IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.725/2019 BETWEEN:
K.R. DINESH REDDY S/O RAMACHANDRA REDDY AGED ABOUT 37 YEARS AGRICULTURIST R/O RAMAJOGIHALLI VILLAGE CHALLAKERE TALUK – 577 522 CHITRADURGA DISTRICT.
... PETITIONER (BY SRI. VIJAYA KUMAR S.C., ADVOCATE) AND:
1. AMBUJAMMA W/O K.R. DINESH REDDY AGED ABOUT 31 YEARS.
2. KISHAN S/O K.R. REDDY AGED ABOUT 7 YEARS SINCE 2ND RESPONDENT IS MINOR DUALY REPRESENTED BY HIS NATURAL GUARDIAN/MOTHER 1ST RESPONDENT BOTH ARE RESIDENTS OF TALAVATTI VILLAGE – 577 558 IMANGALA HOBLI, HIRIYUR TALUK CHITRADURGA DISTRICT.
... RESPONDENTS THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED I ADDITIONAL DISTRICT AND SESSION JUDGE, CHITRADURGA IN CRL.RP.NO.34/2016 DATED:17.02.2017 CONFIRMING THE ORDER PASSED BY THE LEARNED ADDITIONAL CIVIL JUDGE AND JMFC, HIRIYUR IN CRL.MISC.NO.429/2012 DATED:21.04.2016 PER ANNEXURE A AND B.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Order dated 21.04.2016 passed in Crl.Misc.No.429/2012 which proceedings have been initiated by respondents herein seeking monthly maintenance of Rs.3,000/- has been allowed by the learned trial Judge which came to be confirmed by judgment dated 17.02.2017 passed by revisional Court in Crl.Revision Petition No.34/2016 is under challenge in this petition.
2. It is the contention of Mr.Vijaya Kumar, learned Advocate appearing for petitioner that trial Court as well as revisional Court erred in awarding interim maintenance @ Rs.3,000/- per month to the respondents (Rs.2000/- to wife and Rs.1,000/- to son) without having regard to earning capacity of the petitioner (husband). He would also contend that Courts below erred in arriving at a conclusion that probable income of the petitioner is Rs.9,000/- per month without any proof of said income. He would elaborate his submission by contending that petitioner is a small time agriculturist and as such, with his meager income, he is finding it difficult to maintain himself and as such, payment of maintenance @ Rs.3,000/- per month to respondents (wife and son) is exorbitant. He would also contend that question of payment of maintenance would arise only in the event that if there is any willful neglect on the part of petitioner and in the instant case, respondent herself had assaulted the petitioner and as such, question of paying maintenance to respondents does not arise. On these grounds, he seeks for quashing of the orders in question.
3. Having regard to the contentions raised and finding recorded by the learned trial Judge as affirmed by the revisional Court, this Court is of the considered view that this is not a fit case even for issuance of notice to respondent and petition is liable to be dismissed at the threshold for reasons indicated herein below.
4. There is no dispute to the fact that petitioner herein got married to respondent on 07.08.2006. Out of the wedlock , a son was born who is in the custody of mother –first respondent.
5. Insofar as earning capacity of the petitioner is concerned, Courts below have noticed that in the cross examination, petitioner-husband has admitted that he owns 7 acres of land. However, he has denied that he is earning Rs.5 lakhs per annum. In order to establish that petitioner is the owner of agricultural land bearing Sy.No.59/3P3 measuring 4 acres 12 guntas, 2.39 acres of land in Sy.No.61/3A and 3.14 acres of land in Sy.No.59/4P4 of Ramajogihalli village, admission elicited in the cross examination of petitioner herein as well as RTC extracts, mutation register extract as per Exs.P-2 to P-4 & Ex.P-5 respectively would clearly establish that petitioner owns agricultural land more than 9 acres. In fact, first respondent - wife has contended that apart from the petitioner carrying on agricultural operations is also carrying on business in Onion and Groundnut which was denied by the petitioner. However, documentary evidence produced by the wife which is at Exs.D-1 to D-4 namely, plaint and order sheets pertaining to O.S.Nos.238/2013 & 282/2013 would indicate that petitioner had borrowed a sum of Rs.1,56,000/- from Sri Basappa Reddy and Rs.1,83,000/- from Sri D Rangappa by executing on- demand promissory notes. This itself would indicate that petitioner had financial capacity repay said amount and as such he had borrowed said amount for the purposes of his business or for carrying out agricultural operations. Petitioner has also borrowed money from Pragathi Grameena Bank as per Ex.D-5 which again establishes the fact that petitioner had borrowed money either for his agricultural operations or for his business. It is in this background, learned trial Judge has arrived at a conclusion that person owning 8.25 acres of land and who is capable of borrowing lakhs of rupees cannot be heard to contend that he would be without income. Hence, on the basis of probable income that petitioner is capable of earning has ordered him to pay maintenance of his wife and son, by awarding a sum of Rs.2,000/- for wife and Rs.1,000/- to son which itself is on the lower side. However, this Court would not embark upon conducting any enquiry to find out whether maintenance awarded by the Courts below is commensurate with the present day cost of living for two reasons, namely, (1) at the threshold, petition is being dismissed; and (2) this Court is not examining the claim of wife for grant of enhanced maintenance.
Hence, opinion in that regard is kept open to be adjudicated in an appropriate proceedings if need arises. Suffice to say that maintenance which has been awarded by trial court cannot be held or construed either being excessive or exorbitant calling for interference at the hands of this Court.
6. Yet another observation which requires to be noticed is, the fact that petitioner herein while challenging the order of trial Court before revisional court had confined his grounds to challenge the same only on the ground of his financial incapacity and not on any other ground. In this background, learned revisional Judge has taken into consideration the above discussed facts and has arrived at the conclusion that maintenance of Rs.3,000/- per month which has been awarded by the trial Court would not call for interference.
7. For these myriad reasons, there is no good ground to entertain this petition. Hence, petition stands dismissed.
In view of dismissal of the petition,I.A.No.1.2019 for stay does not survive for consideration and it stands rejected.
SD/- JUDGE *sp