IN THE COURT OF THE JUDGE, FAMILY COURT CUM ADDL. DISTRICT AND
SESSIONS JUDGE, ADILABAD
Present: Sri N.Jaya Raj,
Judge, Family Court Cum Addl. District Judge,
Adilabad.
Friday, this the 30th day of August, 2013.
F.C.O.P.No. 5 of 2012
Between:
1)Sinhachalam Sunitha @ Latha W/o S.Venkateshwar, Age: 27 yrs., Caste: Chathda Sri Vaishanava, Occ: House hold, R/o Presently residing at H.No.4- 9-455, Rickshaw colony, Adilabad.
2) Sinachalam Abhinetri D/o Venkateshwar, Age: 2 yrs., minor under guardianship of her natural mother ie. Petitioner No.1 … PETITIONERS // AND //
Sinhachalam Venkateshwar S/o Ramaiah, Age: 35 yrs., Caste: Chathda Sri Vaishnava, Occ: private teacher, R/o H.No.13-106,Bapu nagar, Asifabad.
… RESPONDENT
This petition coming on before me for final hearing on 06.08.2013 in the presence of Sri Gangaram Dasar, Advocate for the Petitioners and of Sri V.Ramesh Reddy, Advocate for the Respondent, having stood over for consideration till this day this court made the following:
O R D E R
This is a petition filed under section 125 Cr.P.C to award maintenance of
Rs.5,000/- per month to the petitioner No.1 and Rs.3,000/- per month to petitioner
No.2 against the respondent.
2.The case of the petitioner in brief is that the marriage of petitioner
No.1 and respondent was performed on 9.4.2009 at TNGO function hall at Adilabad.
That the parents of the petitioner No.1 gave Rs.4,00,000/- ad Rs.60,000/- for vehicle and 4 tulas of brasslet and ½ tula gold ring and other house hold articles to the respondent at the time of marriage. The petitioner and respondent lived as wife and husband at Asifabad for a period of one year after the marriage. That 2 after one year of the marriage respondent suspected the fidelity of the petitioner started harassing and beating. That the respondent with instigation of his parents started demanding additional dowry and beat petitioner Nod.1 number of times.
That the petitioner No.1 narrated the matter to her parents and parents of petitioner No.1 came to the house of respondent and the matter was put before the caste elders. That the respondent and his parents admitted their fault before the caste elders and promised to look after the petitioner very well in future. That petitioner No.1 became pregnant after one year and the petitioner No.1 was carrying 9 moths pregnancy and that she came to her parents house at Adilabad for delivery and that she blessed with female child ie., petitioner No.2 by name
Abhinetri. That after the birth of the female child the parents of petitioner No.1 informed the same to the respondent. That the respondent with ill advice of his parents made demand of additional dowry of Rs.2,00,000/- if the parents of the petitioner No.1 does not fulfill their demand they will not take back the petitioners to their house. That the parents of petitioner No.1 made so many requests to take back the petitioners to their house but the request made by the parents of petitioner No1 were made in vain. That the parents of petitioner No.1 also sent the caste elders to settle the matter but the respondent and his family members bluntly refused to take back the petition until their demand is fulfilled. That the petitioner without any remedy taking shelter at her parents house at Adilabad.
That the petitioner No.1s parents sent mediators to the respondent and his family and on 29.1.2012 a panchayat was conducted in Adilabad at the house of parents of petitioner No.1. That the respondent and his family member came to the house of petitioner No.1s parents at Adilabad. That the respondent and his family members bluntly refused to take the petitioner to their house alleging that the petitioner
No.1 gave birth to female child and suspecting the character of the petitioner No.1 and paternity of the child and that they will not allow the petitioners to their house until their demand is fulfilled and they also threatened that very soon the second 3 marriage of the respondent will be performed with huge dowry by giving divorce to petitioner Nod.1. That the amount also misappropriated by the respondent and all the ornaments and certificates of petitioner No.1 are in the custody of respondent.
That the request made by the petitioner to return the certificates became in vain.
