THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN AND THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
C.M.A.No. 396 OF 2004 AND CRL.R.C.No. 682 OF 2004
COMMON JUDGMENT: (per Hon'ble Sri Justice M.Satyanarayana Murthy) The appeal and the criminal revision case are preferred against the common order passed by the Judge, Family Court, Vijayawada (for short, 'the trial Court'), dated 28-11-2003, in O.P.No. 342 of 2000 and M.C.No. 58 of 2002.
2. For reference of convenience, the parties are ranked as in O.P.No. 342 of 2000 before the trial Court throughout the judgment.
3. The petitioner filed petition under Section 17 of the Family Courts Act, 1984 (for brevity, 'the Act of 1984'), read with Section 9 of the Hindu Marriage Act, 1955 (for short, 'the Act of 1955'), seeking relief of restitution of conjugal rights, alleging that the marriage between the petitioner and the respondent was performed on 16-05-1981, the marriage was consummated and blessed with three children during their wedlock.
The main allegation in the petition is that the respondent used to leave the company of the petitioner, without any reasonable cause, occasionally; the father of the respondent admonished her and made her to join with the petitioner many times. It is further contended that the respondent ill-treated the petitioner though he developed love and affection towards the respondent and their children.
While the matter stood thus, the petitioner, in the year 1985, shifted his residence from Undavalli to Vidyadharapuram. Thereupon, elders of both the families intervened and requested the respondent to stay with the petitioner but, the respondent, having joined and spent few days, left the company of the petitioner without any reasonable cause and she continued to live with her parents leaving the matrimonial company of the petitioner. Hence, the petitioner sought for decree of restitution of conjugal rights under Section 9 of the Act of 1955.
4. The respondent filed counter denying material allegations mainly contending that the petitioner ill-treated her as she failed to meet the illegal demand of the petitioner. She led marital life only for a period of 4 years, gave birth to three children and they never led marital life at Vijayawada. Therefore, the Judge, Family Court, Vijayawada, has no jurisdiction.
The petitioner himself deserted the respondent without any reasonable cause. Though the respondent made attempts to join the company of the petitioner to lead marital life, he did not allow her to join as he married another lady by name Annapurna and blessed with a child. Therefore, there is a reasonable cause for her separate living and prayed to dismiss the petition.
5. The respondent in O.P.No. 342 of 2000 and representing her children filed M.C.No. 58 of 2002 alleging that the petitioner in O.P.No. 342 of 2000 refused and neglected to provide any maintenance to the respondent and their three children, she had no means to maintain herself and children and the petitioner is having sufficient means to maintain the respondent and children.
The petitioner denied his liability to pay maintenance while contending that the respondents never attended to the necessities of the petitioner's mother while she was in hospital. The petitioner is working as Gangman at Gangineni Village in Krishna District, earning Rs.4,200/- p.m., suffering from loneliness, unable to look after his daily necessities and, therefore, prayed to dismiss the maintenance case.
6. Basing on the above pleadings, the trial Court framed the following the issues:
1. Whether the petitioner/husband is entitled for restitution of conjugal rights against the respondent/wife in O.P.No. 342 of 2000?
2. Whether the petitioners wife and children are entitled for maintenance from the respondent/husband and father as claimed in the petition?
7. During the course of enquiry, on behalf of the petitioner, P.Ws.1 to 4 were examined and got marked Exs.A1 to A5. On behalf of the respondent, R.Ws.1 and 2 were examined and got marked Exs.B1 to B4.
8. Upon hearing argument of both the counsel, the trial Court allowed O.P.No. 342 of 2000 granting decree for restitution of conjugal rights while dismissing M.C.No. 58 of 2002.
9. Aggrieved by the order in O.P.No. 342 of 2000, the respondent before the trial Court preferred C.M.A.No. 396 of 2004 on several grounds mainly contending that the trial Court did not consider Exs.B3 and B4 which show that there is a reasonable cause for her separate living as the petitioner married another woman by name Annapurna but the trial Court, though referred Exs.B3 and B4 in the order, did not record any finding, committed an error and finally prayed to dismiss the petition filed under Section 9 of the Act of 1955 setting aside the order in O.P.No. 342 of 2000.
10. The respondent also filed Crl.R.C.No. 682 of 2004 challenging the order of denial of maintenance of Rs.500/- each p.m. claimed in M.C.No. 58 of 2002 contending that the trial Court did not assign any reason for refusal of maintenance filed under Section 125 of the Code of Criminal Procedure (for short, 'Cr.P.C.') though the petitioner married another woman and there is a reasonable cause for separate living of the respondent and children and committed an error in dismissing the maintenance case.
11. During the course of argument, learned counsel for the respondent contended that when there is a reasonable cause for separate living of the respondent, the trial Court ought not to have granted decree for restitution of conjugal rights and ought not to have denied grant of maintenance of Rs.500/- each p.m. but, without considering Exs.B3 and B4, the trial Court granted decree for restitution of conjugal rights while dismissing the maintenance case.
