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Chepuri Hanumantha Raio, S/O Late … vs Chepuri Uma Bala, Aged:43 Years, … on 27 February, 2017

HONBLE DR. JUSTICE B.SIVA SANKARA RAO

CRIMINAL REVISION CASE No.79 OF 2016

27-02-2017
Che[uri Hanumantha Raio, S/o Late Seetharmaiah, Age 54 years, R/o No.H.nO.33/1,
sainagar, Road No.1, New Nagole, Ranga Reddy District ….PETITIONER

cHEPURI uMA bALA, aGED:43 YEARS, dIVORCED w/O hANUMANTHA rAO, r/O h..No.2-2-
1166/1/B,Tilaknagar, New Nallakunta, Hyderabad -54 and another ….RESPONDENTS

cOUNSEL FOR THE PETITIONER: Sri M.N.Narasimha Reddy

Counsel for the respondents: Sri Srinivasa Rao Ravulpati Public Prosecutor
Gist:

Head Note:

?CITATIONSW:1.1995 (5) BOM CR 851
2.(2004) 1SCC 188
3 1986 CrlLJ 1129
4.(2014) 16 SCC 715
5.(2015) 6 SCC 353
6. 2006 (1) ALD 18

HONBLE DR. JUSTICE B.SIVA SANKARA RAO

CRIMINAL REVISION CASE No.79 OF 2016

ORDER:

The Revision Petitioner/Sri Chepuri Hanumantha Rao,
is sole respondent in M.C.No.262 of 2008 on the file of Judge,
Family Court, Ranga Reddy District at L.B.Nagar, that was
maintained by his wife (Smt.Chepuri Uma Bala), the revision
1st respondent, under Section 125 Cr.P.C. with a claim to
grant maintenance at Rs.25,000/- per month from date of
petition.

2. The learned Judge, Family Court, on appreciation of the
material covered by petition and counter and also from the
evidence of P.W.1 and Rws.1 and 2 with reference to Exhibits
R1 to R41, by the impugned order dated 28.11.2015, awarded
maintenance of Rs.10,000 per month from date of petition
with proportionate costs, with a direction to pay all arrears
due after deducting interim maintenance paid by him at
Rs.2,000/- per month from date of petition.

3. The contentions in the grounds of revision vis–vis the
oral submissions of the learned counsel for the revision
petitioner (for short, husband) are that the impugned order
is contrary to law, illegal, improper, unjust and is liable to be
set aside, that the maintenance case was filed on 11.07.2008,
whereas his marriage performed on dated 02.12.2004, with
the revision respondent (for short, wife) was dissolved by a
decree of divorce in his favour on the ground of cruelty on
16.03.2012 – in O.P.No.317 of 2008, on the file of Judge,
Family Court, Ranga Reddy at L.B.Nagar, that the
maintenance case allowed later on 28.11.2015, from date of
petition, ignoring the dissolution of the marital tie from which
she is no longer wife, irrespective of a divorced wife is
otherwise entitled to maintenance within the meaning of wife
under Section 125 Cr.P.C., mainly for the fact that the
husbands obligations and liabilities to maintain wife of
subsisting marriage are different to his divorced wife, that
wife is under obligation to live with husband but not for a
divorced wife where either of them got liberty to have another
spouse and question of neglect of a divorced wife thereby does
not arise, that the standard of living to a subsisting wife with
that of husband cannot be equated to a divorced wife, apart
from divorced wife got other remedies by independent
proceedings to have maintenance claim (alimony).

4. His further contest is that he lost job and his health is
not permitting to work and he is dependent on his brother
and mother for his survival that was not properly considered
in awarding maintenance, apart from the maintenance
petition not even contains averment of she is unable to
maintain herself. It is also the contest that she is employed
as office assistant and can do job, the impugned order is only
keeping in mind the past events and by ignoring pendenti lite
events including the factum of divorce on the ground of
cruelty on her part that also disentitles her to make claim for
maintenance for no neglect or refusal there from and
awarding of maintenance is thereby improper and
unsustainable. It is also the contest that merely because
interim maintenance was awarded, that does not entitled her
to regular maintenance and the lower court should have been
dismissed the maintenance claim therefrom.

5. The learned counsel placed reliance on a Division Bench
expression of the Bombay High Court in Bhagwan Raoji
Dale Vs. Sushma Alias Nanda Bhagwan , and drawn
attention of this Court to certain observations in that
judgment with 53 Paras, particularly to Para 26 that as per
Section 125 (4) Cr.P.C., (i) .. no wife shall be entitled to
receive the allowance from the husband, (ii) without
any sufficient reason she refused to live with her husband…
Section 125(1) Explanation (b) says wife includes even a
divorced wife until remarried. If the relationship of husband
and wife has come to an end as a result of decree for divorce,
there can be no question of divorced women without sufficient
cause refusing to live with her husband. After divorce, there
is no occasion for a woman to live with her husband.. as
held in by the Apex Court in Vanmala Vs. H.M.Ranganath
Bhatta.

