IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.1562 OF 2016 BETWEEN:
SRI.NARAYANA MURTHY, S/O.MUNINARAYANAPPA, AGED ABOUT 36 YEARS, R/AT HULUGAMMANAHALLI VILLAGE, KAIWARA HOBLI, CHINTAMANI TALUK-563125, CHIKKABALLAPUR DISTRICT. ... PETITIONER (BY SRI.N.AMARESH, ADVOCATE) AND:
1. SMT.ARUNA, W/O.NARAYANA MURTHY, AGED ABOUT 25 YEARS, R/AT.HULUGAMMANAHALLI VILLAGE, KAIWARA HOBLI, CHINTAMANI TALUK-563125, CHIKKABALLAPUR DISTRICT.
2. MASTER GOWTHAM, S/O.NARAYANASWAMY, AGED 7 YEARS, REP. BY HIS MOTHER SMT. ARUNA, R/AT HULUGAMMANAHALLI VILLAGE, KAIWARA HOBLI, CHINTAMANI TALUK-563 125, CHIKKABALLAPUR DISTRICT. ... RESPONDENTS (BY SRI.M.NARAYANA REDDY, ADVOCATE) THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C PRAYING TO: i) QUASH OR SET ASIDE THE ORDER DATED 21.01.2016 IN CRL.RP.NO.10/2012 PASSED BY THE PRL. DIST. AND S.J. AT CHIKKABALLAPUR AND ii) QUASH OR SET ASIDE THE ORDER DATED 05.01.2012 IN CMC NO.25/2009 PASSED BY THE PRL. CIVIL JUDGE AND JMFC, CHINTAMANI.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for petitioner and learned counsel for respondents.
Petitioner is aggrieved by the order passed by the Principal District and Sessions Judge, Chikkaballapur in Criminal Revision Petition Nos.10/2012 and 23/2012 dated 21.01.2016 whereby the learned Sessions Judge has confirmed the order passed by the Principal Civil Judge and JMFC, Chintamani dated 05.01.2012 in CMC.No.25/2009.
2. Respondents herein filed an application under section 125 Cr.P.C., claiming maintenance for herself and her minor child at the rate of Rs.2,000/- per month and Rs.1,000/- per month respectively. Before the Trial Court, respondent No.1 examined herself as PW1 and produced three documents namely memorandum of marriage (Ex.P1), birth certificate (Ex.P2) and FIR (Ex.P3). In rebuttal, petitioner herein examined himself as RW.1 and let in evidence of two other witnesses. On considering the said material, Trial Court by order dated 05.01.2012 directed petitioner herein to pay monthly maintenance of Rs.2,000/- to respondent No.1 – wife and Rs.1,000/- to respondent No.2 - minor child till he attains majority. The Revision Petition preferred against this order has been dismissed by the revisional court thereby confirming the order passed by the learned Magistrate.
3. Learned counsel for petitioner has assailed the findings of the courts below on the ground that both the courts below have failed to take into consideration the income of petitioner to pay the maintenance claimed by respondent. It is contended that the petitioner has denied the legitimacy of respondent No.2 and therefore, the impugned orders are liable to be quashed in exercise of the powers under section 482 Cr.P.C.
4. Learned counsel for respondents, however, has argued in support of the findings recorded by the courts below and has sought to dismiss the petition.
5. Considered the rival submissions and perused the records.
6. Petitioner has not disputed the factum of his marriage with respondent No.1. But, in the course of the proceedings, he denied the legitimacy of respondent No.2, contending that respondent No.2 was not born to him.
7. Having regard to the fact that respondent No.2 was born during the subsistence of marriage between petitioner and respondent No.1, in view of the presumption engrafted in section 112 of the Evidence Act, in the absence of any material to show that during subsistence of marriage, respondent No.1 had access to any other person so as to give birth to respondent No.2, the finding recorded by the courts below on this point requires to be affirmed.
8. Coming to the direction issued by the courts below to pay maintenance to respondent Nos.1 and 2 at the rate of Rs.2,000/- per month and Rs.1,000/- per month is concerned, on going through the impugned orders, I find that the courts below have not recorded any finding with regard to the actual income of the petitioner. The Trial Court has merely observed that petitioner is an able bodied person and is working as a coolie and on this basis, petitioner has been directed to pay maintenance at the above rate. There is no clear evidence as to actual income derived by petitioner. The revisional court has observed that, petitioner in his evidence has admitted that under the Government Scheme, Rs.100/- per day has been paid as wages. Even assuming that Rs.100/- is paid as wages per day to petitioner as a coolie, the monthly income of the petitioner comes to Rs.3,000/-. Under the said circumstances, there was no justification for the Courts below to award entire amount of Rs.3,000/- to respondents by way of maintenance.
9. Learned counsel for respondents has referred to the pleadings of the petitioner and has taken up a plea that in the absence of any denial of the said assertion, the Trial Court was justified in awarding maintenance as above.
10. I have gone through the assertions made in the petition filed by the respondents. In her petition, respondent No.1 has stated that petitioner is having 5 acres of landed property and two bore wells and he is doing sericulture and milk vending business and rearing cocoons and earning Rs.5,00,000/- per annum. But unfortunately, no piece of paper has been produced before the court to substantiate these assertions. Even though in the course of argument it is submitted that father of the petitioner is owning agricultural land, even RTC of the said property is not produced before the court, making it evident that respondents have failed to prove the assertions made in the petition that petitioner is owning agricultural land and is deriving income of Rs.5,00,000/- per annum. In the absence of any material to substantiate the said assertion, order passed by the courts below determining maintenance at Rs.3,000/- per month cannot be sustained. The said direction is not based on any legal evidence.
11. However taking into consideration that the petitioner is an able bodied person and is doing agricultural work and taking into consideration the answers elicited in the course of his evidence that he has been earning Rs.100/- per day, in my view, it would serve ends of justice if a sum of Rs.1500/-, in all, is ordered to be paid to the respondents by way of maintenance. To this extent, impugned orders, in my view, call for interference.
Accordingly, petition is allowed-in-part. The impugned orders passed by the courts below are modified. Petitioner is directed to pay monthly maintenance of Rs.1,000/- per month to the first respondent –wife and Rs.500/- per month to second respondent - minor child till he attains majority, from the date of application filed under section 125 Cr.P.C. Liberty is reserved to petitioner to seek modification of the maintenance on the changed circumstances if any, under section 127 Cr.P.C.
In view of disposal of petition, I.A.No.1/2016 for stay does not survive for consideration and it stands disposed of.
Sd/- JUDGE Bss