| SooperKanoon Citation | sooperkanoon.com/910504 |
| Subject | Criminal |
| Court | Karnataka High Court |
| Decided On | Feb-03-2011 |
| Case Number | CRL.RP.No.643/2010 c/w CRL.RP.No.831/2010. |
| Judge | MR.JUSTICE V.JAGANNATHAN, J. |
| Acts | Protection of Women from Domestic Violence Act, 2005 - Sections 12(1), 20 (2) ; Code Of Criminal Procedure (Cr.P.C.) - Sections 397, 125 Read with 401 ; |
| Appellant | Sri R Srinivasan. S/O a S Ramaswamy Iyengar, and ors. |
| Respondent | Vaishnavi. W/O R Srinivasan, and anr. |
| Appellant Advocate | Sri S BALAN, Adv. |
| Respondent Advocate | Sri ASHOK B PATIL. Adv. |
2. Brief facts are that the petitioners in Crl.R.P.No.831/10 who are the wife and son in Crl. Mis.No.72/09 before the trial court u/s 12 of the Protection of Women from Domestic Violence Act, 2005, sought for maintenance arid the said petition was also resisted by the husband who is the petitioner in Crl R.P.Mo.643/10. The trial court after hearing both sides, ultimately allowed the petition filed by the wife and son and ordered thus:
1. The petition is partly allowed as under:
2. The respondent-1 is hereby directed to pay a sum of Rs.20.000/- per month to the petitioner towards the maintenance of the petitioners and the education expenses of the petitoner-2.
3. The respondent-J is further directed to pay a sum of Rs.10,000/-towards compensation, within one month from this date.
4. The respondent-1 is further directed to provide an alternative accommodation to the petitioners in the event of the respondent-2 terminating the tenancy of the respondent-1 or in the event of respondent-1 surrendering his tenancy to the landlord i.e., respondent 2.
5. The respondents are restrained from causing Domestic Violence against the petitioners in any form".
3. The aforesaid order of the trial court was called in question by the husband and other relatives of the husband viz., the father and mother before the lower appellate court in Crl.A.No.36/10 and after hearing both sides, learned Judge of the lower appellate court allowed the appeal filed by the husband and his parents and modified the trial court order as under: "This appeal is allowed in part. The order passed by the learned Trial Judge dated 5.1.2010 passed in Crl.Mis.No.72/2009 granting Rs.20.000/ per month as maintenance to the petitioner is set aside and the first respondent is hereby directed to pay Rs.12.000/- per month to the petitioner towards the maintenance of the petitioners and also education expenses of petitioner No.2. Rest of the orders passed by the learned Trial Judge are confirmed. Send back the Trail court records forthwith."
4. I have heard learned counsel Sri. Ashok B Path for the wife and the son who are aggrieved by the maintenance amount being reduced as above by the lower appellate court and also heard Sri. Balan learned counsel for the husband and his parents and the grievance of the husband is that, the maintenance amount awarded by the court below cannot be sustained in law and therefore the
husband and his parents have sought for setting aside the entire order of maintenance passed by the lower appellate court.
5. Submission of learned counsel Sri. Ashok B. Patil for the wife and son is that, the lower appellate court could not have reduced the grant of maintenance and the trial court had considered all the relevant material and noted that the husband of the petitioner-wife had good income and apart from the income which the husband states that he was getting as Construction Supervisor viz.. Rs.8,600/-per month., the husband is also running a consultancy in the name of his father which is known as 'Ramaswamy Iyengar Associates' and the husband of the 1stpetitioner is getting huge income from the real estate business and in this regard reference was made to certain pamphlets and the plan which were marked in evidence before the trial court as Ex.P7 and P9 to contend that when the husband of the 1st petitioner has been running a consultancy and is involved in the sale of sites, a huge income is there; but being denied by the husband of the 1st petitioner and apart from that, the husband of 1st petitioner is also a member of a resort and pays huge amount toward LIC premium.
6. Referring to the evidence of the husband, who was examined as PW-1 before the trial court, submission made is that, the husband has admitted that, in respect of the income derived by him, the income tax returns are being filed and accounts are audited by the auditor and this itself shows that the husband has got huge income and not what the husband claims as Rs.8,600/- per month. It is only where the income is more than Rs.10 lakhs that the returns are filed by the auditor and such being the case, both the courts below have taken note of the entire material on record and have disbelieved the income of the husband. Under these circumstances, the lower appellate court could not have reduced the maintenance amount from Rs.20,000/- to Rs. 12,000/-. Submission is also made that the 2nd petitioner who is the son of the couple in question has also filed a suit for partition and in the said suit, observation has been made by the trial court while granting an order of injunction that the $t^4petitioner also has got a share in the apartments which are held by the husband and husband's parents. Thus, after referring to the number of documents produced before the trial court, submission made by Sri. Ash ok B. Patil Is that, the award of maintenance of Rs.20,000/- by the trial court could not have been reduced by the lower appellate court.
