Maintenance Law|Andhra Pradesh High Court|Mungara Muralikrishna Yadav v. Mungara Sailaja|Creation of Charge over Husband’s Properties will "Benefit the Interest of Wife and Minor Son" Says HC
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AP High Court - Family Court Appeal (FCA) NO: 48/2019 - Date of Order : 10.10.2025
Justice Battu Devanand And Justice A. Hari Haranadha Sarma
Mungara Muralikrishna Yadav (Petitioner) Vs. Mungara Sailaja (Respondent)
Appeal: Appeal filed under Section 19 of the Family Courts Act, 1984 by the husband in F.C.O.P.No.114 of 2013 on the file of the Family Court, Nellore, aggrieved by the judgment and decree dated 10.06.2018 passed therein. The wife and son herein are the petitioners before the Family Court.
Reason: Petition/suit was filed for grant of maintenance in terms of Section 18(2) (a) (b) (e) (g) and Section 20 (2) of Hindu Adoptions and Maintenance Act, 1956 and under Section 7 of the Family Courts Act, 1984, for awarding past maintenance of Rs.5000/- per month to each of the petitioners (wife and son) totalling to Rs.10,000/- per month for the period from 12.03.2010 to 11.3.2013, which comes to Rs.3,60,000/- with interest @24% p.m., till payment is made and for directing future maintenance from the date of legal proceedings at the same rate and also for creation of the charge over the properties of the husband. The suit/ petition was allowed directing payment of past maintenance at Rs.5000/- per month to each petitioners (wife and son), totalling to Rs.3,60,000/- with interest at 12% p.a., from 11.3.2013 till its payment is made and also to pay regular present maintenance at Rs.3000/- per month each to the petitioners (wife and son), totalling to Rs.6000/- per month from the date of petition, in addition to Rs.5000/- per month already granted; and charge is also created over the petition/plaint schedule properties for due payment of maintenance.
Case of the wife and son in FCOP No.114 of 2013:
Marriage was performed on 11.2.2007 as per Hindu rites and caste customs, followed by presentation of gold articles dowry etc. During the wedlock, the couple was blessed with a son. Interference of mother-in-law and sister-in-law of her husband and the bad habits of the husband like being alcoholic, addiction to women, extra martial life with a lady by name Prathima, and such adulterous life of her husband and persistence in such conduct has resulted in gap between the wife and the husband, and any amount of advices and requests of wife and also the mediation of elders did not yield any result. However, the same were ended in husband throwing out the wife and son from the matrimonial abode. Husband is having sufficient means like properties i.e., house site plots, flat and agricultural lands mentioned in the petition schedule, whereas wife and her son are starving for daily prop and unable to maintain themselves. Hence, the proceedings in terms of 125 of Cr.P.C. vide FCOP No.13 of 2013 are initiated for maintenance. However, for maintenance on civil side including for creation of charge over the properties, present proceedings are initiated.
Case of the husband in brief:
1. The husband did not deny the relationship.
2. His wife insisted to put up a separate family leaving his widowed mother to her fate, with no one to take care of her. His request for taking care of his mother was not obliged by the wife. She has always been insisting to set up separate family and used to go to her parents’ house. He lost his father at about 15years of his age, his mother brought him up with great hardship. He could not set up separate family, leaving his mother, who is a chronic patient of hypertension, gastric problem, gynae problems and who had already undergone surgery to kidneys.
3. The allegations contra are invented for the purpose of litigation. Mother of his wife used to frequently poison the mind of his wife and the wife used to threaten that she would commit suicide. Once, she has also attempted to commit suicide by taking some tablets. She went for delivery in the 8th month of pregnancy against the advice of elders. He was not even informed about the delivery and when their son was 5 months old, she came to matrimonial home and renewed her harassment to setting up separate family and she has even went to an extent of stating that she has a friend and he is ready to marry her and accept her along with son. A case in Cr. No. 78 of 2013 of Balaji Nagar Police Station for the offences punishable under Sections 497, 498-A, 406, 323, 352, and 506 r/w 149 I.P.C., and under Sections 3 and 4 of Dowry Prohibition Act was registered against husband and his family members, and in the said case he was remanded to judicial custody, later enlarged on bail. Their families suffered humiliation and all their reputation is lost.