6. Again from Para 29 that Section 25 of the Hindu
Marriage Act empowers the Court exercising jurisdiction
under the Act, at the time of passing of the decree or at any
time subsequent thereto, to direct the spouse that he shall
pay maintenance to the applicant under Section 25 of the
said Act. nothing prevents her from invoking jurisdiction
of competent Civil Court under Section 25 of the Act. From
observation in Para 36 that some divorcee women are entitled
to claim maintenance under Section 125(1) is beyond doubt.
In my opinion each and every divorced wife is not entitled to
claim maintenance under the said provision.

7. From Para 37, with reference Section 125(1)
Explanation (b) of wife includes a divorced wife, the question
is then whether a woman, who has been divorced by a decree
of divorce passed by a Court of Law at the instance of her
husband, is entitled to claim maintenance under Section 125
of the Code. Her case surely would not fall under second
limb of Explanation (b) as it is not she who has obtained a
divorce from her husband but is he who stated to have
obtained divorce against her from a Court of law.

8. From Para 38, that if such a woman against whom a
decree of divorce was obtained by the husband is included in
the extended definition of wife under Section 125(1) of the
code, it would mean that woman who was wrong doer or was
guilty of desertion or cruelty against her husband would be
entitled to claim maintenance after a decree of divorce is
passed against her, though undisputedly, she would not be
entitled for maintenance from such divorce was granted by
virtues of subsection (4) of Section 125 of the Code. From
Para 53, which reads since in this case (writ) petitioner-
husband has obtained divorce against respondent wife, the
latter is not entitled to claim maintenance, from and after the
date of divorce. Hence, this writ petition must succeed.

9. Whereas, it is the submission of the learned counsel for
the revision respondent wife that the order of the court
below no way requires interference for this Court while sitting
in revision within the limited scope defined in Section 397(1)
Cr.P.C. for no illegality or incorrectness or impropriety in the
order of maintenance granted by the court below including in
its observations and conclusions and the expression of
Bombay High Court, no way a binding precedent and the
interpretation must be purposive and in favour of the woman
as also laid down by the Apex Court in Badshah vs Sou.
Urmila Badshah Godse Anr and drawn attention of the
Court to Paras 17 to 27 therein which read as under:

17. Thirdly, in such cases, purposive
interpretation needs to be given to the provisions of
Section 125,Cr.P.C. While dealing with the
application of destitute wife or hapless children or
parents under this provision, the Court is dealing
with the marginalized sections of the society. The
purpose is to achieve social justice which is the
Constitutional vision, enshrined in the Preamble of
the Constitution of India. Preamble to the
Constitution of India clearly signals that we have
chosen the democratic path under rule of law to
achieve the goal of securing for all its citizens,
justice, liberty, equality and fraternity. It
specifically highlights achieving their social justice.
Therefore, it becomes the bounden duty of the
Courts to advance the cause of the social justice.
While giving interpretation to a particular provision,
the Court is supposed to bridge the gap between
the law and society.

18. Of late, in this very direction, it is emphasized
that the Courts have to adopt different approaches
in social justice adjudication, which is also known
as social context adjudication as mere adversarial
approach may not be very appropriate. There are
number of social justice legislations giving special
protection and benefits to vulnerable groups in the
society. Prof.Madhava Menon describes it
eloquently: It is, therefore, respectfully submitted
that social context judging is essentially the
application of equality jurisprudence as evolved by
Parliament and the Supreme Court in myriad
situations presented before courts where unequal
parties are pitted in adversarial proceedings and
where courts are called upon to dispense equal
justice. Apart from the social- economic inequalities
accentuating the disabilities of the poor in an
unequal fight, the adversarial process itself
operates to the disadvantage of the weaker party.
In such a situation, the judge has to be not only
sensitive to the inequalities of parties involved but
also positively inclined to the weaker party if the
imbalance were not to result in miscarriage of
justice. This result is achieved by what we call
social context judging or social justice adjudication.
(Delivered a key note address on Legal Education
in Social Context)

19. Provision of maintenance would definitely fall in
this category which aims at empowering the
destitute and achieving social justice or equality
and dignity of the individual. While dealing with
cases under this provision, drift in the approach
from adversarial litigation to social context
adjudication is the need of the hour.

