THE HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO CRIMINAL REVISION CASE No.2550 of 2011, CRIMINAL REVISION CASE Nos.45 and 161 of 2013 COMMON ORDER:
The revision covered by Crl.R.C.No.2550 of 2011 is outcome of the order dated 02.12.2011 against D.V.C.Appeal No.475 of 2011 on the file of I Additional Metropolitan Sessions Judge, Hyderabad, against Crl.M.P.No.1064 of 2011 of III Additional Metropolitan Magistrate, Hyderabad, of interim protection order in the pending D.V.C.No.22 of 2010.
2. The two revision petitions covered by Crl.R.C.Nos.45 and 161 of 2013 are outcome of the order dated 27.11.2012 in M.C.No.325 of 2009 on the file of the Additional Metropolitan Sessions Judge for the trial of JHCBBC-cum-Additional Family Court-cum-XXIII Additional Chief Judge, Hyderabad.
3. Heard both sides at length in the three revisions and perused the entire material on record.
4. All the three revisions are outcome of the matrimonial dispute between Sri O.Pardha Saradhi, husband and Smt.Ch.Venkata Naga Srujana, wife, needless to say in their wedlock they are blessed with the minor child, Krishna Ruthvik Kumar.
5. The brief facts of the case show that the arranged marriage between Sri O.Pardha Saradhi and Smt.Ch.Venkata Naga Srujana took place on 10.02.2005 at Annavaram Devasthanam, East Godavari District, as per the Hindu rites and customs and in their wedlock, they blessed with a male child on 22.09.2008, who is a prematured boy.
6. It is the averments of the wife in the Maintenance Case i.e., M.C.No.325 of 2009 disposed of equally in D.V.C.No.22 of 2010, which is pending, that since two days after the marriage, her husband and in-laws started harassing and ill-treating which she was putting up, they used to express their dissatisfaction with the marriage presentations and gifts even her father spent about Rs.3 Lakhs for the marriage and presented gold bangles, two pairs gold chain, gold necklace, gold hangings(2), ring, silver plates and other silver items to her in-laws, Rs.1,25,000/- on 15.01.2006 towards part of sale consideration for purchase of flat in the name of the couple at Mumbai, that her husband and in-laws pressurised to give divorce, that her father even meet with additional demand of Rs.50,000/- on 11.11.2007 with a plea to treat her well; instead they did not stop the harassment by subjecting her physically and mentally continuously, that her husband and in-laws even took away her gold jewellery and silver articles. It is also averred that her father-in-law deserted his first wife and the present wife is his second wife from a different caste and they have been inducing her husband against her, from which he was beating her black and blue for no reason even; that after their pilgrimage/yatra while she was washing foot of her in- laws, her mother-in-law pushed her away, from which she received injury, that she was not even allowed to visit her parents at Hyderabad; that even whenever her parents visiting them, they were to bring costly gifts worth of Rs.10,000/- to Rs.20,000/- to please her husband and in-laws. It is also averred that her husband was transferred from Mumbai to Coimbatore, that after March, 2008, when she conceived, she was totally neglected during her pregnancy by her husband and in-laws, that she gave birth to the premature baby on 22.09.2008, that at the time of inauguration of the flat purchased at Mumbai in their joint names, her husband and in-laws blamed as if she committed theft of Rs.30,000/- and even her husband’s brother and sister-in-law used to instigate her husband to beat her and making her with no food even to starve, that her husband and in-laws intended to give her child in adoption to one Vijay Kumar, subordinate of one Unni Krishnan, that said Unni Krishnan and his wife with the ill-advise of her in-laws, were not even allowing her child with milk, that once when her husband beat her severely, she fell unconscious and her husband and in-laws once tried to burn her alive by pouring kerosene; from which she was unable to stay, left the matrimonial home to safeguard her life and of her son by taking shelter at her parents at Hyderabad and even later her husband started sending threatening messages through mobile belongs to Vijaya Kumari, his subordinate, at the instance of his parents, brother and brothers’ wife and said Vijaya Kumar, Unnikrishnan and his wife.
