Criminal Petition No. 4331 of 2007 · High Court · 2010

This Criminal Petition has been filed by one Matti Srinivasa Rao under Section 482 Cr.P.C to quash the order dated

02.04.2007 passed in Crl.R.P.No.43 of 2005 on the file of the VI Additional District Sessions Judge, Fast Track Court, Machilipatnam, Krishna District in confirming/modifying the order dated 7.5.2005 passed in M.C.No.11 of 2004 on the file of II Additional Judicial First Class Magistrate, Machilipatnam, Krishna District.

2. The petitioner and the 1st respondent are husband and wife. They got married on 12.5.1999 as per the Hindu Rites and Customs at Vijayawada. The wife alleges that the husband harassed her and thereby, she lost her pregnancy. The petitioner filed H.M.O.P.No.99 of 2001 on the file of Senior Civil Judge Court, Gudiwada for dissolution of the marriage. Pending O.P., there were some reconciliation proceedings between the parties. The reconciliation proceedings proved to be futile. The 1st respondent- wife filed M.C.No.11 of 2004 on the file of II Additional Judicial First Class Magistrate, Machilipatnam, Krishna District under Section 125 Cr.P.C claiming maintenance at rate of Rs.20,000/- per month. The petitioner-husband filed counter resisting the claim made by the wife. On behalf of the 1st respondent-wife, three witnesses were examined as Pws.1 to 3 and 25 documents were marked as Exs.P-1 to P-25. On behalf of the petitioner-husband, he got himself examined as Rw-1 and marked 22 documents as Exs.A-1 to A-22. The learned Magistrate formulated the following points for consideration: 1) Whether the petitioner was neglected by the respondent or not and whether her living separately from the respondent is justifiable or not; 2) Whether she is entitled for seeking monthly maintenance from the respondent if so for what amount, from which date?

3. The learned Magistrate, on considering the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the 1st respondent-wife is entitled for maintenance and quantified the same at the rate of Rs.7,000/- per month from the date of the order. The husband filed Criminal Revision Petition No.43 of 2005 assailing the grant of maintenance to the wife and whereas the wife filed Criminal Revision Petition No.53 of 2005 dissatisfied with the quantum of maintenance. The learned VI Additional District Judge, Fast Track Court, Krishna at Machilipatnam considered both the revisions together and disposed of the same by common order dated

02.4.2007 enhancing the maintenance from Rs.7,000/- Rs.9,000/-. The enhanced maintenance amount of Rs.2,000/- has been ordered to be paid by the husband from the date of filing Crl.R.P.No.43 of 2005. The order passed in Criminal R.P.No.43 of 2005 is assailed in this revision.

4. Heard learned counsel appearing for the petitioner-husband and learned counsel appearing for the 1st respondent-wife.

5. Learned counsel appearing for the petitioner-husband submits that the parents of the petitioner-husband are dependent on his earnings, and therefore, the quantum of amount fixed by the revisional Court at Rs.9,000/- per month as maintenance is liable to be reduced. A further submission has been made that the revisional Court has not assigned any reasons while enhancing the maintenance from Rs.7,000/- to Rs.9,000/-.

6. Learned counsel appearing for the 1st respondent-wife submits that the quantum of maintenance as fixed by the trial Court and the revisional Court is not commensurate with the earnings of the petitioner-husband and indeed the amount fixed by the trial court as well as the revisional Court is required to be enhanced since the personal income of the petitioner is about Rs.80,000/- per month.

7. I have gone through the order passed by the trial Court as well as the order passed by the revisional Court. The relationship between the parties is not in dispute. For some reason or the other, they could not pull up well and thereby they fell apart. The husband while being examined as Rw-1 expressed his unwillingness to take the wife with him. This fact has been considered by the trial Court as well as the revisional Court in allowing maintenance to the wife. With regard to the quantum of amount, the trial Court fixed the maintenance at the rate of Rs.7,000/- whereas the revisional Court enhanced the same to Rs.9,000/- from the date of filing Crl.R.P.No.43 of 2005. It is admitted by the petitioner while being examined as Rw-1 that he is getting a salary of Rs.19,000/- per month. Of course, he pleaded that he has to pay education loan of Rs.3,000/- and maintenance of Rs.3,000/- to his parents. The trial Court has taken note of the deductions claimed by the petitioner and rejected the same by cogent and convincing reasons. For better appreciation, I may refer para 36 of the judgment passed by the trial court. “On further scrutiny this Court also found that it is an admitted fact by the respondent in his cross examination that there is no documentary proof to show that the parents of the petitioner are having 40 acres of ancestral property and in his cross examination he further admitted that he do not want to call for Revenue records in order to prove the above said fact. This very admission of the respondent itself creating a doubt in the mind of the Court about the alleged properties are in the name of the parents of the petitioner. The respondent also further admitted in his cross examination there is no documentary proof to show that the petitioner is having Rs.50,00,000/- worth of property. It is also further found that the respondent contended that he is paying house loan and educational loan. But there is no conclusive proof to show that he obtained the above said loan amount and repaying the same. Ex.R.15, Ex.R16 and Ex.R.21 are not conclusive in nature. Therefore, they cannot be taken into consideration. On further scrutiny this Court found that respondent admitted in his cross examination that he is not claimed any exemption u/s 80(e) of Income Tax Act for the repayment of his house loan and educational loan. He also further admitted that he did not file any documentary proof to show that he has been repaying the amount to the Banks from which he borrowed loan amounts. He also further admitted that he did not file any documents to prove that he is sending an amount of Rs.6,000/- to his father in order to repay the house loan amount of Rs.3,000/- and another Rs.3,000/- towards maintenance. Al the above said evidence and admission of the respondent itself creating a doubt in the mind of the Court about his depositing of Rs.1,50,000/- in the name of the petitioner and his paying amounts and sending Rs.3,000/- to his parents for their maintenance became doubtful. He failed to prove the same by adducing positive evidence. Whereas the petitioner categorically deposed and established her inability in maintaining herself and she could able to prove the capacity of the respondent and his sources of income. It is an admitted fact by the respondent he is getting salary of Rs.20,610/- per month as per Ex.R.19. On further scrutiny the evidence of Pw3 and as per Ex.P.24 the monthly salary of the respondent for the month of 31.3.2005 is Rs.21,83/-. Pw.3 also deposed that there are no deductions towards loans as per Ex.P.24. In view of the above said evidence of Rw.1 and Pw.3 this Court feels that the respondent is getting salary nearly Rs.22,000/- per month apart from other allowances.”

8. The finding recorded by the trial Court with regard to the monthly income of the petitioner-husband at Rs.22,000/- is based on sound reasons. The revisional Court also considered the material brought on record and proceeded to enhance the monthly maintenance from Rs.7,000/- to Rs.9,000/-. When the monthly income of the petitioner has been assessed at Rs.22,000/-, granting maintenance at Rs.9,000/- per month, in my considered view, is not excessive.

9. Accordingly, the Criminal Petition is dismissed. _____________________ Dt.29-07-2010 RAR B.SESHASAYANA REDDY, J THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.4331 of 2007 (Dated :29-07-2010)