20. The law regulates relationships between
people. It prescribes patterns of behavior. It reflects
the values of society. The role of the Court is to
understand the purpose of law in society and to
help the law achieve its purpose. But the law of a
society is a living organism. It is based on a given
factual and social reality that is constantly
changing. Sometimes change in law precedes
societal change and is even intended to stimulate it.
In most cases, however, a change in law is the
result of a change in social reality. Indeed, when
social reality changes, the law must change too.
Just as change in social reality is the law of life,
responsiveness to change in social reality is the life
of the law. It can be said that the history of law is
the history of adapting the law to societys changing
needs. In both Constitutional and statutory
interpretation, the Court is supposed to exercise
direction in determining the proper relationship
between the subjective and objective purpose of the
law.

21. Cardozo acknowledges in his classic (The
Nature of Judicial Process).no system of jus
scriptum has been able to escape the need of it,
and he elaborates: It is true that Codes and
Statutes do not render the Judge superfluous, nor
his work perfunctory and mechanical. There are
gaps to be filled. There are hardships and wrongs
to be mitigated if not avoided. Interpretation is often
spoken of as if it were nothing but the search and
the discovery of a meaning which, however,
obscure and latent, had none the less a real and
ascertainable pre- existence in the legislators mind.
The process is, indeed, that at times, but it is often
something more. The ascertainment of intention
may be the least of a judges troubles in ascribing
meaning to a stature. Says Gray in his lecture
(From the Book The Nature and Sources of the Law
by John Chipman Gray) The fact is that the
difficulties of so-called interpretation arise when the
legislature has had no meaning at all; when the
question which is raised on the statute never
occurred to it; when what the judges have to do is,
not to determine that the legislature did mean on a
point which was present to its mind, but to guess
what is would have intended on a point not present
to its mind, if the point had been present.

22. The Court as the interpreter of law is supposed
to supply omissions, correct uncertainties, and
harmonize results with justice through a method of
free decisionlibre recherch sceintifique i.e. free
Scientific research. We are of the opinion that there
is a non-rebuttable presumption that the Legislature
while making a provision like Section 125 Cr.P.C.,
to fulfill its Constitutional duty in good faith, had
always intended to give relief to the woman
becoming wife under such circumstances.

23. This approach is particularly needed while
deciding the issues relating to gender justice. We
already have examples of exemplary efforts in this
regard. Journey from Shah Bano (AIR 1985 SC 945)
to Shabana Bano (AIR 2010 SC 305) guaranteeing
maintenance rights to Muslim women is a classical
example.

24. In Rameshchandra Daga v. Rameshwari Daga
(AIR 2005 SC 422), the right of another woman in a
similar situation was upheld. Here the Court had
accepted that Hindu marriages have continued to
be bigamous despite the enactment of the Hindu
Marriage Act
in 1955. The Court had commented
that though such marriages are illegal as per the
provisions of the Act, they are not immoral and
hence a financially dependent woman cannot be
denied maintenance on this ground.

25. Thus, while interpreting a statute the court may
not only take into consideration the purpose for
which the statute was enacted, but also the
mischief it seeks to suppress. It is this mischief
rule, first propounded in Heydons Case ((1854) 3
Co.Rep.7a,7b) which became the historical source
of purposive interpretation. The court would also
invoke the legal maxim construction ut res magis
valeat guam pereat, in such cases i.e. where
alternative constructions are possible the Court
must give effect to that which will be responsible for
the smooth working of the system for which the
statute has been enacted rather than one which
will put a road block in its way. If the choice is
between two interpretations, the narrower of which
would fail to achieve the manifest purpose of the
legislation should be avoided. We should avoid a
construction which would reduce the legislation to
futility and should accept the bolder construction
based on the view that Parliament would legislate
only for the purpose of bringing about an effective
result. If this interpretation is not accepted, it would
amount to giving a premium to the husband for
defrauding the wife. Therefore, at least for the
purpose of claiming maintenance under Section
125
, Cr.P.C., such a woman is to be treated as the
legally wedded wife.

26. The principles of Hindu Personal Law have
developed in an evolutionary way out of concern for
all those subject to it so as to make fair provision
against destitution. The manifest purpose is to
achieve the social objectives for making bare
minimum provision to sustain the members of
relatively smaller social groups. Its foundation
spring is humanistic. In its operation field all
though, it lays down the permissible categories
under its benefaction, which are so entitled either
because of the tenets supported by clear public
policy or because of the need to subserve the social
and individual morality measured for maintenance.

27. In taking the aforesaid view, we are also
encouraged by the following observations of this
Court in Capt.Ramesh Chander Kaushal vs. Veena
Kaushal
((1978) 4 SCC 70):

The brooding presence of the Constitutional
empathy for the weaker sections like women and
children must inform interpretation if it has to have
social relevance. So viewed, it is possible to be
selective in picking out that interpretation out of two
alternatives which advances the cause the cause of
the derelicts.

