(Prayer: Revision filed under Section 397/401 of Cr.PC praying that in the circumstances stated in the affidavit filed in support of the Criminal Revision Case, the High Court may be pleased to : i) allow the Criminal Revision Case by setting aside the order dt. 6-1-2015 passed in F.C.M.C.No.29 of 2014 on the file of the Judge, Family Court-cum-III Additional District and Sessions Court, Vizianagaram; ii) and to grant such

IA NO: 1 OF 2015(CRLRCMP 316 OF 2015

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in F.C.M.C.No.29 of 2014 dt.06.01.2015 on the file of the Judge, Family Court-cum-III Addl. District and Sessions Court, Vizianagaram, pending disposal of the Criminal Revision Case, and to pass)

1. This Criminal Revision Case is filed by the revision petitioner under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred to as “the Code‟) against the order dated 06.01.2015 passed in F.C.M.C.No.29 of 2014 by the learned Judge, Family Court, Vizianagaram.

2. The parties are being referred to as per their positions before the trial Court, for the sake of convenience and clarity.

3. As seen from the petition, petitioner No.1 is legally wedded wife of the respondent, and their marriage was solemnized on 13.02.2005 at Vizianagaram. At the time of marriage, parents of the petitioner No.1 presented cash of Rs.1,50,000/-, one and half sovereign gold and Rs.15,000/-towards adapaduchu lanchanam. Immediately after the marriage, petitioner No.1 joined the respondent to lead marital life and out of their lawful wedlock, she begot petitioner Nos.2 & 3 and they are studying 1st class and LKG. The respondent was habituated to maintain extramarital relationship with other ladies, used to harass the petitioner No.1 and also demand additional dowry by selling away the house which is in the name of her father Sri Kanuri Venkatappadu, who retired from Postal Department. And, in the year 2011, when the respondent necked out the petitioners from the matrimonial house, she gave report to police and then, respondent submitted undertaking to the police to look after the welfare of petitioners and accordingly, petitioner No.1 joined the respondent to lead marital life. But, the respondent didn't change his attitude and finally, in the month of November, 2013, necked out the petitioners and threatened the petitioner No.1 under dire consequences and demanded to bring additional dowry. As there is no other way, petitioner No.1 went to her parents‟ house along with petitioner Nos.2 & 3. The mediation done by Sri Sirisetty Ramakrishna and Bandaru Suryakantham is failed and respondent proclaimed that he would sell away the house property of father of the petitioner No.1. As there is no other way, petitioner No.1 gave report to the police and the same is registered as a case in Crime No.103 of 2013 of the offense under section 498-A Indian Penal Code. Petitioner No.2 is studying 1st standard and petitioner No.3 is studying LKG in a private school and she has been paying Rs.2,000/- per month towards the school fee and she has to pay the expenses for traveling, clothing, etc. The petitioner No.1 studied only 10th class and due to the harassment made by the respondent, she is not able to do any work and she has no financial support and fully depended upon the pension of her retired father, who is aged about 70 years, and not in a position to lead their lives and also to provide better education to her children. Further, respondent is working as Health Assistant in Primary Health Center, Arikatota and getting monthly salary of Rs.22,000/- and he also own house sites at Ramabhadrapuram and Rompilli Villages and he has no financial burdens and further, his sisters are also married. Since the respondent refused and neglected to maintain the petitioners, he is liable to pay maintenance.

4. Respondent filed counter in F.C.M.C.No.29 of 2014 admitting his marriage with the petitioner No.1 and birth of children and by denying other averments made in the petition, wherein, inter alia, contended that he never harassed the petitioner No.1, didn't demand for additional dowry and the petitioner No.1 never sent any mediator to settle the disputes between them. And in fact, petitioner No.1 is only daughter of her parents, her father is retired employee and on several occasions, petitioner No.1 demanded the respondent to come as illatom son-in-law to her parents' house at Vizianagaram, for which the respondent refused as he has been working as Health Assistant on contract basis and the salary of respondent is also not sufficient to put up family at Vizianagaram and, he has four sisters and though they are married, he has responsibility to look after their welfare and further, he tried for settlement and bring back the petitioner No.1, but in vain. Further, in the month of November 2013, when the respondent went to attend his duties, petitioner No.1 went to her parents' house along with their children on the ground that her father has been suffering from ill-health, and thereafter, she didn't come back and all the other averments made in the petition are not true and correct, petitioner No.1 has sufficient source of income and she herself neglected the respondent and as such, she is not entitled for maintenance.

5. At the culmination of enquiry, the learned Judge, Family Court, Vizianagaram, allowed the petition in part, granting maintenance at Rs.4,000/-per month to the petitioner No.1 and Rs.2,500/- each to the petitioner Nos.2 and 3 from the date of petition.

6. Heard both sides. Perused the petition, counter and other material available on record.

7. Now the point for determination is:

                  Whether the judgment dated 06.01.2015 passed by the learned Judge, Family Court, Vizianagaram sustainable in facts and law or it suffers from any material irregularity?

8. As seen from the record, it is not in dispute that the marriage between the petitioner No.1 and respondent was solemnized on 13.02.2005 at Vizianagaram and immediately after the marriage, petitioner No.1 joined respondent to lead marital life and they lead happy marital life for some period and further, out of their lawful wedlock, petitioner No.1 begot petitioner Nos.2 and 3, who were aged about 7 years and 5 years respectively by then. It is also not in dispute that since 2013, they have been living separately and father of petitioner No.1 is retired employee and was aged about 70 years by then. To prove their respective contentions, petitioner No.1 and respondent filed their chief examination affidavits in lieu of their chief examinations by reiterating the pleadings mentioned in the petition and counter and further, respondent filed exhibits R1 (Salary Certificate) and R2 (adhoc appointment) documents.

