Remanded

Guttula Venkata Vara Prasad v. Smt.Guttula Aruna Kumari at Aruna Priya

Andhra Pradesh HC2 Aug 2021CRLRC/327/2021

Case brief

AI extract

What is this about?

The High Court set aside ex parte orders granting monthly maintenance to a wife, held that no evidence of husband's financial capacity was recorded and the husband was not properly heard, and remanded the matter.

What did the court decide?

Impugned orders dated 13.03.2020 in FCOP No.34 of 2014 and M.P. No.154 of 2019 were set aside; the main FCOP 34 of 2014 remanded for fresh adjudication; Revision Petitioner to pay Rs.15,000 costs.

Guttula Venkata Vara Prasad Vs Smt.Guttula… — Maintenance and Alimony | Andhra Pradesh HC (2021)

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THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

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CRIMINAL REVISION CASE No.245 OF 2021 AND CRIMINAL REVISION CASE No.327 of 2021

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COMMON ORDER:-

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These Criminal Revision Cases are filed with a prayer to set aside the exparte order dated 13.03.2020 passed in FCOP No.34 of 2014 and order dt.13.03.2020 passed in M.P.No.154 of 2019 in FCOP. No.34 of 2014 on the file of Family Court-cum- V Additional District Judge, Visakhapatnam respectively.

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The brief facts of the case are that the respondent herein was married to the petitioner on 20.05.1995, after marriage, she joined the matrimonial house at Tanuku and they lead conjugal life till 2007. The respondent started beauty parlour during her stay at matrimonial home and used to earn money. The petitioner purchased house site with the financial support given by the respondent. Eventually there was a change in the attitude of the petitioner and with the active support of his family members, he used to beheave arrogantly and abused the respondent in filthy language and harassed her to bring more money from her parents. He used to beat her indiscriminately and totally neglected her and on 17.6.2013 the petitioner necked out the respondent from the house. She gave a report to the police on 01.10.2003 and it was registered as Crime No.486 of 2013. The respondent has no source of income whatsoever.

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The respondent herself examined as PW1 and got marked the photostat copy of ration card as Ex.A1, report given to P.M.Palem police station as Ex.A2 and Joint photograph as Ex.A3.

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According to the respondent, the petitioner is working as Administrative Officer in Insurance Company and getting salary of Rs.45,000/- and he has movable and immovable properties. Except Ex.A1 to Ex.A3, no document is placed before the Court below. The Court below has granted monthly allowance of Rs.15,000/- to the respondent from the date of order.

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Thereupon, the petitioner herein filed an application under order IX Rule 7 of CPC to set aside the exparte order. The case of the petitioner in the said petition is that the matter was posted to 4.12.2019 for conducting cross examination of the petitioner therein. But he was absent on that day as he under went eye surgery at Akira hospital, Rajahmundry and the same was also brought to the notice of the Court. He entrusted the matter to his colleague, who inturn failed to represent the matter. As the petitioner was not present, he was set exparte and posted for orders on 06.12.2019. The absence of the petitioner on 4.12.2019 is neither intentional nor wilfull. Hence the petitioner sought the Court to set aside the said order.

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The Court below has observed that as seen from the docket ever since August, 2019 till 04.12.2019 the petitioner herein is not ready to proceed with the cross examination even after imposing costs twice and by and large there was no representation on his side on all those occasions. Hence the Court below found that the absence of the petitioner herein is intentional and willful since he

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remained absent on most of the occasions and did not proceed with cross examination despite several opportunities given to him. Further he has not filed any certificate to show that he underwent eye surgery at Akira hospital at Rajahmundry. The Court below dismissed his application to set aside the exparte order.

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The learned counsel for the petitioner submits that the petitioner is a physically challenged person and the respondent herself left the companionship of the petitioner and she also left their only son and the petitioner was taking care of him. He submits that she filed a case under Section 498-A IPC against the petitioner and the same was dismissed. She also filed Domestic Violence Case and in that case, he was directed to pay an amount of Rs.6,000/- per month and he has been continuously paying the same. He submits that as per Section 125 (4) Cr.P.C. wife is not entitled to receive maintenance or interim maintenance from her husband if she is living in adulterous life or refused to live with her husband or they are living separately by mutual concern. He submits that in the O.P. filed by the petitioner in DDR.No.695 of 2013 in the Court of Judicial Magistrate of First Class, Araku, the son of the petitioner and the respondent, gave a statement as LW4 that he has seen her on several occasions while leading adulterous life. Learned counsel for the petitioner submits that the petitioner could not present on the day as he was underwent operation and he has a good case on merits and as per Section 125(4) Cr.P.C., the respondent/wife is not entitled any monthly allowance.

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On the other hand, the learned counsel for the respondent submits that the petitioner willfully not appeared before the Court

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below and sought for several adjournments. Taking all these facts into consideration, the Court below, granted maintenance and as well refused to set aside the order passed by the Court below. Further submits that the petitioner who is working as Administrative Officer, receiving an amount of Rs.65,000/- salary per month. It is the duty of the husband to maintain the wife and he is bound to take care of his wife. The Court below passed an order in FCOP No.34 of 2014 granting monthly allowance of Rs.15,000/-. It is submitted that as of now an amount of Rs.1,35,000/- has to be paid as arrears and also filed an application for arrest of the respondent and the same is pending for consideration. The learned Judge has taken into consideration several aspects and passes order, which does not require interference of this Court.

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Heard the learned counsel on either side and perused the material on record. In the order impugned passed in main F.C.O.P.No.34 of 2014, there is no mention about the appearance of the petitioner, whether any notices were served on him when he was set exparte. The learned counsel for the petitioner submits that he has filed counter, but there is no mention about the same in the order, only considering the case of the respondent, the Court below has granted maintenance. Admittedly, the wife has not filed any piece of paper evidencing the financial capacity of the husband. Further the contention of the learned counsel for the petitioner is that the respondent is leading adulterous life and she is not entitled for grant of maintenance and there is no obligation to the husband to maintain her in view of Section 125 (4) of the

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Act. Admittedly, the petitioner is already paying an amount of Rs.6,000/- per month to the respondent.

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Taking all these factors into consideration, this Court deems it appropriate to set aside the orders dt.13.03.2020 in F.C.O.P.No.34 of 2014 and M.P.No.154 of 2019 in O.P.No.34 of 2014.

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Accordingly, the Criminal Revision Case Nos.245 of 2021 and 327 of 2021 are allowed. The order dt.13.03.2020 in M.P.No.154 of 2019 in O.P.No.34 of 2014 on the file of the Judge, Family Court-cum-V Additional District Judge, Visakhapatnam is set aside, on the condition of the Revision Petitioner paying costs of Rs.15,000/- (Rupees fifteen thousand only) to the respondent within one week from the date of receipt of a copy of this order.

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The exparte order dated 13.03.2020 in F.C.O.P.No.34 of 2014 is set aside and the F.C.O.P.No.34 of 2014 is remanded back to the Court below for fresh adjudication in accordance with law within four weeks from the date of receipt of a copy of this order.

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As a sequel, pending miscellaneous petitions, if any, shall stand closed.

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____________________________________ JUSTICE LALITHA KANNEGANTI

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Date: 02.08.2021

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Note : Furnish copy in three days b/o. sj

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THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

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CRIMINAL REVISION CASE Nos.245 OF 2021 and 327 of 2021

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Date: 02.08.2021

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Guttula Venkata Vara Prasad v. Smt.Guttula Aruna Kumari at Aruna Priya

Case brief

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Guttula Venkata Vara Prasad v. Smt.Guttula Aruna Kumari at Aruna Priya

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