10. Heard both sides at length on facts and law referred
supra and perused the material on record. Before answering
the scope of the revision lis within the limited scope of law in
sitting against the impugned order of the lower court, it is
necessary to reproduce Section 125 Cr.P.C, which reads as
follows:

125. 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

(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain
itself, or

(c) his legitimate or illegitimate child (not being
a married daughter) who has attained
majority, where such child is, by reason of
any physical or mental abnormality or injury
unable to maintain itself, or

(d) his father or mother, unable to maintain
himself or herself,
a Magistrate of the first class may, upon proof of
such neglect or refusal, order such person to make
a monthly allowance for the maintenance of his
wife or such child, father or mother, at such
monthly rate, as such Magistrate thinks fit, and to
pay the same to such person as the Magistrate may
from time to time direct:

PROVIDED that the Magistrate may order the
father of a minor female child referred to in clause

(b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is
not possessed of sufficient means.

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
person as the Magistrate may from time to time
direct:

PROVIDED ALSO that an application for the
monthly allowance for the interim maintenance and
expenses of proceeding under the 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 who has been
divorced by, or has obtained a 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.

(3) If any person so ordered fails without
sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue
a warrant for levying the amount due in the manner
provided for levying fines, and may sentence such
person, for the whole or any part of each months
allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the
case may be, remaining unpaid after the execution
of the warrants to imprisonment for a term which
may extend to one month or until payment if sooner
made:

PROVIDED that no warrant shall be issued
for the recovery of any amount due under this
section unless application be made to the Court to
levy such amount within a period of one year from
the date on which it became due:

PROVIDED FURTHER that if such person
offers to maintain his wife on condition of her living
with him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal
stated by her, and may make an order under this
section notwithstanding such offer, if he is satisfied
that there is just ground for so doing.

Explanation.- If a husband has contracted
marriage with another woman or keeps a mistress,
it shall be considered to be just ground for his
wifes refusal to live with him.

(4) No Wife shall be entitled to receive an
allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the
case may be, from her husband under this section
if she is living in adultery, or if, without any
sufficient reason, she refuses to live with her
husband, or if they are living separately by mutual
consent.

(5) On proof that any wife in whose favour an
order has been made under this section is living in
adultery, or that without sufficient reason she
refuses to live with her husband, or that they are
living separately by mutual consent, the Magistrate
shall cancel the order.

11. From the above, coming to the facts, admittedly, the
maintenance case filed in the year 2008 is during subsistence
of the marital tie between the couple outcome of marriage
dated 02.12.2004 and the divorce granted in O.P.317 of 2008
on the ground of cruelty and not on the ground of desertion
at all, is otherwise undisputedly subject matter of Family
Court Appeal No.298 of 2013. To say, though there is no
suspension of the decree of divorce granted by the Family
Court, there is no finality attained to the said divorce decree
in view of the pendency of the appeal, which is continuation
of the main proceeding till attains finality. It is also not in
dispute that before filing of the maintenance case on
11.07.2008, wife already filed a private complaint against the
husband for the offence under Section 498-A and 323 IPC.
What he claimed though there is no date of his filing the
divorce petition O.P.318 of 2008, was subsequent to his filing
divorce petition, the criminal case and maintenance case filed
against him.

12. In the evidence covered by Exs.R1 to R41, prior to his
filing of the divorce case, there was no exchange of notices.
Coming to the evidence on record in the maintenance case
including with reference to the documents supra, according to
her very petition for maintenance, after marriage at
Hyderabad dated 02.12.2004, her husband left for U.K. on
05.12.2004 and returned to India on 25.12.2004 to take her
to his company in U.K. and their marriage was consummated
only on 29.12.2004 and according to her, harassment started
right from the marriage consummation day, apart further
from he suppressed the factum of he already married another
woman and divorced the first wife and married the petitioner.
Her further averment in the maintenance case is that they
both left for U.K. on 31.12.2004 and she suffered for two
weeks due to ill-health there and even thereafter, he started
suspecting her fidelity and abusing for not conceiving
children. They went to a Gynecologist in U.K. in 2005,
January and the Doctors there on diagnosis found it was he
that suffering from prostrate. In their stay till they returned
back to India for his fathers death on 10.12.2005, where even
she was treated with hostility and ill-will by him and his
family members. In October, 2006, she suffered from
abortion. In November, 2006, they returned to India again to
attend the funeral ceremony of her mother, however, he did
not attend the same, but for stayed at his family and it is
there he was poisoned more to divorce her also the reason for
not meeting the additional monetary demands of them. They
left for U.K. on 01.02.2007 and after that he used to beat her
by demanding to sign on papers for his undergoing a third
marriage else with threats that he is going to convert into
Muslim religion to marry number of wives. It was on
12.01.2008, he mercilessly beaten her for not given consent
to his demand for divorce and she was in hospital by the time
she regained conscious, and later she received a phone call
that he was under police arrest and she has to tell the police
of she attempted to commit suicide for not begetting children
and on depression by conserving pills and cut her hands and
she gave statement to the U.K. police accordingly and
therefrom the criminal proceedings against him were
dropped. She averred further that what she mentioned the
events in her diaries were even destroyed by him. On
27.03.2008, they both came to India and he and his family
members sent her to her parents house at Khammam and
since then, he was avoiding her and even she and her father
went to his house, he and his brother Srinivasa Rao, kicked
her on the stomach and pulled by holding her tuft by
compelling to sign on documents for divorce and created a big
scene and it is he that deserted her and treated with
harassment and cruelty and made to suffer all the agony
which ultimately made her to file the criminal complaint
against him and his family members.