That inspite of the above said ill treatment and harassment of the respondent she did not give any report to the police against respondent and his family members who also instigated the respondent with the hope that one day or other the respondent will come to Adilabad and take her back. That the petitioners have been residing at her parents house since two years. That the petitioner No.1 is legally wedded wife of respondent who ill treated her and also beat her without any reason on several occasions and caused mental and physical agony to the petitioner. That the respondent with the ill advice of his parents beat the petitioner suspecting the character of petitioner No.1 and till today no efforts were made by respondent to take back the petitioners to their house. The respondent and his family members are demanding additional dowry of Rs.2,00,000/- as petitioner No.1 blessed with female child. That they bluntly refused to take back the petitioners until their demand is fulfilled. That petitioner No.1 is residing at her parent’s house as there is no other way. That the petitioner No.1 is house wife and unable to maintain herself and her child and the parents of petitioner No.1 also unable to maintain the petitioners and that by seizing all the original certificates of petitioner No.1 the respondent caused more mental harassment to the petitioner. That the respondent is working as teacher in private college and having Ac.10-00 gts., of wet land from which he gets Rs.10,00,000/- per annum after deducting all his family expenses.
That the respondent is under obligation to maintain the petitioners. That it is just and necessary to order the respondent to pay Rs.5,000/- per month to the petitioner No.1 and Rs.3,000/- per month to petitioner No.2 towards maintenance to meet their bare necessities of their lives.
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3. The respondent in his counter submitted that the marriage of petitioner No.1 and respondent was performed on 09.04.2009 at TNGO function hall, Adilabad and after the marriage the petitioner and respondent lived at
Asifabad with the joint family of respondent That petitioner No.1 and respondent lived happily for 3 months only. Thereafter petitioner No.1 made proposals before respondent t reside separately from their joint family and the respondent refused to her proposal. That petitioner started harassing the respondent physically and mentally ie. Abusing and quarrelling with the respondent and his family members but the respondent tolerated the same with a view that she may change her attitude and during that period she got pregnancy and she went to her parent house at
Adilabad in the month of November, 2009 and gave birth to petitioner No.2 on 21.01.2010 and after the birth of petitioner No.2 the respondent and his family members came to Adilabad and blessed petitioner No.2 and went away by intimating the petitioner No.1 that they will come on the day of cradle ceremony but surprisingly without intimating them the cradle ceremony function celebrated and on coming to know of the same on the next day of cradle ceremony the respondent and his family members enquired with petitioner No.1 on phone but petitioner No.1 without giving any explanation abused the respondent by saying that she is not having any intention to join his company until and unless the respondent resides separately from his joint family. That subsequently the respondent and his family members several times visited Adilabad and requested petitioner No.1 to join the company of the respondent but petitioner Nod.1 bluntly refused to join the company of the respondent. That the respondent is having responsibility to maintain his old aged parents and physically handicapped younger brother. That the respondent refused to reside separately from his joint family. That the parents of petitioner No.1 did not gaveRs.4,00,000/- and Rs.60,000/- for vehicle and 4 tulas braslet and ½ tula gold ring to the respondent and that the respondent never suspended the fidelity of petitioner No.1 and did not harass the petitioner No.1.
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That the question of petitioner No.1 narrating the same to her parents and her parents conducting panchayath before the elders and the respondent admitted his fault and after one year the petitioner Nod.1 became pregnant and at that time of carrying 9 months pregnancy she came to Adilabad does not arise. That the respondent did not demand petitioner No.1 to bring additional dowry of
Rs.2,00,000/- from her parents house and that the petitioner No.1 and her parents never requested the respondent to take back the petitioners to his house and they did not send the caste elders to settle the matter but the respondent several times visited the parents house of petitioner No.1 and requested petitioner No.1 to join his company but petitioner bluntly refused to join the company of respondent.
That the respondent did not suspect the character of petitioner No.1 and he did not question the paternity of child and he did not refused to take back the petitioners on the ground that the petitioner No.1 gave birth to female child. That on 29.1.2012 the respondent was on duty and that the respondent and his family members coming to Adilabad to parents house of petitioner No.1 and conducting of panchayat before the elders does not arise. That the respondent is always ready to take the petitioners into his company. That the petitioner No.1 is a graduate in
B.A., B.Ed., and working as teacher in private school and earning an amount of
Rs.10,000/- per month and out of her earnings she is capable to maintain herself and petitioner No.2. That the respondent is also graduate in B.Ed and working as private teacher/Guest teacher in A.P.T.W.R School (PTG) Asifabad and drawing salary of Rs.7,500/- per month and out of his earnings he is having responsibility to maintain his old aged father, mother and physically handicapped younger brother who is not having any avocation. That the respondent is not in a position to pay separate maintenance to the petitioners. That the respondent is not having nay agricultural land and that the question of respondent getting Rs.10,00,000/- per annum from the land does not arise.
