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JMFC, DHONE. M.C.No.14 of 2014.
In the Court of the Judicial Magistrate of First Class, Dhone.
Present:- Sri.E.Anjaneyulu,
Principal Junior Civil Judge, Dhone,
FAC Judicial Magistrate of First Class, Dhone.
Thursday, the 1st day of March, 2018.
M.C.No.14 of 2014.
1. Devana Joy Mercy, aged about 24 years, W/o Devana Surendra Babu, House wife, D/o Yelanati Yesudas.
2. Devana Shiny, aged about 2 years, D/o Devana Surendra Babu, Minor.
Being the petitioner No.2 is the minor Represented by the petitioner No.1.
Both are Christian, R/at H.No.4-149-173-1-1, Teacher’s Colony, Dhone Town and Mandal, Kurnool District. … Petitioners.
-Versus-
Devana Surendra Babu, aged about 28 years, S/o Late Devana Sreerangam, Christian, Private Employee, R/o H.No.4-450A, Panchayathi Colony, Gooty Village, Post and Mandal, Anantapur District. … Respondent.
This petition coming on 26-02-2018 for hearing before me in the presence of Sri M.Nagabhushana Reddy and Sri A.Sreedhar, Advocates
for the Petitioners and of Sri M.Sreenivasulu and Sri B.Lakshmi
Narayana, Advocates for the Respondent, upon perusing the material papers on record, and having stood over for consideration till this day, this court made the following:-
ORDER
This is a petition filed by the petitioners 1 and 2 under Section 125 of Cr.P.C., against the Respondent seeking monthly maintenance at
Rs.6,000/- to the first petitioner and Rs.3,000/- to the second petitioner directing the respondent to pay the same in first week of every month to meet the ends of justice.
2.The brief facts of the petition are as follows:
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JMFC, DHONE. M.C.No.14 of 2014.
The first petitioner is legally wedded wife of the respondent, the marriage between the first petitioner and the respondent took place at the Indian Pentecostal Church of God, Teacher’s Colony, Dhone on 20- 1-2011. At the time of marriage on 20-1-2011 on demand by the respondent, the first petitioner’s father gave Rs.50,000/- of cash to the respondent and incurred the marriage expenses to a sum of
Rs.1,00,000/-, the said marriage was consummated. The first petitioner and respondent lead happy marital life for a period of 3 months.
Thereafter, the respondent used to harass the first petitioner on a pretext that the first petitioner in black in complex, fat in personality and is not capable of giving birth to children and he demanded the first petitioner to bring additional dowry otherwise he would get second marriage and used to harass the first petitioner regularly and used to beat her indiscriminately and forced her to get out from his house. The respondent due to wedlock gave birth to a female child i.e., 2nd petitioner. Thereafter the respondent also used to beat the first petitioner on a pretext that she gave birth to a female child. The first petitioner’s parents conducted several panchayaths, but the respondent has not heeded the words of them. The respondent finally refused and neglected to provide food, cloth and shelter to the petitioners and necked out them from his house. The first petitioner is expecting life danger in the hands of the respondent. The first petitioner is not maintaining good health and she has no means to maintain herself and the second petitioner. The respondent has sufficient means to provide separate maintenance to each of the petitioner. The first petitioner gave a complaint against the respondent and his family about the harassment before Dhone Town police station and it was registered as
Cr.No.134/2014. The first petitioner has no capacity to maintain herself and the second petitioner. The respondent is doing a job in Toll Plaza 3
JMFC, DHONE. M.C.No.14 of 2014.
and getting a monthly salary of Rs.16,000/-. The respondent own two houses totally worth about Rs.25,00,000/- at Gooty town and he gets a monthly rent of Rs.5,000/- out of one house. He also works as
Supervisor under building construction labourers and earns Rs.8,000/- per month. As the petitioners are residing at Dhone Town and Mandal,
Kurnool District within the jurisdiction of this Hon’ble Court. As the respondent refused and neglected to maintain the petitioners without having sufficient reasons and living separately without providing any maintenance is liable to pay monthly maintenance to the petitioners.
Considering the circumstances and conditions of the society the first petitioner is required the monthly maintenance of Rs.6,000/- and the 2nd petitioner is Rs.3,000/-. The respondent harassment has got sufficient means to provide separate maintenance to the petitioners. Hence, the petitioner prays to grant monthly separate maintenance of Rs.6,000/- to the first petitioner and Rs.3,000/- to the second petitioner, directing the respondent to pay the same in first week of every month to meet the ends of justice.
3.The respondent filed his counter making general and specific denial of the petition allegations and further inter-alia contending that the petition is neither just nor maintainable either on facts or in law. The allegations cited in the petition are false and dined by the respondent.
The respondent admits the marriage between him and the petitioner.
The respondent denied that at the time of marriage on 20-1- 2011 on demand by respondent the first petitioner’s father gave
Rs.50,000/- of cash to the respondent and incurred the marriage expenses to a sum of Rs.1,00,000/- as false and the petitioner is put to strict proof of the same as true and correct.
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JMFC, DHONE. M.C.No.14 of 2014.
4.The respondent further submitted that the first petitioner lived with him for six months after marriage. Thereafter, the first petitioner started to quarrel with the respondent pressing him to set up family at
Dhone where her parents professing the Christianity by establishing an
I.P.C. Church. He refused the demand of the 1st petitioner as he is an employee in Toll Plaza at Gooty and he has legal obligation to look after his widows mother as her only son, the parents and brother of first petitioner are professing the Christianity as pastors in the I.P.C.