12. Whereas, learned counsel for the petitioner argued totally in support of the findings recorded by the trial Court.
13. Considering rival contentions, perusing the common judgment and both oral and documentary evidence available on record, the points that arise for consideration are:
1. Whether the respondent-wife left the company of the petitioner without any reasonable cause, if so, is the petitioner-husband entitled to decree for restitution of conjugal rights under Section 9 of the Act of 1955?
2. Whether the petitioner-husband refused or neglected to maintain the respondent-wife and his children, if so, are they entitled to claim maintenance under Section 125 of Cr.P.C. and at what rate?
14. In Re. Point No. 1:
There is no dispute regarding marriage and birth of three children to the respondent during wedlock. The only allegation made in the entire petition by the petitioner filed under Section 9 of the Act of 1955 is that she used to leave company of the petitioner occasionally without informing him and insulted him many times; despite his request, she did not join the company of the petitioner and, thus, there is no reasonable cause for her separate living whereas the respondent-wife denied the allegation contending that the petitioner married another woman, blessed with a child and, therefore, it is a reasonable cause for her separate living. The respondent herself got issued a legal notice on 14-06-2003 marked as Ex.A2 calling upon the petitioner to arrange an amount of Rs.1,50,000/- immediately by way of demand draft with a threatened action to file maintenance case under Section 125 of Cr.P.C. The petitioner got issued a reply notice marked as Ex.A4 denying the allegations made in the notice and liability to pay any amount as demanded by the respondent but these two notices are of no use as the correspondence is only during pendency of the petition filed under Section 9 of the Act of 1955 and Section 125 of Cr.P.C. However, the consistent case of the respondent from the beginning is that the petitioner harassed for her failure to meet the illegal demand; drove her from the house; since then, she is putting up with her parents; that too the petitioner married one Annapurna and blessed with a child. In examination in chief of P.W.1, as usual, he reiterated the contentions urged in the petition and, in cross-examination, a suggestion was put to him that he married another woman and blessed with a child but it was denied. The respondent herself was examined as R.W.1 and she testified that the petitioner married one Annapurna and blessed with a daughter. Besides oral evidence, she produced Exs.B3 and B4 to prove that the petitioner married one Annapurna. Ex.B3 is study certificate of Devarakonda Sailaja, D/o Yadagiri, issued by Z.P.P. High School, dated 30-011-2003. Ex.B4 is voters' list of Ganginenipalem Gramapanchayat for the year 1999. Entry in S.No. 1373 at page No. 25 of voters' list relates to registration of the petitioner as voter in the voters' list and entry in S.No. 1374 relates to registration of Annapurna, W/o Yadagiri. This list is prepared by enumerators while discharging their duties and that too truth or genuineness of the entries in Exs.B3 and B4 were not challenged at least by putting any suggestion to the witness in her cross- examination. Thus, the unrebutted oral evidence of the respondent coupled with Exs.B3 and B4 established that the petitioner married Annapurna and living together in house bearing D.No. 3-62/A at Ganginenipalem Village. As the respondent proved that the petitioner married Annapurna and blessed with a daughter, there is no possibility for the respondent to join the company of the petitioner to lead marital life and marrying Annapurna by the petitioner is a reasonable cause for her separate living.
15. According to Section 9 of the Act of 1955, when either the husband or the wife has without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district Court, for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. The explanation under Section 9 of the Act of 1955 explains what is reasonable excuse for withdrawal and the burden of proof is placed on the person who has withdrawn from the society. In the present case, the reasonable cause pleaded by the respondent is marriage of the petitioner with Annapurna and birth of a child during second marriage of the petitioner and it is substantiated by Exs.B3 and B4. Thus, the respondent discharged her initial burden of proof by producing satisfactory evidence in terms of explanation under Section 9 of the Act of 1955. The petitioner did not produce any material to rebut the oral evidence of the respondent coupled with documentary evidence to prove that there is no relationship between the petitioner and Annapurna.
16. On overall consideration of entire material available on record, we find that there is a reasonable cause to the respondent for her withdrawal from the conjugal society of the petitioner but the trial Court did not consider the effect of Exs.B3 and B4 in proper perspective and decreed the petition filed under Section 9 of the Act of 1955 only on the ground that the respondent did not give complaint against the petitioner for bigamous marriage which is not at all a requirement under Section 9 of the Act of 1955. The trial Court also failed to consider the effect of Exs.B3 and B4 in proper perspective and did not assign any reason for disbelieving Exs.B3 and B4 in the entire judgment. Hence, basing on the unrebutted testimony of R.W.1 coupled with documentary evidence, we find that the respondent is living separately only on account of the petitioner marrying Annapurna as his second wife during subsistence of the marriage between the petitioner and the respondent and it is a reasonable and justifiable cause for her withdrawal from the conjugal society of the petitioner. Hence, the finding of the trial Court is erroneous and the same is set aside. Accordingly, the point is answered in favour of the respondent-wife.
17. In Re. Point No. 2:
The respondent-wife and her children filed petition under Section 125 of Cr.P.C. before the trial Court alleging that she had no means to maintain herself and their children and they were neglected by the petitioner- husband. However, the petitioner contended that the respondent herself left the company of the petitioner without any reasonable cause and, therefore, he is not under obligation to provide any maintenance to the respondent and children.