13. In addition to the facts pleaded by her of she was
deserted and neglected with ill-treatment even during their
living together, so far as his means and her inability to
maintain concerned, she claimed that he is a software
engineer working for Prudential Company in U.K. and getting
more than 50,000/- per annum equal to about
Rs.41,00,000/- in Indian currency and also he got assets
worth Rs.6.00 Crores in Indian currency there and he
suppressed his means and these could be known by her from
the e-mail conversations between him and his brother and he
worked for sometime in Netway Technologies Limited and also
for sometime in Mars Confectionary by earning about
4,60,000 pounds per annum there from. He withdrew money
of her from I.S.A. Account with Barclays Bank at U.K. He is
highly rich. He is in the habit of sending money to his
brother in India in purchasing properties in and around
Hyderabad city and his brother also being paid Rs.10,000/-
per month towards his charges for supervising his properties
and in purchasing properties and their e-mail conversations
are also clear in this regard. She is now residing with her
sister and she needs minimum Rs.25,000/- per month for her
house rent, food and clothing etc., and she is not having any
income or fixed assets of her, her father is also an aged
person and not in a position to support her and she is in dire
need of maintenance including interim maintenance pending
the petition from the date of petition besides legal expenses.
She placed reliance on documents viz., marriage photos,
photo copy of marriage registration certificate and photo
copies of the e-mail correspondences between him and his
brother referred in her petition.

14. Thus, the contention of the revision petitioner
husband that the petition for maintenance claim of his wife is
bereft of particulars much less of the legal requirements of
Section 125 and particularly of Section 125(4) Cr.P.C. are
untenable. In fact, the Madhya Pradesh High Court
categorically held in Smt. Radhamani vs Sonu , that
irregularities in the petition should not come in the way of the
wifes entitlement to the claim of maintenance if the facts
show her entitlement from appreciation of material on record,
as Court in these matters should not be too right dogmatic
and technical in evaluating the overall evidence on record.

15. No doubt, it was a case where maintenance petition filed
by the wife without showing the children as co-petitioners in
claiming maintenance or even in awarding maintenance by
the court including for the minor children. In that contest
from the contest of pleading are in-sufficient, said finding was
rendered. The same was quoted with approval by Patna High
Court in Criminal Revision Case No.385 of 2006, dated
20.04.2009 in Amarnath Dubey Vs. State of Bihar, holding
that court cannot be very hyper technical in maintenance
matters but for to adopt the objective approach and where
from the hearing if the court finds it is necessary to order
court has to, to sub-serve the ends of justice and in the
interest of justice. In fact, there is a clear plea regarding the
acts of cruelty and desertion and neglect and refusal to pay
maintenance and she is a destitute with no means and he is
affluent.

