HONOURABLE SRI JUSTICE K.S. APPA RAO CRIMINAL REVISION CASE No.398 of 2005 Dated:31.12.2012 Between: Lukkani Ramakrishnaiah …Petitioner And 1. State of Andhra Pradesh represented by P.P. High court of Andhra Pradesh, Hyderabad. 2. Lukkani Saraswati 3. Lukkani Nagalakshmi …Respondents This Court made the following:- HONOURABLE SRI JUSTICE K.S. APPA RAO CRIMINAL REVISION CASE No. 398 of 2005 ORDER: The present Criminal Revision Case is filed against the order, dated 30.01.2004 in Criminal Revision Petition No.13 of 2003 on the file of the court of III Additional District and Sessions Judge, Kurnool District. 2. For the sake of convenience, the parties will be referred to as they are arrayed in the M.C. 3. The petitioner herein is the respondent in M.C.No.13 of 2001. The wife and child of this petitioner filed M.C.No.13 of 2001 claiming maintenance of Rs.500/- each from the petitioner. The trial court after elaborate enquiry, while dismissing the claim of the wife, granted maintenance of Rs.250/- to the third respondent. 4. Being aggrieved, the present criminal revision case is filed by the unsuccessful husband on the ground that the order of the first appellate court is contrary to law, weight of evidence, against established principles of law and probabilities of the case and the learned Judge ought to have seen that the first petitioner/ wife has withdrawn herself from the company of the husband without sufficient cause and in view of the desertion, she is not entitled for any maintenance and that the first appellate court ought to have held that the wife is having sufficient means to maintain herself. 5. Now the point for consideration is whether the impugned judgment of the first appellate court in Criminal Revision Petition No.13 of 2003 is sustainable? 6. Before going into the merits of the case, it is just and necessary to refer the rival contentions of the parties. 7. The first petitioner is legally wedded wife of the respondent and they were blessed with the second petitioner. The first petitioner is a deaf and dumb woman. The father of the first petitioner deposited a sum of Rs.34,000/- in the name of the first petitioner and the respondent. The respondent under the instigation of his concubine started harassing the first petitioner. Inspite of mediation, there was no change in the attitude of the respondent. The respondent addicted to all kinds of bad vices and refused to maintain the petitioners. 8. While resisting the allegations, the respondent alleged in his counter that the first petitioner deserted at the instance of her parents and that the father of the first petitioner never deposited Rs.34,000/- in the name of the respondent and the first petitioner and whereas the respondent himself deposited the said amount in the name of the first petitioner and himself. The respondent is living by doing coolie work and he has no means and capacity to maintain the petitioners separately. 9. In order to prove the rival contentions before the trial court, on behalf of the petitioners, the first petitioner herself examined as P.W.1 and on behalf of the respondent, he himself examined as R.W.1 and another witness as R.W.2. 10. The findings of the trial court is in two folds. Firstly, the first petitioner herself left the conjugal life of the respondent and secondly that she is able to maintain herself. 11. Now let us see as to what extent the finding of the trial court is sustainable? 12. Admittedly, the first petitioner is a deaf and dumb lady and the second petitioner was born during the wedlock of the first petitioner and the respondent. It is the plea of the first petitioner in her petition that that after the wedlock, she blessed with the second petitioner and that the respondent is living with a concubine and at her instance, he was harassing the first petitioner. Further allegation is that the respondent having addicted to alcohol and other bad habits and under the influence of alcohol, he was beating the first petitioner and that she is not able to lead conjugal life with the respondent as a result of which she left the conjugal life and living separately with her parents. 13. A perusal of the counter averments, it discloses that the respondent did not state that the first petitioner is capable of maintaining herself. He simply stated that he is willing to take the wife and child, if they come and joined him. 14. In a case filed under Section 125 of the Code of Criminal Procedure (for short, “Cr.P.C.”) for maintenance, the Court has to see whether the petitioner, who claims maintenance under Section 125 Cr.P.C., is able to prove that she was deserted by her spouse and that she is not able to maintain herself. In the present case on hand, as stated already, P.W.1 asserted in her petition as well as in her evidence before the court that the conduct of the respondent made her to live separately and she had taken shelter in the house of her parents. She positively asserted that the respondent is addicted to alcohol and used to beat her and unable to bear the said harassment, she was constrained to leave the conjugal society of her husband. There is no rebuttal evidence on behalf of the respondent. It is the only contention of the respondent that he never harassed the first petitioner and that she herself opted for living separately. 15. Though the evidence of P.W.1 and R.W.1 is against oath and oath, the facts and circumstances is otherwise proved that the conduct of the respondent made the first petitioner to live separately. The probability is that admittedly the first petitioner is a deaf and dumb lady and she had one and a half year baby, that too female baby, when she filed the present petition claiming maintenance under Section 125 Cr.P.C. This is not a case as if the marriage relationship between the petitioner and the respondent was constrained after lapse of more than 10 years. The marital tie was broken soon after the birth of the second petitioner. 16. Moreover, it is the main allegation of the first petitioner that the respondent, at the instance of his concubine, started harassing her. No wife will make such an allegation against her husband unless the husband is otherwise habituated in that regard. That apart, P.W.1 being a deaf and dumb lady, she cannot venture to leave the company of her husband, due to her disability. 17. In that view of the matter, it can be said without any slightest doubt that due to the continuous harassment and ill- treatment by the respondent, the first petitioner was forced to leave the matrimonial life and take shelter in her parents house at her young age for the welfare of her daughter, second petitioner. In that view of the matter, the finding of the trail court that the petitioner herself deserted the respondent is without any basis and iota of evidence. Therefore, the finding of the trial court is erroneous and needs interference. The first appellate court also well discussed on record on that score and set aside the finding of the trial court. 18. With regard to granting of maintenance, admittedly the first petitioner is a deaf and dumb lady and eaking out her livelihood by doing coolie work. As seen from the cause title, the respondent is aged about 28 years on the date of petition. He was hale and healthy and capable of earning more money than P.W.1. P.W.1 being a deaf and dumb lady, no one can expect that she will earn more money for the respondent. The trial court for the reasons best known to him without bestowing its attention while analyzing the evidence of P.W.1 and R.W.1, came to an erroneous conclusion that P.W.1 is able to earn money. The respondent did not adduce any evidence about the earning capacity of the petitioner. When there is no cogent and positive evidence about the earning capacity of the first petitioner, the finding of the trial court that the petitioner was able to earn more money than the respondent is beyond the evidence and the same cannot be sustained. 19. In that view of the matter, the first appellate court also came to the right conclusion while awarding the maintenance to the first petitioner @ Rs.300/- per month. In the totality of circumstances viewed from any angle, the order of the trial court is not sustainable either on the facts or on law, and therefore, the impugned order of the first appellate court is sustainable as the same is held under sound principles of law. 20. In the result, the Criminal Revision Case is dismissed confirming the impugned order in Criminal Revision Petition No.13 of 2003, dated 30.01.2004, passed by the III Additional District & Sessions Judge, Kurnool. ___________________ K.S. APPA RAO, J 31.12.2012 bv/lmv HONOURABLE SRI JUSTICE K.S.APPA RAO CRIMINAL REVISION CASE NO.398 OF 2005 31.12.2012 bv/lmv