18. The petition under Section 125 of Cr.P.C. is summary in nature and it is intended to protect neglected wife, old aged parents and children who had no means to maintain themselves. The provision is intended dicated as a measure of social justice with an avowed object to prevent vagrancy and destitution.
There is no dispute regarding relationship and the alleged desertion of the respondent is not a ground to decline maintenance to the children of the petitioner and the respondent. The trial Court did not record any reason for negating the relief of maintenance under Section 125 of Cr.P.C. to the children of the petitioner and the respondent. Hence, the order under challenge is without any legal support in denying maintenance to the children and the same is liable to be set aside.
19. The main contention of the respondent is that she had no means to maintain herself and the petitioner refused and neglected to maintain the respondent and their children. The respondent herself examined as R.W.1 to prove that she had no means to maintain herself and their children and it is not the case of the petitioner-husband that the respondent-wife possessed any means much less sufficient means to maintain herself and the children and no evidence is brought on record by the petitioner-husband to establish that the respondent possessed sufficient means to maintain herself besides maintaining children. On the other hand, the petitioner married one Annapurna and living with her evidenced by Ex.B4. In such case, the respondent is not expected to live with the petitioner when another woman i.e. second wife of the petitioner is in his company. When a similar question
[1]
came up in Rajathi Vs. C.Ganesan , the Apex Court ruled as follows:
"Fact that husband was living with another woman would entitle the wife to live separately and would amount to neglect or refusal to maintain. Her statement that wife is unable to maintain herself is sufficient."
The principle laid down in the above judgment is directly applicable to the present facts of the case for the reason that the respondent-wife established that the petitioner married Annapurna, living with her and blessed with a daughter by producing Exs.B3 and B4. These documents were not disproved. Hence, by applying the principle laid down in the above judgment and on the basis of the statement of the wife about her inability to maintain herself, we have no hesitation to conclude that the respondent-wife discharged her initial burden that she has no means to maintain herself and that she left the company of the petitioner for sufficient reason.
20. When the respondent-wife proved the reason for her separate living while pleading that she has no means to maintain herself, discharge of obligation that husband has no means and did not neglect or refuse to maintain lies on the husband in view of the principle laid down in the above decision. In the instant case, the petitioner did not discharge his burden that he has no means to maintain himself or did not neglect or refuse to maintain his wife and children placing any cogent and satisfactory evidence. In
[2]
Bhuwan Mohan Singh Vs. Meena and others , the Apex Court held as follows:
"Section 125 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 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 the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not be maladroitly created whereunder 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."
It is clear from the above judgment that while granting maintenance, the Court has to take into consideration several factors and the husband is under obligation to maintain his wife and children and provide maintenance enabling wife and children to maintain same standard of life and in a proceeding of this nature, the husband cannot take subterfuges to deprive his wife of the benefit of living with dignity. It is obligatory on the part of the husband to maintain his wife and children even by doing hard labour if he is able bodied person and provide maintenance. In the present case, the petitioner is an employee working in Forest Department and, thereby, he is bound to provide maintenance to his wife and children allowing them to maintain same standard of life which the petitioner is leading but the trial Court, on a flimsy ground that the respondent-wife did not give any report to police for bigamous marriage, denied the relief of maintenance and it is not a justifiable ground to deny maintenance to the respondent and their children. Hence, the order of the trial Court is against the law and intention of the legislature in incorporating Section 125 of Cr.P.C. and it is liable to set aside.
21. As the petitioner is working in Forest Department and drawing Rs.6,000/- p.m. by the date of his examination before the trial Court, he is liable to pay maintenance to his legally wedded wife and legitimate children. When the petitioner-husband possesses sufficient means to pay maintenance, taking into consideration of standard of life of the petitioner and the respondent and price index, the Court shall grant reasonable amount towards maintenance under Section 125 of Cr.P.C. As the petitioner is drawing Rs.6,000/- by the date of his examination before the trial Court, award of Rs.500/- each p.m. towards maintenance is just and reasonable. Hence, we find that petitioner Nos. 1 to 4 in M.C.No. 58 of 2002, who are no other than legally wedded wife and legitimate children, are entitled Rs.500/-
p.m. each towards maintenance. Accordingly, the point is answered.
22. In the result, C.M.A.No. 396 of 2004 is allowed setting aside the order passed under Section 9 of the Act of 1955 in O.P.No. 342 of 2000 by the Judge, Family Court, Vijayawada, and dismissed the petition while allowing the maintenance case filed by the respondent and her children in M.C.No. 58 of 2002 granting maintenance @ Rs.500/- p.m. each from the date of petition. Pending miscellaneous petitions, if any, shall stand closed in consequence. No order as to costs.
RAMESH RANGANATHAN, J.
M.SATYANARAYANA MURTHY, J.
Date: 24th September, 2014. JSK
[1] (1999) 6 SCC 326
[2] AIR 2014 SC 2875