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K.M. Nagamallappa Vs. B.J. Lalitha and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Petn. No. 169 of 1984
Judge
Reported inILR1985KAR2283; 1985(2)KarLJ268
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125, 125(1), 392(2), 397, 397(3), 401, 482, 488 and 488(1)
AppellantK.M. Nagamallappa
RespondentB.J. Lalitha and anr.
Appellant AdvocateC.B. Motaiah, Adv.
Respondent AdvocateAjit J. Gunjal, Adv. for J.S. Gunjal
Excerpt:
.....evidence adduced by the petitioners to prove that the respondent took the first petitioner as his wife through a marriage performed on 27-4-1978 and that the second petitioner was born to them through the wedlock on 21-12-1980. both the courts below have recorded a concurrent finding on this question of fact and it is not permissible to interfere with that finding in a petition filed under s. 6. 22. both the courts below on appreciating the evidence, both oral and documentary, recorded a concurrent finding that there was a valid marriage between the first petitioner and the respondent as contended by the petitioner and thereby the relationship between the respondent and the first petitioner as husband and legally wedded wife has been clearly proved. besides, on going through the..........'section 125(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 ................................. 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 not exceeding five hundred rupees in the whole, as such magistrate thinks fit, and to pay the same to the person as the magistrate may from time to time direct ...............' 14. the essential conditions or prerequisites for the application of cls. (a) & (b) of sub-section (1) of section 125 of the code are (1).....
Judgment:
ORDER

1. This Criminal Petition under section 482, of the Criminal P.C. (the Code) is directed against the order dated 11-11-1983 passed by the Additional Sessions Judge at Mysore in Cr.R.P. No. 24/1983, dismissing the revision petition and confirming the order dated 16-2-1983 passed by the Munsiff & Judicial Magistrate First Class, T Narasipur, in C. Mis. No. 4/1981, granting a monthly maintenance of Rs. 100/- to the first respondent and Rs. 75/- to the second respondent from the date of filing the petition with cost of Rs. 150/- on an application filed by the respondents against the petitioner under S. 125 of the Code.

2. I shall refer to the parties in the course of this order as they were arrayed in the Court of the first instance for the sake of convenience.

3. The petition for maintenance was grounded on the following allegations.

The first petitioner is the legally wedded wife of the respondent. The marriage between them was performed on 27-4-1978. Through the wed-lock the second petitioner was born on 21-12-1980. The respondent deserted the first petitioner about one year before the petition for maintenance was filed which was on 16-7-1981. The respondent having deserted the first petitioner contracted a second marriage in the month of June, 1980 with one Sudhamani, daughter of Mahadevappa of Hasguli in Gundlupet Taluk. He did not even care to visit the petitioner and to see his own child after the child was born. The respondent owns vast agricultural lands yielding high income. He has a big agricultural establishment including a tractor. The annual income from the lands alone is not less than Rs. 40,000/-. The petitioners are unable to maintain themselves. Although the respondent has sufficient means, he refused or neglected to maintain the petitioners. On these grounds, the petitioners filed an application for maintenance under section 125 of the Code, claiming maintenance at the rate of Rs. 500/- to each of them per month in addition to Rs. 1000/- towards the expenses for their clothes and also granting costs and such other reliefs.

4. The petition was resisted by the respondent adducing several grounds. The respondent maintained that the first petitioner was not his legally wedded wife. No marriage as stated by the first petitioner took place on 27-4-1978 between them. He has denied that the second-petitioner was born to him through the alleged wed-lock. The second petitioner is not his son. Since the respondent did not marry the first petitioner, the question of desertion of the petitioners does not arise at all. He admitted that he had married one Sudhamani, daughter of Mahadevappa of Hasaguli village, Gundlupet Taluk, in the year 1980. There was no obligation for the respondent to visit the house of the petitioners after the first petitioner gave birth to the second petitioner as there was no marital relationship between the first petitioner and the respondent. He denied that he was owning large extent of agricultural lands. According to him, he and his father are living in joint family. The family owns about 35 acres of dry land. The joint family consists of himself, his father, brothers and uncles. Out of the total income from the agricultural lands, it is very difficult for them to manage their joint family. He has also denied that their annual income is more than Rs. 40,000/-. Besides the respondent has contended that the first petitioner is a Government employee and working as Auxiliary Nurse and Mid-Wife (ANM) and gets a salary of Rs. 800/- per month. The first petitioner is capable of maintaining herself as well as the second petitioner out of her income. Apart from the salary income the first petitioner is also getting sufficient income from other means. As the respondent has not married the first petitioner, the question of neglecting the petitioners or maintaining them does not arise at all. He finally stated that the petition has been unnecessarily filed in order to harass and blackmail him and to extract money from him. On these grounds he sought for dismissal of the petition.

