IN THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS, TUNI.
Present: Sri M.Sreedhar, Prl.Junior Civil Judge Cum Judicial First Class
Magistrate, Tuni
Tuesday, the 30 th day of June, 2020
M.C.NO.15/2017
Between:
1. Chandaka Lovamma, W/o Lovakrishna, Hindu, aged 31 years, Housewife, Billananduru Village, Kotananduru Mandal, Tuni JFCM limits, Door No.1-78.
2. Chandaka Jaya, S/o Lovakrishna, Hindu, aged 9 years, Billananduru Village, Kotananduru Mandal, Tuni JFCM limits, Door No.1-78.
3. Chandaka China Kannababu, S/o Lovakrishna, Hindu, aged 7years, Billananduru Village, Kotananduru Mandal, Tuni JFCM limits, Door No.1-78.
(2nd and 3rd Petitioners being Minor represented by Mother guardian 1st Petitioner) …Petitioners.
And
Chandaka Lovakrishna, s/o Late Kannayya, Hindu, aged 35 years, Cultivation, Billananduru Village, Kotananduru Mandal, Tuni JFCM limits, Door No.1-78. …Respondent.
This case is coming on for final hearing before me on 17-06-2020 in the presence of Sri B.V.V.Ramana,Advocate for the petitioners and Sri V.Apparao, Advocate for the respondent and after perusing the material available on record and upon hearing the arguments and having stood over for consideration to this day, the Court delivered the following:
ORDER
1.This petition is field by the petitioners 1 to 3 under Section 125 of the
Code of Criminal Procedure seeking the Court to grant maintenance at the rate of
Rs.5,000/- per month each towards their maintenance apart from the costs of this petition.
2. The case of the petitioner in nutshell is as follows:
The petitioner no.1 is legally wedded wife of the respondent and their marriage took place at about 13 years back as per Hindu Rites and Caste Customs and Rites at D.Polavaram village. Parents of the the 1st petitioner gave dowry of
Rs.70,000/- , Rs.7,000/- towards Adapaduchu Lanchanam, and Rs.50,000/- worth of
Saree Samanulu at the time of Marriage. There after the 1st petitioner and respondent lead marital life happily for some time and they blessed with 2nd and 3rd petitioners out of their wedlock. Later, the respondent started harassment against the petitioner by addicting to bad wises. He beat the 1st petitioner indiscriminately :2:
at the instance of his relatives namely Killada Bhushayya, Lalam Swamy Naidu,
Nookaraju naidu and his family Members. Then the 1st petitioner raised dispute
before the elders namely Miriyala Latcha babu, Praka Someswararao and Vadaboina
Sambayya. The above said persons settled the matter and the respondent agreed to leave all the bad addictions and also agreed to give some landed property towards security of their children and in that pretext they obtained the signatures of 1st petitioner and subsequently they lived happily for few days. The respondent necked out the petitioner by saying that she executed divorce deed. After her enquiry, she came to know that the divorce deed were obtained by misleading and mis representing the facts. The respondent is having sufficient means to maintain the petitioners, but he neglected and refused to maintain them. The petitioner made an attempt to settle the matter through elders Miriyala Latchababu, Palaka
Someswararao and Vadaboyina Sambayya and they expressed their inabaility in convencing the respondent as he demanded additional dowry. The responcent is having land in an extent of one acre, house property and doing money lending business. He getting income of Rs.30,000/- per month and Rs.5,000/- is required for each petitioner for their maintenance. Hence, this petition.
4. The respondent filed a counter by admitting the relationship among them and denied the material allegations are false and had inter alia contended as follows:
The 1st petitioner has no interest to live along with the respondent and at request of the 1st petitioner he arranged a separate house and she could not adjust in the portion of his house. Subsequently the 1st petitioner demanded him to come her parents house as a lllatum son in law and he refused then the 1st petitioner started to raise disputes and went to her parents house at about 8 years back. She developed illicitly intimacy with one Gompa Krishna alias Mulari Krishna and he regularly visited to her parents house and they are living together. After knowing about said fact brother of the 1st petitioner questioned about his behaviour and he beat him and one case was registered. Subsequently said Gompa Krishna and 1st petitioner are living together at nearer to Cashew Factory at D.Polavaram
Village, as wife and husband. The respondent requested the petitioner to join with him, but she refused and on that the matter was placed before the elders namely
Palla Ramana, Alluri Apparao, :3:
Garasingh Ajjayya, Makireddy Nookaraju Naidu and they admonished her and settled the matter. The respondent paid Rs.70,000/- and gifted the land an extent of
Ac0.17cents in S.No.208/3 to the petitioners and executed Registered Gift
Settlement Deed infavour of petitioners 2 and 3 on 21-12-2016. The 1st petitioner and respondent agreed to live separately and obtained divorce by way of Divorce
Deed dated 21-12-2016, which was registered before Sub Registrar, Tuni. The respondent has no lands and house property and he is doing Coolie work and getting Rs.100/- per day and on other hand the 1st petitioner is working at Cashew
Nut Factory earning Rs.500/- per day and as such he has no such capacity to pay the maintenance. Thereby by he prayed for dismissal of this petition.