7. She claimed that her husband being the Senior Aircraft Maintenance Engineer in Jet Airways, drawing not less than Rs.1,50,000/- per month as net salary. The efforts of her and her parents for reconciliation to join back her husband became futile from the arrogance of her husband and in-laws even she along with her parents on 07.04.2009 went to Coimbatore and pleaded by touching his foot to allow her to join him, that from his desertion and uncaring of her, she filed O.P.No.1369 of 2009 for restitution of conjugal rights in the Family Court, Hyderabad and also the M.C.No.325 of 2009 by claiming maintenance of Rs.25,000/- per month each to her and her child from the date of petition. She also filed a police complaint in Crime No.36 of 2010 with C.C.S, Hyderabad against her husband, in-laws and others. Besides the above, she also filed the D.V.C.No.22 of 2010.
8. In the interim protection and residence order and monthly maintenance, she claimed besides protection order, Rs.35,000/- per month towards maintenance, Rs.25,000/- per month towards house hold expenses, Rs,15,000/-p.m. towards other expenses and for Rs.50,000/- towards medical expenses to her pre-mature child she incurred under continuous medication and also sought for return of her above referred 22 sovereigns of gold, 127 tulas of silver, Rs.1 Lakh taken as dowry amount and Rs.2,25,000/- taken as additional dowry amount.
9. The case of the husband in all the matters in opposing the petitions and with contest is that the wife, who is an advocate on rolls and by profession came with a false claim for maintenance and by filing so called domestic violence, though they lead happy marital life comfortably and he treated her well, that she never lived with her in-laws and the question of harassment in their hands does not arise, that after birth of child in November, 2008; it is she that voluntarily left his company and having deserted him, filed the M.C., D.V.C., O.P. for restitutin of conjugal rights and criminal complaint, that she has purchased gold ornaments at Hyderabad, for Rs.15,500/- with his credit card, which he later paid, that with his cooperation only she could complete her L.L.M. and there were no gold ornaments or silver articles she brought much less left and no dowry or additional received much less demanded and even the customary ornaments like mangalasutram and wearing gold ornaments with her; that so called amount of Rs.1,25,000/- alleged to have been given by her parents at the time of purchase of flat at Mumbai is false, that she is erratic and used to pounce on him and pinching him including by causing bleeding injuries, abusing in unparliamentary filthy language and not even cooperative for conjugal life, even he was providing all comforts including by taking her to dinners, cinemas, shopping and she was with negative response, bad behaviour. He contends further of he realised that there was an objectionable intimacy she developed with her cousin, Rajasekhar, who used to visit their house even they stayed at Mumbai and it is after she conceived she informed that fact not even to him and his parents but to said Rajasekhar, who then came to Mumbai and there from he took her to Hyderabad and she informed about she conceived only on 31.08.2008 and she was while with him, she was under constant medical advise and assisted by maid servant at home and it is her violent behaviour and hypersensitiveness for no fault of him and his parents made her to develop stress even by uncaring him and it is due to her neglect and of her parents, there was the premature delivery at seventh month of the pregnancy and for which he incurred more than Rs.80,000/- towards delivery expenses in providing treatment at a Super specialty hospital. It is his further contention that the blood group of the child is A+ that does not belong to either his wife or him as his wife’s blood group is O+ and his blood group is B+, which is not possible if conceived through him and hence he filed a petition for expert opinion in this regard, which is pending in the D.V.C also to show she is living in adultery and therefrom she is not entitled to maintenance or the reliefs sought in the D.V.C.Case. He further averred that he purchased the flat at Mumbai by taking Rs.38.72 Lakhs from Corporation Bank and personal loans from ICICI, Citi Bank, S.B.I and H.D.F.C. and is paying Rs.30,000/- per month to the Corporation Bank, Rs.8400/- p.m. to the ICICI Bank, Rs.12,400/-
p.m. to the HDFC , Rs.7500/- p.m. to the Citi Bank and the total deduction out of his salary of Rs.1,05,000/- p.m. is Rs. 95,621/- p.m., that though out of affection to his wife, he purchased a flat in the joint name it is he and his brother money used to purchase the flat and nothing of her and her parents contribution. Said Vijaya Kumari is wife of his colleague, who served his wife in the hour of need and she is purely an outsider and involved in this case though not related to him. He further averred that he used to give money time to time to her, by sending to her Savings Bank account in ICICI Bank, Mumbai of Rs.28,268/- and after marriage he took pesonal loan from Citi Bank of Rs.3,80,000/- and purchased all house hold articles to start a new happy life and he purchsed second hand Alto car that was sold in February, 2010 and there are no other grounds even in the D.V.C. case much less in Maintenance Case for any entitlement of any reliefs and sought for dismissal.
