THE HON’LE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL PETITION No.1100 of 2008 Dated:- 27th April, 2010 Between: Kukkala Suguna …Petitioner AND The State of A.P. and another. …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL PETITION No.1100 of 2008 ORDER: This Criminal Petition, under Section 482 Cr.P.C., is filed by the petitioner to quash the order dated 30.11.2004 passed by the learned Principal Sessions Judge, West Godavari at Eluru in Crl.R.P.No.54 of 2004, whereby and whereunder, the learned Sessions Judge confirmed the order dated 04.06.2004 made in M.C.No.68 of 2002 passed by the learned II Additional Judicial Magistrate of First Class, Bhimavaram. The brief facts of the case are as follows:- The petitioner is the wife of the second respondent. For the sake of convenience, the second respondent herein will be hereinafter referred to as the respondent. The respondent is an advocate. The petitioner is legally wedded wife of the respondent and their marriage was solemnized on 11.02.2001 at Kashi Ramalingeswara Swamy Temple, Palkol. At the time of marriage, the parents of the petitioner gifted an amount of Rs.60,000/- towards ‘Pasupu Kumkuma’ to the petitioner and entrusted the said amount to the father of the respondent, besides gifting Acs.0.60 cents of land to the petitioner. After marriage, the petitioner and the respondent lived together happily for some days and subsequently, respondent started demanding additional dowry of Rs.1.00 lakh. Since the parents of the petitioner were unable to meet the demand of additional dowry of Rs.1.00 lakh, the petitioner was being harassed. The respondent had forcibly obtained a letter from the petitioner that he and his family are not responsible in the event the petitioner commits any untoward act. Efforts were made by the elders to settle the disputes between the parties became in vain. Ultimately, the respondent neglected and refused to maintain the petitioner and thereby, she was compelled to take shelter at her parents house. It is also the case of the petitioner that the respondent owns Acs.10.00 cents of agricultural land besides a terraced building valued at Rs.6.00 lakhs and that the total income from the said Acs.10.00 cents of land is more than Rs.1.00 lakh per crop and that the respondent had completed B.L. degree course and enrolled himself as an advocate. As seen from the counter filed by the respondent, his case is that he has not demanded any dowry amount from the petitioner’s parents and that he never harassed the petitioner demanding additional dowry and that he is very much interested to lead a happy marital life with the petitioner and that it is the petitioner who herself went to her parents house without any reasonable cause. It is also his case that the petitioner’s behaviour was not proper and that she was abusing his parents and that she foisted a false case under Section 498-A IPC against him. It is also the case of the respondent that though he enrolled as an advocate, he is an unemployed person and that there are about fifteen members in his joint family and he is not in a position to pay maintenance to the petitioner. On behalf of the petitioner, P.Ws.1 to 5 were examined and Ex.P.1 and Ex.P.2 were marked. On behalf of the respondent, R.Ws.1 and 2 were examined and Ex.R.1 was marked. The learned II Additional Judicial Magistrate of First Class, Bhimavaram, by his order dated 04.06.2004, having appreciated the evidence, came to the conclusion that when no amount of dowry was given at the time of marriage to the respondent, the question of demanding additional dowry of Rs.1.00 lakh does not arise and the alleged demand of additional dowry appears to be an exaggerated story invented for the purpose of filing maintenance case. It is also observed that if at all there is any demand for additional dowry, it should be less than the original dowry amount of Rs.60,000/-. The evidence of respondent that the petitioner lived with him only for fifteen days was also taken into consideration and in view of the short period of their married life, it was held that the petitioner is not entitled for maintenance amount. Aggrieved by the said order, the petitioner herein carried the matter by way of revision to the Court of the learned Principal Sessions Judge, West Godavari at Eluru. The learned Principal Sessions Judge also confirmed the order passed by the learned Magistrate. Aggrieved by the same, the present criminal petition is filed. The main contention of the learned counsel for the petitioner is that both the Courts below have not considered the evidence on record in proper perspective and that the evidence on record clearly shows that the respondent harassed the petitioner demanding additional dowry and that she was necked out of the matrimonial house and subsequently, no maintenance amount was paid to the petitioner. It is also his submission that admittedly, the respondent’s family is in possession of Acs.10.00 cents of agricultural land besides a terraced building and that the respondent is an advocate on record and these circumstances were not taken into