5.In the light of the above, the following points that arise for determination :
1) Whether the respondent has willfully neglected and refused to maintain the petitioners ?
2) Whether the 1st petitioner is having sufficient means and income to maintain herself on her own ?
3) Whether the petitioners are entitled to seek maintenance from the respondent ?
4) If so, whether the petitioners are entitled to seek such maintenance either from the date of the petition or from the date of this order ? and 5) To what relief ?
6.In order to prove their respective cases, the 1st petitioner examined herself as PW.1 and mother of the petitioner was examined as PW.2. The respondent himself was examined as RW.1 and 3rd parties were examined as RW.2 and R.W.3.
Ex.P1 is the office copy of legal notice dated 17-07-2017 and Ex.R1 is the Registered
Divorce deed dated 21-12-2016 are admitted on the behalf of Petitioner and
Respondent respectively through petitioner no.1. The 1st Petitioner and her Mother deposed about the Marriage, reasons for the disputes and payment of Dowry as
PW.1 and PW.2. The Respondent deposes about the reason for the dispute, his incapability for Payment of Maintenance,about execution of Divorce Deed and payment of Permanent Alimony. RW.2 and R.W.3 deposes about their presence at the time of execution of Divorce Deed and also status of the respondent.
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7. Heard the learned counsel for the petitioners and the learned counsel
for the respondent. Perused the material available on record.
8. The learned counsel for the petitioner contends that the evidence of the petitioner clearly establishes that the respondent and his family members harassed her by demanding additional dowry and necked out her and as such she was forced to live separately and the petitioners are entitled for the relief as prayed for. Per contra, the learned counsel for the respondent vehemently contends that the 1st petitioner left their house and the association of the respondent without any sufficient cause and on her own accord and she developed illicit intimate with one
Gompa Krishna. He further contends that the Maintenance was already given at the time of Divorce and as such now the petitioners are not entitled for any maintenance. It is further contended that the petitioner is no.1 is working in Cashew
Nut Factory and getting sufficient income and as such the petitioners are not entitled for Maintenance in any angle.
POINT NOS.1 TO 4:
9.In as much as Point Nos.1 to 4 are interlinked with each other, it is imperative to adjudicate the same together in order to avoid redundancy in discussion of the pleadings and the evidence.
It is admitted fact that the 1st petitioner is legally wedded wife of the respondent and 2nd and 3rd petitioners are their sons and born out of their wed lock.
Though the Respondent as R.W.1 deposed in his chief examination that the
Petitioners 2 and 3 were born to the 1st petitioner through Gompa Krishna, but the pleadings and his admision in cross examination clearly shows, they are their children and as such there is no much dispute with regard to Paternity of Petitioners 2 and 3. Thus, there is no dispute with regard to the relationship among the
Petitioners and the Respondent. It is also admitted fact that the petitioners and respondent are residing separately, even much prior to filing of this Petition.
10.The case of the petitioner is that the respondent and his family members harassed her by demanding additional dowry and the respondent addicted to bad wises. Before that the petitioner no.1 deposed that her parents :5:
presented dowry of Rs..70,000/-, Rs.7,000/- towards adapaduchu lanchanam and also presented saree samanulu worth of Rs.50,000/-. That aspect was denied by the respondent as false and stated that the 1st Petitioner is none other than daughter of his Maternal uncle and as such he married her without accepting or expecting any thing from them. Insupport of contention of the Respondent, he got elicited from PW.1 and PW.2, who is her Mother that they have no documentary evidence to establish payment of Dowry, Adapaduchu Lanchanam and Presentation of Saree Samanulu. The Petitioner also fails to elicit anything from the evidence of
R.W.1 about payment of Dowry, Adapaduchu lanchanum and Saree Samanulu. That aspect is also not material to decide this matter in issue. Though, PW.1 stated that the Respondent purchased Land in an extent of Ac0.50cents with Dowry given by her Parents and subsequently he got Registered the said property in the name of her sister, but nothing was produced to that affect as admitted by her. PW.2 , who gave a different version that they purchased the land in an extent of Ac 3.10cents, which is controverts the version of P.W.1. Besides P.W,2 admitted that she cannot say the name of the full name of the vendor and date of purchase. She categorically admitted that they have not submitted any documentary evidence to say that they purchased land in an extent of Ac3.10cents. Hence, the petitioner fails to establish the purchase of the property by the Respondent from and out of the Dowry amounts provided by her Parents. Moreover, it is also not a material aspect to disbelieve the version of the case of the Petitioner.
