1 M.C.NO. 10 OF 2018
COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF FIRST
CLASS :: SANGAREDDY
WEDNESDAY, THIS THE 23rd DAY OF JANUARY, 2018
Present:- Smt. R.M. Subhavalli,
Additional Judicial Magistrate of First Class,
Sangareddy.
M.C.NO. 10 OF 2018
Between:-
1. P. Sandhya W/o. V.J. Vijay, Age: 37 yrs, Occ: Housewife
2. Akhilesh S/o. V.J. Vijay, Age: 11 yrs, Occ: Student
3. Vishwateja D/o. V.J. Vijay, Age: 5 yrs, Occ: Student (Petitioner No.2 & 3 are minors represented by their natural mother and guardian i.e., Petitioner No.1)
All are R/o. H. No. 211, LIG,Ramachandrapuram, BHEL, Sangareddy
...Petitioner No. 1, 2, 3
AND
V.J Vijay S/o. Late Ramdas, Age: 40 yrs, Occ: Business, R/o. H. No. 18, 26 th A Main Road, 17th Cross, Muthappa Garden, 6th Phase, J.P. Nagar, Banglore. C/o: Sri Vijaya Opticals, P.E.S. Institute of Medical Science & Research, P.E.S Medical College Hospital, Kuppam, Chittor District.
...Respondent
This Petition has come up before me for final hearing on 21-01-2019 in the presence of Sri. J. Mallikarjun, Learned Counsel for Petitioners and the respondent set exparte, upon perusing the material on record, upon hearing Petitioner and having stood over for consideration till this day, this Court delivered the following:-
:: O R D E R :: (Exparte)
Case is U/Sec. 125 Cr.P.C 1Petitioner filed the petition Under Section 125(2) of Cr.P.C.
Praying the court to grant maintenance in favour of the petitioners 1 to 3 2 M.C.NO. 10 OF 2018 by directing the respondent to pay a sum of Rs.40,000/- per month to the petitioners for the maintenance and medical expenses with costs and pass such other order or orders as the Honourable Court deems fit under the circumstances of the case.
2. The Brief facts of the petition are as follows:-
The petitioner No.1 marriage was performed with respondent on 19-05-2005 at Thirumala Thirupathi Devastanam, Thirupathi as per Hindu rights and customs at the time of marriage as per the demand of respondent the parents of petitioner No.1 gave cash of Rs.
40,000/-, 10 tulas of gold, 1 kg of silver, and other house hold articles as dowry and also presented electronic goods like fridge, washing machine, almarah, cot etc, and after the marriage out of the wedlock of petitioner
No.1 and respondent they blessed with petitioner No. 2 & 3 and lead their marital life happily for one year, after the marriage nuptial ceremony was arranged between the petitioner No.1 and respondent on the day respondent asked the petitioner that whether petitioner was virgin or not and the respondent had a doubt that petitioner was virgin or not, since from the marriage respondent suspected the petitioner’s fidelity, the respondent has no interest to begotten the children also, immediately after marriage the petitioner become pregnant, respondent took the petitioner to
Hospital to abort the pregnancy but the doctors scold him, for that reason respondent did not do so. Due to the restless in the 7 month male child was born and immediately died. After that again on 02-04-2007 the petitioner blessed with male child and the respondent suspected her and also had doubt that the boy was his own child or not, to prove himself he 3 M.C.NO. 10 OF 2018 went to DNA test and respondent used to say that after one year he will give divorce to the petitioner No.1 surprisingly the respondent started torturing the petitioner and also suspect the petitioner saying that to bring money from her parents when she refused then respondent used to beat her with kitchen articles and whatever article in his hand and respondent also objected her from visiting her parents house after 6 years again the petitioner No.1 become pregnant for second time, the respondent again forced the petitioner to take tablets for abortion which the petitioner did not agree for that the respondent started beat the petitioner No.1, on 13-08- 2012 the petitioner blessed with male child namely viswateja after birth of second child again the respondent started harass the petitioner to leave the matrimonial house and also suspect the petitioner saying that the second son was also not his own son. The respondent did not change the attitude towards the petitioner No.1 as usual he continued his harassment, mental torture to her by beating her in front of small children and made her life miserable. The petitioner No.1 informed the same to her mother and sisters but in vain. The petitioner No.1 bear with the harassment and cruelty made by the respondent for the sake of her minor children, but the respondent never cared to provide even basic necessities to the petitioner
No.1 and her children. The respondent’s harassment has become unbearable to lead her conjugal life with him. The petitioner No.1 was unable to bear the harassment made by the respondent, in the month of
