HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.6642 OF 2008 DATE: 02-12-2011 BETWEEN: Chintakayala Satyanarayana Prasad. - - - Petitioner/ Revision Petitioner/ Respondent. AND Chintakayala Seetha, Chintakayala Aruna and The State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad. - - - Respondents/ Respondents/ Petitioners. This Court made the following : HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.6642 2008 ORDER: This Criminal Petition is filed by the Petitioner under Section 482 of Cr.P.C. seeking to quash order dated 15-07-2008 in Criminal Revision Petition No.11 of 2006, on the file of Principal Sessions Judge, Visakhapatnam and corresponding order dated 05-07-2006 in Maintenance Case No.17 of 2004, on the file of Judicial Magistrate of First Class at Narsipatnam, Visakhapatnam District. 2. Whereas the Petitioner is the Respondent, the Respondent Nos.1 and 2 herein are the Petitioners in M.C. No.17 of 2004. For the sake of convenience, I refer the parties as arrayed in the Maintenance Case. 3. The Maintenance Case is filed by the Petitioners under Section 125 Cr.P.C. seeking monthly maintenance amounts of Rs.2,000/- and Rs.1,000/- p.m. for their separate residence respectively on the file of Judicial Magistrate of First Class Court, Narsipatnam. On contest, the Maintenance Case was allowed in part awarding Rs.1,000/- to the first Petitioner (wife) and Rs.750/- to the second Petitioner (daughter) towards their maintenance against the Respondent from the date of petition i.e. from 16-08-2004, whereas the same was confirmed by the learned Principal Sessions Judge, Visakhapatnam in Criminal Revision Petition No.11 of 2006, on 15-07-2008. 4. Briefly the claim of the Petitioners is as follows : The first of them happened to be the legally wedded wife of the Respondent and the second of them was born to them during their marital life and the Petitioners got no means to maintain themselves and the Respondent having got sufficient means neglected and deserted them, by reason of which, they should be paid the amounts claimed towards their maintenance. 5. It is the contention of learned counsel for the Respondent that the Respondent got filed Ex.R-1 copy of a registered will said to have been executed by one Parupalli Adilakshmi, maternal aunt of the first Petitioner, which provides that the first Petitioner was given about Ac.6-00 cents of land and further at the time of Revision the Respondent got filed a copy of relevant adangal which provides that the first Petitioner got Ac.2-75 cents of land in Survey Nos.19/3B and 47/2 situated at Vedurupalli village, Nathavaram Mandal, Vizakhapatnam District and hence it is the duty of the first Petitioner to dispel the contents of the will and the adangal and in fact, she only mentioned in the Petition that she got no means to maintain herself and the second petitioner which therefore is false and it is observed by the Revisional Court basing upon the record that it would appear that the first Petitioner got properties while observing that no evidence was placed to the effect that she was deriving income from the properties and both the Courts only taking the income of the Respondent into consideration awarded the maintenance amounts in question which therefore is not tenable. In support of his contentions he has relied upon the following decisions 1) Sampoornam and another Vs. Arjunan[1]. 2) Chaturbhuj V. Sita Bai[2]. 6. On the other hand, it is the contention of learned counsel for the Petitioners that the Maintenance Case was filed in the year 2004 and since then they have been suffering due to lack of income to maintain themselves, whereas only on 18-10-2008, the respondent deposited half of the arrears of maintenance before the enquiry Court and there is sufficient material to the effect that the Respondent got sufficient means to maintain the Petitioners and absolutely there are no grounds to interfere with the concurrent findings of the Courts below. 7. The point for consideration is whether there are grounds to quash the order dated 05-07-2006 passed in M.C. No.17 of 2004, which was confirmed by the Revisional Court in C.R.P. No.11 of 2006? 