11.To prove the case of the petitioner about the harassment in the hands of respondent and his family members, she deposed that the respondent addicted to bad wises like drinking Alcohol and used to beat her and demanded her to bring
Additional Dowry from her Parents and the sister of Respondent and her husband
also joined with him in harassing her. She further deposed that she placed the matter before the elders namely Miriyala Latchababu, Palaka Someswararao and
Surla Nanaji and the respondent agreed to take back her. Admittedly, the elders were not examined before this Court and no steps taken by the Petitioner for their examination inspite of her admission that she will examine them. P.W.2 also deposed about the harassment meted out by the P.W.1 in the hands of the
Respondent. That aspect was not specifically denied by the respondent by way of cross examination. Even the Respondent did not choose to cross examine the :6:
Petitioner about the fact, which was stated by her with regard to the harassment made by him. Moreover, the P.W.1 and P.W.2 stated in their chief examination about the submission of the report against the respondent under section 498 (A) of IPC and that aspect was not denied by the respondent by way of cross examination.
12.The contention of the Respondent is that the Petitioner is living along with one Gompa Krishna as she developed illicit intimacy with him. Insupport of his contention, he elicited from the P.W.1 that one Gompa Krishna submitted the report against her brothers and same was tried for the offences under section 324 r/w 34 of IPC and both parties entered into compromise. It is suggested to PW.1 and P.W.2 that the dispute arose between brother of the Petitioner and Gompa Krishna, when they questioned said Krishna about illicit intimacy. Both are denied the said aspect.
The respondent as R.W.1 deposed about illicit intimacy of Petitioner no.1 with
Gompa Krishna , but there is no whisper in the evidence of R.W.2 and R.W.3, who are said to have been elders for the dispute about said illicit intimacy and as such this court is unable to accept the version of the Respondent that there is illicit intimacy between the 1st Petitioner and Gompa Krishna and it is the root cause of their separation.
13.The respondent vehemently contends that the both parties entered into a Divorce Deed in Ex.R1 and the same was registered before Sub-Registrar, Tuni and at the time of said Divorce the Respondent paid Rs.70,000/- and gifted a landed property an extent of Ac0.17cents in S.No.208/3 towards permanent alimony. The
Respondent did not choose to submit the said Registered Gift Settlement Deed.
Though he tried to introduce the unregistered Gift Settlement Deed the same was not admitted during the trial. However, he got marked the Ex.R1 Registered
Divorce Deed through Petitioner No.1, who was examined as P.W.1. She admitted about the Registration of the said document, but she denied the execution and contends that the respondent obtained her signature and thumb impression on pretext that he would execute the document infaour of said children for the properties towards security. Admittedly, no steps taken by the Petitioner before any forum about the Cancellation of said document. On other hand, the Respondent got :7:
examined the R.W.2 and R.W.3 to prove the execution of said document. It is suggested to R.W.1 that he created all the documents on pretext that he will execute Gift Deed infavour of his children and that suggestion was denied by him was false. From the evidence of R.W.2, it is elicited that he has not gone through the contents in the Divorce Deed and the Parents of the Petitioner no.1 are not the signatories of the said document. Nothing was elicited from his evidence infavour of the Petitioner to disbelieve the execution of Divorce Deed. R.W.3 also deposed about the execution of the Divorce deed but he admitted that he is not the witness of said document. Hence, his evidence is no way helpful to the case of the
Respondent. However, the Ex.R1 is the registered one and the same was corroborated by the oral evidence of R.W.1 and R.W.2. In view of admission of P.W.1, we can safely come to conclusion that Ex.R1 was executed before the Sub-Registrar and it was registered. Since it was registered, we have to believe that Sub-Registrar followed due procedure for Registration. Hence, this court has to take a presumption that it is validly executed when once it was registered before Sub-Registrar and certified by him. However, this Court cannot give finding about the validity of said
Divorce Deed and its enforceability in a petition filed for Maintenance in view of lack of competency and jurisdiction. Even if we assumed for a movement that the
Divorce effected in between them, the Divorced wife also entitled for the
Maintenance as per section 125 (b) of IPC, which reads as follows:
“Wife includes a Woman, who has been Divorced by, or has obtained a Divorce from, her husband and has not remarried. “
14.Therefore, even the Respondent proved that the Petitioner no.1 entered a Divorce Deed with him, no impediment for this Court to grant
Maintenance to Petitioner no.1 as she was not remarried. Moreover, the recital in
Divorce Deed itself shows there are disputes between Petitioner No.1 and
Respondent and there is sufficient case to Petitioner No.1 for her separate living.
