530 Attention of this Court was invited to para 5 of the said decision: “5. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase “unable to maintain herself” in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 Cr.P.C. is a measure of social justice and is specifically enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978
9 SCC 1807) falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (in short ‘the Constitution’). It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. (2005 (2) Supreme 503).”
This is a revision petition filed under Section 397 r/w Section 411 of Cr.P.C. This Court has to exercise its jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence of order, recorded or passed, and as to the regularity of any proceedings of such inferior Court.
10 16. In the instant case, I have carefully examined the impugned order. There is evidence to the effect that the petitioner was ill-treated and unable to bear ill-treatment, she was constrained to lodge a complaint before the police as per Ex.P1. She has narrated in the complaint that she was ill-treated. There is no evidence brought out on record by the respondent that the petitioner was working as a doctor in some institution or organization. In the absence of any positive evidence to the effect, that the petitioner has gainfully employed, it is difficult to come to the conclusion that she is able to maintain herself though she is B.A.S.M. graduate. To grant maintenance amount there should be proof of neglect or refusal by the husband. In the instant case, the wife has lodged a complaint against the husband and she has suffered mental and physical torture. Therefore, she was constrained to leave separately from her husband. Husband has also not filed any petition for restitution of conjugal rights. Therefore, it is difficult to accept the
11 contention of the learned counsel for the revision petitioner that there is no proof of neglect or refusal to maintain wife by the respondent-husband. 17. The next question that arises for consideration of this Court is, “what is the quantum of maintenance that has to be awarded?”
In the instant case, the respondent has admitted that he is an income tax assessee. Therefore, the trial Court has assessed the income of the respondent husband as Rs.1,60,000/- p.a. and has awarded maintenance amount of Rs.2,600/- p.m. In my opinion, the amount awarded towards maintenance at Rs.2,600/- is reasonable.
The next question that arises for consideration this Court is, from which date the maintenance has to be awarded ? In this regard, the learned counsel for the revision respondent relied on the judgment in the case of Shail Kumari Devi & Anr. v. Krishnan Bhagwan Pathak alias Kishun B.
12 Pathank. reported in AIR 2008 SUPREME COURT 3006 (B)-Sections 125, 354(6)-Maintenance-Award of, from date of application-Court need not record special reasons.
From this, it is clear that, it is for the trial Court to examine all aspects of the case and award the amount of maintenance either from the date of application or from the date of order. The trial has executed all the aspects of the matter and awarded maintenance from the date of application.
I have carefully examined the impugned order. I do not find any illegality, incorrectness or impropriety in the order passed by the trial Court. Even the learned counsel for the revision petitioner is unable to point out any illegality, incorrectness or impropriety to interfere with the impugned order. Such being the case, this revision petition is devoid of merit and same is liable to be dismissed.
In the result, I pass the following:
13 ORDER The revision petition is dismissed.
SD/-
JUDGE PMR