5. The petitioners examined seven witnesses including the first petitioner, whereas the respondent examined himself as his sole witness.

6. The learned Magistrate, on appreciating the evidence, allowed the claim in part and granted maintenance at the rate of Rs. 100/- to the first petitioner and Rs. 75/- to the second petitioner per month and also allowed a sum of Rs. 150/- by way of costs as per his order dated 16-2-1983.

7. The respondent carried the matter to the Court of Session Judge at Mysore in Cr.R.P. No. 24/1983 which came to be decided by the Additional Sessions Judge, Mysore as per his order dated 11-11-1983 dismissing the revision and confirming the order of the Court of the first instance. Hence, this petition by the respondent under section 482 of the Code.

8. The scope of this petition is very limited. The respondent having carried the adverse order passed against him by the Court of the first instance to the Court of the Session Judge at Mysore and the Sessions Judge having considered the matter in exercise of his revisional powers conferred under Section 397 read with Section 401 of the Code and dismissed the revision, the respondent is prevented or prohibited from approaching this Court by way of revision under sub-section (3) of Section 397 of the Code. That is why he has approached this Court through an application under section 482 of the Code requesting to exercise its inherent powers and set right the alleged injustice caused to him. There is no doubt that the respondent could maintain a petition under section 482 of the Code even though his right to agitate the matter in revision is barred under sub-section (3) of Section 397 of the Code. It is well settled that the prohibition under sub-section (3) of Section 397 of the Code will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. Even if the revisional powers of this Court are impermissible in a given case, certainly this Court can exercise its inherent powers under S. 482 of the Code, if the Court feels that such an interference is imperative to prevent the abuse of the process of the Court or to secure the ends of justice or for both.

9. While considering the scope of Section 392(2) of the Code and the prohibition it enjoins in exercise of powers of revision conferred by sub-section (1) relating to any interlocutory order passed in any appeal, enquiry, trial or other proceedings, the Supreme Court in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 laid down that the prohibition under Section 392(2) of the Code will not operate to prevent the abuse of process of Court or to secure the ends of justice or both. This principle would equally apply in the case of prohibition to exercise the revisional powers under sub-section (3) of Section 397 of the Code.

10. In the instant case Sri Motaiah, the learned counsel for the respondent maintained that the impugned order was beyond the scope of Section 125 of the Code and so without jurisdiction. Elaborating this contention, he argued, that the first petitioner is not entitled to maintain a petition under Section 125 of the Code for maintenance both on the ground of absence of relationship between the respondent and her, as husband and wife and also in view of her separate income which is sufficient and adequate to maintain herself. In other words, his argument was that the claim of the first petitioner suffers from want of competence and entitlement. So far as the second petitioner, his argument was that if there was no relationship between the respondent and the first petitioner, as husband and wife, equally there could be no relationship, muchless relationship of father and son between the respondent and the second petitioner, so as to enable the second petitioner to claim maintenance from him, since the claim of the second petitioner was founded on the ground that he was born through the wedlock between the respondent and the first petitioner. Finally he argued that if none of these contentions are acceptable to the Court, the rate of maintenance granted is excessive.