Thus, this court has no hesitation to held that there is a sufficient case for Petitioner no.1 for her separate living with the Respondent.
15.The specific contention of the respondent is that he paid Rs.70,000/- and gifted landed property an extent of Ac0.17cents at the time of Divorce. It is admitted fact that no such document was admitted insupport of his contention :8:
before this court to appreciate the same. It is also admitted fact that there is no
whisper in the Divorce Deed about the payment of amounts and gift of property in specific. Therefore, the respondent relied upon the oral testimony insupport of his contention. He suggested to P.W.1 that she received Rs.1,00,000/- and land in an extent of Ac.017cents and that suggestion was denied by her. He gave a different suggestion to P.W.2 that they paid Rs.70,000/- at the time of Divorce. The
Respondent as R.W.1 deposed that he paid Rs.1,00,000/- and gifted Ac0.17cents of
Land. There is no consistency between the pleadings and evidence about the quantum of amounts said to have been given at the time of Divorce. The Petitioner suggested to respondent that he created all the allegations to avoid the payment.
R.W.2 deposed about the payment of Rs.70,000/- and gift of Ac0.17cents but he admitted that no document was registered intoken of said payments. R.W.3 also deposed about the payment of Rs.70,000/- at the time of execution of said gift deed and divorce deed, but he admitted that he has no idea about whetether he acted as a witness for gift settlement deed. Hence, his evidence is not helpful to the case of the Respondent. In view of inconsistency version of the respondent with regard to the quantum of amount said to have been paid by him at the time of Divorce and inabsence of any documentary evidence, this court is unable to believe his version about the payment of amounts and gift of landed property of Ac0.17cents.
16.The contention of the Petitioner is that the Respondent is getting
Rs.30,000/- from landed property in an extent of Ac1.00cetns and money lending business. The said fact deposed by P.W.1. She gave a different version that the respondent is having two acres of land. She admitted in her cross examination that she has not submitted any documentary evidence to prove the landed property and house property. P.W.2 gave a different version that the respondent is having five acres of land he used to cultivate the land as a tenant that suggestion was denied by the respondent as false. On other hand, the respondent as R.W.1 stated that he has no properties to pay the maintenance and no source of income. The Pettiioner fails to elicit anything from his evidence to establish his income. R.W.2 deposed that the respondent is doing Coolie work and he has to look after the welfare of his mother. Then the petitioner suggested to him that the respondent is having a land in an extent of one acre and getting Rs.30,000/- as a Mastry for Labour. R.W.3 also :9:
deposed that the respondent will get Rs.200/- to Rs.300/- per day if any work is available. It is admitted fact that no documentary evidence submitted by the
Petitioner to prove the extent of land owned by the Respondent and there is no consistency in their version about the said extents. On other hand, the respondent contends that the Petitioner No.1 is working in Cashew Nut Factory and getting sufficient income of Rs.500/- per day I.e more than income of the Respondent as he is getting only Rs.100/- per day. Insupport of his contention, nothing was elicited in their favour and at least there is no said suggestion from him to P.W.1. It is suggested to P.W.1 that the Petitioner no.1 is getting more income and that suggestion was denied by him as false. The respondent as R.W.1 deposed that the
Petitioner used to attend packing duties at Cashew Industry, but there is no whisper about the quantum of amount received by her. R.W.2 deposed that the Petitioner no.1 is working at Cashew Factory. R.W.3 also gave a different version that the 1st
Petitioner is working at Supervisor at Cashew Industry and getting Rs.4,000/- to
Rs.5,000/- per week. He admitted in his cross examination that he came to know about the income of 1st petitioner through workers at D.Polavaram Cashew Factory and his relatives are not working in the said Factory. There is no whisper in the evidence of Respondent and his witnesses about the name of the Cashew Factory and there is no consistency in their evidence with regard to the income of the 1st petitioner to say that she is getting more income that the respondent. The evidence and pleadings of the respondent itself shows he is doing coolie work and getting sufficient income. Moreover, the version of the Respondent that he paid Rs.70,000/- and gifted the landed property itself shows he has capacity to pay the maintenance and it is his obligation to Maintain the wife and Children when he is hale and healthy. Therefore, the Petitioner No.1 establishes that the respondent is capable to maintain them and she was unable to maintain herself and her children. It is admitted fact that the Petitioners no.2 and 3 are certainly entitled for Maintenance being Minors.
