KUMARI SHRUTHI D/O SANGAPPA KONANAGAON AND ORS vs. SRI SANGAPPA S/O GURUBASAPPA KONKANGAON

4 2. The parties are referred to by their ranking before the Family Court. 3. The two children and wife of Sangappa, filed Crl.Misc.No.243/2013 under Section 125 of the Code of Criminal Procedure claiming maintenance of `10,000/- each. Smt. Shivaleela, 3rd petitioner contended that her marriage with the respondent was solemnized on 10.12.1990 at Gadag as per their customs. Out of the wedlock, petitioners 1 and 2 were born viz., Kum. Shruti and Kum.Shashikumar. The respondent/husband is a lecturer in S.S. Pre University College of Tamba village in Indi Taluk, drawing monthly salary of `60,000/-. He also gets commission of `1,00,000/- per month as LIC agent and owns agricultural lands to an extent of 9 acres 25 guntas in Umadi village of Jath Taluk and his income from the said lands is `2,00,000/-. His overall monthly income is approximately `1,77,000/-. The 1st petitioner daughter is studying in VI semester B.E., the

5 2nd petitioner son is studying in II semester B.E. and the 3rd petitioner/wife is confined to house and has no independent source of income. All the petitioners are exclusively depending upon the respondent i.e., Sangappa. For the past 2-3 years, the respondent has become prey to addiction of gambling, prostitution etc. and has neglected to maintain the petitioners. The 3rd petitioner wife opposed the respondent who was indulged in bad habits and requested him to take care of her and her children. The respondent stopped brining grocery to the house and did not pay money for their maintenance and educational expenses of the children. Time and again, the respondent forced the 3rd petitioner to go out of his house. He also started to bring his friends home drunk and direct the 3rd petitioner to prepare food for all of them in wee hours. When 3rd petitioner expressed her inability to cook the food for want of food grains and grocery, respondent abused her in filthy language doubting her fidelity, in

6 presence of his drunken friends. The 3rd respondent raised loan of `25,000/- to run the house and hence prayed for maintenance of `10,000/- to each of the petitioners for their livelihood including the educational expenses of petitioners 1 and 2. 4. The respondent/husband-Sangappa resisted the petition by filing objections before the Family Court. He admitted the relationship between the parties as his children and wife. He contended that after the death of his first wife, he married the 3rd petitioner. He has a daughter by name Shilpa through his first wife. There was an understanding during pre-marital discussion that the 3rd petitioner has to take care of his daughter born through first wife. But, after the marriage, the 3rd petitioner started showing queer behaviour towards his daughter Shilpa and started to ill treat her in various modes. It constrained the grand parents of Kum. Shilpa to take her from Vijapur with them. Grand parents of

7 Shilpa brought her up and made arrangements for her marriage. The 3rd petitioner did not allow the respondent to meet the marriage expenses of his daughter/Shilpa and prevented him from attending the marriage. The 3rd petitioner started to dominate over the respondent from the day one. It is the 3rd petitioner who is looking after the financial matter. Petitioners 1 and 2 are under the control of 3rd petitioner and therefore, they are unable to express their love and fatherly affection towards him freely. The 3rd petitioner started showing an attitude of making money only, by one way or the other. Whenever he objected her attitude of making money, she used to pose threat to him of committing suicide, holding him responsible. He made his wife, the 3rd petitioner as an agent of LIC of India and introduced various clients to her to fulfil her ambition in earning money. He used to pay all his income earned through LIC into her hands. He purchased ornaments which are in her custody. He

