IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S.KINAGI CRIMINAL RP NO.18 OF 2019 BETWEEN:
MR. SRI. MANJUNATHA. H. N. S/O NANJUNDAPPA, COOLIE AGED ABOUT 42 YEARS R/O CHOWLAHIRIYUR VILLAGE, KADUR TQ, CHIKMAGALURU DISTRICT-577 548.
….PETITIONER (BY SRI. H MALATESH, ADVOCATE) AND:
1. SMT. SUDHA W/O MANJUNATHA H N AGED ABOUT 32 YEARS 2. MANOJ H M S/O MANJUNATHA H N AGED ABOUT 12 YEARS MINOR, REPRESENTED BY HIS NATURAL GUARDIAN MOTHER RESPONDENT No.1 BOTH ARE R/O CHOWLAHIRIYUR VILLAGE KADUR TQ., CHIKKAMAGALURU DISTRICT-577 548.
…..RESPONDENTS (BY SRI. R. RANGASWAMY, ADVOCATE) THIS CRIMINAL RP IS FILED UNDER SECTION 397 READ WITH 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 20.9.2017, PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC AT KADUR IN CRL.MISC.NO.83 OF 2016 AND ETC.
THIS CRIMINAL RP COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner aggrieved by the order dated 20.9.2017 passed in Criminal Miscellaneous 83 of 2016 by the Principal Civil Judge and JMFC at Kadur confirmed in Criminal Appeal No.28 of 2008 by the II Additional District and Sessions Judge, Chickmagalur, has preferred this revision petition.
2. It is the case of respondent Nos.1 and 2 that they are the wife and son respectively of the petitioner. Marriage of respondent No.1 with the petitioner was solemnized on 28.2.2005 at Chowlahiriyur village and at the time of marriage, parents of respondent No.1-wife have given Rs.45,000/- cash, one gold neckchain and one watch and gold ring and other gold ornaments.
3. The marriage expenses were also borne by the parents of respondent No.1. The petitioner and respondent No.1 have led a happy marital life and thereafter, petitioner in collusion with his brother and mother started to ill-treat respondent No.1, physically and mentally. Petitioner never provided food and clothing to the respondents and he has not taken care of the education of respondent No.2-son. The petitioner has thrown out the respondents from his house and later on respondent No.1 was provided a room in the house of the mother of the petitioner. Later, the petitioner married one Vijayamma. The petitioner is a carpenter and earning Rs.25,000/- p.m. from his carpenter work and he has also got agricultural income of Rs.5,00,000/- per annum. The petitioner has willfully neglected to maintain the respondents. Respondent No.1 gave a complaint to Veerabhadreshwara Santhwana Kendra. Inspite of the same, the petitioner has not taken care of the respondents and that father of respondent No.1 is not in a position to maintain the respondents. Hence, the respondents filed the petition seeking an order of injunction against the petitioner restraining him from dispossessing the respondents from the house.
4. The trial Court issued notice. The petitioner appeared and filed objection. The petitioner admits that respondent No.1 is his wife and respondent No.2 is his son. He also admits the place of marriage. He denies the fact of giving dowry by the parents of respondent No.1 at the time of marriage. The petitioner has taken the contention that respondent No.1 started to harass the petitioner and his parents for the reasons known and that respondent No.1 never co-operated with him. She had neglected and deserted the petitioner and that the petitioner has performed all the marital obligations towards the respondents and that till today he is having marital affection towards respondent No.1. He is working as a coolie and has no permanent source of income. He is not having landed or house property and sought for dismissal of the petition.
5. Respondent No.1 in support of her contention got herself examined as PW1 and got marked 12 documents as exhibits P1 to P12. The petitioner has got examined himself as RW1. The trial Court after considering the evidence and documents produced by the parties, passed the order granting injunction restraining the petitioner from dispossessing the respondents from the house where they are now residing and directed the petitioner to pay monthly maintenance of Rs.3,000/- each to the respondents from the date of the petition and also directed to pay Rs.5,000/- towards the cost of the petition.
6. The petitioner aggrieved by the said order filed Criminal Appeal No.28/2008 before the II Additional District and Sessions Judge, Chikmagalur.
The Appellate Court after re-appreciating the material on record has modified the extent of quantum of monthly maintenance from Rs.3,000/- each to the respondents to Rs.2,000/- i.e. respondent No.1- wife and respondent No.2-son. The petitioner aggrieved by the said orders, filed this revision petition.
7. Heard the arguments of the learned counsel for the parties.
8. The relationship of the petitioner and the respondent No.1 as husband and wife is not denied. Respondent No.2 being the son of petitioner and respondent No.1 is also not disputed. It is admitted that respondents are residing in the house of the petitioner. But the petitioner is not providing any maintenance to the respondents and he has neglected them to maintain. Respondent No.1 prior to the filing of this petition has got issued a legal notice as per Ex.P3 wherein she has categorically stated about the ill-treatment given by the petitioner as well as his mother and brother. The said fact has not been denied by the petitioner by issuing reply notice and further respondent No.1 has also produced a report of Sri Veerabhadreshwara Education Institution i.e. Santhwana Kendra, Kadur, written to CDPO, Kadur. As per the said document, it is clearly stated that the petitioner has ill-treated respondent No.1 and also stated about the lodging of domestic incidence report before the concerned court. The said domestic incident report was also submitted by the concerned CDPO before the Trial Court. The Trial Court after coming to the conclusion that Ex.P3-Legal notice and Ex.P6-complaint to Santhwana Kendra has held that the petitioner has committed a domestic violence on respondent No.1.
9. Respondent No.1 has stated in the petition that she was unable to maintain herself and the petitioner has not denied the fact that respondent No.1 is able to maintain herself. On the contrary, the petitioner has neither produced any records to show that respondent No.1 has got source of income for her livelihood nor he has provided for educational expenses of respondent No.2. It is respondent No.1 who is taking care of respondent No.2 and providing education to him. The petitioner being a husband of respondent No.1 and father of respondent No.2, it is the legal duty of the petitioner to maintain his wife and son and provide all education expenses of respondent No.2. But on the contrary, petitioner has not provided any amount to respondent No.1 and also borne the educational expenses of respondent No.2.
10. The trial court after considering the entire material on record has rightly awarded maintenance amount to the respondents.
11. The contention of the petitioner is that the land owned by the family of the petitioner i.e. S.No.167/11 measuring 1 acre 4 guntas is in possession of respondent No.1.
12. The said contention cannot be accepted for the simple reason that the petitioner has not taken such a stand in the statement of objections and also not stated in his evidence. The said ground has been raised only before the Appellate Court. If the petitioner has not taken such a stand in the objection filed before the trial Court and also in the evidence deposed before the trial Court, he cannot be permitted to take such a new ground in the appeal. The said contention is also rejected.
13. The Appellate Court has reduced the quantum of maintenance from Rs.3,000/- to Rs.2,000/- on the ground that the petitioner is doing coolie work and earning Rs.200/- to 300/- per day and is not getting sufficient income from his agricultural land. The amount awarded by the Appellate Court is on the lower side and it is very difficult to lead a normal life with Rs.2,000/- p.m. However, respondent No.1 has accepted the order passed by the Appellate Court. The Appellate Court after considering the entire material on record has passed an order. Hence, I do not find any grounds to interfere with the order passed by the court below.
Hence, the Revision petition is dismissed.
Sd/- JUDGE rs