Feb 2016 left the respondent’s house and went to her parent’s house and stayed 6 months with her second child. The respondent during that time did not provide any singly pie for maintenance by leaving the petitioners to 4 M.C.NO. 10 OF 2018 their fate, the respondent has no love and affection towards the petitioner
No.1. after that a meeting was held, elders, relatives advice the respondent to look after the petitioners well. After re-joining the petitioners with the respondent, the respondent started increasing the harassment towards the petitioner No.1, and obtain the petitioner’s signature on blank bond paper by saying that required to submit the same into L.I.C after that respondent with the help of others written something on the bond paper saying that the petitioner herself leaving the matrimonial home by leaving the children with the respondent, with an advantage of the bond paper respondent started harassing the petitioner and demanded to left the matrimonial house. On 07-04-2017 the respondent beat the petitioner and demanded for
additional dowry, forcefully pulled the mangalsutra from the neck of the
petitioner and thrown out the petitioner No.1 from the matrimonial house, did not allow the children with the petitioner No.1 and took away the children somewhere else, not lifted the phone calls of the petitioner No.1, having no other alternative the petitioner No.1 came to her parent’s house at Hyderabad. The respondent unable to maintain the children and after some days dropped the children at petitioner brother’s house at
Machilipatnam, after that the petitioner’s brother handed over the children to the petitioner. Since then the children are with the petitioner No.1 only. In the year April 2017, the 2nd petitioner was studying 4th class, 3rd petitioner was studying L.K.G at Capital Public School, Bangalore, thought that the petitioner No.1 went to Banglore along with the children, the petitioner
No.1 tried to inform to the respondent over the phone that she is coming to
Bangalore, the respondent did not lift the phone, than the petitioner 5 M.C.NO. 10 OF 2018 telephoned to the friend of the respondent and informed the same, there was no response from the respondent, after some time the respondent telephoned and informed to the petitioner No.1 that “He no way concerned with the petitioners and whatever you want to do you do it” than the petitioner No.1 opened the lock and took the books, belongings of the children and returned back to Hyderabad. The petitioner No.2 & 3 are not his own sons by questioning whether she likes any person earlier to marriage and had any physical relationship, the respondent used to suspect her fidelity. The petitioner No.1 bear with the harassment and cruelty made by the respondent for the sake of her minor children but the respondent never cared to provide even basic necessities to the petitioner and her children, the respondent is running optical shop at Kuppam,
Chittor District and getting profit of Rs. 1,00,000/-. On 07-04-2017 the respondent beat the petitioner and demanded for additional dowry, forcefully pulled the mangalsutra from the neck of the petitioner and thrown out the petitioner No.1 from the matrimonial house, the petitioner having no other alternative and came to her parents house at Hyderabad, the petitioner No.1 with an intention to provide the good study to the children, sold out her gold ornaments and also borrow the amounts from the well wishers, joined the Petitioner No.2 in 5th class at Viswasanthi Educational
Institute by paying Rs.91,000/- tuition fee + Rs. 25,000/- other expenses per annum and also joined Petitioner No.3 at Kavitha Play School,
Hyderabad by paying Rs. 25,000/- per annum for the academic year 2017- 2018 being a father the respondent did not paid single pie to the petitioner
No.2 & 3 studies. Moreover the respondent sent notice copy to the 6 M.C.NO. 10 OF 2018
Principal, Capitall Public School, Bangalore for not to issue the Transfer
Certificate of the petitioner No.2 & 3 till date, on 16-07-2017 the respondent came to the petitioner No.1 mother’s house at BHEL, R.C
Puram, Hyderabad where petitioners residing for discuss the matter, they abused in filthy language, beat petitioner No.1 and her mother for which the petitioner No.1 lodged a complaint before the P.S Ramachandrapuram, a case was registered against the respondent and others U/s. 498-A, 323, 34 of IPC, 3, 4 DP Act. The respondent has totally neglected and deserted the petitioners, failed to maintain the petitioners and since on 07-04-2017 the petitioners were living separately at the mercy of her old aged mother and became burden to them. The petitioner herein is badly in need of monthly maintenance to meet out their day to day expenses such as food, clothing, shelter, education, medical aid etc., as such the petitioners are requested the Hon’ble court to grant monthly maintenance of Rs. 40,000/- per month as prayed for.