consideration by both the Courts below for fixing the income of the respondent. It is also submitted that the petitioner’s mere possession of Acs.0.60 cents of land does not mean that she has got sufficient means to maintain herself. In reply, the learned counsel for the respondent submits that the petitioner, who was examined as P.W.1 in the cross-examination, admitted that the respondent was depending on his father. It is also submitted that in a maintenance case, it is for the petitioner to prove that the respondent is having sufficient means to maintain the petitioner and it is for the petitioner to prove that she does not have sufficient means to maintain herself. The other submission of the learned counsel is that the petitioner failed to prove that she has no means to maintain herself and the respondent is in a position to maintain his wife (petitioner herein). Now the points that arise for consideration is (i) whether the petitioner is having sufficient means to maintain herself; and (ii) whether the respondent is in a position to pay maintenance amount to the petitioner. A legally wedded wife is entitled for maintenance if it is proved that she has no sufficient means to maintain herself and that the husband is having sufficient means to pay the maintenance to his wife. What would be the just and reasonable amount that can be awarded as maintenance depends upon the socio-economic status of the family and the comforts in which a wife lived while she was living with her husband. The learned counsel for the petitioner submitted that the evidence on record shows that the respondent was unnecessarily suspecting the conduct of the petitioner and that he was harassing her and in such circumstances, no wife can safely live in the company of her husband. The evidence of the respondent shows that he has made certain allegations against the petitioner. According to the respondent, who was examined as R.W.1 before the trial Court, the petitioner often used to go to her parents house without informing him and his parents and that he had noticed that the petitioner used to talk with somebody over phone and thereafter, she used to go to some unknown place. Unfortunately, now a days, cell phone has become part of life. Some persons spend most of their time by talking over cell phones. Merely because a boy or a girl or a wife or a husband is taking over cell phone with his or her friends or after such telephonic conversation if somebody goes out of the house, it does not mean that there was some immoral or illegal purpose in doing so. Suspecting mind is the basis for all troubles in a family. Without any basis, if the character of a woman is suspected, the same amounts to harassment. In the instant case, even according to the respondent, the petitioner threatened that she would commit suicide and subsequently refused to live with the respondent. It appears that when the petitioner feels that the respondent is having suspicious mind and he has been suspecting her character and does not want to be in the company of her husband, I feel that the petitioner / wife is justified in leaving the company of her husband. Therefore, it cannot be said that without any reasonable cause, the petitioner has left the company of the respondent. Now, let use examine point No.1 i.e., whether the petitioner is having sufficient means to maintain herself. It is most unfortunate that there is no proper appreciation of the evidence by both the Courts below in the instant case. The trial Court opined that when dowry of Rs.60,000/- was given, the question of demanding additional dowry of Rs.1.00 lakh appears to be exaggerated story invented for the purpose of filing maintenance case. The learned Magistrate of the trial Court, in his order, observed “… assuming for a moment that the respondent was given dowry at the time of marriage, in such a case, the demand of additional dowry does not exceed over and above the actual payment of dowry, that is to say the demand of additional amount of dowry must be within the actual amount of Rs.60,000/-.” It is not clear that on what basis the learned Magistrate has come to such conclusion and such observations, not based on any evidence, rather appears to be personal opinion of the Magistrate and cannot stand to judicious scrutiny. Is there any rule that the husband should not demand additional dowry than what was paid at the time of marriage? No finding can be given merely on the basis of a personal opinion of a Judge, that too on mere assumptions and presumptions. Unfortunately, the learned Principal Sessions Judge also did not consider the evidence in proper perspective. The learned Principal Sessions Judge observed that when the petitioner has stated that they gave Rs.60,000/- on a condition to improve the same and when it is not in the form of dowry, the question of demanding additional dowry does not arise. Admittedly, an amount of Rs.60,000/- was given at the time of marriage of the petitioner, of course to the petitioner by her parents and the said amount was entrusted to the petitioner’s father-in-law to improve the same and repayment of