P. Ilesh Yadav Vs. P. Suvarna and anr. - Court Judgment

Excerpt:
family - maintenance - sections 6 and 8 of dowry prohibition act, indian majority act, 1875, sections 125 (a) and 127 of criminal procedure code and sections 34, 107, 120b, 403 and 494 of indian penal code, 1860 - family court awarded maintenance to wife - revision petition by husband - receipt of rs. 30,000 in lump sum by wife as per section 125 (a) not considered by family court while awarding maintenance - order of maintenance set aside and matter remitted back to family court. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of.....orders.r.k. prasad, j. 1. heard the learned counsel for the revision-petitioner. this revision is preferred by the husband against the orders passed in m.c.no.1 of 1998 by the family court, secunderabad, awarding maintenance of rs.500/- per month from the date of filing of petition i.e., 5-1-1998. 2. it is undisputed fact that the marriage of revision petitioner with the first respondent took place on 31-3-1994 as per hindu rites and customs. it is also equally not disputed that prior to marriage betrothal ceremony was performed on 18-4-1993. the revision petitioner is said to be working as a linemen in telephones department. it is alleged that at the time of marriage, the parents of the 1st respondent gave rs.5,000/- in cash and presented bajaj chetak scooter and house hold articles, 11.....

Judgment:
ORDER

S.R.K. Prasad, J.

1. Heard the learned counsel for the Revision-Petitioner. This revision is preferred by the husband against the orders passed in M.C.No.1 of 1998 by the Family Court, Secunderabad, awarding maintenance of Rs.500/- per month from the date of filing of petition i.e., 5-1-1998.

2. It is undisputed fact that the marriage of revision petitioner with the first respondent took place on 31-3-1994 as per Hindu rites and customs. It is also equally not disputed that prior to marriage betrothal ceremony was performed on 18-4-1993. The revision petitioner is said to be working as a linemen in telephones department. It is alleged that at the time of marriage, the parents of the 1st respondent gave RS.5,000/- in cash and presented Bajaj Chetak Scooter and house hold articles, 11 tulas of gold ornaments to the revision petitioner. They spent Rs.75,000/- towards marriage expenses. It is further alleged that the parents of the 1st respondent presented Rs.1,000/- towards clothes and 1/2 tula of gold ring to the revision petitioner at the time of betrothal ceremony and incurred Rs.30,000/- for the function. The revision petitioner and his family members have asked the 1st respondent to bring additional dowry of Rs.50,000/- from her parents. Immediately after the nuptials the 1st respondent was sent to her parents house and after one month she again joined the revision petitioner within 15 days. The revision petitioner and his family members poured kerosine on her with an intention to kill her. On hearing the cries of the 1st respondent, neighbours came and rescued her. The revision petitioner and his family members have stated in the panchayat that they do not like the 1st respondent and they want to perform the marriage of the revision petitioner with another girl for getting more dowry. Thereafter, the 1st respondent and her family members made efforts for re-conciliation but the revision petitioner did not take her back. It is also alleged that the revision petitioner married one -2- Roopa d/o. Krishna r/o. Hyderabad and living with her and begot a child through her. It is further alleged that the revision petitioner is also doing milk business and earning Rs.5,000/- per month. It appears that 1st respondent has filed C.C.No.32/96 on the file of Mahila Court, Hyderabad, against the revision petitioner u/s.498-A IPC and the same is pending. She also lodged another complaint vide FIR No.7/98 u/ss.34,107, 403,494,120-B IPC r/w. 6 and 8 of Dowry Prohibition Act before the Women Police Station, Hyderabad, on 29-1-1998. It is also alleged by the revision petitioner that the 1st respondent and her family members with the help of police forced him to enter in to mutual divorce agreement and he was forced to pay Rs.30,000/- . It is also alleged by the revision petitioner that they got it mentioned in the agreement that he agreed to pay Rs.1,00,000/- towards permanent alimony to the 1st respondent. It appears that mutual divorce agreement was drafted by both the advocates. After enquiry, the learned Judge awarded maintenance of Rs.500/- p.m. to the 1st respondent after taking in to consideration of the income of the revision petitioner.