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4.On behalf of petitioner, petitioner herself examined as PW1 and PWs.2 and 3 examined. No documents are marked. On behalf of respondent, respondent himself examined as RW1 and another witness RW2 examined. Ex.R1 to Ex.R8 marked in the evidence of respondent.
5.Heard on both sides.
6.Now the point for determination is:
Whether the Petitioners No.1 and 2 are entitled to claim maintenance of Rs.5,000/- and Rs.3,000/- per month respectively as prayed for?
POINT:
7.The petitioner No.1 got examined as PW1 filed her evidence affidavit in lieu of chief examination, reiterating the averments in the petition. In the cross examination it is admitted by her that she begot her children on 21.01.2010. That from the time of birth of her daughter she has been staying with her parents only.
She further deposed that she went to her parents house when she was carrying 9 month pregnancy ie., on 15.11.2009. She admitted that after her marriage with respondent she lived with him along with his other joint family consisting of his parents and younger brother. That the younger brother of the respondent is a physically handicapped and unable to move properly. She further deposed that the younger brother of the respondent is computer operator. PW1 admitted that father of respondent is a retired patwari but she does not know whether he gets any pension or not. That respondent is working as Government teacher in a school.
That she completed B.Ed before her marriage with respondent. That she has all required qualification for working as teacher. That respondent came to the hospital on the date of birth of their child when she was in the hospital and on 5th day his parents also came and saw her child. She further deposed that she does not know about the details of other elders who came to attend the alleged panchayath held on 29.01.2012 but the respondent and his parents came. That on her behalf elders 7 namely Yashwanth, Muralidhar swamy and their neighbours attended the panchayath. That the respondent was not paying any amount to her during her stay in his house. That she has not prepared to join the company of respondent since he subjected her to physical and mental torture during her stay with him. PW1 denied the suggestion of respondent that two months prior to birth of her daughter she came to her parents house. That her parents having paid Rs.4,00,000/- dowry and an amount of Rs.60,000/- to the respondent for purchase of vehicle and they did not present 4 tulas of gold, ½ tula ring and that the respondent did not harass her with a demand for additional dowry of Rs.2,00,000/- and that her contents of evidence affidavit to that effect are not correct and she is deposing falsehood.
That no panchayath was held on 29.1.2012 at their house and none of the elders have attended on their behalf and the respondent his parents also did not attend the said panchayath. That the parents and younger brother of respondent depends only upon the respondent. That she has been working as teacher in Vishwashanthi school at Sanjaynagar, Adilabad town. That she has been working as teacher and getting Rs.10,000/- per month salary and that the respondent has to maintain his parents and younger brother and he has no capacity to pay separate maintenance to her. That she filed this case by voluntarily deserting the society of the respondent and forced him to live separately from his family members and that she is not entitled to claim maintenance from the respondent. That the contents of chief affidavit are not correct.
8.PW2/T.Venkata Swamy father of PW1 deposed that his daughters marriage was performed on 09.04.2009 at TNGOs function hall, Adilabad with the respondent and that at the time of marriage he presented Rs.4,00,000/- and
Rs.60,000/- for vehicle and also presented 4 tulas gold brasslet, half tula gold ring and other house hold articles. That after the marriage his daughter and son in law lived as wife and husband at Asifabad for a period of one year only and that soon 8 after marriage her son in law suspected the character of his daughter started physical and mental harassment. That his son in law with the instigation of his parents started harassing his daughter for additional dowry. That the same was informed to him and his family members through phone, so he along with his family members went to Asifabad and questioned the attitude of his son in law in the presence of family members and caste elders and then all the family member admitted their fault and promised him to look after his daughter very well in future and so they returned back to their house. That when his daughter carrying 9th month pregnancy he along with his family members went to the house of his son in law and brought his daughter for delivery and she was blessed with female child by name Abhinetri and that after the birth of Abhinetri he informed the same to his son in law and his parents and also invited them for cradle ceremony of the child but the respondent and his family members bluntly refused to attend the function and demanded to give additional dowry of Rs.2,00,000/- as his daughter was blessed with female child. That when he expressed his inability to fulfill their demand they refused to take back his daughter and child to their house and since then his daughter is staying along with her child at his residence . That after some days he along with some caste elders informed the respondent and his family members and conducted a caste panchayt at his residence on 29.01.2012. That the respondent along with his family members and other persons came to their house and attended the meeting. That in the panchayt the caste people and other elders tried to settle the matter but the respondent and his family members bluntly refused to take back the petitioners to their house until their demand is fulfilled and they also threatened them that they will conduct second marriage of his son in law for huge dowry amount if they does not fulfill their demand of additional dowry of Rs.2,00,000/- within short period and that due to the acts of the respondent and his family members they are suffering physical and mental tortures. That till today respondent has not given any amount to his daughter and child. That the 9 respondent also took all original certificates of his daughter and causing mental torture to his daughter. That respondent is working as a private teacher and having Ac.10-00 gts., of wet land and having own house at Asifabad and his father also retired as a village patwari and he gets Rs.10,00,000/- per year after deducting all their expenses. That due to his old age he is unable to maintain the petitioners in future and the petitioner is unable to maintain herself and also unable to maintain her child. That his daughter is in need of Rs.5,000/- per month and his grand daughter is in need of Rs.3,000/- per month to meet their basic necessities of their lives. He further deposed that total original certificates of the petitioner in respect of 10th to B.Ed are with the respondent only.