8 opened a locker account in Axis Bank in the name of the 3rd petitioner and she is handling the locker and the finance. He has purchased two plots in her name. He has purchased NA plot in Belgaum for her, approved by BDA. He is having aged mother. Due to the queer attitude of the 3rd petitioner who ill-treated his mother, his mother has to quit his company. She restricted him in providing food and medicine to her. Now, his mother is residing in the house of her another son. He further contended that the house in which the petitioners are residing is in his name. The ground floor is let out for rent and the 3rd petitioner is collecting the monthly rentals. The 3rd petitioner is getting sufficient money as LIC agent. His daughter through first wife i.e., Smt. Shilpa filed O.S.No.208/2012 on the file of the Prl. Civil Judge (Sr.Dn.), Vijayapura, for partition of the property. After coming to know of the same, 3rd petitioner started to harass him staying that it is he, who has instigated her to file such a suit. Due to the harassment meted

9 out by the 3rd petitioner, he developed blood pressure and high sugar. She also put him on starvation without providing him the food. She also started disliking him stating that he has become aged and she is very young, etc. He further contended that he is residing in a room taken on rent. The 1st petitioner/daughter has attained the age of majority, therefore, is not entitled for maintenance. The 3rd petitioner/wife is guilty of desertion. She is having sufficient income and therefore, sought for dismissal of the petition. 5. Based on the aforesaid pleadings, the Family Court framed the following points for consideration: (1) Whether the petitioner being the wife and children prove that, the respondent has neglected or refused to maintain them, in spite of her having sufficient means? (2) Whether the petitioners are unable to maintain themselves?

10 (3) To what maintenance the petitioners are entitled? (4) What orders? 6. In order to substantial her case, the 3rd petitioner examined herself as P.W.1 and got marked Exs.P.1 to P.19. The respondent was examined as R.W.1 and documents Exs.R.1 to R.9 were marked. 7. After considering the entire material on record, the Family court recorded a specific finding that petitioners being wife and children have proved that the respondent has neglected and refused to maintain them, inspite of having sufficient means and the petitioners are unable to maintain themselves, therefore, entitled to maintenance. Accordingly, by the impugned order dated 06.11.2013, the Family Court awarded maintenance of `6,500/- each to petitioners 1 and 2 per month till the 1st petitioner/daughter gets married and the 2nd petitioner/son attains the age of majority and

11 `1,500/- to the 3rd petitioner/wife till her re-marriage, if any. 8. Aggrieved by the said order, the respondent/ husband has preferred RPFC No.200005/2014 seeking reduction of the maintenance and the wife and children/petitioners have preferred RPFC No.200018/2014 seeking enhancement of the maintenance. 9. I have heard the learned counsel for the parties to the lis. 10. Sri S.S.Mamadapur, learned counsel for the husband/petitioner in RPFC No.200005/2014 vehemently contended that the 1st petitioner before the Family Court who is the daughter, has attained the age of majority and is not entitled for maintenance. He contended that in view of Section 125(c) of the Code of Criminal Procedure, the daughter who attain the age of

12 majority is not entitled to maintenance unless by reason of any physical or mental abnormality or injury unable to maintain herself. In the present case, the respondents have not produced any medical certificate to show the daughter is suffering from any mental or physical abnormality or injury and unable to maintain herself. Therefore, she is not entitled to maintenance as she has already attained the age of majority. He further contended that the wife is having sufficient means to maintain herself. Exs.R.3 to 9 clearly indicate that the wife has surrendered LIC policies in her name and got `2,50,000/- and she is residing along with children in the first floor of the house belonging to the husband and she is collecting rents and she has also alienated one residential plot for `3,00,000/- as per Ex.R.1. Therefore, he contends that the son and daughter who have attained the age of majority are not entitled to maintenance and since the wife has got sufficient means to sustain herself, she is not entitled to

13 maintenance in view of Section 125(1)(a) of the Code of Criminal Procedure. Therefore, he sought to allow the Revision Petition filed by the husband and dismiss the Revision Petition filed by the wife and children. 11. Per contra, Smt.Rathna Shivayogimath, learned counsel for the wife and children strenuously contended that the maintenance awarded by the Family Court is on the lower side. She contended that the husband being a lecturer in S.S. Pre-University College of Tamba village in Indi Taluk, drawing monthly salary of `60,000/- and also receiving commission of `1,00,000/- as LIC agent and `2,00,000/- from agricultural lands and is having approximate monthly income of `1,77,000/- from all the sources. Therefore, she contends that the maintenance awarded by the Family Court requires enhancement. Therefore, she sought to dismiss the Revision Petition filed by the husband and allow the Revision Petition filed by the wife and children.