4. He is working as Junior Assistant in Irrigation Department and getting salary of Rs.11,739/- only. The allegations as to throwing out his wife and son from the matrimonial life etc., are false.
Oral Evidence:
During the course of trial before the learned Family Court, the wife was examined as PW.1, one Rachuri Janaki Ramaiah, a third party was examined as PW.2 on behalf of the wife and son and the husband has taken witness stand as RW.1.
Documentary Evidence:
The wife has relied on Exs.A1 to A3 documents relating to marriage. Ex.A4 is the petition copy in FCOP No.13 of 2013 filed for maintenance. Ex.A5 is the copy of the petition in FCOP NO.12 of 2013 filed by wife for restitution of conjugal rights. Exs.A6 to Ex.A23 are the documents of Adungal extracts, indicating some properties standing in the name of father and some in the name of mother, of the husband. No documentary evidence is placed for the husband side.
Arguments in the Appeal by husband:
Learned counsel for the husband, submitted that oral and the documentary evidence placed before the court below, is not properly appreciated. The conduct of the wife in implicating the relatives in a criminal case with false allegations should have been noted by the Family Court and mere initiation of a private complaint is not a proof of allegations. The findings that the wife was necked out by the husband from matrimonial home on 12.03.2010 is baseless. The wife has no justification in living separately and her demand for setting up a separate family is unjustified. The absence of legal notice from the husband demanding restitution of conjugal rights is given much importance by the Family Court and in any event, the quantum of maintenance granted is excessive. He would also submit that additional maintenance granted at Rs.3,000/- is without any reasons. Hence, prayed to set aside the impugned judgement and Decree.
Arguments in the Appeal by wife:
Per contra learned counsel for the wife, submitted that the learned Family Court, Nellore has properly appreciated the entire material more particularly the absence of any legal proceedings, or at least any notice inviting the wife for restitution of the matrimonial home from the end of the husband. The evidence of the wife, is clear and categorical and she has deposed as to what all pleaded and justification for separate living, therefore, the orders does not deserve any interference. He has also submitted that proper care is taken by learned Judge, Family Court in awarding past maintenance, for the pre-Suit period of three (3) years and the future maintenance @ Rs.3000/- per month in addition to what was already awarded. Therefore, there are no grounds to interfere and appeal is liable to be dismissed confirming the impugned judgement and decree.
Points for consideration before the Hon’ble Court:
1. Whether the past maintenance and future maintenance from the date of legal proceedings in FCOP No.114 of 2013 awarded by the Family Court, Nellore, and the charge created over the properties, under the impugned judgment and decree dated 10.06.2018 are sustainable in law and on facts or whether any interference is necessary. If so, on what grounds and to which extent?
2. Whether the rate of interest granted @12% p.a. on the total past maintenance amount of Rs.3,60,000/- from 11.3.2013 till its payment under the impugned orders is proper or require any modification? If so, on what grounds and to what extent?
3. What is the result of the appeal?
Point No. 1:
Pleadings and assertions made in this case as to ordinary wear and tear in the matrimonial home, allegations and counter-allegations and the denial thereon, made by the parties - starting from pre-marital arrangements till separate living, are all conventional and resemble several other cases of family disputes.