In the cross examination he deposed that he has been working as attender in the office of Dy. Director Social Welfare at Adilabad. That PW3 is his co-employee. That he has no idea abo the date and month when he went to the house of respondent but he went to his house when his daughter was carrying pregnancy in the year 2010. That on 29.01.2012 the respondent and his family members and relatives cam to his house with an intention to take back the petitioner with them, then panchayath was held. That at that time the petitioner was not sent with them and he further deposed that they quarreled in the pachayat and accordingly the petitioner was not sent. That in the panchayat PW3 and his neighbours namely Janardhan were present on his behalf. That the panchayat held in the noon hours. That he did not gave any report to the police about the quarrel that took place in the panchayat. PW2 denied the suggestion of the respondent that no panchayat was held on 29.01.2012 and nobody on behalf of the respondent including himself came to his house on that day. That he did not pay Rs.4,00,000/- as dowry and Rs.60,000/- towards purchase of vehicle and he did not present 4 ½ tulas of gold at the time of marriage of petitioner with respondent. That respondent never demanded for additional dowry of Rs.2,00,000/- and that the respondent is still willing to take back the petitioner with him and prepared to look 10 after her affectionately. That they intentionally not sending her to the respondent.
That the certificates of the petitioner are not with respondent. That the petitioner is working as teacher in Vishwwashanti school at Adilabad. That the petitioner is able to maintain herself and that respondent is not able to maintain herself.
9.PW.3/ N.Yaswanth deposed that PW2 is his family friend and at the time of PW.2’s daughter marriage he was present and at the time of giving presentations also he was present. That PW2 performed his daughter married on 9.04.2009 at TNGOs function hall, Adilabad as per their caste customs and that at the time of marriage PW2 presented Rs.4,00,000/-,Rs.60,000/- for vehicle and 4 tulas gold brasslet and ½ tula godl rign and other house hold articles to the respondent. That the petitioner and respondent lived happily for a period of one year only at Asifabad and that after one year of the marriage while the petitioner came to the house of PW2 himself and his wife went to the house of Pw2 and that during that time she informed that the respondent is suspecting her character and harassing her physically and mentally for additional dowry with the instigation of his parents. That when he came to know the above facts from the petitioner he advised PW2 to got to the house of respondent and settle the matter peacefully and that accordingly PW2 along with his family members went to Asifabad and settled the matter and that when the petitioner is carrying 9th month pregnancy
PW2 brought the petitioner for delivery and the petitioner was blessed with female child. That the same was informed to the respondent and his family members but the family members of the respondent not visited the house of PW2 and not seen the child. That he came to know from the petitioner and PW2 that the family members of the respondent are demanding additional dowry of Rs.2,00,000/- to take back the petitioners to their house. That when the father of petitioner held a panchayat in his house on 29.1.2012 all the family members of the respondent 11 present and refused to take back the petitioners to their house until Rs.2,00,000/- is paid to the respondent as the petitioner gave birth to female child. That they tried their level best to settle the matter but the respondent and his family members not heed their words and that finally they threatened the father of the petitioner if they not fulfilled their demand they will perform their son marriage for huge amount of dowry. That the respondent also not giving the certificates of the petitioner and creating mental torture. That till today the respondent ha snot provided any maintenance to the petitioners and neglecting the petitioners. That the respondent is working as private teacher and also having sufficient means to maintain the petitioners who are unable to maintain themselves. That the father of the petitioner unable to maintain the petitioners in future as his income is only sufficient to meet his family needs and that his all savings were given to the respondent at the time of marriage. That the petitioner are in need of Rs.8,000/- per month to meet their bare necessities of their lives.