17.In the light of above discussion, I am unable to accept the contention of the respondent that the petitioner left him without any sufficient cause and on other hand the recitals in the divorce deed, filing of the report for the offence under section 498 (A) of Indian Penal Code before the Police and unchallenged evidence of :10:
Petitioners clearly shows, there is a sufficient cause for her separate living. On other hand the respondent fails to establish that the petitioner left the respondent without any cause and she developed illicit intimacy with Gompa Krishna. The Petitioner further establishes that she has no means to herself and children and respondent is capable to maintain them. The Respondent fails to establishes the payment of amounts and gift of properties for dis-entitlement of relief by the Petitioners.
18.This Petition is filed for payment of Maintenance of rs.5,000/- to each Petitioner. The 2nd and 3rd Petitioners are aged about 9 years and 7 years from the date of filing. The 1st petitioner stated that the 2nd petitioner is studying 4th standard. P.W.1 admitted in her cross examination that the 2nd petitioner is studying
Government School and availing mid day meal facility and she expressed her ignorance whether he is getting books on free of cost or not. No evidence put forth by the Petitioner No.1 to fix the quantum of Maintain for 2nd and 3rd Petitioners. But, it is admitted fact that there is no whisper in the petition or in her evidence about grant of maintenance from the date of petition. There is no such material putforth by the petitioner to establish the entitlement of Maintenance from the date of petition. Having consideringly the status of respondent as he is doing collie work, it is reasonable to grant maintenance from the date of this order. Though the
Petitioners claims Maintenance of Rs.5,000/- each there is no such material putforth by them to grant such huge amount. However, it is reasonable to grant maintenance of Rs.3,000/- to 1st petitioner and Rs.2,000/- each to 2nd and 3rd petitioners by considering the present cost of living and status of the Respondent.
Therefore, this petition shall be allowed inpart. Accordingly, Points no.1 to 4 answered in favour of Petitioners.
14. POINT NO.5:
In the result, this petition is partly allowed with costs and consequently, the respondent is hereby directed to pay a sum of Rs.3,000/- (Rupees three thousand only) per month to the 1st petitioner and Rs.2,000/- to 2nd petitioner and 3rd petitioners each towards their maintenance from the date of this order dated 30-06-2020 The respondent shall pay the aforesaid monthly maintenance to the petitioner from 30-06-2020 onwards on or before 10th day of :11:
every succeeding month. The costs are quantified at Rs.4,000/- (Rupees four thousand only). The petitioners no.2 and 3 are entitled for the maintenance until they attains majority. The petitioners are entitled for free copy of the order in compliance of section 128 of Cr.P.C.
Typed to my dictation to the Personal Assistant corrected, and pronounced by me on this the 30th day of June, 2020.
Sd/-M.Sreedhar
Prl.Junior Civil Judge cum
Judicial Magistrate of First Class
Tuni.
APPENDIX OF EVIDENCE
WITNESS MARKED
For Petitioners:
P.W.1/ 01-10-2018 : Chandaka Lovamma P.W.2/ 05-02-2019 : Yadagala Chintalli
For Respondent:
R.W.1/ 01-04-2019 : Chandaka Lovakrishna R.W.2/ 04–12-2019 : M.Nookaraju Naidu R.W.3/ 03-01-2020 : Lagudu Swamy Naidu
DOCUMENTS MARKED
For Petitioners:
Ex.P1 is the Office copy of Registered Lawyer’s Notice dated 17-07-2017 issued to the Respondent.
For Respondent:
Ex.R1 is the Registered Divorce deed dated 21-12-2016
Material Objects marked
..Nil..
Sd/-M.Sreedhar
Prl.Junior Civil Judge cum
Judicial Magistrate of First Class
Tuni.