14 12. In view of the rival contentions urged by the learned counsel for the parties, the points that arise for consideration in the present petitions are: (1) Whether the husband has made out a case for interference with the impugned order passed by the Family Court? (2) Whether the wife and children have made out a case for further enhancement of the maintenance, in the facts and circumstances of the case? 13. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record including the original records, carefully. 14. It is undisputed fact that the marriage between the Sangappa and Shivaleela was solemnized on 10.12.1990 at Gadag as per their customs and is also not in dispute that out of their wedlock, Kumari Shruti

15 and Kumar Shashikumar were born. Now, the children have attained majority. It is also not in dispute that the husband who is lecturer in S.S. Pre-University College drawing handsome salary of `49,164/- as on the date of the petition. It is also not in dispute that previously the wife was made as LIC agent at the instance of the husband and he used to collect the commission on behalf of his wife. The wife examined as P.W.1 has stated on oath that apart from salary, her husband was getting `2 lakhs from agricultural lands. But no material documents are produced to prove the same. But the fact that he is owning 9 acres 25 guntas of land in Umadi village of Jath Taluk is not denied by the husband. 15. Ex.P.1 is the Agent Termination Action in respect of Shivaleela B. Vajrabandi i.e., wife; Ex.P.2 is the salary pay certificate of the husband showing his total salary as `49,164/-; Ex.P.3 is the Form 16 filed in the name of

16 the husband to show that he has paid the income tax returns; Ex.P.4 is the certificate of LIC standing in the name of the husband; Ex.P.5 is the Form 16A issued in the name of the husband; Ex.P.6 and 7 are the account extracts of Axis Bank in the name of the husband; Exs.P. 8 to 11 are the letters issued by the LIC to the husband; Ex.P.12 is the telephone invoice standing in the name of the wife; Exs.P.13 to 17 are some receipts; Exs.P.18 and 19 are the photographs of LIC persons wherein the husband is standing on behalf of his wife. Ex.R.1 is the mutation extract to show that the wife Shivaleela sold 1 acre 5 guntas of land in favour of one Abdul Jabbar, Ex.R.2 is the account extract of Axis Bank pertaining to the wife which discloses the commission being deposited in her name during the year 2013; Exs.R.3 to 9 are the status report of the LIC policy showing payment in the name of the wife. The above material documents clearly indicate that the husband has got sufficient means to maintain his wife

17 and children who have no means to maintain themselves. No material documents are produced to prove that the wife and children have sufficient means to maintain themselves, as contemplated under Section 125(1)(a) and (c) of the Code of Criminal Procedure. 16. The Family Court, considering the entire material on record, proceeded to hold that the total salary of the husband is `58,000/- and the take home salary is `30,000/- and is having two bank accounts, one with the State Bank of India and another with the Axis Bank and his family is owning 9 acres 10 guntas in Umadi village of Jath Taluk, apart from residential house at Chadachan. It was the Insurance Company which was supplying the BSNL SIM to the agents. Taking into consideration the salary of the husband and in the absence of any proof of agricultural income, the Family Court was of the opinion that `6,500/- to each of the

18 children and `1,500/- to the wife would be just and proper. 17. It is the specific contention of the husband that the children have attained the age of majority and hence, they are not entitled to maintenance. It is not in dispute that the son has attained majority. The order passed by the Family Court is to pay maintenance to the son till he attains majority. Hence, son is not entitled to maintenance. 18. Insofar as the contention that the daughter attained majority and not entitled to maintenance cannot be accepted in view of the provisions of Section 125(1)(c) of the Code of Criminal Procedure, which reads as under: 125. Order for maintenace of wives, children and parents- (1) If any person having sufficient means neglects or refuses to maintain-