After case is registered as M.C 10 of 2018 summons issued to respondent by adjourning case to 14-05-2018 while so, till 25-09-2018 summons not served on respondent hence the petitioner filed M.P 1419/18 and same is allowed and summons issued to respondent through publication in Eenadu paper, on which on 01-11-2018 publication filed respondent absent no representation hence he is set exparte on 01-11- 2018 and case posted for petitioner evidence.
3.In order to prove the contentions on behalf of the Petitioners,
Petitioner No.1 herself examined as PW1 by filing her chief affidavit and got marked Ex.P1 to P6, on her behalf.
7 M.C.NO. 10 OF 2018
4. Heard the Counsel for Petitioners. Respondent is set exparte on 01-11-2018.
5. Now the point for determination :
1) Whether the petitioners are entitle for Maintenance of Rs. 40,000/- or not ?
2) To what relief?
POINT No. 1 :-It is a case of maintenance claiming by petitioner No. 1 to 3 from the respondent who is father of petitioner No. 2 & 3 and husband of petitioner No.1. To establish the same the petitioner No.1 examined as PW1, and marked exhibit P1 to P6 on their behalf the PW1 said she is legally weeded wife of respondent and their marriage held on 19-05-2005 at Tirumala Tirupathi Devastanam, Tirupathi as per Hindu rites & custom, during wedlock they begotten two children as petitioner No. 2 & 3, After the marriage nuptial ceremony was arranged between the 1st petitioner and respondent on that day respondent asked the petitioner that whether petitioner was virgin or not and the respondent had a doubt that petitioner was virgin or not, since from the marriage respondent suspected the petitioner’s fidelity. The respondent has no interest to begotten the children also, immediately after marriage the petitioner become pregnant, respondent took the petitioner to Hospital to abort the pregnancy but the doctors scold him, for that reason respondent did not do so. Due to the restless in the 7th month male child was born and immediately died. After that again on 02-04-2007 the petitioner blessed male child, since that day onwards respondent started to suspect the petitioner No.1 and also respondent has a doubt that the boy was his own child or not, to prove 8 M.C.NO. 10 OF 2018 himself he went to DNA test also, respondent used to say that after one year he will give divorce to the petitioner No.1, surprisingly the respondent started torturing the petitioner by questioning whether she likes any person earlier to marriage and had any physical relationship, the respondent used to suspect her fidelity. The respondent also started harassing the petitioner to bring money from her parents when she didn’t agree, the respondent used to beat her with kitchen articles and whatever article in his hands. It has been as usual for the respondent to suspect the petitioner No.1 character, and even he objected her from visiting her parents and relatives house.
In Appreciation of evidence
As per Section 125 of Cr.P.C.
Order for maintenance of wives, children and parents:-
1) If any person having sufficient means neglects or refuses to maintain-
a) his wife, unable to maintain herself, or - -
Provided further that the Magistrate may, during the
pendency of the proceeding regarding monthly allowance for the
maintenance under this sub-section order such person to make a
monthly allowance for the interim maintenance of his wife or such
child, father or mother, and the expenses of such proceeding which
the magistrate considers reasonable, and to pay the same to such
persons as the may from time to time direct.