Justification for separate living pressed into service by the wife in nutshell is:
1. Interference of mother-in-law and sister-in-law in her martial life.
2. Extra marital affair of the husband with one Pratima.
3. Alcoholic addiction of her husband.
4. She was thrown out from the matrimonial home.
5. Failure of mediations by the elders.
Defences of husband are:
1. He has old aged mother.
2. The wife is reluctant in taking care of his mother and demanding for setting up separate family.
3. His mother-in-law poisoned the mind of his wife.
4. His wife left the matrimonial home on her own.
5. He was not informed about the birth of the child.
6. He has been implicated in a criminal case with false allegations and he has suffered arrest and remand.
Following aspects are clear from the version of both sides:
1. Relationship between the parties is not in dispute.
2. Wife and child, and the husband are separately living.
3. There was no legal notice demanding restitution of matrimonial home from the end of the husband.
4. Wife has initiated criminal prosecution.
5. The allegations in the criminal prosecution are inclusive of allegation of bigamy etc.
6. Maintenance was awarded in terms of Section 125 of Cr.PC. in FCOP No.12 of 2013.
Analysis of the Hon’ble Court:
1. Denial as to right of husband over the properties referred under Exs.A6 to A23 is formal. There is no documentary evidence from the end of the husband. On the point of separate living, pleadings and evidence of wife are indicating that she has been living separately from 12.3.2010. The criminal prosecution of the husband is covered by Cr. No. 78 of 2013. The wife claimed that she has been necked out from the matrimonial home. Past maintenance is granted by the trial Court from 12.3.2010 to 11.3.2013 for the permissible period preceding the Suit.
2. Learned Judge, Family Court while addressing the points framed, particularly whether the husband neglected to maintain the wife and son, covered by point No.1, has touched every point raised by both sides and reasoning adopted under the impugned judgment that, husband’s contention that the wife voluntarily deserted if true, he would have at least issued legal notice for restitution of conjugal rights, sounding legal and logical. It is also relevant to note that the learned Judge, Family Court observed that FCOP No.12 of 2013, was initiated by the wife for the restitution of conjugal rights and the same has been admitted by the husband as RW.1, during the cross-examination. There is also an observation that the wife has mentioned in FCOP No.12 of 2013 that she was necked out on 12.3.2010. Therefore, the findings as to justification for the wife living separately, negligence on the part of the husband does not require any interference. There is no proof for the assertions of the husband nor there is any corroboration for his solitary oral testimony, therefore, his stand cannot be accepted as rightly observed by the learned Family Court.
3. With regard to sufficient means of the husband, there is evidence produced, both orally and documentary and admittedly husband is in employment. Further, findings of the learned Family Court on the point No.2 indicating that the father of the husband died, and husband will get 1/3rd share in the properties. This aspect is having support from documentary evidence. Hence, means are there to the husband.
4. With regard to absence of means for the wife and son; son is minor; no one can contend that he is having any means. Further in FCOP No.13 of 2013 vide Ex.A4, there was a maintenance Order. The contention that the wife is working as a teacher, is not proved by any document. Therefore, the contention of the husband that his wife and son are having sufficient means to maintain themselves cannot be accepted.
5. With regard to entitlement of wife and son for the past maintenance since they are living separately. Hence, their entitlement for maintenance is substantive right in terms of Section 18 of the Hindu Adoptions and Maintenance Act, 1956. Right is statutory and enforceable, both for interim and past maintenance, subject to the law of limitation.
6. The reasoning as to granting additional maintenance apart from what is granted vide FCOP No.13 of 2013 @ Rs.3000/- per month to each, is also found justified and the reasoning of the learned Judge, Family Court, found convincing. When the facts and circumstances of the case are seen from the socio-economic scenario and cost of living, Rs.8000/- per head, towards maintenance works out to less than Rs.300/- per day, therefore, the maintenance awarded at Rs.3000/- in addition to Rs.5000/- awarded under earlier maintenance proceedings, does not warrant any interference.
7. With regard to creation of charge over the properties, since they are family properties and the husband is having share in an extent of 1/3rd in the properties, creation of charge to the extent of his share will benefit the interest of the minor and the wife, therefore, the said observation also found fit for confirmation. Hence, the point is answered in favour of the wife and son.