In the cross examination it is admitted that 29.01.2012 was working day for him.
He further deposed that he does not remember when exactly the petitioner came to her parents house after one year of marriage. That she was carrying pregnancy at that time. That panchayat was held on 29.09.2012. That in the said panchayat some people came on behalf of respondent but he does not know their names. That he was alone present on behalf of petitioner in the said pancayat and it was held at about 2 p.m and that the said panchayat was held when the respondent and his people came to see the petitoenr and her minor daughter. That the panchayath was held at the house of PW2. He denied the suggestion that no panchayat was held on 29.01.2012 and neither the respondent nor anybody on behalf came to the house of
PW2. That the parents of PW1 have not paid Rs.4,00,000/- or Rs.60,000/- towards purchase of vehicle and did not present 4 ½ tulas of gold and that the respondent never demanded for additional dowry of Rs.2,00,000/- and that he is deposing at the instance of PW2 who is colleague.
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10.Respondent himself examined as RW1, filed his evidence affidavit in lieu of chief examination reiterating the averments in the counter. In the cross examination it is submitted by him that himself and PW1 lived together at Asifabad till PW1 carrying pregnancy of 9 month. That the parents of PW1 took PW1 to their house for delivery and she has not gone to her parents house on her own accord.
That it takes six hours to go and come from Asifabad to Adilabad by motor cycle like car and jeep. That his father was patwari before the abolition of patwari system. That he has not filed any petition of restitution of conjugal rights. He further deposed that he has not given any amount for maintenance to PW1 and petitioner No.2 after giving birth to petitioner No.2. That PW1 was admitted in
Rama Ashok Hospital, Adilabad for delivery by her parents. That no panchayat was held before the elders with regard to demand of PW1 to put up separate family.
That he has not informed to the elders of their community with regard to Pw1 quarrelling with him and abusing him in filthy language. That petitioner No.2 was born on 21.01.2010 that the cradle ceremony was performed on 21st day of her birth. That he ha snot field any birth certificate of petitioner No.2 before this
Court. That he has asked PW1 through telephone as t why he was not called for cradle ceremony function. That his parents and his maternal uncle D.Vilas Babu came to ask PW1 to come to his house about 2 or 3 times. That no panchayt was held when PW1 refused to come to his house. That he has not filed any salary certificate pertaining to January, 2012. That he is contingent employee and the salary certificate is not issued by the Principal of APTWRS (Boys), Kerameri. That the school timings of APTWRS (Boys) Kerameri are from 7 am. , to 9 a.m as it is a residential school. That PW1 has not taken any house hold articles while going to her parents house for delivery. That he has not filed any documentary evidence to show that Pw1 is teacher in private school. That he is having 5 sisters and one brother and all the five sisters got married. That his father has performed their marriages. That his father is having one house at Asifabad. He denied the 13 suggestion that he has not taken back PW1 to his house after she gave birth to petitioner No.2 demanding to give additional dowry of Rs.2,00,000/-. That he has not taken back PW1 as she did not give additional dowry of Rs.2,00,000/-. That during the stay of PW1 in his house he used to harass PW1 physically and mentally suspecting her fidelity. That in the Xerox copies filed pertaining to Ex.R4 there is no endorsement with regard to C.Ls., O.Ds and other leaves. That Ex.R4 is created document in collusion with the Principal of APTWRS (Boys) Kerameri. That he was on duty on 29.01.2012. That he has attended the panchayath held on 29.01.2012 at
Adilabad along with parents and admitted his mistake and promised to look after nicely without demanding additional dowry. That he has not mentioned with regard to education qualifications of Pw1. That he kept certificates of education with him and harassing her by hot giving the same. That he has not taken dowry of
Rs.4,00,000/-, Rs.60,000/- for purchase of motor cycle and 4 tulas of gold, ½ tula gold ring at the time of marriage and spent the amount to meet the bad voices an that he has demanded additional dowry. That his father is having agricultural land at Asifabad. That his physically handicapped brother Ajay kumar is working in Kanti
Ginning Factory as a computer operator and earning monthly salary of Rs.15,000/-.