7. Further submission made by the learned counsel is that, as far as wife is concerned, though ^he is an advocate and has got experience of having worked in various advocates firms and was also earning good amount from her profession, later on, the wife gave up her job at Lexis - Nexis Company at Chermai and came to Bangalore and the wife at present is only fighting the litigations which are pending in various courts and as such, having regard to the said fact, the trial court had granted Rs.20.000/- as maintenance and the lower appellate court could not have reduced the same.
8. Yet, another submission made by the learned counsel is chat, what is relevant for grant of maintenance is, as to whether the wife who claims maintenance is unable to maintain herself and not that she is capable of earning. In this connection, learned counsel placed reliance on the decision reported in 2010 Crl.L.J.616 and contended that the wife was literally without any income and she had not been practicing nor she gets any income having left her job at Chermai and come to Bangalore, the wife is busy in attending various matrimonial cases that are pending in the courts at Bangalore. Apart from this, the son of the 1st petitioner is also going to school and huge amount is being paid towards his school fee and other expenses in respect of which the wife has produced good number of documents and receipts before the trial court. Except the wife being provided the apartment bearing No. 101. no other amenities are provided to her and even the amount towards the rent of the house is also being stopped by the husband. As far as the document produced by the husband viz., the rent agreement is concerned, learned counsel argued that the alleged agreement itself is a concocted one and the said document is said to have been presented before the Registrar, Pandavaoura The order of trial court therefore could not have been interfered with by the lower appellate court. As such, learned counsel sought for restoring the trial court's order granting maintenance and furl her reliefs.
9. On the other hand, submission of Sri. Ralan for the respondent-husband and his parents is that, the respondent-husband has no other income except the salary that he gets as a Supervisor and this is spoken to by the husband in the course of his evidence and moreover the husband has been paying Rs.3,000/- per month towards the rent and apart from that, the husband is also taking care of the expenses towards child's education which comes to Rs.3,000/- per month and he is also paying the electricity bill and the cable charges and all these put together comes to Rs.8,600/- per month. Therefore, asking the husband to pay Rs.20.000/- per month as maintenance apart from the aforesaid amount, is not reasonable
10. It is also submitted by him that the husband is also paying rent to his mother at Rs.4,000/ per month and in this regard the rent agreement was referred to by the learned counsel. As far as the wile is concerned, submission made is that, the wife being an advocate and having good experience of having worked in several firms including the last one viz., Lexis - Nexjs at Chermai, was earning Rs.40.000/- per month, it is to be presumed that the wife continues to practice as an advocate in Bangalore and earns good amount and this was not taken into account by the courts below and therefore award of maintenance of Rs. 12,000/-per month by the lower appellate court is unreasonable and the husband himself has been getting a salary of Rs.8,600/- per month and such being the financial position of the husband, no maintenance amount could have been awarded to the wife and son of the husband.
11. Learned counsel also referred to the evidence of both PW-1 and DW-1 in this regard apart from referring to documents produced by both the parties before the trial court. Placing reliance on the decisions reported in 1985 S.C.C. (Cri) 556 and a judgment of the Delhi High Court in CM(M] No. 1790/06 and 14635/06 as well as the order passed in CM(M) 1153/08 by the Delhi High Court and another order passed by the Delhi High Court in CM(MJ No.539/08, submission made is that, one cannot ignore the qualification and experience of the wife and as the wife in the instant case is also an advocate, the courts below could not have lost sight of the said fact and mere assertion by the wife that she was not practicing would not be taken to construe that the wife has no professional income when she had been enrolled as a member of the bar. Therefore, submission made is that, the rich experience gained by the wife as an advocate certainly has an indication of the wife earning some amount in her profession as an advocate and under these circumstances, the courts below could not have awarded any maintenance to the wife.
12. Having thus heard both sides in respect of the quantum of maintenance, one aspect in regard to which no dispute is there between the parties is that the wife is presently residing in premises No. 101 and though it is contended that the house is taken on rent from the mother by the husband, since the very document i.e. rent agreement is disputed by the learned counsel Sri. Ashok B. Patil on the ground of that document being a concocted one. without going into that aspect of the .natter, taking into consideration that the wife is presently residing in Apartment no. 101 along with her child, we will have to consider other facts.
13. As far as the child is concerned, the receipt produced by the wife before the court below shows that some amount is being incurred towards his education and the boy is studying in IV Standard. Several school receipts have been produced by the learned counsel to show that wife is paying huge amount towards education of the child.
14. As far as the income of the wife is concerned, the document produced by the wife as per Ex.P47 reveals that the wife was working as an attorney in Lexis - Ncxis and her last working day with the company was 30th November 2008. No other documents arc produced by either of the parties to show that what is the income of the wife.
15. Though U is contended by the learned counsel Sri. Ashok. B Patil dial the wife is not earning any amount, yet having regard to the rich experience as a counsel and having worked in several firms including Lexis - Nexis at Chermai, it can not be said that the wife is not earning any amount and