THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL PETITION Nos. 1375 and 1387 of 2008 COMMON ORDER: Both these petitions are filed under Section 482 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.) to quash the proceedings arise out of the order in M.C.No.15 of 2005 on the file of Judicial First Class Magistrate, Adilabad and consequent orders dated 30.11.2007 in the Ciminal Revision Petition Nos.02 and 22 of 2006 on the file of the I Additional Sessions Judge, Adilabad. The petitioner herein is the husband. The parties are referred to as husband and respondent in the M.C. The parties are referred to as arrayed in the original petition. According to the case of the petitioners, the 1st petitioner was the wife of the respondent and petitioners 2 to 4 are their children and the marriage of 1st petitioner and respondent took place on 12.02.1989. They lived happily till the year 1998. The respondent-husband married another woman and agreed to maintain the 1st petitioner-wife and continued the relationship. The petitioners 3 and 4 were born and the respondent used to maintain them by giving Rs.3,000/- to Rs.4,000/- per month. The respondent has stopped to provide the maintenance and the respondent has got business and earning Rs.1,00,000/- and he has got means to provide the maintenance. Whereas, the petitioners are not able to maintain themselves. The 1st petitioner claimed maintenance of Rs.2,000/- and petitioners 2 to 4 claimed maintenance of Rs.1,500/- each per month. The respondent claimed that he has given divorce to the 1st petitioner during the month of Ramzan in the year 1998 by pronouncing Talaq and, therefore, she is not entitled for the maintenance. He admitted that the petitioners 3 and 4 were his children, the income shown is not correct and, therefore, the petition is liable to be dismissed. During the trial of the M.C., P.Ws.1 and 2 were examined and no documents were marked and the respondent was examined as R.W.1. The lower Court did not believe the theory of Talaq and accordingly, allowed the petition granting maintenance @ Rs.1,000/- per month to the 1st petitioner and Rs.700/- per month each to the petitioners 2 to 4. Aggrieved by the said order, the petitioners have filed Criminal Revision Petition No.22 of 2006 for enhancement of the maintenance and the respondent has filed Criminal Revision Petition No.2 of 2006 to set aside the order of maintenance. The learned I Additional Sessions Judge, Adilabad after considering the contentions, dismissed the revision of the respondent and enhanced the maintenance of the 1st petitioner to Rs.1,200/- per month and Rs.850/- per month each to the petitioners 2 to 4. Aggrieved by the said order, the present quash petitions are filed. The points that arise for consideration are: 1. Whether the petitioner herein is not liable to pay maintenance to his wife? 2. Whether the quantum of maintenance as enhanced by the learned I Additional Sessions Judge, Adilabad is legal and sustainable? POINTS: Evidently, the question of liability for payment to the wife depends on question of determination of the truthfulness of the Talaq claimed by the respondent-husband. According to him, during the month of Ramzan in the year 1998, he pronounced the Talaq and, therefore, the wife is a divorced wife. As rightly found by the learned Magistrate, no date is given and the presence of the elderly persons in whose presence the Talaq has been pronounced, was also not mentioned. It is to be noted that even as per the allegations in the petition, the wife was living separately from 1998 after the birth of the 2nd petitioner and the petitioners 3 and 4 were born subsequently. Therefore, the question of divorcing the 1st petitioner does not arise since after the alleged divorce the petitioners 3 and 4 were born. The lower Court has, therefore, rightly rejected the claim of the petitioner herein. So far as the quantum of maintenance is concenred, the allegations in the petition clearly go to show that even prior to the alleged desertion after the separation in 1998, the respondent has been paid a sum of Rs.3,000/- to Rs.4,000/- per month. In fact in the grounds of quash petition, this is one of the contentions raised. If the above admission is to be taken into consideration, naturally the quantum of maintenance enhanced by the learned I Additional Sessions Judge cannot be said to be excessive. Furthermore, the fact that the respondent-husband is doing business is not disputed. The total maintenance awarded by the learned I Additional Sessions Judge comes to about Rs.5,000/- and at the present day standard of living it is hardly sufficient to maintain themselves. Even if the wife is to earn something by labour work, the respondent-husband cannot escape the liability to pay the maintenance granted by the Courts below, which is reasonable. Therefore, both the quash petitions have no merits. Accordingly, both the Criminal Petitions are dismissed. All other Miscellaneous Petitions are also closed in view of the dismissal of the quash petitions. ________________________ N.R.L. NAGESWARA RAO, J Date: 01-08-2011 MR THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL PETITION Nos. 1375 and 1387 of 2008 01-08-2011 MR