That his brother is not depending upon him. Tha his father is not depending upon him and that his father is having landed properties. That his father gets annual income of Rs.10,00,000/- per annum. That he has taken plea that he will take back
PW1 to lead matrimonial life in his counter to avoid maintenance. That PW1 is not doing any work and she is depending upon her father.
11.RW.2/G.Srinivas Reddy deposed that he is working as Head Master in
Vishwashanti High School, Sanjaynagar, Adilabad. That he received the summons from the Court for production of documents and to give evidence before this Court and as per the orders of this Court he brought the attendance register for the year 2011-12, 2012-13 and also acquaintance register for the year 2011-12, 2012-13 14 of Vishwashanti School, Sanjaynagar, Adilabad and that during 2011-12 their school management used to pay Rs.1900/- per month to the petitioner and during 2012-13 their school management used to pay Rs.3,000/- per month as salary to the petitioner. That the petitioner studied B.A., B.Ed., and having the qualification to work as a teacher. That after verifying the academic qualification of the candidate the job of teacher will be given. That the correspondent of the school knows about the administration of the school That in Ex.R6 the initial of surname of the petitioner is not mentioned. That in Ex.R7 her husband name is mentioned as
Venkateshwar. He further deposed that he became Head Master of the school in the month of January, 2013 and that earlier he was working as teacher in the said school. That their correspondent is Narayana Reddy. That he does not know his native place. That he resides at Sanjaynagar, Adilabad. That he does not know the entitlement of minimum salary of a teacher who did graduation in B.Ed as per the norms of the Government. That he is getting salary of Rs.4,500/- per month. That in his school there are six School Assistants and one Hindu pandit. That he does not know about the deductions of G.P.F account. That he does not have any idea about the documents of educational qualification filed in the school. That he cannot say whether the petitioner submitted her documents pertaining to education qualification in the school. That the husband of the petitioner name is mentioned as
Venkatesh in Ex.R6. That he does not know whether correspondent of their school namely Narayana Reddy is related to petitioner. That he has not verified the qualification of petitioner in the records of the school. He denied the suggestion that Ex.R6 and Ex.R7 are created by him for the purpose of this case that he is not qualified person for the post of Head Master in the school. That the petitioner never worked as teacher in his school. That the petitioner used to get the salary of
Rs.1,900/- per month in the year 2011-12, Rs.3,000/- per month in the year 2012-13. That the name of the petitioner is Sunitha. That he brought the registers pertaining to name of another woman having same name and that petitioner never 15 worked in their school. That to help the respondent he is deposing falsehood.
12.The counsel for the petitioner argued that petitioner No.1 is legally wedded wife of the respondent. That petitioner No.2 is daughter of petitioner No.1 and respondent. That petitioner No.1 and respondent lived as wife and husband at the house of respondent for a period of one year. That after one year of the marriage respondent suspected the fidelity of the petitioner started harassing he physically and mentally and he also used to beat her frequently. That the respondent used to harass PW1 for additional dowry. That during that time she became pregnant and petitioner No.1 was carrying 9 moths pregnancy and that she was brought to her parents house for deliver and she gave birth to female child ie., petitioner No.2. That after the birth of PW2 the parents of petitioner No.1 informed the same to the respondent and his family members and asked about cradle ceremony. That the respondent with the ill advise of his parents demanded
additional dowry of Rs.2,00,000/- to take back the petitioners. That the
respondent refused to take back PW1 and her child until their demand is fulfilled.
That all the original certificates of education qualification of petitioner No.1 are with the respondent and that she cannot get into any job. The respondent having sufficient means neglecting to maintain Pw1 and her child. That the respondent failed to prove his contention that PW1 demanded him for separate residence. That the respondent also used to suspect her fidelity. He relied on decision reported in 2004 (2) ALD (Crl.) 193 (AP), 2008 (1) ALD (Crl.) 101 (SC).