Churches and they gave support to the first petitioner’s demand to move and set up the family in Dhone. The first petitioner is completely under the thumb of her parents and brother and as the respondent did not accept the demand of setting up the family in Dhone, the first petitioner started to leave to her parents’ home at Dhone without the permission of and intimation to the respondent. During wedlock the first petitioner impregnated and on 23-1-2012 the mother of respondent took her to her parents home for delivery. On 29-4-2012 the first petitioner gave birth to the second petitioner. Having come to the birth of second petitioner, the respondent rushed to Dhone to see the new-born child but he was not permitted to see the second petitioner and sent out unceremoniously by the parents of the first petitioner. Later, the respondent convened panchayaths with the well-wishers of both sides and in the said panchayaths the elders admonished the first petitioner to mend her ways and join the respondent’s company. But, the first petitioner did not heed their advices and her parents and brother also supported the first petitioner instead advising her to join the company of the respondent. Though, the respondent bore all the humiliation made by the first petitioner and her parents and brother and keeping in view of the welfare of the family he strived for restoration of broken family.
Thereupon the first petitioner gave a complaint in Dhone police station and the police found that the first petitioner and her parents were trying 5
JMFC, DHONE. M.C.No.14 of 2014.
to foist a false case against the respondent and did not register the said complaint. The respondent filed a petition in M.L.S.A., Gooty and the first petitioner gave an undertaking before the said authority to join the company of respondent to lead marital life with him. But, the first petitioner disobeyed her undertaking and did not company of the respondent. Again the first petitioner filed another complaint in Dhone
Police Station and as the respondent was always ready to take the first petitioner to his home, the police against advised her to join the company of the respondent and rejected to register her complaint. The respondent further submitted that as the first petitioner was not discharging her duties as a dutiful wife and she was living separately from the respondent without any reasonable cause or excuse he was constrained to issue a legal notice dated 14-7-2014 to the first petitioner calling upon her to join his company and lead marital life with him and the said notice was received by her. The first petitioner gave an evasive reply with false and untenable pretenses. To make a ground to file this petition the first petitioner gave legal notice dated 28-8-2014 to the respondent and the respondent has give a suitable reply notice
dated 5-9-2014. The first petitioner relentlessly filed a complaint before
the Judicial First Class Magistrate as the Dhone police refused to register her false complaint and got registered her complaint on reference from the Court. The respondent was remanded and spent in the Sub-Jail for no fault of him. As all his efforts to bring back the first petitioner to his home became futile through mediations, he was forced to file a petition
before the District Court, Anantapur seeking the restitution of conjugal
rights against the first petitioner and the same is numbered as
O.P.No.526/2014. The first petitioner has no justifiable grounds to live separately from the respondent and she deserted the respondent and has been living separately from his without any reasonable cause or excuse and only with an unethical demand to set up the family in Dhone 6
JMFC, DHONE. M.C.No.14 of 2014.
and desert his widowed mother. The respondent further submitted that the respondent is a temporary worker in Toll Plaza at Gooty and he gets
Rs.8,000/- salary every month. He is residing a rented house and he has to pay monthly rent of Rs.1,000/- as a rent for his residence. He is bound to maintain himself and his widowed mother and he is barely left with a pittance to provide him and his widowed mother a square meal and he is leading semi starved life. Quite contrary to the lowest financial status of the respondent, the petitioner is affluent leave alone the sufficient economic support from her father and brother who get more than one lakh every month in their profession which goes to show that the 1st petitioner is able to maintain herself in reasonable comfort along with the second petitioner. The respondent is always prepared and willing to take the petitioner back to his matrimonial home which has been deserted by her without just and sufficient reason, the first petitioner is legally disentitled to claim any maintenance. At no point of time the respondent refused to maintain the petitioners. Hence, prays to dismiss the petition in the interest of justice.
5.In order to prove the case of the petitioners, the first petitioner herself examined as PW.1 and also examined PW.2 to PW.4 and got marked Ex.P1 to Ex.P.15 on their behalf. On behalf of the respondent, the respondent himself examined as RW.1 and also examined RW.2 and
RW.3 and got marked Ex.R1 to Ex.R.13 on his behalf.
6.Heard arguments for learned counsels appearing for both sides and having perused the material on record in both oral and documentary evidence. The learned counsels for the petitioner and the respondent filed written arguments.
7.Now the points for consideration are:
1. Whether petitioners are willfully neglected by the respondent or not?
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JMFC, DHONE. M.C.No.14 of 2014.
2. Whether the first petitioner is able to maintain herself?
3. Whether the respondent having means, neglected and
refused to maintain the petitioners 1 and 2?
4. Whether the petitioner is entitled for relief of maintenance? If so, at what rate?
8.Points No.1 and 2:-
1. Whether petitioners are willfully neglected by the respondent or not?
2. Whether the first petitioner is able to maintain herself?
For the sake of convenient discussion, the Points No.1 and 2 shall be discussed together as they are interconnected with each other.
9.The contention of the petitioner is that the respondent used to harassed the first petitioner on a pretext that the first petitioner is black in complex, fat in personality and is not capable of giving birth to children and he demanded the first petitioner to bring additional dowry otherwise he would get second marriage and use to harass the first petitioner regularly and used to beat her indiscriminately and forced her to get out from his house, the respondent due to wedlock gave birth to a female child i.e., second petitioner, thereafter the respondent also used to beat the first petitioner on a pretext that she gave birth to a female child. The first petitioner’s parents conducted several panchayaths, but the respondent has not heeded the words of them, the respondent finally refused and neglected to provide food, cloth and shelter to the petitioners and necked out them from his house, the first petitioner expecting life danger in the hands of the respondent, the first petitioner is not maintaining good health and she has no means to maintain herself and the second petitioner. Whereas the contention of the respondent is that the first petitioner lived with respondent for six months after their marriage, subsequently, the first petitioner started to 8
JMFC, DHONE. M.C.No.14 of 2014.
quarrel with the respondent pressing him to set up family at Dhone where her parents professing the Christianity by establishing s I.P.C.