16. Leave about the denial of her petition averments in his
counter, what he contended otherwise is that he spent
moneys for her treatment including by borrowing while at
U.K. in Oxford Fertility Unit and John Radcliffe Hospital
among others and also in India for various health problems.
He admitted that on 27.03.2008, they came to India and
denied the alleged beating of her by him and his brother and
any ill-treatment by his family members and the criminal
case filed by her is a false one and the same is after filing of
that divorce case. In his counter dated 09.04.2009, in Para 9,
he stated further that for the last one year he is in India and
not in U.K. and he is doing job or earning huge moneys there
or highly rich are untrue so also of the allegation of he
withdrew her moneys from her bank accounts in U.K. or
purchasing properties through his brother and managing
through him, by paying to him. His further contention from
Para 11 of the counter is that she is a cunning and in the
habit of stealing amounts from him apart from extracting
money from him by harassing or black mailing or putting him
in mental torture through abuses and she has stolen and
swindled ten thousand British pounds from him while they
were in U.K., which is the money he procured on loans from
his friends and kept for her treatment and she has withheld
all the gold given to her by him and his parents and she is
having sufficient amounts in liquid which she has swindled
from with foresight and she illegally extracted moneys from
him of Rs.40,000/- in January 2005, Rs.80,000/- in May
2005, Rs.1,00,000/- in June 2005, Rs.40,000/- in October,
Rs.20,000/- in March 2006 and Rs.15,000/- in November
2006 by pressure tactics and send to her sisters and she
depleted his physical health, mental peace and finance and
deserted him in a sick, jobless and debt laden with
dependency on his parents. She had worked as a teacher,
principal and administrator in various schools in Khammam
like Marvel Model School and Scholars Public School and also
as City Cable TV news reader in Khammam and also worked
as lawyer and using all her knowledge, she narrated false
stories against him, also put baseless allegations against him,
also hatched a plan to squeeze his moneys and she is not
entitled to the claim of maintenance. Ever since March 2008,
after they came to India, he is staying in India without Job
and also due to severe recession prevailing in market and for
his health problems. As he is a chronic Prostatitis with
Coccyx tail bone injury undergone long treatment and his
sitting and standing functions are affected with pain to lower
abdomen and perineum and he is not in a position to work
and he is taking help of his mother for his daily needs for no
source of income to him.

17. From the pleadings, coming to the evidence, he did not
file a scrap of paper of his closing the entities of him in U.K.
or when he resigned or lost any job in respect of his entities.
His very counter averments shows the allegation of several
amounts said to have been swindled from him by her shows
his high earnings and his affluence.

18. She deposed in the cross-examination of prior to her
marriage with respondent, she did job in Maripell Model
School at Khammam and elders arranged the marriage and
the marriage arrangement took place at Hyderabad at her
sisters house and he is a software engineer in London. On
his suggestion, it is submitted by her of his cadre and
working as software engineer in London as true, which he
confirmed of he is a software engineer at London there from.
She denied the suggestion of her husband informed of his
first marriage and divorce before their marriage engagement.
She deposed as true of her husband sent Rs.45,000/-
through western money union service, however says the same
is to purchase medicines to be sent to him for his Prostatitis
health problem. She also deposed about Rs.40,000/-,
Rs.45,000/- and Rs.80,000/- thrice including the above sent
through western money union service by him to her or to her
parents. She deposed that since 2005, he got Prostatitis
problem. She deposed that he started company in U.K. with
name Netway Technologies and the company affairs is
operating from his residence only and she worked under him
as office assistant and drawn salary of 500 pounds equal to
Rs.40,000/-. However, it is he that used to draw in her name
the salary and the said company continued by him even after
they came back to India. She deposed that though she
passed L.L.B. and enrolled in Bar Council of A.P., she never
practiced as advocate but for she worked in Madas High
School in 2010 June to August as office assistant and denied
the suggestion of later even she worked till 2012 in that
school and also denied the suggestion of she later stopped her
employment in order to claim maintenance. She deposed that
her husband went to Bangalore in search of employment and
denied the suggestion of since her filing of criminal case, he
stopped searching jobs, for attending courts or he has no
source of income or he is dependent on his mother and he is
not in a position to pay any maintenance to her and he has
no assets or earnings. She denied the suggestion of her
husband closed the company Netway Technologies by the
time they came back to India. She also denied the suggestion
of because of her suicide attempt he out of fear left his
valuable job in U.K. and came to India. It is in fact absurd to
believe. He did not file, as referred supra, even a scrap of
paper about his resigning the job or staying in India only and
not even submitted his Passport to know any endorsements of
transit permissions and traveling abroad to say he is not
going or not staying in U.K. or not running any business and
not even filed record regarding closure of the own business of
him a software company by name Netway Technologies in
U.K.

19. What further deposed by her on re-call
cross-examination is that her parents are having lands in
Talluru Village of Sattenapally Mandal of Guntur District. It
is not even the case that it is an ancestral property. It is
brought on record that she got 7 more brothers and sisters
and her father is alive. Once it is his property, the question of
her succeeding in his lifetime even does not arise. Thus there
is nothing to appreciate any contention of she got share in
any properties of her father in the absence of showing those
are coparcenary properties and she got right therein by birth.

20. His Chief Examination is nothing but repetition of those
facts covered by his pleadings and cross-examination
suggestions to P.W.1 and by denying her version and with
claim of he got no means and she got means or can otherwise
earn with experience to work. What further deposed by him
is that he is a naturalized citizen of U.K. and the income tax
department of U.K. sent tax return notices to him to file IT
returns Exhs.R2 to R6 for the years 2008-09 to 2012 and he
filed returns through online covered by Exhs.R7 to R12
showing nil income and there from claiming he is not in a
position to pay the maintenance to her and also the other
version that after death of his father in December 2005, his
mother is getting dependent pension of Rs.8,000/- per month
and he is living with his brother and mother in the rented
house as dependent from 27.03.2008 with no employment
and also for his health problem for Prostatitis and neck and
back pain covered by Exhs.R27 to R33 medical diagnosis and
treatment material.

