IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10th DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA Criminal Petition No.5053/2015 BETWEEN:
RAJAPPA M.B S/O B.BOREGOWDA, AGED ABOUT 44 YEARS, RESIDENT OF MUDIGERE VILLAGE, KOPPA HOBLI, MADDUR TALUK, MANDYA DISTRICT-571 401.
…PETITIONER (BY SRI PAVANA CHANDRA SHETTY H., ADVOCATE) AND:
SMT. K.C.REKHA W/O M.B.RAJAPPA, D/O CHANNAPPA, AGED ABOUT 24 YEARS, KANNALI VILLAGE AND POST, KASABA HOBLI, MANDYA TALUK, MANDYA DISTRICT-571 401.
... RESPONDENT (BY SRI K.L.SREENIVAS, ADVOCATE (ABSENT)) THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH THE ORDERS PASSED BY THE LEARNED COURT OF PRL. C.J. AND J.M.F.C., MADDUR IN CRL. MISC.NO.209/2008, DATED 30.09.2014 AND 1ST APPELLATE COURT, 5TH ADDL. DIST. AND S.J., MANDYA IN CRL.A.NO.51/2014 DATED 30.6.2015 PASSED ORDER OF MAINTENANCE OF RS.3,000/- PER MONTH TO THE PETR. NO.1 AND RS.2,000/- PER MONTH TO THE PETR. NO.2.
THIS CRIMINAL PETITION IS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner is aggrieved by the orders passed by the Prl. Civil Judge and JMFC, Maddur, in Crl.Misc.No.209/2008 dated 30.09.2014, which is confirmed by V Additional District and Sessions Judge, Mandya, in Crl.A.No.51/2014 directing the petitioner to pay maintenance of Rs.5,000/- per month.
2. Heard learned counsel for petitioner.
Learned counsel for respondent is absent. Perused the records.
3. Respondent herein filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the “DV Act”) seeking protection order, residence order, maintenance order, custody order and compensation from the petitioner/husband. Considering the claim made by the respondent/wife, the trial Court by its order dated 30.09.2014 directed the petitioner to pay maintenance of Rs.5,000/- per month from the date of petition till her life time. The said order is confirmed by the Appellate Court in Crl.A.No.51/2014 dated 30.06.2015.
4. A perusal of the impugned order discloses that the respondent/wife did not produce any material in proof of financial capacity of the petitioner to pay the maintenance claimed by her. The Appellate Court in paragraph No.16 of the judgment has held as under:
“16. From all these evidence produced by both the parties, it is clear that the relation between the petitioner and the respondent No.1 is strained and they are residing separately. Since, the petitioner has not produced any documentary evidence to show the income of the respondent No.1 and she is claiming Rs.5,000/- as the maintenance per month. The trial court considering all these documents has come to the conclusion that the petitioner is entitled for maintenance of Rs.5,000/- per month from the respondent for herself and her daughter’s maintenance. Even though, the petitioner has not produced the evidence to show the income of the respondent No.1, the respondent No.1 being the husband of the petitioner and he is able person, it is his responsibilities to maintain his wife and daughter and hence respondent is liable to pay the maintenance to the petitioner and his daughter”.
5. From the above order, it is clear that the respondent/wife did not produce any material before the trial Court to show that the petitioner herein has been drawing sufficient income, out of which, he could pay a sum of Rs.5,000/- per month as maintenance to her. Merely on the ground that the petitioner is a husband and he is able bodied, the trial Court has determined the maintenance at Rs.5,000/- per month. The said order is not based on any legal evidence.
6. In the absence of any material in proof of the income of the petitioner and his capacity to pay the maintenance claimed by the respondent/wife, in my view, the impugned orders passed by the courts below cannot be sustained. However, during the course of hearing, learned counsel for the petitioner on instructions from the petitioner submitted that having regard to the circumstances of the respondent/wife, petitioner is prepared to pay a sum of Rs.3,000/- per month as maintenance to the respondent/wife and the minor daughter from the date of petition.
7. In the absence of any evidence in proof of the financial capacity and income of the petitioner, in my view, the undertaking given by the petitioner/husband before this Court is placed on record and based on the said undertaking, the orders passed by the courts below are modified and the petitioner herein is directed to pay maintenance at the rate of Rs.3,000/- per month to the respondent/wife and his minor daughter from the date of filing the application under Section 12 of the DV Act.
In terms of the above order, petition is allowed.
Sd/- JUDGE PB