11. Per contra, Sri Ajit Gunjal, learned counsel for the petitioners vehemently argued that the claim of the petitioners does not suffer from want of competence or entitlement. The petitioners have averred and also taken up a stand in the Courts below that they are unable to maintain themselves and the respondent having sufficient means neglected and refused to maintain them. He further contended that there is overwhelming, cogent and reliable evidence adduced by the petitioners to prove that the respondent took the first petitioner as his wife through a marriage performed on 27-4-1978 and that the second petitioner was born to them through the wedlock on 21-12-1980. Both the Courts below have recorded a concurrent finding on this question of fact and it is not permissible to interfere with that finding in a petition filed under S. 482 of the Code. Besides he maintained that once the relationship alleged by the petitioners with the respondent has been established, no further proof is needed to show that the respondent has refused or neglected to maintain them as it is not the case of the respondent that at any time he either maintained or offered to maintain them. As regards the capacity of the petitioners to maintain themselves, his argument was that both the Courts below have taken into account the separate income of the first petitioner and found that by the meagre income the petitioners are unable to maintain themselves and on that ground the petitioners are awarded maintenance which cannot be said to be either exorbitant or excessive. On this ground he maintained that there is absolutely no scope for contending that interference by this Court is necessary either to prevent the abuse of the process of the Court or for the purpose of securing ends of justice or for both.

12. Bearing these rival contentions in mind, I shall now proceed to consider whether the impugned order is beyond the scope of Section 125 of the Code and as such without jurisdiction.

13. Section 125 of the Code finds its place in Chapter IX of the Code. The heading of the Chapter is : 'Order for maintenance of Wives, Children and Parents'. The material portion of Section 125(1) reads :-

'Section 125(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

.................................

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 not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to the person as the Magistrate may from time to time direct ...............'

14. The essential conditions or prerequisites for the application of Cls. (a) & (b) of sub-section (1) of Section 125 of the Code are (1) a person having sufficient means neglects or refuses to maintain his wife and his legitimate or illegitimate minor child whether married or not, both unable to maintain themselves.

15. The corresponding provision for claiming maintenance under the Code of 1898 as amended from time to time was Section 488. Section 488 provided for maintenance for only two classes of people, namely, the wife and the legitimate or illegitimate child unable to maintain itself. There was no condition or pre-requisite in the case of the wife to claim maintenance that she was unable to maintain herself unlike the legitimate or illegitimate child which could claim maintenance if it was unable to maintain itself. As Section 125 of the Code stands, the wife has also been brought into the same level as that of legitimate or illegitimate minor child that she also unable (sic) to maintain herself to claim maintenance from her husband.

16-17. On the basis of this change brought about in the law respecting the right of the wife claiming maintenance from her husband in Clause (a) of sub-section (1) of Section 125 of the Code, 'unable to maintain herself' Sri Motaiah, learned counsel for the respondent argued that the element 'unable to maintain herself' is the factor deciding the competence of the wife to maintain a petition under section 125 of the Code. On this premises he proceeded to argue that since the first petitioner has her own income and the income she is earning is sufficient to maintain herself, it cannot be said that she is unable to maintain herself and as such she has no competence to maintain the petition.

18. Wife's right to maintenance is not absolute under section 125 of the Code. It is circumscribed by the fact that she is unable to maintain herself and further the husband having sufficient means neglected or refused to maintain her. So also in the case of legitimate or illegitimate minor child or father and mother. However, in deciding the question of competence to claim maintenance and also fixing the amount of maintenance, the Magistrate has to take into consideration the wife's or the minor child's or that of the father's or mother's separate income or means of support. No doubt, there is a clear distinction between the locus standi or competence to file a petition for maintenance under section 125 of the Code, by any of the persons illustrated in the section and their being entitled on merits to particular amounts of maintenance thereunder. However, the premises for both is essentially the existence or otherwise of their separate income or means of support besides other factors stipulated in the section. This view, I take gains full support from the ruling of the Supreme Court in Bhagwan Dutt v. Smt. Kamla Devi : 1975CriLJ40 . Dealing with the scope and ambit of S. 488 of the Criminal P.C., 1898, the Supreme Court observed thus (paras 18-19) :

'The mere fact that the language of S. 488(1) does not expressly make the inability of a wife to maintain herself a condition precedent to the maintainability of her petition, does not imply that while determining her claim and fixing the amount of maintenance, the Magistrate is debarred from taking into consideration the wife's own separate income or means of support. There is a clear distinction between a wife's locus standi to file a petition under S. 488 and her being entitled, on merits, to a particular amount of maintenance thereunder ............... Proof of the preliminary condition attached to a neglected child will establish only his competence to file the petition but his entitlement to maintenance, particularly the fixation of its amount, will still depend upon the discretion of the Magistrate. As the Magistrate is required to exercise that discretion in a just manner, the income of the wife, also, must be put in the scales of justice as against the means of the husband.