19 (a) xxx (b) xxx (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself; (d) xxx a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: 19. A plain reading of the said provision makes it clear that legitimate or illegitimate child who attains majority, by reason of any physical or mental abnormality or injury unable to maintain herself is entitled for maintenance, (not being a married daughter). It means, the legislature has intention to provide maintenance to an unmarried daughter even though she has attained

20 majority. The Hon’ble Supreme Court, has time and again held that the daughter who attained majority is entitled to maintenance till her marriage. That is the impugned order passed by the Family Court. Therefore, the interpretation made by the learned counsel for the husband that the daughter is not entitled to maintenance on attaining the majority, cannot be accepted. It is well settled law that even though the daughter attains majority, till her marriage, she is entitled to maintenance from the father, as contemplated under the provisions of Section 125(1)(c) of the Code of Criminal Procedure. 20. The Hon’ble Supreme Court, while considering Section 125(1)(c) of the Code of Criminal Procedure, with regard to unmarried daughter who has attained majority, in the case of Jagdish Jugtawat vs. Manju Lata and others reported in (2002)5 SCC 422 has held that, “it is manifest that the right of a minor girl for

21 maintenance from parents after attaining majority till her marriage is recognized under the provisions of Section 20(3) of the Hindu Adoptions and Maintenance Act. Therefore, no exception can be taken to the judgment/ order passed by the learned single Judge for maintaining the order passed by the Family Court which is based on a combined reading of Section 125 Cr.P.C and Section 20(3) of the Hindu Adoptions and Maintenance Act.” The intention of the legislature while enacting Section 125(1)(c) of the Code of Criminal Procedure is that the right of a female even after attaining majority till she is married is in order to avoid vagrancy and driving her to immorality and for their sustenance, the Court can award maintenance under Section 125(1)(c) of the Code of Criminal Procedure. 21. In so far as the third contention urged by the learned counsel for the husband that the wife has sufficient means and she has drawn `2,50,000/- from

22 LIC bonds as per Exs.R.3 to 9 and she is residing in the first floor of the building belonging to the husband and she is collecting rents, the husband has not produced any documents before the Court to show that the wife is collecting the rents. Of course, it is not dispute that the wife and children have not disputed the fact that they are residing in the first floor of the building belonging to the husband. In the cross examination of R.W.1/ husband, he has specifically stated that only for name sake, his wife is made as an agent, but he is receiving the commission and other benefits from the LIC of India and Exs.P.18 and 19 clearly reflects that the wife was name sake agent and the husband used to attend the meetings and in the group photographs of LIC agents, the husband/Sangappa is found and not the wife. Therefore, it clearly indicates that apart from doing lecturer work, he was also doing LIC agent work in the name of his wife and was collecting commission and other benefits from LIC. Therefore, the contention of the

23 learned counsel for the husband that the wife is getting sufficient income cannot be accepted. 22. It is undisputed fact that the husband is getting salary of `50,000/- as per Ex.P.2/pay certificate issued by the S.S. Pre-University College and it is undisputed fact that Shilpa, daughter of Sangappa through his first wife is also married and he has no responsibilities except to maintain himself. He has stated that he is residing in a rented room and admittedly his old aged mother is residing with her another son. The husband i.e., Sangappa has no burden except to maintain himself. Therefore, in view of the aforesaid reasons, the point No.1 has to answered in the negative holding that the husband has not made out a case for reduction of maintenance and Point No.2 has to be answered in the affirmative holding that the wife has made out a case for enhancement of maintenance and the daughter is entitled for maintenance.