Church, the respondent is not employee in Toll Plaza at Gooty and he had an legal obligation to look after his widowed mother as her only son, however the parents and brother of the first petitioner are professing the Christianity as pastors in the I.P.C. Churches and they gave support to the her demand to move and set up the family in Dhone. The first petitioner is completely under the thumb of her parents and brother and as the respondent did not accept the demand of setting up the family in
Dhone, the first petitioner started to leave to her parents’ home at
Dhone without the permission of and intimation to the respondent.
During wedlock the first petitioner impregnated and on 23-1-2012 the mother of respondent took her to her parent’s home for delivery. On 29- 4-2012 the first petitioner gave birth to the second petitioner, having come to the birth of second petitioner, the respondent rushed to Dhone to see the new-born child but he was not permitted to see the second petitioner and se out unceremoniously by the parents of the first petitioner. Later, the respondent convened panchayaths with the well- wishers of both sides and in the said panchayaths the elders admonished the first petitioner to mend her ways and join the respondent’s company. But, the first petitioner did not heed their advices and her parents and brother also supported the first petitioner instead advising her to join the company of the respondent. Though, the respondent bore all the humiliation made by the first petitioner and her parents and brother and keeping in view of the welfare of the family he strived for restoration of broken family. Thereupon the first petitioner gave a complaint in Dhone police station and the police found that the first petitioner and her parents were trying to foist a false case against the respondent and did not register the said complaint. The respondent filed a petition in M.L.S.A., Gooty and the first petitioner gave an 9
JMFC, DHONE. M.C.No.14 of 2014.
undertaking before the said authority to join the company of respondent to lead marital life with him. But, the first petitioner disobeyed her undertaking and did not company of the respondent. Again the first petitioner filed another complaint in Dhone Police Station and as the respondent was always ready to take the first petitioner to his home, the police against advised her to join the company of the respondent and rejected to register her complaint. The respondent further submitted that as the first petitioner was not discharging her duties as a dutiful wife and she was living separately from the respondent without any reasonable cause or excuse he was constrained to issue a legal notice
dated 14-7-2014 to the first petitioner calling upon her to join his
company and lead marital life with him and the said notice was received by her. The first petitioner gave an evasive reply with false and untenable pretenses. To make a ground to file this petition the first petitioner gave legal notice dated 28-8-2014 to the respondent and the respondent has give a suitable reply notice dated 5-9-2014. The first petitioner relentlessly filed a complaint before the Judicial First Class
Magistrate as the Dhone police refused to register her false complaint
and got registered her complaint on reference from the Court. The respondent was remanded and spent in the Sub-Jail for no fault of him.
As all his efforts to bring back the first petitioner to his home became futile through mediations, he was forced to file a petition before the
District Court, Anantapur seeking the restitution of conjugal rights against the first petitioner and the same is numbered as
O.P.No.526/2014. The first petitioner has no justifiable grounds to live separately from the respondent and she deserted the respondent and has been living separately from his without any reasonable cause or excuse and only with an unethical demand to set up the family in Dhone and desert his widowed mother.
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JMFC, DHONE. M.C.No.14 of 2014.
10.The following facts admitted in their evidence that the respondent married with the petitioner, she filed a case against the respondent. The respondent is an employee in Toll Plaza of Gooty. The petitioner contended that the respondent is working as an employee in Toll Plaza and getting Rs.16,000/- per month. Except her oral evidence, statements no documents are filed to prove her case before this Court.
However, the respondent preferred an appeal before the Hon’ble
Principal District Judge, Kurnool in Criminal Revision Petition No.80/2015
and Criminal Revision Petition No.81/2015 and consequently the matter was remanded back to this Court directing to the Court for fresh adjudication on merits after giving opportunity to both parties to adduce evidence. Accordingly, this Court had given opportunity to the both parties. The learned counsel for the respondent filed a petition under
Sec.311 Cr.P.C. in Crl.M.P.No.4428/2017 to recall and reopen the evidence of RW.1 for marking of documents, accordingly the said petition is allowed on 6-10-2017. The RW.1 is further examined and got marked Ex.R9 to Ex.R13. Subsequently, the learned counsel for the respondent filed a petition under Sec.243 Cr.P.C. in Crl.M.P.No.5975/2017 seeking to recall and reopen the evidence of RW.1 for marking of documents and the same is allowed on 3-1-2018 and marked Ex.R9 to
Ex.R13.
11.Accordingly, the first petitioner is examined as PW.1, she deposing in her chief affidavit in accordance with the pleadings. In the cross examination PW.1 had deposed they are 10 issues to their parents and among them 7 are male and 3 are female, her eldest brother is working as pastor, she do not know where her second elder brother is residing, her father is also working as pastor, one of her brothers namely Jermiah is working as reporter in N.T.V. and her another brother Joel is also completed training as pastor. She denied that they did not give 11
JMFC, DHONE. M.C.No.14 of 2014.
Rs.50,000/- cash and they incurred one lakh expenses in the marriage, the respondent did not harass her as she was black in complex, there is no scope to conceive and he did not demand additional dowry, after she delivered a female child the respondent never harassed her. Her father- in-law is not more, the respondent is only issue to his parents, she do not know whether her mother-in-law is not maintaining good health, one
Sivaji Rao, Bhaskar conducted mediation in between her and respondent and they did not mention their names in her chief affidavit. She further denied that the respondent never necked her out from his house, she did not mention specifically the date when she was necked out by respondent in her affidavit, she do not know whether police station is situated nearby to her house, she is hale and healthy and she can maintain herself whereas respondent has no means to provide separate maintenance to her, the respondent never caused in convenience to her in fact she caused inconvenience to him. She did not file any document showing that the respondent is working in toll plaza and getting
Rs.16,000/- as salary, she did not file any document showing that the respondent owns two houses worth of Rs.25 lakhs and gets Rs.5,000/- from each house as rent. Admittedly, the respondent filed HMOP
No.526/2014 for restitution of conjugal rights and same is pending. She further denied that the respondent gets only Rs.8,000/- per month by doing work in toll plaza near Gooty and he is residing in a rented house for Rs.1,000/- per month and he is living with meager amount with difficulty, as her father and brothers are earning sufficiently hence, she is not interested to join respondent.