10. It is the sum and substance of the pleadings in the cases and in so far as the maintenance case concerned, there was M.C.M.P.No.455 of 2010 on the file of the Family Court for interim maintenance that was allowed on 31.07.2010 on contest at Rs.8,000/- per month to the 1st petitioner/wife and Rs.3000/- per month to the 2nd petitoner/minor child from the date of petition payable before 5th of every calender month. Apart from it in D.V.C.No.22 of 2010 she filed Crl.M.P.No.395 of 2010 before the learned III Metropolitan Magistrate, Hyderabad, while saying the main D.V.C. may take length of time and even the husband was served with notice did not appear and the in-laws and other respondent Nos. 2 to 5 not served so far and by fresh notice ordered; pending the same for survival of her and of the child just thought to grant towards interim maintenance including for medical expenses of the premature boy at Rs.30,000/- p.m., from the date of application. The D.V.C. order was dated 15.06.2010; whereas the maintenance order in Crl.M.P.No.455 of 2010 in M.C.No.325 of 2009 was 31.07.2010 where the same it apears not taken into consideration as had it been from the interim maintenance awarded in D.V.C. of Rs.30,000/- p.m. to the wife and child against the husband the question of again ordering to them to pay Rs.11,000/- per month could not be the outcome. No doubt, a perusal of the two matters show so far as husband is concerned, different advocates are appearing.
11. Be that as it may, the husband filed Crl.M.P.No.1869 of 2010 in D.V.C.No.22 of 2010 before the learned III Metropolitan Magistrate, Hyderabad, against the interim maintenance order in Crl.M.P.No.395 of 2010 dated 15.05.2010 to set aside the same and the learned Magistrate by discussing the factural matrix supra set aside the ex parte order of maintenance dated 10.05.2010 in D.V.C. at Rs.30,000/- p.m. The order speaks that the 1st respondent’s notice was sent to his residential address at Mumbai that was returend unclaimed and the notice to other respondents also returned unclaimed and from the sufficient proof of service of 1st respondnet, he was set ex parte and by ordering fresh notice to the other respondents in D.V.C. Rs.30,000/- p.m. towards interim maintenance granted in M.P.No.391 of 2010 and residential order to the wife to stay in Flat No.82, 8th floor at Mumbai (which stands in the joint names of husband and wife as detailed supra) ordered and it really shows the respondent/husband was in Engineering Training Centre at Mumbai at the relevant time and was not in Mumbai Airport by attending to working hours and filed training certificate in proof of which and it shows it was not an avoidance of service but lack of knowledge to attend. Thereby, the order granting maintenance is set aside.
12. It is important to note that against said impugned order setting aside interim maintenance of Rs.30,000/- and reducing by modification to Rs.6,000/- pending D.V.C.No.22 of 2010 granted under M.P.No.395 of 2010, later moved M.P.No.1869 of 2010, was impugned by the wife by filing D.V.C.Appeal No.475 of 2011 and is pending. In the D.V.C.Appeal No.475 of 2011, a criminal miscellaneous petition No.1064 of 2011 was filed and in the pending the appeal against the impugned D.V.C. interim order supra of the learned Magistrate, the learned Sessions Judge by order dated 10.02.2011 with observation that previously Rs.30,000/-
p.m. as interim maintenance to the wife and child ordered and it is pending the appeal against said order filed by the wife ordered as interim maintenance at Rs.30,000/- per month and that include Rs.6000/- p.m. already awarded by the learned Magistrate by modfied order from Rs.30,000/- p.m. and that the disbursement officer of 1st respndent/husband of Jet Airways, Mumbai, shall be directed to deduct Rs.30,000/- p.m. from his salary and to pay to the petitioner as was paying.
13. Impugning the same, the present revision in Crl.R.C.No.2550 of 2011 is filed by the husband with the contentions before this Court that the lower appellate Court erred in awarding Rs.30,000/- p.m. without considering the fact that no notice is served on the respondent/husband, lower appellate Court should not have to modify, the reduced amount Rs.6000/- from out of Rs.30000/- by the learned Magistrate and in so arriving went wrong for there is no basis in awarding Rs.30,000/- p.m. and hence to set aside.