24 23. The Supreme Court, while considering the provisions of Section 125 of the Code of Criminal Procedure in the case of Bhuwan Mohan Singh v. Meena and Ors. reported in AIR 2014 SC 2875 at para 3 held as under:- “3. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short “the code”) was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case

25 of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a begger. A situation is not to be maladroitly created where under she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.” 24. In the latest judgment of the Hon’ble Supreme Court, while considering Section 125 of the Code of Criminal Procedure, in case of muslim divorced women,

26 in the case of Shamima Farooqui vs. Shahid Khan reported in AIR 2015 SC 2025 held as under: “14. Coming to the reduction of quantum by the High Court, it is noticed that the High Court has shown immense sympathy to the husband by reducing the amount after his retirement. It has come on record that the husband was getting a monthly salary of Rs.17,654/-. “15.The High Court, without indicating any reason, has reduced the monthly maintenance allowance to Rs. 2,000/-. In today’s world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs.2,000/- per month. It can never be forgotten that the inherent and fundamental principle behind Section 125, CrPC is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she compelled to leave her matrimonial home. The statute commands there has to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can

27 never allow to mean a mere survival. A women, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125, CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125, CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have job or his business is not doing well. These are only bald excuse and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support him self, he is under the legal obligation to support his wife, for wife’s right to

28 receive maintenance under Section 125, CrPC unless disqualified, is an absolute right. While determining the quantum of maintenance, this Court in Jabsir Kaur Sehgal V. District Judge Dehradun & Ors. has held as follows:- “The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed can not be excessive or extortionate.” 16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj V. Sitabai, it has been ruled that:- “Section 125, CrPC is a measure of social justice and is specially enacted to protect women and

29 children and as noted by this court in Captain Ramesh Chander Kaushal V. Veena Kaushal falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. 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 Gujrat. This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning. 19. In the instant case, as is seen, the High court has reduced the amount of maintenance from Rs.4,000/- to Rs.2,000/-. As is manifest, the High Court has become oblivious of the fact that she has to stay on her own. Needless to say, the order of the

30 learned Family Judge is not manifestly perverse. There is nothing perceptible which would show that order is a sanctuary of errors. In fact, when the order is based on proper appreciation of evidence on record, no revisional court should have interfered with the reason on the base that it would have arrived at a different or another conclusion. When substantial justice has been done, there was no reason to interfere. There may be a shelter over her head in the parental house, but other real expenses can not be ignored. Solely because the husband had retired, there was no justification to reduce the maintenance by 50%. It is not a huge fortune that was showered on the wife that it deserved reduction. It only reflects the non-application of mind and, therefore, we are unable to sustain the said order.” 25. After considering the oral evidence of P.W.1 and R.W.1 and material documents Exs.P.1 to P.19 and Exs.R. 1 to 9, and after perusing the original records, it is a fit case to enhance the maintenance to the wife. Admittedly, son has attained majority and in terms of the order of the Family Court and the provisions of

31 Section 125 of Cr.P.C. he is not entitled to maintenance. So far as daughter is concerned, as already pointed out, though she has attained majority, she is not yet married. Therefore, daughter is entitled to maintenance till her marriage as awarded by the Family Court at the rate of `6,500/- per month. In view of the aforesaid facts and circumstances of the case, the maintenance granted to the wife requires enhancement, taking into consideration the hike in prices of essential commodities. Apart from that, she has take care of educational expenses of his son who is studying in B.E and therefore, maintenance awarded by the Family Court seems to be inadequate. Therefore, wife is entitled to `3,500/- per month in addition to `1,500/- granted by the Family Court, thus, in all, wife is entitled `5,000/- per month from the date of filing of this Revision Petition i.e., from 26.03.2014, till her life or she remarries, whichever is earlier.

32 26. In view of the aforesaid reasons, RPFC No.200005/2014 filed by the husband is dismissed as devoid of merits. RPFC No.200018/2014 filed by the wife and children is allowed in part and the impugned order dated 06.11.2013 passed by the Family Court, Vijayapura, in Crl.Misc.No.243/2013 is modified holding that the wife is entitled to maintenance of `5,000/- per month from 26.03.2014 till her death or till she remarries, whichever is earlier and the award of maintenance by the Family Court in respect of daughter and son is undisturbed. Ordered accordingly.

Sd/- JUDGE kcm