12.The PW.1 further examined in chief and got marked Ex.P1 to
Ex.P13. Ex.P1 is wedding card, Ex.P2 is wedding photo, Ex.P3 is marriage certificate (attested copy), Ex.P4 is original rent agreement, dt.7-3-2017, Ex.P5 is original school fee receipt of second petitioner, 12
JMFC, DHONE. M.C.No.14 of 2014.
Ex.P6 is original bill issued by Raj Super Market, dt.7-3-2017, Ex.P7 is two original medical bills issued by Madhu Medical and Fancy Store, dt.7-3-2017, Ex.P8 is Photostat copy of prescription given by Doctor
P.Devanand, dt.7-11-2012 (it is represented original was filed in Revision
Court), Ex.P9 is Photostat copy of Thyroid report, dt.27-10-2012, (it is represented original was filed in Revision Court), Ex.P10 is Extract copy of vehicle registration certificate bearing No.AP 02 BA 6825 from
Internet, Ex.P11 is original photograph of motor cycle, Ex.P12 is original property tax demand bill for 2016-17 in the name of Smt.Pullamma,
Ex.P13 is Information furnished by Assistant Engineer, Distribution
APSPDCL, Gooty regarding Electricity connection to the houses situated in Z.Veera Reddy Colony at Sl.No.69 which is in the name of
Smt.D.Pullamma bearing connection No.16988.
13.In the cross examination the PW.1 had deposed that admittedly two houses are not in the name of the respondent. She denied that she file all the above documents by creating the same subsequent the orders of Hon’ble Revision Court, the Hon’ble Revision Court suggested her to file any document but not creating new documents. She admitted that she obtained the above documents subsequently to the orders of
Hon’ble Revision Court. She further denied that she created the above
documents, she created all the above documents only to harass the respondent, she has been residing with her parents by leaving her husband. Witness adds that she has been residing separately from her parents for the last three years, she has been residing in the house referred in Ex.P4 agreement only for the last one month, she never resided separately from her parents and she is deposing false, as she herself did not join the respondent voluntarily hence the respondent is not liable to pay any maintenance to her. She further admitted that the respondent paid maintenance amount as per the orders of this Court in 13
JMFC, DHONE. M.C.No.14 of 2014.
M.C.No.14/2014. She further denied that the respondent purchased a
motor bike on 25-2-2016, except the above motor bike the respondent does not own any property.
14.To support of her case, the plaintiff examined the PW.2 who deposed in chief supporting the contention of the petition and supported the contention of the PW.1 in all material aspects. In the cross examination PW.2 had deposed that he is residing in his own house in
Kothapeta, Dhone, whereas the petitioner and her father resides in
Teachers colony, Dhone, there is ½ kilometer distance in between his colony and petitioners colony. The petitioner married the respondent on 20-1-2011 in the Church of petitioner’s father, the petitioner lived happily in Gooty with the respondent for three months, he do not know specifically upto what period the both parties lived in Gooty. He admitted that for the last 4 years the petitioner has been residing in
Dhone with her parents, he attended only once in the mediation held in between both parties at Gooty in the house of respondent along with petitioner parents and one Bhaskar after 3 months of their marriage. He denied that in the mediation the parents of petitioner demanded the respondent to shift his family from Gooty to Dhone. He do not know whether respondent filed a petition before Mandal Legal Services
Committee, Gooty in the month of September, 2011 for restitution of his conjugal rights, he did not witness personally with regard to harassment made by respondent against the petitioner, but the petitioner informed him the same. It is an admitted that the brother of petitioner is working as reporter in NTV, while he was working as ASI he used to maintain relationship with reporters and likewise he has good relationship with brother of the petitioner namely Jermiya. He further denied that because of relationship with petitioner’s brother and also petitioner’s father, he give evidence falsely, he has no proof to show that the respondent get 14
JMFC, DHONE. M.C.No.14 of 2014.
Rs.16,000/- monthly salary, he has also no proof to show that respondent owns two houses worth of Rs.25 lakhs and getting monthly rent of Rs.5,000/- per month, he has also no proof to show that the respondent is working as building supervisor and gets Rs.8,000/- per month. He further denied that the respondent does not get Rs.16,000/- as salary, he has no two houses, and he is not working as building supervisor and at the instance of petitioner’s brother and father he is deposing false, the petitioner’s father demanded the respondent in the mediation in his presence to shift his family from Gooty to Dhone. It is an admitted fact that the father of the respondent is no more and the respondent has to look after the welfare of his mother. In the cross examination PW.2 further deposed that D.Surendra Babu is working in the Toll Plaza on Contract basis, admittedly the Toll plazas pay the salary only for the working days, if the employee is absent other than the monthly off given to the sole employee the salary will not be paid for the said absent days, if the employer with whom they enter into contract is changed the contract automatically gets terminated, witness voluntaries that the future contract with the hew employer may depend on his demands.
15.To support of her case, the plaintiff examined the PW.3 who deposed in chief that he is the petitioner herein and PW.1 filed the present maintenance case against the respondent and he is aware of the contents of the chief affidavit filed by him, witness reiterates the contents of chief affidavit filed by him and identifies his signature on each page.