Provided also that an application for the monthly allowance for
the interim maintenance and expenses for proceeding under the
9 M.C.NO. 10 OF 2018
second proviso shall, as far as possible, be disposed of within sixty
days from the date of the service of notice of the application to such
person)
Explanation:- For the purposes of this chapter:-
a) “ minor” means a person who, under the provisions of the
Indian Majority Act, 1875 ( 9 of 1875) is deemed not to have attained
his majority.
b) “ wife” includes a woman has been divorced by or has
obtained divorce from her husband and has not remarried.
(2) Any such allowance for the maintenance or interim
maintenance and expenses for proceeding shall be payable from the
date of the order, or if so ordered, from the date of the application for
maintenance or interim maintenance and expenses of proceeding as
the case may be.
For granting interim maintenance to P.W.1 she has to fulfill the following conditions.
(ii) Neglect or refusal to maintain:
As per Section 125(1) of the Code of Criminal Procedure, the person from whom maintenance is claimed must have neglected or refused to maintain the person or persons entitled to claim maintenance. As in the present case in hand the respondent is set-exparte and for proving respondent neglect except P.W.1 chief Affidavit nothing was produced
before court.
Neglect means a default or omission in the absence of a demand whereas ‘refuse’ means a failure to maintain or a denial of obligation to 10 M.C.NO. 10 OF 2018 maintain after demand. A neglect or refusal to maintain may be by words or by conduct. It may be express or implied. Neglect or refusal may mean something more than mere failure or omission. Burden of proving neglect is on the claimant. For proving the same the PW1 mentioned in her chief affidavit on 07-04-2017 the respondent beat her and demanded for
additional dowry, forcefully pulled the mangalsutra from her neck and
thrown out her from the matrimonial house, did not allow the children with her and took away the children somewhere else, not lifted her phone calls, having no other alternative she came to her parent’s house at Hyderabad.
The respondent unable to maintain the children and after some days dropped the children at her brother’s house at Machilipatnam, after that her brother handed over the children to her. Since then the children are with her only. In the year April 2017 the 2nd petitioner was studying 4th class, 3rd petitioner was studying L.K.G at Capital Public School, Bangalore, thought that the children school would disturb, keeping the bright future of the children in the mind, she went to Bangalore along with the children, she tried to inform to the respondent over the phone that she was coming to
Bangalore, the respondent did not lift the phone, than she telephoned to the friend of the respondent and informed the same, there was no response from the respondent, after some time the respondent telephoned and informed to the petitioner No.1 that “He no way concerned with the petitioners and whatever you want to do you do it” than she opened the lock and took the books, belongings of the children and returned back to
Hyderabad. She with an intention to provide the good study to the children, sold out her gold ornaments and also borrow the amounts from the well- 11 M.C.NO. 10 OF 2018 wishers, joined the petitioner No.2 in 5th class at Sri Viswasanthi
Educational Institute, Vuyyuru, Krishna District by paying Rs. 91,000.00 tuition fee + Rs. 25,000/- other expenses per annum, also joined the petitioner No.3 at Kavitha Play School, Hyderabad by paying Rs. 25,000/- per annum for fee and other expenses, thus totally approximately Rs.
1,50,000.00 per annum for petitioner No.2 & 3 for the academic year 2017- 2018. knowing the said fact very well, being a father the respondent sent notice copay to the Principal, Capital Public School, Bangalore for not to issue the Transfer Certificate of the petitioner No.2 & 3 to her. The
Principal, Capital Public School, Bangalore, not issued the Transfer
Certificate of the petitioner No.2 & 3 till date.
(iii) Wife claiming maintenance must be unable to maintain herself:
As the object of Section 125 of the Code is mainly to prevent vagrancy; the requirement to pay maintenance should be only in respect of persons who are unable to maintain themselves. The inability of the wife to maintain herself is a condition precedent to the maintainability of her application for maintenance.
