KOTAYYA Vs. ANJAMMA

JUDGEMENT

(1.) In M.C: No. 74 of 1966 on the file of the Additional Munsif-Magistrate, Bapatla, Ycrukala Kotiah was the sole respondent, I shall refer to the parties hereafter in their denomination in the trial Court. Yerukula Anjamma as petitioner No.1 and her daughter by respondent viz., petitioner No. 2 (represented by petitioner No.1 as guardian) prayed for an order of maintenance under section 488 Cr.P C. against the respondent at the rate of Rs.45 pm for petitioner No.l and Rs.30/- per mensem for petitioner No.2. The respondent did not deny the relationship but raised various contentions denying the right of the two petitioners for maintenance and disputing the rate of maintenance. Both sides let in evidence. The petition was filed on 24-9-1966. Even before the petition was filed, on 21-3-1966 the respondent had executed a registered settlement deed setling certain property on his minor son by petitioner No. 1. In that document he provided as follows:-

(2.) In the course of the proceedings, the respondent deposed as D.W. 1 that he was not willing to abide by the agreement. The learned Magistrate,after considering the entire evidence, held that the petitioners 1 and 2 were entitled to maintenance and awarded maintenance at the rate of Rs. 35/- p m. for petitioner No. 1 and Rs. 25/- p m for petitioner No. 2. The husband Kotiah filed Crl.R P. No 32 of 1967 before the learned First Additional Sessions Judge Guntur. The learned Additional Sessions Judge held that.as regards the quantum of maintenance awarded, he did not see sufficient reason to hold that there was any room for interference by the High Court, He also held that, as regards the right of the wife or daughter (Petitioners 1 and 2) for maintenance, the decision of the learned Magistrate was wrong for the following main reasons:- (1) In view of the settlement deed (Ex- P-1) which has been executed, the only proper course for the Magistrate was to dismiss the petition and not to award any maintenance. (2) The evidence apart from the settlement viz., oral evidence was not sufficient to hold that the husband neglected to maintain his Wife and daughter. As regards ground No. 2, there was the evidence of petitioner No. 1 as P.W. 1 and supported by P.W. 3 who was her maternal uncle. As against their evidence, there was the evidence of the respondent as R.W.1. The learned Sessions Judge held that it was doubtful whether P.W.3 was speaking the turth as he was interested and as P W. 1 did not depose that P.W. 3 knew that she was being beaten by the respondent. He relied on the fact that the respondent executed the setttlement deed and that the terms of the settlement deed show that both the parties agreed to live together. On the other hand, the learned Magistrate who had seen the witnesses deposing before him chose to rely on the evidence of P.Ws. in preference to the evidence of the Respondent and relied on the fact taht the respondent though he executed the agreement, deposed in the witness box that he was not willing to abide by the agreement and that the very fact that the respondent executed the settlement showed that the petitioner was entitled to separate maintenance. I do not agree with the learned Additional Sessions Judge that there was sufficient room or interference with the order of the learned Magistrate or that the evidence of the respondent should be believed in perference to the evidence on the side of the petitioners and to hold that the petitioners are not entitled to maintenance, The learned Magistrate also referred to the contents of Exhibit P-1 whose recitals show that the respondent-executed the settlement in favour of the son so as to keep possession of the property and income from it with himself for life and even provided that if he were (Respondent) to die during the minority of the son the mother should be deprived of her right to be the boy's guardianship as the natural guardian and that the respondent provided for his sisters husband to be the guardian of the boy. The learned Magistrate observed that this strengthened the contention of petitioner No, 1 that the respondent was acting as a tool in the hands of his sister and mother. Ground (2) is not tenable. Ground No. 1:- The learned Sessions Judge has stated in paragraph 14 of this order of reference as follows:- :

(3.) In this particular case the mere agreement (Ex P-1) is not equivalent to maintaining the wife, especially in view of the fact that the respondent has bluntly deposed in his deposition that he was not willing to abide by the agreement. This decision was referred to with approval in Saraswati Debi v. Narayan, Das. In that case, it was observed as follows:- . "Mr. Basu contends that having regard to the fact that there is an agreement between the husband and the wife, that the amount of maintenance shauld be Rs. 7/- per month, the agreement is enforcable in the Civil Court and the Jurisdiction of the Criminal Court is .,, ousted........................ In the Madras case Kent v. Kent (A.I.R, 1926 Madras 59) there , was an offer on the part of the husband to maintain the wife, and it was held that the mere offer to maintain was not sufficient. It appears that, notwithstanding this agreement, arrears of maintenance for one year accrued, and it appears that the agreement is not being acted upon in that sense, and I am disposed to think that anything short of a decree entiling the wife to maintenance is not sufficient to take away the jurisdiction of the Magistrate............ ...... In Rama Bai v. Bhoja Rao it was observed as follows:-