16.To support of her case, the plaintiff examined the PW.4 who deposed in chief supporting the contention of the petition and supported the contention of the PW.1 in all material aspects. In the cross 15
JMFC, DHONE. M.C.No.14 of 2014.
examination PW.4 had deposed that they are 7 brothers and 3 sisters as siblings, his parents are alive, the petitioner PW.1 is second daughter to her parents, after marriage PW.1 and the respondent were living together near his house at a distance of less than one kilo meter, the petitioner used to visit his house weekly once for a period of 10 minutes and then get back to her house, she never informed him about the disputes between PW.1 and the respondent, he do not know the various other cases filed either by PW.1 or the respondent against each other, he has been working as a Pastor at Church at Gooty for the last 15 years, he own a house at Gooty. He denied that he got the said house from Laxmanna only, he do not know about how many years back PW.1 filed the present Maintenance Case, the respondent has been working in the Toll Plaza since the date of opening and running of in said Toll Plaza.
He admitted that he do not know the income of the respondent while he is working in the Toll Plaza, the said Laxmanna did not give him any income certificate showing that the respondent is earning a monthly income of Rs.8,000/-, he do not know whether the respondent is having license to work as a supervisor. He further denied that with the influence of Laxmanna, he owns his house, the respondent is not earning a monthly income of Rs.8,000/- and thereby he is deposing false and the respondent is solely living on the salary of his Toll Plaza and his mother is dependent on him and he do not know have any other source of income and that the mother of the respondent is ill health.
17.To prove the case of respondent, the Respondent is examined as
RW.1 and got marked Ex.R1 to Ex.R8, he deposing in his chief affidavit in accordance with the pleadings. In the cross examination RW.1 had deposed they are blessed with a daughter at about 3 years back. He denied that he never necked out PW.1 from his house, he has not paid any amount to PW.1 or to his daughter (P2) so far towards their 16
JMFC, DHONE. M.C.No.14 of 2014.
maintenance, so far he did not conduct any mediation with a view to live with PW.1. He admitted that he did not mention in his chief affidavit that they conducted a mediation, as per Ex.R2 award he took PW.1 to his house by assuring that he would look after PW.1 well. He further denied that he by violating his promise under Ex.R2 award again harassed PW.1 and he necked out her from his house, the petitioner did mediation through her parents, one Sivaji Rao (PW.2) and S.Bhaskar. He further admitted that the PW.1 gave a report before Dhone Town Police
Station and the police suggested him to look after PW.1 well after conducting counseling. Witness again said that the police suggested him and PW.1 to live amicably to each other. He further denied that even though he promised before Dhone Town police that he would take PW.1 in 15 days but he did not take her back. He further admitted that he did not mention in his chief affidavit that he tried to take back PW.1 within 15 days as per his promise before police. He further admitted that a criminal case was registered against him under Sec.498-A IPC. He further denied that he get Rs.16,000/- per month in toll plaza, he has two houses in Gooty and he let out one house for rent for Rs.5000/- per month and in another house he is residing, he also do contract business in respect of building constructions and get Rs.8,000/- per month, he has capacity to pay Rs.6,000/- to PW.1 and Rs.3,000/- to P2, his pleadings in his counter are false, he is liable to pay maintenance as he refused and neglected to maintain PW.1 and second petitioner, the PW.1 has no means to maintain herself. Ex.R1 is an application given to legal services authority at Gooty, Ex.R2 is an award passed by Lok-Adalath bench at Gooty dated 29-10-2011, Ex.R3 is office copy of legal notice
dated 14-7-2014 sent by respondent to the petitioner, Ex.R4 is office
copy of reply notice, dt.23-7-2014 sent by the petitioner to the respondent, Ex.R5 is office copy of legal notice dated 28-8-2014 sent by the petitioner to the respondent, Ex.R6 is office copy of legal notice dt.5- 17
JMFC, DHONE. M.C.No.14 of 2014.
9-2014 sent by respondent to the petitioner’s counsel, Ex.R7 is postal receipt dated 5-9-2014, Ex.R8is certified copy of petition in HMOP
No.526/2014 and its Docket order on the file of District Court,
Anantapur. Ex.R9 is certified copy of decree in O.P.No.526/2014 of
Hon’ble District Judge’s Court, Anantapuram, Ex.R10 is certified copy of
order in OP.No.526/2014 of Hon’ble District Judge’s Court, Anantapuram,
Ex.R11 is office copy of legal notice, dt.17-10-2016, Ex.R12 is postal receipt, dated 17-10-2016. The respondent further admitted that he has not mentioned the Door number in Ex.R11, the door number of petitioner was not mentioned in Ex.R9 and Ex.R10, he had not filed any acknowledgement card showing that the petitioner received Ex.R.11, he is aware of the documents filed by the petitioner which were marked as
Ex.P1 to Ex.P13, the vehicle mentioned in Ex.P10 is of him. The witness adds that vehicle obtained on installment basis. He further admitted that he purchased the vehicle and the same was registered on 25-2- 2016, he is paying monthly installment of Rs.3,082/- as EMI, he has to pay 24 installments, still he has to pay the installments, the house bearing No.1/450-A belongs to his mother. Witness adds that the above said house bearing No.1/450-A assigning land. He denied that his mother is having another house in Veerareddy colony with electricity connection No.16988 as mentioned in Ex.P13, he is getting monthly expenses of Rs.10,000/- as his maintenance, he incurred towards his mother’s hospitalized expenses for Rs.10,000/- per month, he incurred
Rs.10,000/- per month towards his food grains, transport charges and house expenses, he incurring Rs.20,000/- per annum as his court expenses, he bearing all the expenses. He further denied that he is not having sufficient means of income to repayment all the expenses including his expenses, he paid 9 months arrears of maintenance amount to the petitioners as ordered by the Hon’ble Court, in the meantime he is paying his motor cycle installments, he is having 18
JMFC, DHONE. M.C.No.14 of 2014.