Maintenance means appropriate food, clothing and lodging. By the phrase ‘unable to maintain herself’, it is not meant that she should be absolute destitute and should be on the street, should beg and be in tattered clothes.
The maintenance has to be determined in the light of the standard of living of the person concerned which she enjoyed at the place of her husband.
12 M.C.NO. 10 OF 2018
From the evidence of P.W.1 we observe the material on record the respondent side served notices through Register post on 01.11.2018, but he failed to attend before court being called absent set exparte, and also the petitioner present notice served on her behalf and filed chief affidavit. The respondent failed to filed counter did not appear
before the court to prove his contention and to disprove the claim of the
petitioner. Ex. P1 is marriage wedding card of petitioner and respondent,
Ex. P2 is rental agreement dated 15-04-2017, Ex. P3 is office copy of legal notice dated 09-08-2017, Ex. P4 is FIR in Cr. No. 458 of 2017 served by police, Ex. P5 is school fee receipts of petitioner No.2 & 3 (17 in number),
Ex. P6 is paper publication dated 12-10-2018, and for proving that she is the legally wedded wife of Respondent there is exhibit P1 is there but there is no corroborative evidence except P.W.1 chief Affidavit. Further P.W.1 fails to prove the financial capacity of the respondent without filing of any documents, as the petitioner and Respondent are legally wedded wife and lived together as wife and husband but the petitioner claiming maintenance without filing of any proof of documents to prove that how much amount respondent but PW1 mentioned in her chief affidavit by saying that the respondent is the owner and running the optical shop at
P.E.S Medical College and Hospital, Kuppam, Chittor District and he is getting per month Rs. 1,00,000/-. As the petitioner is for maintenance and she is living on the mercy of her parent’s and brother along with her children that is petitioner No.2 & 3 so, the claim of maintenance petition itself is sufficient. Hence this petition is partly allowed and grant maintenance to the petitioner per month of Rs. 30, 000/- as according to 13 M.C.NO. 10 OF 2018
Law. The respondent being husband and father of petitioners and he had bounden duty to maintain his wife and children.
In Dr. Kulbhushan Vs. Raj Kumar & Anr. (1970) 3SCC129. The Hon’ble Apex court held that 25% of the husbands net salary would be just and proper to be awarded as maintenance to the petitioner and it is a settled principle of law that both the parents have a legal, moral and social duty to provide to their child the best education and standard of living with in their means.
Basing on the above facts and circumstances the PW1 and
Petitioner No. 2 & 3 are entitled for maintenance from Respondent.
In the result the petition is partly allowed by granting maintenance
U/s 125 Cr.P.C an amount of Rs.10,000/- per month to the each petitioner from the date of order and the petitioners are entitled for maintenance an amount of Rs 30,000/- P.M. and the respondent is directed to pay Rs.
30,000/- to the petitioners on or before 10th of every calender month.
Accordingly this petition is partly allowed without costs.
(Typed by me, corrected and pronounced by me in open court, this the 23 rd day of January, 2019.)
Additional Judicial Magistrate of First Class,
Sangareddy.
14 M.C.NO. 10 OF 2018
APPENDIX OF EVIDENCE
WITNESS EXAMINED
For Petitioner : For Respondent:
PW1 P. Sandhya -Nil-
EXHIBITS MARKED
For Petitioner: For Respondent:
-Nil-
Ex. P1 is marriage wedding card of petitioner and respondent
Ex. P2 is rental agreement dated 15-04-2017
Ex. P3 is office copy of legal notice dated 09-08-2017
Ex. P4 is FIR in Cr. No. 458 of 2017 served by police
Ex. P5 is school fee receipts of petitioner No.2 & 3 (17 in number)
Ex. P6 is paper publication dated 12-10-2018
MATERIAL OBJECTS
-Nil-
Additional Judicial Magistrate of First Class,
Sangareddy.
15 M.C.NO. 10 OF 2018