21. Admittedly, he is an M.Tech of the year 1985 and after
completion in the year 1985 itself, he joined in National
Insurance Corporation and in the year 2000, he left for U.K.
and in 2007, he got British Citizenship and he is a citizen of
London even now having relinquished Indian citizenship and
he is having otherwise overseas citizenship of India. He filed
divorce petition against his first wife in Secunderabad Civil
Court and divorced his first wife and later married the M.C.
petitioner. He deposed that the criminal case filed by his wife
in C.C.162 of 2009 is pending against him besides the
maintenance case. He deposed that there are no documents
filed by him to show his wife worked in Maripell Model School
or in any local TV channel. He admitted that the petitioner
was worked as office assistant in Netway Technologies, U.K.,
while there were living in London and he and the petitioner
are also the promoters of Netway Technologies, which is a
private company. He deposed that the company was closed in
January 2009 and he filed IT returns till then saying it is a
voluntary winding up and the petitioner was not informed of
the same and there is no permission of the petitioner for its
winding up saying it is not required. He did not file any
income tax returns of Netway Technologies till so called
winding up and no proof regarding its alleged winding up
voluntarily that too when his wife is one of the Directors
without her knowledge. His evidence speaks that there is
income tax partial exemption to it from the British
Government, as while denying the same, his answer again is
he is not aware of the partial exemption. Exhs.R22 speaks
name of the purchaser which he claims he purchased gold
under Ex.R22 by saying at the force of his wife when he
attended the obsequies of his father. It is also quite
unbelievable in such a situation from alleged version. He
deposed that he did not file any record to show that his
mother is staying in a rented house. He deposed that after he
filed divorce O.P.376 of 2008, he twice went to U.S. and
stopped in U.K. by break journey and he stayed in U.S. for
two months as a tourist to meet his brother. He deposed that
during 2000-2001, he worked in Web League Limited, U.K.
and during 2002-2005, in Netway Technologies and during
2006-2008, he did not work due to health problems, though
he is notionally an employee of Netway Technologies during
that period, saying he used to earn 5,000 pounds per month.
He deposed that he got one NRI account 14432 with Canara
Bank, Mettuguda and he is professionally expertise in IT
support and he worked in the domain of software installation
and maintenance up to 2005. He admitted about the
encumbrance certificate reflects sale of open plot in the year
2008 by getting revocation of gift deed by his mother which
was executed in his favour and under Ex.R39 E.C. and he
deposed that he sold to one Sri A.Srinivas Reddy, Plot No.15
of Nagole Village in the year 2009. For which he says he and
his brother sold the same and claiming his brother sold the
same. Though what made him to join if it is that of his
brother as a co-vendor, nothing come out from him. From
this evidence when the petitioner himself says his wife also
worked under him in Netway Technologies, besides she was
one of the promoters then whatever any amounts she sent if
at all or he sent to her father or sisters for thrice including for
any treatment to one of her sisters or for his medicines
purchase, it cannot be said not out of her any earnings. It is
not even his case that out of those earnings, she saved
anything. Once, she claimed she never practiced as an
advocate, mere standing of her name in the roles of the Bar
Council for not even shown member of any Bar Association,
no way shows she can practice and earn.

22. The law is very clear in this regard that mere possessing
of qualification is different from earning and in the absence of
showing wife is earning, showing qualification is not enough
to refuse maintenance. Leave about any source of income
even she got, that is not the be all to refuse maintenance, but
for at best that also to be taken into consideration.

23. There are sale transactions by him even from the
showing including from his cross-examination even he did not
file any of his accounts including that after the bank account
at Canara Bank, Mettuguda, to reflect his means and income.
Coming to the contention of there is no neglect or refusal; this
evidence on record clearly shows the neglect and refusal,
because there is after decree of divorce on ground of cruelty
particularly if at all from her filing of the criminal case under
Section 498-A IPC, even considering the same, that is
different from desertion, for not his version of he provided
anything for her survival at any time. The contention that on
the ground of cruelty once divorce granted by the court even
appeal is pending since decree of trial court not suspended, it
cannot be construed as neglect or refusal to maintain his wife
is untenable, for not a case of divorce on the ground of
desertion by wife. Acts of cruelty even caused knowingly or
unknowingly from the conduct of the wife to the husband to
get the divorce are different from his neglect or refusal to
provide maintenance. Even from the expression of the
Bombay High Court in Bhagwan Raoji Dale (Supra), the
facts undisputedly different to the facts on hand for there a
restitution of conjugal rights decree obtained by husband and
still wife did not join and from the same also as a ground, he
filed divorce petition and obtained divorce and thereby, it was
observed on facts of it was she that deserted and there was no
neglect or refusal by him and for there is a finality in the
divorce proceedings, she at best can claim permanent
alimony in not granting maintenance therein. In fact, as held
in the expressions of the Apex Court, the burden of proof lies
on the husband that he did not neglect or refuse to maintain
his wife.