9. Chapter IX of the Code provides for maintenance of wife, children, and parents in a summary proceeding. Maintenance under Section 125 of the Code may be claimed by a person irrespective of the religious community to which they belong. The purpose and object of this section is to provide immediate relief to an applicant and an application under this section is predicated on two conditions: (i) the husband has sufficient means; and (ii) “neglects to maintain his wife, who is unable to maintain herself‟. And in such a case, the husband may be directed by the Court to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the basis of the financial capacity of the husband and other relevant factors, and the remedy provided by Section 125 is summary in nature. In this regard, it is to be noted that in Bhagwan Dutt vs. Kamla Devi1, while observing that under Section 125(1) of the Code, only a wife who is unable to maintain herself is entitled to seek maintenance and the Hon'ble Apex Court has held at para No.19 thus:

                  “The object of these 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 earnings of the husband and his commitments.”

10. Further, in Bhuvan Mohan Singh vs. Meena and Others ((2015) 6 SCC 353), Hon'ble Apex Court has held that Section 125 of the Code was conceived to ameliorate the agony and anguish, financial suffering of a woman who had left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children and since it is the sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical labour, if he is able-bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute.

11. Coming to the case at hand, nothing useful material is elicited in the cross-examination of PW-1 and further, she had denied all the suggestions that she harassed the respondent to come as illatom son-in-law and intentionally deserted the respondent and went to their parents' house along with the children, without informing to the respondent. And, the respondent not denied of registering a case in Crime No.103 of 2013 of the offence under Section 498-A of Indian Penal Code. It is already stated above that since 2013, petitioners have been residing in the parents' house of the petitioner No.1 and father of the petitioner No.1, who is retired employee and aged about 70 years by then, has been looking after the welfare of all the petitioners. Besides other grounds, petitioner No.1 also alleged that the respondent has been moving with other lady, but she failed to prove the said aspect. Except petitioner No.1 and respondent, they have not got examined any other mediators or independent witnesses. Having denied the salary and employment of the respondent, in the cross-examination, he had categorically admitted that since 30.05.2003, he has been working as Multipurpose Health Assistant (Male), as per the Hon‟ble Apex Court judgment, his services have been extending from time to time. He had further categorically admitted that in the year 2010, basing on the report given by the petitioner No.1, Rama Bhadrapuram Police admonished him and instructed him to continue their matrimonial life, he didn't give any notice under Section 9 of Hindu Marriage Act requesting the petitioner No.1 to join him, to continue their matrimonial life, the petitioner No.1 is not doing any job and all the petitioners depended upon the retirement benefits of the father of the petitioner No.1 and that there is no other source of income to the father of the petitioner No.1. It is his further categorical admission that he didn't give any amount to the petitioners for their maintenance and that it is his bounden duty to provide maintenance to the petitioners since petitioner No.1 is his wife and other petitioners are his children. Having stated that father of petitioner No.1 is retired employee and he has financial sources of income, respondent has categorically admitted that except pension, there is no other source of income to the father of the petitioner No.1.

12. Assuming for the sake of arguments, father of petitioner No.1 has financial sources also, as per the judgment in Manish Jain vs. Akanksha Jain ((2017) 15 SCC 801), financial position of the parents of the wife, would not be material while determining the quantum of maintenance and at the same time, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. Further, the Court must have due regard to the standard of living of the husband as well as the spiraling inflation rates and high cost of living, and the plea of the husband that he doesn't possess any source of income ipso facto doesn't absolve him of his moral duty to maintain his wife if he is able-bodied and has educational qualifications. It is already stated above, respondent has categorically admitted in his cross-examination that since 2003, he has been working as a Multipurpose Health Assistant and as per the judgment of Hon'ble Apex Court, he has been continuing in the said post and though he filed exhibit R2 which reveals that he has not drawn salary for the month of September, 2014, in the said letter itself it is clearly mentioned that for want of budget, salary of the respondent has not been credited in the account of the petitioner No.1. So, there is sufficient material evidence to come to conclusion that the respondent has been working as a Multipurpose Health Assistant and has been drawing salary of Rs.22,000/-. It is trite law that maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent nor should it be so meager that it drives the wife to penury and the sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort as per the established principles of law. At the same time, maintenance of minor children, the living expenses of the child, including expenses for food, clothing, residence, medical expenses, education of the children, extra coaching classes, etc. have to be taken into consideration.

13. At the time of filing this petition, petitioner Nos.2 and 3 were studying 1st class and LKG and now they are aged about 18 years and 16 years respectively. Having considered the material placed on record and since respondent intentionally neglected to see the welfare of petitioners and has been working as Multipurpose Health Assistant and drawing salary of rupees Rs.22,000/- per month, the Judge Family Court partly allowed the petition by granting maintenance at Rs.4,000/- per month to the petitioner No.1 and Rs.2,500/- each to the petitioner Nos.2 and 3. Absolutely, there are no grounds to interfere in the order passed by the trial Court which is substantiated with cogent and justifiable reasons.

14. In the result, this Criminal Revision Case is dismissed by confirming the order dated 06.01.2015 in F.C.M.C.No.29 of 2014 passed by the learned Judge, Family Court-Cum-III Additional District and Sessions Court, Vizianagaram.

As a sequel thereto, pending miscellaneous petitions, if any, shall stand closed.