THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL NO.2561 OF 2002 %25.11.2009 #Polavarapu Sri Devi. ...APPELLANT VERSUS $Polavarapu Gangaraju. ...RESPONDENT < GIST: > HEAD NOTE: !Counsel for Appellant: Sri T.S.Anand. ^Counsel for Respondent: Sri M.V.Suresh. ? Cases referred THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL NO.2561 OF 2002 25th November 2009 Between: Polavarapu Sri Devi. …APPELLANT AND Polavarapu Gangaraju. …RESPONDENT THE HON'BLE SRI JUSTICE B.PRAKASH RAO And THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL NO.2561 OF 2002 JUDGMENT: (Per the Hon’ble Sri Justice G.Bhavani Prasad) The order of the Principal Senior Civil Judge, Rajahmundry, in I.A.No.1415 of 1999 in O.P.No.118 of 1988 dated 28.07.2000 allowing the application for cancellation of maintenance order granted in favour of the wife in I.A.No.1038 of 1992 dated 24.07.1995 with effect from the date of the order, led the aggrieved wife to file the present appeal. The appellant and the respondent were married and later, the appellant obtained divorce on 31.01.1989 in O.P.No.118 of 1988. Then, after four {4} years, she filed I.A.No.1038 of 1992 for grant of maintenance and the trial Court awarded maintenance at the rate of R.1,000/- per month by the order dated 24.07.1995. She was also awarded Rs.400/- per month in M.C.No.26 of 1992 by the order of the II Additional Judicial First Class Magistrate, Rajahmundry, under Section 125 of the Code of Criminal Procedure, 1973, and the husband filed Crl.M.P.No.2062 of 1997 in M.C.No.26 of 1992 for cancellation of the said order. The husband contended that the wife purchased a site from one Smt.Vallibai under a sale deed dated 31.03.1995 for Rs.50,000/-, whereas, the real value of the site was Rs.1,50,000/- at Rs.2,500/- per square yard. In the site, which is situated in Pappula Street, a business locality, she constructed a pucca terraced house and let out the same to a tenant for a sum of Rs.1,500/- per month. The wife was claimed to have invested Rs.2,00,000/- for constructing the house and she was also claimed to be getting monthly income of Rs.4,000/- to Rs.5,000/- by running Sridevi Beauty Parlour. The husband, therefore, contended that the wife was more affluent than him and requires no maintenance. Against the claim for cancellation of maintenance awarded, the wife contended that an amount of Rs.1,000/- was awarded after full- fledged enquiry and when the husband did not obey the said order, she had to take recourse to execution proceedings in E.P.No.196 of 1998 in I.A.No.1038 of 1992 before the Additional Senior Civil Judge, Rajahmundry. The husband was compelled to pay the maintenance only after overruling his objections and even in M.C.No.26 of 1992; the husband was irregular in paying the maintenance awarded. The wife, further, contended that the maintenance awarded in M.C.No.26 of 1992 was cancelled without giving reasonable opportunity to her against which, she filed Crl.R.P.No.40 of 1999 before the District and Sessions Court. She, further, contended that the allegations about the purchase of the house site, construction of the house and getting rents are false and it was the same plea taken by the husband that was rejected in M.C.No.26 of 1992. The wife also contended that she was forced to maintain her two sons due to the husband deserting her by taking another lady even during the subsistence of the wedlock and she also claims to be not running any Beauty Parlour. She further contended that the husband, in possession of immovable properties and running a prosperous business in real estate and slates, was avoiding to pay the maintenance and even the reasonable maintenance was not paid and an amount of Rs.81,000/- was due to her by the date of the petition. The wife, thereby, desired that the request for cancelling the maintenance be rejected. During the enquiry into the petition, the trial Court recorded the evidence of P.Ws.1 and 2 and R.Ws.1 to 4 and marked Exs.A1 to A10 and Exs.B1 to B3. The trial Court rendered the impugned order noting that the order in I.A.No.1038 of 1992 granting maintenance of Rs.1,000/- to the wife from the husband became final and the present petition was filed alleging change of circumstances under Section 25 (2) of the Hindu Marriage Act, 1955 {“the Act” for brevity}. The trial Court, further, observed that the evidence of P.W.1, the husband and his daughter, P.W.2, was in reiteration of the alleged purchase of house under Ex.A1, registered sale deed and the construction of house worth Rs.5,00,000/-, letting it out for Rs.1,500/- per month while she herself was occupying a portion of the building. The evidence also was that the wife was getting Rs.3,000/- per month towards rents and photographs-Exs.A2 to A4 were filed to show the location and facilities of the building. P.Ws.1 and 2 also claimed that the wife was running a Beauty Parlour in the ground floor of the building, getting Rs.4,000/- per month. They further produced Exs.A6 to A8, property tax receipts in respect of the house property and Ex.A9, valuation certificate and Ex.A10, tax receipt. The trial Court also noted that the husband, of course, admitted that there is no documentary evidence to show the quantum of rent received by the wife and the revision preferred by the wife against cancellation of the maintenance order under Section 125 Cr.P.C. was then pending. The trial Court further referred to the evidence of R.Ws.1 and 2 but noted that it was not probablised that the brothers of the wife contributed towards the consideration for the purchase of the site or the expenditure for construction of the building. It was further noted that there was no plea at all by the wife that her brothers contributed amounts for the purchase or construction of the property. The trial Court, further, observed that R.W.2, who is the brother of the wife, was only an RTC driver and it was not probablised that he had sufficient means or that the sale proceeds of the gold of their mother were invested for the benefit of the wife. Therefore, the trial Court concluded that the house worth Rs.2,00,000/-, as seen from the evidence, appeared to have been constructed by the wife herself, who consequently is in an affluent position. The trial Court also rejected the contention that she was running a Beauty Parlour in the absence of evidence to that effect. Taking into account the evidence on record, the trial Court concluded that the wife was in an affluent condition and due to the change of circumstances disclosing that the wife was in a position to maintain herself, the earlier order granting Rs.1,000/- per month