24. In this regard, what the law further says is once wife
even divorced entitled to continue with the status of wife for
the entitlement of maintenance under Section 125 Cr.P.C., till
her re-marriage and thus unless it is shown that she is
re-married she is entitled to the claim. It is held by the Apex
Court in Sunita Kachwaha and Others Vs. Anil
Kachwaha and Bhuwan Mohan Singh Vs. Meena and
others of it is the duty of the husband towards wife to
provide proper maintenance and said duty continues, to lead
a life similar to him with all dignity according to their social
status and strata, regard being had to solemn pledge at the
time of marriage and also in consonance with statutory law
that governs the field to see that his wife does not become a
destitute as it is the sacrosanct duty of the husband to
provide maintenance once he can earn either by physical
labour from able bodied or otherwise for there is no escape
route unless there is an order from court of wife is not
entitled to get maintenance on any legally permissible
grounds. It was also justified granting maintenance from
date of petition and the proceedings even taken nine years in
attaining finality from date of petition.

25. In this regard, legal position is further clear that Section
125
Cr.P.C. is a measure of social legislation and is to be
construed liberally for the welfare and benefit of the wife and
children. Having regard to the above, once the expressions
supra clearly say the proceedings under Section 125 Cr.P.C.
are a stop-gap measure, the availability of remedy for
permanent alimony in the event of finality of the appeal
proceeding against the divorce on ground of cruelty obtained
by husband, in the appeal filed by wife still pending, leave
about the expression of Division Bench of this Court in
Jayakrishna Panigrahi of even court without written
application while granting decree of divorce or confirming, can
grant permanent alimony, if at all granted the remedy open to
the husband is to file application under Section 127 Cr.P.C.
from the changed circumstances from permanent alimony
awarded if at all, for not to be made further liable to pay
maintenance under Section 125 Cr.P.C. and till then, he
cannot avoid maintenance under Section 125 Cr.P.C.
Further continuation of the petition for maintenance claim,
even divorce obtained by him which is undisputedly not
finalized as appeal pending, the court can at best take the
same into consideration as a subsequent event pending lis
and even taken it into consideration for not a case of any
permanent alimony awarded, for there is no bar legally under
Section 125 Cr.P.C. proceedings to claim maintenance even
after divorce by wife but for specifically if at all under Section
18
of the Hindu Adoptions and Maintenance Act, for divorced
wife is not wife there under; on that ground he cannot avoid
maintenance that too when the law is very clear in purposive
interpretation required from the expression of the Apex Court
applied in Badsha case (referred supra) by scanning the law.

26. Thus, there is no illegality or irregularity any
impropriety in the award of maintenance by the lower court in
its order holding the M.C. petitioner is entitled to
maintenance. However, coming to the quantum when he
was affluent and he worked as software engineer and
established own company by showing his wife also one of the
promoters therein by managing the affairs by utilizing her
services as employee under him and when he did not file even
a scrap of paper showing its winding up even voluntarily and
when as Director she was not informed even to wind up, there
is nothing to show the entity is wound up and not in
existence, and leave about he traveled abroad twice
admittedly, he was even visiting Bangalore no doubt with a
claim by him of searching jobs, it is hardly believable of his
health no way permits to do any job with his expertise and
skill in software field for not a hard job he has to undertake;
Apart from it, it is also hardly believable of he is under the
mercy of his mother and brother being otherwise affluent
from the material on record and also sold away some of his
properties and got means and even maintains bank accounts
and same not even filed before Court which is the best
evidence in his exclusive control which he cannot withhold.
Thereby what the lower court from the evidence on record
scanned to the relevancy concluded in awarding Rs.10,000/-
per month from the date of petition. However in the facts
what this Court feels to interfere with is only to reduce from
Rs.10,000/- to Rs.8,000/- per month by otherwise confirming
the order of the Court below.

27. Accordingly and in the result, the impugned order of the
lower court granting maintenance at Rs.10,000/- per month
from date of petition is but for to reduce to Rs.8,000/- per
month, in other respects for – no way requires interference,
the Revision is allowed in part to the above extent. No costs.

26. Miscellaneous petitions pending, if any, in this case
shall stand closed.

_____________________________
DR.B.SIVA SANKARA RAO,J
DT:21.02.2017

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