sufficient means and capacity to provide monthly welfare to the petitioners i.e., Rs.6,000/- to the petitioner No.1 and Rs.3,000/- to the second petitioner. He further admitted that Hon’ble Court awarded
Rs.5,000/- to the petitioners as monthly maintenance in previous order, they both preferred an appeal before the appellant Court, he filed
Divorce petition before Hon’ble Principal District Judge, Anantapuram and the same was pending. He further denied that he is intentionally deposing evidence to avoid to pay the maintenance to the petitioners as though he is having sufficient means and capacity to pay the monthly maintenance to the petitioners. He further examined and Ex.R13 i.e., certified copy of Judgment in criminal appeal in Appeal No.2/2017 on the file of Hon’ble Principal Sessions Judge’s Court, Kurnool in
C.C.No.456/2014 dated 24-10-2017. In the cross examination he further deposed that he do not know why the maintenance case was filed by the petitioner. He admitted that he paid maintenance to the petitioner previously in this petition as awarded by this Hon’ble Court, he do not know that in Appeal No.2/2017 whether the petitioner claimed maintenance or not. He further admitted that after read over the contents of all affidavits, he has put his signature thereon, after read over the contents of his counter filed this petition, he put his signature thereon, he know the difference between the case filed u/s 498-A IPC and Maintenance Case, Ex.R13 is no way connected to the maintenance case, he has responsibility to pay the monthly maintenance to the petitioners. He further denied that he has capacity to pay the maintenance to the petitioner at the rate of Rs.10,000/- per month each, but he intentionally evading the same.
18.To support of his case, the respondent examined the RW.2 who deposed in chief supporting the contention of the counter and supported the contention of the RW.1 in all material aspects. In the cross 19
JMFC, DHONE. M.C.No.14 of 2014.
examination RW.2 had deposed that he do not know English language, he never acted as mediator in between both parties in this case. He denied that he is not aware about previous facts which took place in between both parties. He admitted that the father of PW.1 paid
Rs.50,000/- to RW.1 as dowry and he also incurred marriage expenses.
He further denied that RW.1 has habit of consuming alcohol, he know the MLSC, Gooty advised RW.1 to look after PW.1 well, after award the respondent started again harassing PW.1 on the ground that she is black in colour and he necked out her. He further admitted that when PW.1 went to Dhone police station wherein police advised RW.1 to look after
PW.1 well. He further denied that RW.1 assured to take back PW.1 in 15 days but he did not take PW.1 back. He further admitted that RW.1 did not provide any maintenance either to PW.1 or to his daughter sofar, he do not know about the means of PW.1. He further denied that PW.1 is unable to maintain herself and also to maintain daughter, the PW.1 and her father never insisted RW.1 to put up a separate family in Dhone. He further denied that RW.1 gets Rs.16,000/- per month, he has two houses in Gooty, he let out one house for rent for Rs.5,000/- per month and in another house he is residing, the RW.1 gets Rs.8,000/- per month out of building contract workers, the RW.1 is able to provide Rs.6,000/- per month for PW.1 and Rs.3,000/- to his daughter, as the RW.1 neglected and refused to give maintenance to PW.1 and his daughter hence he is liable to pay maintenance.
19. To support of his case, the respondent examined the RW.3 who deposed in chief supporting the contention of the counter and supported the contention of the RW.1 in all material aspects. In the cross examination RW.3 had deposed that she do not know read and write
English language, she denied that she do not know the contents of her chief affidavit, she was not present at the time of giving criminal case 20
JMFC, DHONE. M.C.No.14 of 2014.
and also filing PLC before Legal Services Authority in Gooty against the respondent, she was not shown as witness either in criminal case or in the PLC. She admitted that PW.1 and RW.1 married at Dhone. She further denied that the respondent is a drunkard, he used to harass
PW.1 on the ground that she was in black colour, stout and also demanding additional dowry and he necked out her, when the PW.1 was necked out she came to Dhone police station and gave a report and he was not present at the time of counseling by police, after counseling
PW.1 joined RW.1 and when she was carrying the RW.1 again necked out
PW.1 from his house demanding additional dowry. She further admitted that the respondent did not send any amount either to PW.1 or to her daughter sofar. She further denied that the PW.1 never insisted RW.1 to put up a separate family in Dhone, the RW.1 neglected and refused to maintain petitioners 1 and 2. She further admitted that the respondent has capacity to maintain petitioners 1 and 2 separately. She further denied that the PW.1 is not keeping good health and she is unable to maintain herself and also P2, the RW.1 gets Rs.16,000/- per month from toll plaza, Rs.5,000/- as rent, Rs.8,000/- by doing building contract work per month and he is able to pay six thousand rupees to PW.1 and three thousand rupees to P2 as separate maintenance, she is deposing false as RW.1 is her relative.
20.The main allegation of the first petitioner is that the respondent is used to harass her on a pretext that she is in black in complex, fat in personality and is not capable of giving birth to children and he demanded the first petitioner to bring additional dowry otherwise he would get second marriage and use to harass the first petitioner regularly and used to beat her indiscriminately and forced her to get out from his house. The respondent due to wedlock gave birth to a female child i.e., second petitioner, thereafter the respondent also used to beat 21
JMFC, DHONE. M.C.No.14 of 2014.
the first petitioner on a pretext that she gave birth to a female child. As per the contention of the respondent is that he is working as private employee in Toll Plaza at Gooty and his monthly salary is Rs.8,000/- and not Rs.16,000/- as per Ex.P14 and Ex.P15. As pr Ex.P14 it shows that monthly salary of the respondent is for the month of April, 2017 total earning Rs.10,416/-, deduction of Rs.580/- and net pay is of Rs.9,836/-.
As seen from the Ex.P15 salary certificate of respondent for the month of May, 2017 it shows that total earnings of Rs.9,662/-, deduction of
Rs.677/- and net pay of Rs.8,985/-. It clearly shows that the respondent drawing salary of Rs.8,985/- but not Rs.16,000/-.