3. It is a case where compromise is said to have been entered in the Women Police Station, Begumpet, where Rs.30,000/- is said to have been paid to first respondent by the revision petitioner. The order of granting maintenance has been assailed on the ground that there was no discussion about exhibits and there is no evidence on record to show that the revision petitioner had entered in to a second marriage with some girl and there was no material to show that the revision petitioner had left the company of the 1st respondent. It is also contended by the learned counsel for the revision petitioner that there is no proper evaluation of evidence.

4. The learned counsel appearing on behalf of the 1st respondent did not appear before the Court. The Sub Inspector of Women Police Station has been examined as R.W.2. She spoke to compromise etc., The payment of -3- RS.30,000/ - is supported by the documentary evidence and also the evidence of R.W.2 supports the same.Section 125 Cr.P.C.reads as follows:

125. Order for maintenance of wives, children and parents:(1) If any person having sufficient means neglects or refuses to maintain-------

(a) his wife, unable to maintain herself; or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself; or

(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, or

(d) his father or mother, unable to maintain himself or herself,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 note exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred,to in Cl.(b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation:---For the purposes of this Chapter:--

(a) 'minor' means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is deemed not to have attained his majority:

(b)'wife' includes a woman who has been divorced by or has obtained a divorce from, her husband and has not remarried................................................................................................................................................................................................................................

Section 127 of Cr.P.C. Reads as follows:

(1)On proof of a change in the circumstances of any person, receiving under Sec.125 a monthly allowance, or ordered under the same section fo pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit:Provided that if he increases the allowance, the monthly rate offive -4- hundred rupees in the whole shall not be exceeded.

(2)Where it appears to the Magistrate that, in consequence of any decision, of a competent Civil Court, any order made under Sec.125 should be cancelled or varied, he shall cancel the order or, as the case may be,vary the same accordingly.

(3)) Where any order has been made under Sec.125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that:----

(a)the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;

(b)the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties,was payable on such divorce,cancel such order------

(i) in the case where such sum was paid before such order,from the date on which such order was made,.

(ii)in any other case,from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman.

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce,cancel the order from the date there of.

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under Section 125 the Civil Court shall take in to account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order.

Under Section 125 of Criminal Procedure Code, who ever claims maintenance must allege and prove that a person has got sufficient means, and refuse to maintain the other person who was unable to maintain. Section 125 Cr.P.C makes it clear that a person who is claiming maintenance must show that she was unable to maintain herself. It is also necessary and prove that the other person has got sufficient means to maintain and refuse to maintain. Section 127 C.P.C. gives power to modify the order of granting maintenance.-5-

5. It is a case where payment of Rs.30,000/- is said to have been made to the wife under compromise in lumpsum and the said amount has gone in to the hands of wife . Section 125(1)(a) Cr.P.C. Contemplates of taking in to consideration of the amount received while considering the wife's inability to maintain her self. It is the duty of the Court to take in to consideration of the lumpsum amount received by wife while fixing the quantum of maintenance and while considering sufficient means to maintain herself.. This has not been done in this case which lead to miscarriage of justice. Therefore, I agree with the contention of the learned counsel for the revision petitioner. There is no proper evaluation of evidence which requires reconsideration of the matter by the court below. The order of granting maintenance of RS.500/- p.m. is liable to be set aside and the matter needs to be reconsidered by the learned Judge of Family Court, Secunderabad.

6. In the light of the discussion made supra, the order granting maintenance of Rs.500/-p.m. is set aside. The matter is sent back to the Family Court, Secunderabad. The learned Judge is directed to reappraise the entire evidence and fix the maintenance only after taking in to consideration of the lump-sum payment made by the revision petitioner which passed in to the hands of wife.

7. With the above observations, this Criminal Revision Case is disposed of.