8. No arguments have been advanced with regards to the other findings of the courts below i.e. about the question of desertion and negligence of the Petitioners by the Respondent, which aspects therefore need not be considered now, whereas it is only to be considered as to whether the Petitioners really got no means to maintain themselves and the Respondent got means to maintain the Petitioners and the Courts below properly examined the matter or not? 9. In fact, so far as the second Petitioner is concerned, the Respondent has a legal obligation to maintain her irrespective of whether the first Petitioner is capable of maintaining her or not and therefore the order passed in so far as the second Petitioner is concerned, cannot be interfered with unless it is excessive and the Respondent is not able to pay it. In fact, it is observed by the Courts below that the Respondent is solvent having been the owner of Ac.10- 00 cents of wet and dry lands deriving an income of Rs.1,50,000/- p.a. from his lands according to the Petitioners, whereas in fact the Respondent admitted that he got Ac.5-00 cents of land out of which only Ac.4-00 cents of land is cultivable while affirming that he got no income from the land and he incurred debts to a tune of Rs.2,00,000/-, which he failed to substantiate and by virtue of Ac.5-00 cents of land he got sufficient means to maintain the Petitioners. Taking that into consideration, it cannot be said that the amount of Rs.750/- awarded to the second Petitioner towards her maintenance is excessive. Accordingly, the order so far as the 2nd Petitioner is concerned is to be upheld. 10. With regards to the maintenance payable to the first Petitioner, in the 1st decision cited supra it is observed that under the old section 488 Cr.P.C no provision was incorporated with regards to the burden of wife to establish the question of her means, whereas as per the amended provision of Section 488 Cr.P.C. i.e. 125 Cr.P.C. (now) such a burden was placed upon the wife. Similarly, in the decision cited 2nd supra the Honourable Supreme Court under similar circumstances observed as follows (at Para No.7) : “Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the requisite means. But there is an inseparable condition, which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It has to be established that the wife was unable to maintain herself. The appellant has placed material to show that the respondent wife was earning some income. That is not sufficient to rule out application of Section 125 Cr.P.C. it has to be established that with the amount she earned the respondent wife was able to maintain herself.” 11. Therefore, initially the first Petitioner is burdened with establishing that she got no means to maintain herself. However, when she says that she got no means to maintain herself or when there is no basis from her evidence that she got means to maintain herself that is suffice of discharging her burden. Further, if there is some material from the other side to the effect that she got some properties from which she derives some income, then she has to place necessary evidence to dispel that. It is pertinent to note here that Ex.R- 1 provides that certain landed property was bequeathed to her by her paternal aunt but, no attempt has been made on behalf of the Petitioners to disprove that document. Further, it is important that the adangal copy was filed only before the Revisional Court and it was not brought into evidence. Therefore, it should not have been considered. Further, no proper discussion was made by the Courts below with regards to any income from such landed property of the first Petitioner. Unless Ex.R-1 was comprehensively dealt with basing upon the evidence recorded it was not proper on the part of the Courts below to award any maintenance to her. Therefore, the matter is to be remanded to the enquiry Court for considering the question of her means with reference to Ex.R-1. Further, when the adangal was filed it is proper to direct the enquiry Court to examine that also while remanding the matter. 12. Further, in any case, if the claim of the first Petitioner is true, she will be subjected to lot of sufferance unless some provision is made for her maintenance intermittently. In the result, for the foregoing reasons, the Criminal Petition is allowed, in part, in so far as the claim of maintenance of Rs.1,000/- to the first Petitioner is concerned while dismissing it in so far as the findings relating to awarding the maintenance to the second Petitioner is concerned and the matter is remanded to the enquiry Court with a direction to examine the question of means of the first Petitioner with regards to the Will and Adangal and also directing the Respondent to pay Rs.500/- p.m. to the first Petitioner as interim maintenance from the date when half of the arrears of maintenance was paid as per the orders passed by the Courts below. Further, both the parties are permitted to adduce necessary evidence in that behalf before the enquiry Court. __________________________ G. KRISHNA MOHAN REDDY, J Dated: 02-12-2011. Dsh. THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY 3 CRIMINAL PETITION No.6642 OF 2008 December, 02, 2011 DSH [1] 1975 Crl.L.J 1466 [2] (2008) 2 SCC 316