21.It clearly shows that the respondent did not make any attempts to resist their marital life with the help of the mediation. However, the respondent filed HMOP No.526/2014 on the file of Hon’ble District Court,
Ananthapuram for conjugal rights. That the respondent did not take any steps to bring back the petitioners after delivery of the petitioner for his conjugal life if really to lead marital life with her she is not willing with him, she has no justifiable reasons to live separately from the respondent and she deserted the respondent and has been living separately from his without any reasonable cause or excuse and only with an unethical demand to set up the family in Dhone and desert his widowed mother. As seen from the record the respondent did not take any attempts to bring back the petitioner in his house since two years from the birth of second petitioner for two years. In spite of the first petitioner waited to rejoin the respondent to lead marital life. Hence, the respondent did not establish his bonafideness that he made attempt to re-union and he failed to establish that he is ready to lead marital life with the petitioners by non-filing of OP for restitution of conjugal rights, put the matter before elders etc. As per Ex.R2 award to directing to look after PW.1 well but completely failed to obey the orders of the 22
JMFC, DHONE. M.C.No.14 of 2014.
Mandal Legal Services Authority, Gooty. It is might to note that no woman spoils her matrimonial life without harassing anything.
Admittedly, the petitioner made criminal case against the respondent and they are lived separately and it is also not denial by the respondent the parents of the petitioner as maintenance to petitioner since they are separated. In the cross examination the PW.4 stated that the respondent is working in the Toll Plaza on contract basis. As seen from the evidence the father of the respondent is no more, depends upon the income of the respondent, he has no means to maintain the PW.1 and the respondent shows houses apart of the petitioner and she was neglected and refused by the respondent. On perusal of record, it shows that the respondent also examined RW.2 and he never acted as mediator that
Rs.50,000/- dowry was given to the RW.1 which is denied by the respondent. Though there is sufficient documents and evidence to get back the first petitioner to live with her. Accordingly, the point is answered.
22.POINT NO.3: Whether the respondent having means,
neglected and refused to maintain the petitioners 1 and 2?
The petitioner categorically stated that she has no properties to maintain herself and her children. The respondent deposed in his evidence and suggested in the cross examination that the RW.1 having means to maintain herself. However, the case of the respondent is that the petitioner is able to maintain herself she is having properties hold that the petitioner not at all to maintain herself. Accordingly, the point is answered.
23.POINT NO.4:Whether the petitioner is entitled for relief of maintenance? If so, at what rate?
23
JMFC, DHONE. M.C.No.14 of 2014.
So far as per the means of the respondent is constrained the respondent is working as an employee in Toll Plaza getting salary of
Rs.8,985/- submitted his salary particulars and same was marked through PW.2 as Ex.P14 and Ex.P15. As seen from the Ex.P14 salary particulars of the respondent for the month of April, 2017 that Basic is of
Rs.4,832/-, HRA Rs.1449/-, LTA Rs.966/-, Medical Rs.966/-, Education allowance Rs.483/-, other arrears Rs.754/-, total earnings Rs.10,416 and deductions PF Rs.580/-, net pay is of Rs.9,836/-. As seen from the Ex.P15 salary particulars of the respondent for the month of May, 2017 that
Basic Rs.4,832/-, HRA Rs.1449/-, LTA Rs.966/-, Medical Rs.966/-,
Conveyance Rs.966/-, Education allowance Rs.483/- total earnings
Rs.9,662/- and deductions PF Rs.580/-, ESIC Rs.97/- total deductions
Rs.677/-, net pay of Rs.8,985/- these are attested copies. So, the petitioner filed the documents to prove her case through PW.2 respectively and clearly shows that the respondent drawing of
Rs.8,985/- per month whereas the respondent stated that the respondent drawing salary of Rs.16,000/- per month. But, it can be said that the contention of the petitioner cannot be believable. Oral statement of petitioner cannot be believable that the respondent drawing salary of Rs.16,000/- per month.
24.However, no husband can escape from legal duty to maintain his wife by taking defence that he is not able to pay maintenance to the petitioner and further whereas to father to maintain the second petitioner who is daughter. It is bounden duty of respondent to pay maintenance to the petitioner and he cannot escape from his legal obligation by taking defence that he is not drawing lesser income. The case of the petitioner is that the respondent is working as an employee in Toll Plaza and getting monthly salary of Rs.16,000/-. However, the 24
JMFC, DHONE. M.C.No.14 of 2014.
respondent owned two houses worth of Rs.25,00,000/- in Gooty and he gets a monthly rent of Rs.5,000/- out of one house, the respondent also works as supervisor under building construction labourers and earns
Rs.8,000/- per month.
25.As seen from the Ex.P4 rent agreement executed by the house owner S.Jaffar, S/o Fakruddin bearing H.No.3-92-23-6, Dhone Town,
Teachers colony of Dhone executed in favour of the petitioner namely
Joy Mercy, W/o Surendra Babu for Rs.2,000/- for the conditions. It clearly shows that Ex.P4 rent agreement, the petitioner paid Rs.2,000/- per month rent to the owner. The petitioner is not maintaining herself and her daughter second petitioner. Ex.P5 also issued by the Head Master,
Gitanjali Grammer School, Teachers Colony, Dhone it is to certified that
D.Shiny Rachel, L.K.G., M/o D.Joy Mercy, has paid Rs.9,000/- towards tuition fee and Rs.2,000/- for study material for the academic year 2016- 2017. Further as seen from the Ex.P.11 vehicle registration search issuing in the name of the Surendra Babu, registration bearing No.AP 02
BA 6825 Hero Honda Motocorp Splendor, dated 25-2-2016 obtained financial year. The PW.1 submitted Ex.P6 and the same was marked through her that Super Market shopping the household articles for total of Rs.2,448/-. She also submitted that the medical bills stating that she is suffering with Thyroid bill of Rs.447/- and Rs.307/- respectively. It clearly shows that the petitioner is suffering from ill health on 7-10- 2017. Ex.P8 is also discloses that on 7-11-2012 suffering from Thyroid.