The object of those provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earning if the husband and his commitments.'

In view of the above enunciation of the law on the subject by the Supreme Court, I feel unnecessary to refer to the rulings in Ahmed Ali Sahib v. Sarfarajulnisa, AIR 1952 Hyd 76 : (1952 Cri LJ 681) and P. T. Raman Kutty Achan v. Kalyanikutty : AIR1971Ker22 cited at the Bar.

19. Keeping the aforesaid legal position in view, I shall now proceed to consider the questions raised in this petition on merits.

20. As noticed earlier, both the competence and entitlement of the petitioners to claim maintenance were questioned by Sri Motaiah, on the ground that there was no relationship of husband and wife between the respondent and the first petitioner and father and son between the respondent and the second petitioner.

21. On the question of marriage between the first petitioner and the respondent, the petitioners examined seven witnesses including the first petitioner. The marriage in question was preceded by a registered marriage agreement between the first petitioner and the respondent which took place on 27-4-1978. P.W. 1 is the Sub-Registrar of Holalkere of Chitradurga District, who speaks about the registration of this marriage agreement (Ex. P2). P.W. 3 is the scribe and P.W. 2 is the attestor to the document. In addition to this evidence the factum of marriage and the circumstances leading to it have been spoken to by P.Ws. 4, 5 and 7, besides the first petitioner who gave evidence as P.W. 6.

22. Both the Courts below on appreciating the evidence, both oral and documentary, recorded a concurrent finding that there was a valid marriage between the first petitioner and the respondent as contended by the petitioner and thereby the relationship between the respondent and the first petitioner as husband and legally wedded wife has been clearly proved. This being a finding of fact, certainly it is not open to this Court to re-examine the same and reach a different conclusion. Besides, on going through the evidence adduced in the case, both oral and documentary, I am also satisfied that both the Courts below were right in holding that the relationship between the respondent and the first petitioner is that of husband and wife.

23. As regards the paternity of the second petitioner, again both the Courts have held, on a close scrutiny of the material on record, that the second petitioner was born through the wedlock between the respondent and the first petitioner. I find no circumstance of material to hold otherwise. The marriage between the respondent and the first petitioner was held on 27-4-1978. It is in the evidence of P.W. 6 that she conceived the second petitioner during the subsistence of her marriage with the respondent and delivered the second petitioner on 21-12-1980. The respondent had not shown or placed any material before Court that he had no access to the first petitioner, although she was his legally wedded wife during the gestation period of the second petitioner to contend that the second petitioner was not his son. Under these circumstances I find that the conclusion reached by the Courts below respecting paternity of the second petitioner cannot be doubted or assailed.

24. The only other question that requires to be considered is the last and the final argument of Sri Motaiah that the quantum of maintenance awarded to the petitioners was excessive. It is undisputed that the trial Magistrate as well as the first revisional Court, both have taken into consideration while fixing the quantum of maintenance, the separate income of the first petitioner and other means of support of petitioners. On proper evaluation of the material on record, both the Courts below have reached the one and the only conclusion that out of the income of the first petitioner, it could not be said that the petitioners were able to maintain themselves so as to disentitle them to file a petition under section 125 of the Code, claiming maintenance against the respondent and getting any maintenance from him.

25. I hold, from the above discussion and conclusions reached, that the petitioners have successfully proved their competence to file a petition for maintenance under section 125 of the Code and also their entitlement of maintenance from the respondent. The rate of maintenance awarded, in my opinion, cannot be said to be on the higher side, taking into consideration all the relevant circumstances. Thus, I find no merit in this petition. Accordingly it is dismissed.

26. Petition dismissed.


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