CRLRC/1633/2004 of Nerusu Suryanarayana Vs The State of A.P.rep. by its Public Prosecutor on 28 December 2012

: O R D E R :

The present criminal revision case is filed against the Judgment dated07.10.2003 passed in C.R.P.No.26 of 2002 on the file of I Addl.District andSessions Judge, Eluru.

2. The revision petitioner is the 1[st] respondent in CRP.26 of 2002and petitioner in C.R.P.35 of 2002. Originally, he was respondent in M.C.16of 2000. The said M.C.16 of 2000 was filed by his wife and son against him,under section 125 of Cr.P.C. in the trial court, claiming maintenance. Afterelaborate enquiry, orders dated 21.02.2002 were passed in M.C.16 of 2000and it was allowed partly, directing the respondent, who is a revisionpetitioner herein, to pay monthly maintenance of Rs.300/- to the secondpetitioner towards his maintenance from 01.01.2001, while dismissing thepetition against the 1[st] petitioner. Both the petitioner and respondent in theaforesaid M.C., filed the above stated revision petitions i.e., C.R.P.Nos.26and 35 of 2002 on the file of I Addl.District and Sessions Judge, Eluru. Thelearned District Judge, after enquiry, allowed the revision petition filed by thewife in C.R.P.No.26 of 2002 in part, setting aside the orders of the trial courtin respect of the 1[st] petitioner and granted an amount of Rs.300/- per monthto the 1[st] petitioner from the date of the order of the trial court, whiledismissing the C.R.P.35 of 2002 filed by the husband, who is the revisionpetitioner herein. Being aggrieved, the present revision case is filed on theground that the first appellate court ought to have dismissed the C.R.P.No.26of 2002 confirming the order of the trial court, dismissing the claim of therespondent (wife/1[st] petitioner in M.C.16/00); and the courts below failed toappreciate the cross-examination of PW3 and also failed to observe that thelanded property covered by Exs.P2 and P3, to an extent of about Acres.2-00was got mortgaged by the wife and the property is being enjoyed by her atpresent and both courts failed to appreciate the evidence of RW1 and RW2.

3. Point for consideration is:Whether the order of the revision court dated 07.10.2003 is sustainable?

4. Since both the revision petitions arise out of the order passedby the trial court in M.C.16 of 2000, the following common orderspassed.

5. Before going into merits of the case, it is just and necessaryto refer the averments made in the petition filed by the wife, claimingmaintenance. For convenience sake, the parties herein are referredto as they arrayed before the trial court.

6. The petitioners 1 and 2 filed the petition claimingmaintenance of Rs.500/- per month each from the respondent. The1[st] petitioner is the legally wedded wife of the respondent and theirmarriage was performed in the year 1979. During their wedlock theyhave blessed with a female child and also second petitioner. Therespondent used to harass the 1[st] petitioner demanding money. Ultimately the petitioners driven out from the house by therespondent. The respondent owns land of Acres.26-00 and getsincome to a tune of Rs.50,000/- per annum. The petitioners have nosource of income.

7. It is the case of the respondent that the 1[st] petitioner filed acriminal complaint under Section 498(A) IPC. The respondent has nosource of income and is a deaf and dumb person. The 1[st] petitionerused to beat the respondent and she got Acres.2-00 of land throughoral partition and the same has been pledged by her.

8. Before the trial court as many as three witnesses wereexamined as PWs.1 to 3 and got marked Exs.P1 to P4 and twowitnesses were examined on behalf of the respondents as RWs.1and 2 and no documents were marked.

9. As seen from the impugned order, the 1[st] petitioner who wasexamined as PW1 deposed that her marriage was performed with therespondent in the year 1979 and during their wedlock she was blessed withtwo children and second petitioner is one among them. She also furtherstated that when her husband/respondent demanded more money, shelodged a complaint with the police and the same was registered undersection 498(A) IPC, for which she was necked out from the house and thatshe has no source of livelihood. PW2 is brother of PW1 and he alsocorroborated the evidence of PW1. PW3 is independent witness and hisevidence is that he was informed by PW1 about the alleged harassment.

10. To rebut the evidence of PWs.1 to 3, RW1, the husband ofpetitioner was examined and he contended that his wife used to beat him, inview of his deaf and dumb disability and he got two acres of land in the oralpartition and the same was mortgaged by PW1. RW2-independent witness,corroborated the evidence of RW1 and deposed that the 1[st] petitioner isadamant and that she was under the enjoyment of the property belongs tothe respondent.

11. Ex.P1-study certificate of the second petitioner and Exs.P2 and P3are the ‘Adangals’. As per Ex.P1, the second petitioner was born to therespondent during his wedlock to the first petitioner. Ex.P2 and P3 are filedto show that respondent owns Acres.2-46 ½ cents of land. The same isfurther corroborated with Ex.P4, the land revenue receipt dated 22.07.1999. Therefore, the fact remains that the respondent owns Acres.2-46 ½ cents ofland and was paying land revenue and that he is in the enjoyment of thesaid land and earning income thereon. PW1 stated that the respondentowns house property. There is no tangible evidence in proof of the same. As there is no ample evidence on record to show that the respondent ownsthe land property and was earning money, he can not avoid maintenancethat would be payable to his wife as she is living separately, after she wasdriven out by the respondent. Having begot the children, the respondent can not evade his liability to pay maintenance to his children and wife, providedhe should prove that petitioner are having sufficient earning capacity. Solong as there is no evidence on record to prove that the 1[st] petitioner /wife ishaving earning capacity and that they are having means for theirsustenance. In that view of the matter the petitioners proved that they haveno source of income for their livelihood. On the other hand, the petitionersproved that the respondent is having earning capacity and the revision courtrightly held the case in favour of the wife/1[st] petitioner, by awardingmaintenance in allowing C.R.P.26 of 2002 and dismissing C.R.P.35 of2002.

12. Therefore, I see no grounds to defer with the findings of the courtbelow in the impugned order and the same is sustainable.

13. In the result, this criminal revision case is dismissed, confirming theimpugned orders in C.R.P.26 of 2002, dated 07.10.2003.

28[th] December, 2012

_______________

K.S.APPA RAO, J

tk/ANR

HON’BLE SRI JUSTICE K.S.APPA RAO

Criminal Revision Petition No.1633 of 2004

Date: 28[th] December, 2012.

tk/ANR.