Ex.P12 property tax demand bill for the year 2016-17 which is marked as Ex.P12 through PW.1, it shows that the property tax stands in the name of Smt.Pullamma who is mother of the respondent, the said house stands in the name of Smt.Pullamma but not in the name of the respondent. Whereas the petitioner did not file any document to show that the respondent is owned two houses worth of Rs.25,00,000/- in
Gooty and he gets a monthly rent of Rs.5,000/- out of one house, the 25
JMFC, DHONE. M.C.No.14 of 2014.
respondent also works as supervisor under building construction labourers and earns Rs.8,000/- per month. However, the respondent is working as an employee in Toll Plaza getting salary an amount of
Rs.8,000/- but not Rs.16,000/-. It shows that the respondent continuing his job. Hence, the first petitioner failed to establish that the respondent getting salary of Rs.16,000/- per month. Therefore, this court considering that there is a matrimonial dispute with regard to put up separate family from the respondent’s mother’s house. The respondent is able to maintain himself and petitioners 1 and 2.
26.In view of findings given in the above points, this Court is of the opinion that the petitioners are entitled to maintenance.
If so, at what rate?
Having considered the contention of both petitioners and respondent regarding financial capacity of respondent, this Court is of the considered opinion that awarding maintenance at the rate of
Rs.3,000/- to the first petitioner and for Rs.2,000/-0 toi the second petitioner per month would be reasonable to meet their both ends, in the present day circumstances where the prices of all the essential commodities is increasing day by day. Rest of her claim is liable to be rejected as excessive.
27.In the result, this petition is partly allowed and the respondent is directed to pay monthly maintenance at Rs.3,000/- to the first petitioner and Rs.2,000/- to the second petitioner from the date of the petition i.e., 8-9-2014 on or before 5th of every succeeding month.
Dictated to the Personal Assistant, transcribed by her, corrected
and pronounced by me in open Court this the 1stday of
March, 2018.
Principal Junior Civil Judge, Dhone,
26
JMFC, DHONE. M.C.No.14 of 2014.
FAC Judicial Magistrate of First Class, Dhone.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED.
FOR PETITIONERS:
PW.1: D.Joy Mercy.
PW.2: A.Shivaji Rao.
PW.3: Vijaya Hanumanthu.
PW.4: Kranthi Kumar. (Eschewed)
PW.5: Y.Jacob.
FOR RESPONDENT:
RW.1: D.Surendra Babu.
RW.2: D.Ranganayakulu.
RW.3: K.Vijayamma.
EXHIBITS MARKED
FOR PETITIONERS:
Ex.P.1: Wedding card.
Ex.P.2: Wedding Photo.
Ex.P.3: Marriage Certificate (Attested copy).
Ex.P.4: Original rent agreement, dt.7-3-2017.
Ex.P.5: Original School Fee receipt of Second Petitioner.
Ex.P.6: Original bill issued by Raj Super Market, dt.7-3-2017.
Ex.P.7: Two original Medical bills issued by Madhu Medical and Fancy
Store, dt.7-3-2017.
Ex.P.8: Photostat copy of prescription given by Doctor P.Devanand, dt.7- 11-2012 (It is represented original was filed in Revision Court).
Ex.P.9: Photostat of Thyroid report, dt.27-10-2012. (It is represented original was filed in Revision Court).
Ex.P.10: Extract copy of Vehicle Registration Certificate bearing No.AP 02 BA 6825 from Internet.
Ex.P.11: Original photograph of Motor Cycle.
Ex.P.12: Original Property Tax Demand bill for 2016-2017 in the name of
Smt.Pullamma.
Ex.P.13: Information furnished by Assistant Engineer, Distribution
APSPDCL, Gooty regarding Electricity connection to the houses situated in Z.Veera Reddy Colony at Sl.No.69 which is 27
JMFC, DHONE. M.C.No.14 of 2014.
in the name of Smt.D.Pullamma bearing connection
No.16988.
Ex.P.14: Attested copy of the salary particulars of D.Surendra Babu for the month of April, 2017.
Ex.P.15: Attested copy of the salary particulars of D.Surendra Babu for the month of May, 2017.
FOR RESPONDENT:
Ex.R.1: Application given to Legal Services Authority at Gooty.
Ex.R.2: Award passed by Lok-Adalath bench at Gooty, dt.29-10-2011.
Ex.R.3: Office copy of legal notice, dt.14-7-2014 sent by respondent to the petitioner.
Ex.R.4: Office copy of reply notice, dt.23-7-2014 sent by petitioner to the respondent.
Ex.R.5: Office copy of legal notice, dt.28-8-2014 sent by petitioner to the respondent.
Ex.R.6: Office copy of reply notice, dt.5-9-2014 sent by respondent to the petitioners counsel.
Ex.R.7: Postal receipt, dt.5-9-2014.
Ex.R.8: Certified copy of petition in HMOP.No.526/2014 and its Docket order on the file of District Court, Anantapur.
Ex.R.9: Certified copy of Decree in OP.No.526/2014 of Hon’ble District
Judge’s Court, Anantapuram.
Ex.R.10: Certified copy of Order in OP.No.526/2014 of Hon’ble District
Judge’s Court, Anantapuram.
Ex.R.11: Office copy of legal notice, dt.17-10-2016.
Ex.R.12: Postal Receipt, dt.17-10-2016.
Ex.R.13: Certified copy of Judgment in Criminal Appeal in Appeal
No.2/2017 on the file of Hon’ble Principal Sessions Judge’s
Court, Kurnool in C.C.No.456/2014, dt.24-10-2017.
PJCJ, DHN,
FAC J.M.F.C., Dhone.