THE HONOURABLE Dr.JUSTICE B.SIVA SANKARA
RAO
CRIMINAL REVISION CASE
No.1620 of 2014
ORDER:
This Criminal Revision Case is filed under
Sections 397 and 401 Cr.P.C by the respondent of the maintenance case having
been aggrieved by the order dated 06.05.2014 in M.C.No.3 of 2013 filed by the
respondents herein seeking maintenance of Rs.5,000/- per month to the 1st
petitioner therein-wife and Rs.3,000/- each to the 2nd and 3rd
respectively(2nd and 3rd petitioners are minors
represented by 1st petitioner) on the file of the learned Junior
Civil Judge, Macherla, Guntur district.
2. The brief facts of the case are that
the 1st petitioner is the legally wedded wife of the respondent and
her marriage was solemnized on 21.12.1995 at Luthern Church in Sattenapalli of
Guntur district and they lived happily for about six months only that out of
their wedlock, they were blessed with 2nd and 3rd
petitioners later the respondent
addicted to bad vices and developed dislike towards 1st petitioner
and he harassed her by not providing food and coming to home late nights in a
drunken state for which the mediations held failed, that the respondent married
another lady second time and the petitioners have no capacity to maintain
themselves and the 1st petitioner’s health is not permitting her to
do any type of work and she is sometimes starved for food. On the other hand,
the respondent is doing commission business and he earns of Rs.3,00,000/- p.a.
besides having liquid cash of Rs.20,00,000/-, house and valuable house sites
and he is leading luxurious life and he has capacity to maintain the
petitioners, that nobody is dependant upon him except petitioners. The
respondent filed counter denying all the allegations except their wedlock and
petitioners 2 and 3 born to them and further contentions that the 1st
petitioner is having movable and immovable properties and is having joint share
in her parents’ properties and she is also earning Rs.500/- per day out of
tailoring work and so maintaining herself and the petitioners, that since the 1st
petitioner is voluntarily deserted the respondent, he is not liable to pay
maintenance.
3.During
course of enquiry from the 1st petitioner was attending and the
respondent was not attending, the absence
petition to condone the respondent’s absence was dismissed and the respondent was
set ex parte and from the 1st petitioner examined herself as
P.W.1 and proved her case, allowed the M.C.No.3 of 2013 directing the
respondent to pay Rs.2,500/- to the 1st petitioner and Rs.1,500/-
each per month to the 2nd and 3rd petitioners
respectively from the date of filing of the petition and further directed the
respondent to pay an amount of Rs.500/- towards legal expenses.
4. Impugning
the said order, the respondent filed
this revision with the contentions in the grounds of revision that the trial
Court’s order is vitiated by material irregularity and resulted in failure of
justice, that the trial Court failed to exercise jurisdiction vested in it
under law or exercised it with material irregularity, that the findings given
by the trial Court are contrary to the evidence available on record, that the
trial Court failed to examine the document filed by the appellant a ration card
where it clearly established that the respondent wife has already married to
another person and she is leading happy married wife with her second husband,
that respondent has filed petition for maintenance after a gap of 8 years only
to harass the appellant, that the appellant has clearly stated in his counter
that he is daily wage worker and he is earning Rs.100/- per day, hence to set
aside the order of the trial Court. Whereas, it is the contention of learned
counsel for respondents 1 to 3,the petitioners in M.C.No.3 of 2013 that there
is nothing to interfere with the maintenance awarded by the trial Court by
sitting in revision against it including on the quantum. Hence, to dismiss the
revision.
5. Heard both
sides and perused the material on record.
6. Now the
points that arise for consideration are:
1. Whether
the impugned order dated 06.05.2014 in M.C.No.3 of 2013 on the file of the
learned Junior Civil Judge, Macherla, Guntur district, is unsustainable and
requires interference by this Court while sitting in revision, if so, with what
observations?
2. To what
result?
Point No.1:
7. Undisputedly,
there is only exparte order of maintenance from respondent even filed counter
and contesting for his absence and by dismissing the application filed on his
behalf to condone the absence, set exparte and the unchallenged and
self-serving testimony of the M.C.1st petitioner as P.W.1 taken consideration in awarding maintenance
though there is of contest from the respondent including in saying he is not a
businessman and earning by cooli work or she is earning from tailoring besides
having properties from her parents and according to her he married another woman
and living with her and according to him she married another man and living
with him and those are to be adjudicated thereby it requires to remand the
matter to the trial Court by directing the lower Court to permit both the
parties to lead fresh evidence ignoring the exparte evidence of P.W.1 earlier
taken consideration and in the meantime by awarding Rs.2,000/- per month to the
wife and Rs.1,000/-p.m. to the each of the two children as interim maintenance
by modifying the order of maintenance of Rs.2,500/- to the 1st
petitioner and Rs.1,500/- each to the petitioners 2 and 3 total of Rs.5,500/-
to Rs.4,000/- per month from the date of filing of the M.C.No.3 of 2013. Accordingly, point No.1 is answered.
Point
No.2:
8. The revision is disposed of remanding
the matter by affording opportunity to the parties to contest by directing the
lower Court to permit both the parties to lead fresh evidence ignoring the ex parte evidence of P.W.1 earlier taken
consideration and in the meantime by awarding Rs.2,000/- per month to the wife
and Rs.1,000/-p.m. to the each of the two children as interim maintenance by
modifying the order of maintenance of Rs.2,500/- to the 1st
petitioner and Rs.1,500/- each to the petitioners 2 and 3 total of Rs.5,500/-
to Rs.4,000/- per month from the date of filing of the M.C. The lower Court is directed to dispose of the
MC by giving preference at any cost within
three months from the date of receipt of the order. The MC-respondent(revision
petitioner) has to pay all arrears within two months, else to execute and
recover. Consequently, miscellaneous
petitions, if any, pending in this revision, shall stand closed.
__________________________
Dr. B.SIVA SANKARA RAO J,
Dt.03.12.2014.
vvr