14. It is needful to say in this back ground the other two revision cases against the order of the Family Court in M.C.No.325 of 2009 dated 27.11.2012 (by final disposal) awarded maintenance at Rs.5,000/- p.m. to the wife and Rs.10,000/- p.m. to the child with a direction to credit in recurring deposit opened in a post office in a bank so far as the child’s maintenance by showing mother as guardian besides payment of monthly maintenance of Rs.5000/-
p.m. to the wife on or before 10th of every calender month. The husband filed one of the revisions impugning the quantum as excessive and the wife filed the other revison impugning the quantum of maintenance as utterly low.
15. The impugned order of the learned Family Court Judge in disposal of M.C. after full dressed trial from recording of findings of wife as P.W.1 with reference to Exs A1 to A4 viz., marriage certificate, marriage photo, copy of bank statement showing salary of the husband for the month of December, 2008. Husband, who is examiend as R.W.1 placed reliance upon resume of his wife marked as Ex.R1 in the cross examination of his wife-P.W.1 and her enrollment as member of the bar and his salary pay slip of March, 2012. From this, the learned Family Court Judge awarded maintenance as observed in Para-7 of the order in nutshell that the facts covered supra that the wife in her evidence deposed that she is living at Mumbai and visiting Hyderabad and temporarily staying at Hyderabad in A.G.Colony, Yousufguda and he is coming to Hyderabad for hearing of the cases while living at Mumbai as record shows the relation between the couple strained and the husband is not inclined to receive the wife even she is prepared to join and admittedly he is earning more than Rs.1 lakh p.a. besides wife is well qualified woman and she was in employment earlier to mariage and the restitution of conjugal rights case filed by the wife is also under contest by husband saying they cannot live together, that is suffice to say a reasonable amount for the 1st petitioner to live to be awarded against him as husband says he is prepared to take care of and provide maintenance to the child but for disputing entitlement of maintenance to the wife with averment of she left his company at her own and making wild allegations against him and his family members with no regard for truth and there is no evidence from the husband to say wife is employed anywhere and got any earnings and thereby granted Rs.5,000/- per month to the wife and Rs.10,000/- per month to the child by also taking into consideration of her qualifications.
16. From the above, the points now that arise for consideration are:
1. In the common disposal of three revision cases what is the just amount of maintenance in the Maintenance Case the wife and child are entitled to so as to what the learned judge of Family Court awarded is insufficient so far as the wife as claimed by her or to be set aside by holding not entitled of even said Rs.5000/- p.m. as contended by the husband and also of no further amount entitled even as interim maintenance under D.V.C. in said revision agaisnt interim order of the D.V.C. filed before the Magistrate Court and also of pending the D.V.C. appeal by the learned Sessions Judge?
2. To what result?
POINT NO.1:
17. The relationship between the parties is not in dispute. Wife filed petition for restitution of conjugal rights, which is pending. As seen from the cross examination in maintenance case wife prepared to join the husband, which the husband negated by expressing disinterest as also observed by the learned Family Court Judge referred supra. There is nothing elicited but for to say prior to marriage, wife worked and now the contention that she is capable of doing some job, by placing reliance upon the expression of Madhya Pradesh High Court in Dr. Ajay Kashyap vs Dr. (Smt.) Hemlata Kashyap
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. It was in awarding interim maintenance pending the matrimonial case under Section 24 of the Hindu Marriage Act saying the purpose of enactment is not meant for supporting idle (qualified) spouses waiting for dole so to be awarded by husband but monitory assistance to such spouse who is handicapped of supporting in spite of sincere efforts. In fact, the decision and the scope therein pendenti lite in a matrimonial dispute and not by final order granting maintenance, needless to say in so considering what is the maintenance awarded separately in D.V.C. or in matrimonial matter also that to be taken care of. It is not even the case of the husband that in the restitution of conjugal rights O.P. filed by the wife pending and contesting by him there was any interim maintenance application under Section 24 filed by her much less awarded. The above decision has thus no application but for if at all to submit wife is also capable of earning something that to be taken into consideration in fixing the maintenance amount to