should not be continued. Consequently, cancellation of the order of maintenance was ordered. The wife seeks to challenge the said order in this appeal by contending that the contentions raised in I.A.No.1038 of 1992 and I.A.No.1415 of 1999 were one and the same and the conclusions arrived at earlier could not have been reconsidered. The wife also contended that when she purchased the property with the monies adjusted by her brother, the same could not have been considered to reject maintenance, when the husband has various businesses and is financially more sound. In support of her contentions, the appellant also filed affidavits before this Court and contended therein that she was maintaining both her sons who studied up to Xth Class, who were unemployed, and that her daughter also died after marriage in 2004. She claimed to have let out the premises to one Dhiraj for a monthly rent of Rs.600/-. Except that, there is no other income. She further contended that due to divorce between her first son and his wife, she was forced to pay Rs.1,10,000/- towards permanent alimony to the divorced wife of her son by mortgaging the house for Rs.1,30,000/-. She further contended that the husband is not only running a wholesale slate business but is also getting a monthly rent of Rs.12,000/- from leasing the ground floor of his building apart from Rs.3,00,000/- as advance from the said China Mobile Stores, the tenant. The husband, on the other hand, contended that the wife let out the first floor of the building for Rs.2,000/- per month and the ground floor portion for Rs.3,000/- per month. He contended that her own residence air conditioned in some rooms apart from the wife running a Beauty Parlour in the name of Sri Devi Beauty Parlour. The market value of the building would be Rs.15,00,000/- while his business is only a small business and the house is also small in which he is living. He further contended that the order of maintenance was cancelled in Crl.R.P.No.40 of 1999 by the District Judge and the High Court in Crl.P.No.5412 of 2000. He also claimed that after the death of his daughter and son-in-law, he was burdened with the maintenance, education and other necessities of his daughter’s sons and daughter. Sri T.S.Anand, learned counsel for the appellant, and Sri M.V.Suresh, learned counsel for the respondent, are heard at length. A copy of the order in Crl.P.No.5412 of 2000 dated 26.06.2003 was made available for reference and perusal. Section 25 of the Act clearly provides for the award of the maintenance to either spouse only with reference to the income and other property of the applicant and the respondent, the conduct of the parties and other circumstances of the case it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on immovable property. In the present case, it is seen that Ex.A1, registration extract of the sale deed dated 24.05.1995, Exs.A2 to A4, photographs, Ex.A6 to A8, property tax payment receipts, Ex.A9 valuation certificate and Ex.A10 photocopy of tax receipt, probablising the ownership and possession of the house property of the wife, are not seriously disputed. It is only the source for acquiring the said property that is in controversy. But whatever be the source from which the wife could acquire such valuable property, it is clear that subsequent to the grant of monthly maintenance of Rs.1,000/- by the order dated 24.07.1995, the wife had come into possession of such property as would enable her to derive independent and sufficient income from the same for her own maintenance in the ordinary and natural course of human events. The award of maintenance originally in I.A.No.1038 of 1992 might be due to the wife not owning any immovable properties with the capability of fetching regular income but the ownership of the house property made a substantial difference in her means for survival either for herself or even for her sons. The claims of the husband about the wife running a Beauty Parlour and earning independent income from the same might have been not proved before the trial Court, which conclusion has become final but still the fact remains that there was no clinching evidence as to the quantum of income which the husband has been deriving either from his slates business or from the let out house portions, which is also not shown to fetch any significant income from rents. The alleged receipt of Rs.3,00,000/- as advance for letting out one of the shops or receiving a monthly rent of Rs.3,000/- from that shop are only the allegations made in the affidavit filed herein by the wife but there is no substantiating documentary or oral evidence. If both the wife and husband each own a house and are not shown to have any other significant independent income and the husband is also supporting his daughter’s children, the husband cannot be considered to have such properties as would enable him to spare his surplus for the benefit of the wife nor could the wife be concluded to be in such destitution that she was unable to find any means to reasonably maintain herself and her sons. Even if her sons are not educated and studied only up to Xth class and are unemployed and dependent on her, they have to make their own efforts to make their livelihood and if they are leading a lazy life, they cannot probably burden a 65-year-old father to maintain the children. Anyhow, no expression of opinion need be made on the liability of the father in respect of the sons in this case. The order of the trial Court for sound reasons, based on the evidence placed before the Court needs to be upheld and the affidavits filed herein do not appear to make any difference to the acceptability of the conclusions of the trial court. Another persuading factor can also be the order of this Court in Crl.P.No.5412 of 2000 dated 26.06.2003, in which this Court had concluded that the wife purchased the house site for Rs.50,000/- and constructed a building by investing Rs.2,00,000/- and was getting monthly income of Rs.1,500/-. The wife not adducing any evidence leading to such a conclusion is also not much germane when the finding has undoubtedly become final and whether the finding in Crl.P.No.5412 of 2000 is res judicata or estoppel or of any persuasive value in coming to an appropriate decision herein or not, the wife is not entitled to seek any reconsideration, even on the own merits of the material on record herein. The appeal is hence devoid of merits and is, accordingly, dismissed. There shall be no order as to costs. _________________ (B.PRAKASH RAO, J) ___________________ (G.BHAVANI PRASAD, J) 25th November 2009 Note: LR Copy be marked B/o RRB