the said amount with interest on demand by the petitioner. It is also the case of the petitioner that her parents gifted Acs.0.60 cents of agricultural land towards ‘Pasupu Kumkuma’ to her at the time of marriage. Subsequent theretoo, the respondent started demanding additional dowry of Rs.1.00 lakh. Even it if it is held that what was given at the time of marriage is not dowry, it does not mean that subsequent demand of additional dowry is false. The maintenance has been denied to the petitioner on the ground that she got Acs.0.60 cents of land gifted by her father at the time of marriage. The cross-examination of the petitioner reveals that on an average, each crop produce 50 bags of paddy per acre and it fetches two crops per year. According to respondent (RW.1), the petitioner gets Rs.8000/- per annum from 0-60 cents of wet land. As discussed above, a wife is expected to lead the same standard of life which she was leading while living in her in-law’s house. Admittedly, her husband is an Advocate. He has completed B.L. degree and enrolled as an advocate. Though the respondent appears to be living with his parents and brothers, admittedly, his family is having Acs.10.00 cents of agricultural land besides a terraced building valued at Rs.6.00 lakhs. Now a days, the cost of living is high and as such, what is the reasonable amount that is required for the maintenance of a middle class woman is be examined. The respondent, in his evidence, stated that he does not know the properties possessed by his joint family. However, he says that some land has been given to his sister towards ‘Pasupu Kumkuma’. According to the respondent, her parents have incurred debts on the building which has been referred to by the petitioner in her evidence. Hence, he is not in a position to pay maintenance to the petitioner. The respondent has not whispered anything about the income from their Acs.10.00 cents of agricultural land. Admittedly, the respondent is having two brothers. When the total family is having Acs.10.00 cents of agricultural land, the notional share of the respondent can be taken as two and half acres of agricultural land. If at all the version of the respondent that the petitioner gets Rs.8000/- per annum from 0-60 cents of land, then the income from Ac.10-00 of land should be more than Rs.1,30,000/- per annum. Thus, the notional income of the respondent from agriculture can be taken at Rs.30,000/- per annum. It is not clear what is the income of the respondent from his profession. According to the petitioner, the respondent has got sufficient means to maintain the petitioner. When it was suggested to the petitioner that the respondent is a non-practicing advocate, she denied the suggestion. Of course, she deposed that she does not know whether her husband has been practicing as an advocate or not. She has denied the suggestion that the respondent does not own any agricultural land. Of course, the petitioner has also stated that her husband is depending on her father-in-law. It is not clear for what purpose the respondent is said to be depending upon his father. However, a reading of the evidence gives an impression that the respondent has been residing with his father and two brothers and that he is an advocate and that his family is having more than Acs.10.00 cents of agricultural land and a terraced building. Admittedly, the respondent is enrolled as an Advocate. These factors, prima facie, go to show that the respondent is having sufficient means to maintain the petitioner. Now, coming to the question whether the petitioner has got any means to maintain herself, if she has means to maintain herself, of course, she is not entitled for maintenance. The evidence of the respondent itself go to show that the petitioner is only a student and she is attending degree classes. Though the respondent in the chief examination says that his wife is working as a clerk in a private office and earning Rs.1,500/- per month, admittedly, he had not produced any evidence in support of his version. His admission in the cross- examination itself clearly reveals that the petitioner is unable to maintain herself. It appears that whatever meager income the petitioner may be getting from Acs.0.60 cents of land cannot be said to be sufficient to maintain herself and to have same comforts and the status that she was getting while she was living with her husband. In the above circumstances, I hold that both the Courts below have failed to consider the evidence in proper perspective and erred in appreciating the evidence. For the foregoing reasons, the impugned order dated 30.11.2004 passed by the learned Principal Sessions Judge, West Godavari at Eluru in Crl.R.P.No.54 of 2004 is set aside and the Criminal Petition is allowed awarding an amount of Rs.500/- per month, as originally claimed by her, towards maintenance to the petitioner from the date of the petition. This order does not come in the way of the petitioner seeking enhancement of maintenance amount, if there are any changed circumstances. _______________________________ JUSTICE B.CHANDRA KUMAR April 27, 2010 Bvv