her. It is important to note in the factual matrix of the case that, it is not the case of the husband that after marriage in 2005 the wife ever employed either at her volition or at her instance much less to say there from she can continue with such earning capacity. No doubt, she is a qualified advocate on the rolls and a post-graduate in law but for that to say nothing is there including as to she handled with any single case as advocate to say from the independent profession she has been getting any source of income for survival. In the absence of which it is the means of the husband that to be taken into consideration of the wife presently with no means but for in future if able to show to seek for order of modification for reducing maintenance to the wife under Section 127 Cr.P.C. In this scenario, the pay slip filed by him of his salary in the month of March, 2012 which was exhibited in M.C. as Ex.R3 that was filed by the husband for granting the maintenance order by the Family Court on 27.11.2012 shows that his total earnings of March, 2012 was Rs.1,96,727/- as salary with allowances of which basic is Rs.31,393/-, H.R.A. Rs.16,597, Special Pay Rs.11,500/-, Personal Pay Rs.16,637/-, license allowance Rs.25,000/-, bonus Rs.16,500/-, leave about the other benefits like telephone, refreshments, shift allowance, W.B. licence allowances. Out of which, the deductions shown were the P.F. contribution Rs.3983/-, PT Rs.200/-, third party loan Rs.22,700/-, Co-operative Credit Society Rs.200/-, LIC Rs.539/-, Advance against expenses Rs.3,000/- and I.T. deduction shown Rs.74,240/- for that month. It is to say as per the very certificate the annual income tax deduction shown was deferred tax on total income Rs.5,43,159/- including surcharge besides what was deducted earlier, said balance was deducted. Even from that, what the total income tax deducted of Rs.5,50,000/- p.a., including surcharge and what the salary earning is on average gross Rs.1,97,000/- p.m. and even taken Rs.47,000/- towards tax out of it the net salary could be Rs.1,50,000/- and even the deductions including for the house loan and other expenses for his residing in the flat at Mumbai that was taken on loan and paying instalments and out of the allowances that to meet deducted of Rs.50,000/- per month for all loan repayment and other contingencies even the said amount of Rs.1,00,000/- the child can be awarded minimum 1/5th that is to say Rs.20,000/- per month including for the continuous medical aid being premature born child apart from now in need of joining in school for prosecuting the academics besides medical expenses and school fee, food and clothing including school books, uniform fees etc., and even taken into consideration of wife getting or capable of getting any means from being an advocate by profession and on the rolls there is nothing to say her means and even estimated at an average Rs.5000/- to Rs.10,000/- the maximum; she requires minimum Rs.15,000/- p.m. from the husband to say total for the wife and child can be awarded Rs.35,000/- p.m. Thereby the maintenance awarded by the Family Court of Rs.5,000/- p.m. to the wife and Rs.10,000/- to the child requires to be enhanced from the date of maintenance petition at Rs.15,000/- p.m to the wife and Rs.20,000/- p.m. to the child which include the amount awarded in D.V.C. from the ex parte order and modified from Rs.30,000/- to Rs.6000/- and again pending D.V.C.Appeal awarded Rs.30,000/- by the learned Sessions Judge, to calculate and to deduct whatever the amount so far paid by the husband to the wife and child out of said Rs.35,000/- p.m. in all either in D.V.C. or in M.C., he is directed to deposit all the arrears in six monthly installments commencing from first week of August, 2014; needless to pay the regular maintenance also being payable. It is made clear that as the amount includes the amount awarded in the D.V.C. and the amount in the M.C. since enhanced reasonably, the amount awarded separately in D.V.C. closed by giving benefit of deduction of amounts so far paid. Accordingly, point No.1 is answered.
POINT NO.2:
18. Accordingly and in the result, all the Criminal Revision Cases are disposed of by dismissing Crl.R.C. No.161 of 2013 and partly alowing Crl.R.C.Nos.45 of 2013 and 2550 of 2011. It is needless to observe that the learned Judge has to dispose of the main D.V.C. by taking consideration of this amount towards maintenance apart from the shared residence at flat at Mumbai in the joint names of both for residing either jointly or separately at their convenience in the said flat. Thus, the miscellaneous petitions pending, if any, shall stand closed, for no more orders required, since direction for payment of balance is given, if not paid that entitles the wife to execute against the husband for her and her child, said maintenance amount.
Date: 23-07- 2014 pab Dr. B.SIVA SANKARA RAO J,
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