13.The counsel for the respondent argues that petitioner Nd.1 after 3 months of marriage made proposal before respondent to reside separately from the joint family of the respondent and that the respondent refused the same. That petitioner No.1 started harassing physically and mentally quarreling with him and his family members. That she went to her parent house in the month of November, 16 2009 for delivery and gave birth to petitioner No.2 on 21.01.2010 and after the birth of petitioner No.2 the respondent and his family members came to Adilabad and blessed petitioner No.2 and went away stating that they will come on cradle ceremony day but surprisingly without informing them the cradle ceremony function was performed by the petitioner no.1 and her parents and knowing the same the respondent and his family members enquired with petitioner No.1 through phone but petitioner No.1 without giving any reason abused the respondent and that subsequently the respondent and his family members never demanded additional dowry. That the respondent has not suspected the character of petitioner No.1 and he did no question the paternity of petitioner No.2. That the petitioner No.1 is graduate of B.A, B.Ed., and she is working as teacher and earning Rs.10,000/- per month and she is able to maintain herself and petitioner No.2. The respondent is working as private teacher in APTWRS (Boys) at Asifabad and drawing salary of
Rs.7,500/- per month. That the respondent is having responsibility of maintenance his parents and his physically handicapped younger brother. That he is not in a position to give separate maintenance to petitioners No.1 and 2 and that no panchayat was held on 29.01.2012 and the respondent was on duty on that day.
14.PW1 in her chief examination deposed that after one year of the marriage respondent suspected the fidelity of the petitioner started harassing and used to beat her frequently. That the respondent used to demand additional dowry with the instigation of his parents. That during 9th month of pregnancy she was brought to her parents house for delivery and she was blessed with a female child ie., petitioner No.2 and after birth of petitioner No.2 her parents informed the same to the respondent and his family members and with regard to cradle ceremony. That the respondent with the ill advise of his parents demanded
additional dowry of Rs.2,00,000/- to take back petitioners to their house and they
refused the request of her parents so many times to take back her and her child 17 until their demand is fulfilled. That all the educational certificates are with the respondent and that she is unable to maintain herself and her child. That the respondent is a teacher and also having Ac.10-00 gts., of wet land and having own house and his father was also retired patwari and respondent earns Rs.10,00,000/- per year after deducting all the expenses and prayed for monthly maintenance of
Rs.5,000/- per month and Rs.3,000/- to her child to meet their bare necessities.
In the cross examination by respondent she denied the suggestion of the respondent that the respondent did not suspect her character and he has not subjected her to physical and mental harassment after one year of marriage. That the respondent did not harass her for additional dowry of Rs.2,00,000/- and that she has been working as teacher in Vishwashanti school and getting salary of
Rs.10,000/- per month and respondent has to maintain his parents and younger brother and he has no capacity to pay separate maintenance to her. That she filed this case by voluntarily deserting the society of the respondent and forced him to live separately from his family members. She further deposed that she has not prepared to join the society of the respondent since he subject her to torture physically and mentally during her stay with him.
15.PW2 the father of PW1 supported the version spoken by PW1. In the cross examination by respondent he denied that the respondent never demanded for additional dowry of Rs.2,00,000/- and that the respondent is still willing to take back the petitioner with him and intentionally not sending her to the respondent.
That the certificates of petitioner No.1 are not with the respondent. That petitioner No.1 is working as teacher in Vishwashanti school at Adilabad and that she is able to maintain herself and her child. That she is not entitled for maintenance.
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16.PW3 also supported the version spoken by PWs.1 and 2 in his chief examination and denied the suggestion of respondent that no panchayat was held on 29.01.2012 and neither the respondent nor anybody on his behalf came to the house of PW2 an that the respondent never demanded for additional dowry of
Rs.2,00,000/-.
17.In a decision reported in 2008 (1) ALD (Crl.) 97 SC it is held as follows:
“In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn.
Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Whether the personal income of the wife is insufficient she can claim maintenance under
Sec.125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. The expression “unable to maintain herself” does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125
Cr.P.C”.
In the instant case the contention of the respondent is that the petitioner No.1 is graduate in B.A., B.Ed., and working as teacher in a private school and earning an amount of Rs.10,000/- per month and out of her earnings she is unable to maintain herself and petitioner No.2. PW2 Head Master of Vishwashanthi High School,
Sanjaynagar, Adilabad deposed that PW1 is working as teacher in their school and that during 2011-12 their school management used to pay Rs.1900/- per month to
PW1 and during 2012-13 their school management used to pay Rs.3,000/- per month as salary to the petitioner No.1 and that petitioner No.1 having qualifications of
B.A., B.Ed., to work as teacher. In the cross examination by the petitioner he denied the suggestion that Ex.R6 and Ex.R7 are created by him for the purpose of this case. He admitted that in Ex.R6 surname of the petitioner is not mentioned.
He further deposed the name of the petitioner is mentioned as Venkatesh in Ex.R6.
He as admitted that in Ex.R7 her husband name is mentioned as Venkateshwar. He 19 denied the suggestion that petitioner used to get salary of Rs.1,900/- per month in the year 2011-12 and Rs.3,000/- per month in the year 2012-13. Admittedly the respondent is working as teacher in APTWRS (PTG-Boys) Asifabad and drawing monthly salary of Rs.7,500/- and he is having sufficient means. The contention of the petitioner is that the respondent is having Ac.10-00 gts., of wet land from which he gets Rs.10,00,000/- per annum after deducting the expenses and that he is also working as teacher in private college and that she is house wife and unable to maintain herself and her child. PW1 in her evidence denied the suggestion of the respondent that she has been working as teacher in Vishwashanti school and getting
Rs.10,000/- per month as salary. PW2 also in his cross examination denied the suggestion that the petitioner is working as teacher in Vishwashanti school at
Adilabad and she is able to maintain herself.
18.In a decision reported in AIR 2008 (SC) 530 it is held that appellant/husband placed material to show that the respondent/wife was earning some income by way of selling agricultural land and house rent. That is not sufficient to rule out application under section 125 Cr.P.C. It is not been established that with the amount she earned she was able to maintain herself. In the instant case according to contention of respondent the petitioner is working as teacher and getting income of Rs.3,000/- per month as salary and he ha snot established that the amount will be sufficient for the maintenance of petitioner
No.1 and as well as petitioner No.2. The petitioners clearly established the negligence on the part of respondent in maintaining petitioners No.1 and 2. The contention of the respondent that PW1 proposed to reside separately from his joint family itself does not amount to cruelty on the part of petitioner. PW1 clearly established that she is unable to maintain herself and her child/petitioner No2.
petitioners established by adducing oral and documentary evidence that the respondent is having sufficient means to provide maintenance to them.
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19.The above rulings clearly applies to the instant case. Therefore considering the social status of the respondent, his obligations, financial commitments, requirements of the petitioners and also taking into consideration of the fact that the petitioners are living with PW2 who is working as attender in office of Dy. Director Social Welfare at Adilabad I am of the considered opining, awarding an amount of Rs.2,000/- to petitioner No.1 and Rs.1,000/- to petitioner
No.2 per month from the date of order would meet the ends of justice. Accordingly the respondent is hereby directed to pay the amount of Rs.2,000/- per month to petitioner No.1 and Rs.1,000/- per month to petitioner No.2 from the date of order towards their maintenance. Point is answered accordingly.
20.In the result, petition is allowed. The respondent is hereby directed to pay an amount of Rs.2,000/- (Rupees twp thousand only) per month to petitioner
No.1 and Rs.1,000/- (Rupees one thousand only ) to petitioner No. 2 towards maintenance from the date of order and he shall also pay an amount of Rs.500/- (Rupees five hundred only) towards the costs of the petition. The respondent shall pay monthly maintenance regularly on or before 10th of every calendar month without fail.
Dictated to the Personal Assistant, transcribed by him, corrected and
pronounced by me in open court on this the 30th day of August, 2013.
Judge,Family Court –Cum-Addl.
District Judge, Adilabad
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PETITIONERFOR RESPONDENT
PW-1: S.Sunitha. RW-1: S.Venkateshwar. PW-2: T.Venkata Swamy.RW-2: G.Srinivas Reddy. PW-3: N.Yeshwanth.
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EXHIBITS MARKED
FOR PETITIONER -None-
FOR RESPONDENT
Ex.R1: Attested copy of disability certificate, dt.6.11.2009. Ex.R2: Attested copy of circular No.3371/D1-Acad/2010, dt.2210.2011. Ex.R3: Attendance certificate, dt.1.01.2013. Ex.R4: Attested copy of attendance register abstract, January, 2012. Ex.R5: certificate, dt.25.8.2012. Ex.R6: Attendance register for the year 2011-12. Ex.R7: Attendance register for the year 2-12-13. Ex.R8: Acquaintance register.
Judge,Family Court –Cum-Addl.
District Judge, Adilabad