Point No. 2:
Awarding of interest @12% p.a. on past maintenance is also questioned. The legal proceedings initiated in terms of Section 18 of Hindu Adoptions and maintenance Act 1956 are civil in nature. The present case was presented before the Family Court, under Family Courts Act read with Hindu Adoptions and Maintenance Act which does not specify any procedure. Family Courts Act also silent about the procedure that can be followed. However, applicability of Civil Procedure Code is not totally ousted. As per Section 18 of the Family Courts Act, the decrees and orders passed by the Family Court shall have the same force and effect as a Decree or Order of Civil Court, particularly with regard to execution.
Section 18 of Family Courts Act reads as follows:
“18. Execution of decrees and orders:
(1) A decree or an order, other than an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), passed by a Family Court shall have the same force and effect as a decree or order of a civil court and shall be executed in the same manner as is prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the execution of decrees and orders.
(2) An order passed by a Family Court under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) shall be executed in the manner prescribed for the execution of such order by that Code.
(3) A decree or order may be executed either by the Family Court which passed it or by the other Family Court or ordinary civil court to which it is sent for execution.”
With regard to applicability of Code of Civil Procedure, Section 10 of the Family Courts Act, provides that the provisions of Civil Procedure Code or any other law for time being in force shall be applied to the Suits and proceedings other than the proceedings under Chapter IX of Criminal Procedure Code, before the Family Court and Family Court should be deemed to be a Civil Court.
Section 10 of the Family Courts Act reads as follows:
“10. Procedure generally:
(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court.
(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other.”
Section 34 of the CPC deals with the power, procedure and mode of granting interest in respect of money decrees. Section 34 of CPC reads as follows:
“34. Interest:
(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, [with further interest at such rate not exceeding six per cent. per annum, as the Court deems reasonable on such principal sum], from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit:[Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent. per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions. Explanation. In this sub-section, "nationalised bank" means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970). Explanation II. For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.] [Inserted by the Code of Civil Procedure (Amendment) Act, 1976, Section 13 (w.e.f. 1.2.1977)].
(2) Where such a decree is silent with respect to the payment of further interest from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie.”
As per Section 34 of CPC, granting of interest for the pre-suit period, is governed by the Contract between the parties. Granting of pendente-lite interest is left to the discretion of the Court, which shall always be judicious, having regard to the facts and circumstances of each case, like the conduct of the parties during the pendency of the proceedings, length of time taken to the proceedings by each party and other relevant factors like impact of the order on both sides, with all empathetic and equitable considerations towards both the parties, treating them equally. But as far as post decretal interest is concerned, unless the transaction is commercial in nature, there is a cap for granting interest up to 6%, which suggests that generally granting of interest can be up to 6% only on the money awarded under the decree. If the party is prompt in payment of the decretal amount, there will be no occasion for payment of interest. The intention of granting post decretal interest is to ensure prompt payment by the party. The procedure for payment of money is always also contemplated under Order 21 of CPC. The decree-holder is always at liberty to execute the decree. Therefore, granting interest for the post-decretal period must align with the statutory scheme of Section 34 of the CPC, wherein the legislature, in its wisdom, has imposed a cap on such interest. So this Court is of the view that the cap of 6% cannot be relaxed unless there is a statutory exemption or binding precedential guidance. No such legal base is brought before this Court.
In this case, wife is living separately from 12.03.2010. As per her own case proceedings were initiated under section 125 of Cr.P.C. for maintenance, vide F.C.O.P.No.13 of 2013. Further the proceedings under restitution of conjugal rights, were also initiated vide F.C.O.P.No.12 of 2013 and criminal proceedings also initiated. The impugned decree was passed in the year 2018.
Who was responsible for 5 years journey of litigation, now under the consideration vide FCOP No.114/2013 is not clear. In view of legislative cap under Section 34 of CPC which can be applied by virtue of Section 10 and Section 18 of the Family Courts Act and in the facts and circumstances, stated above, this Court finds it fit to reduce the rate of interest to 9% for pendente lite period and 6% for the post decretal period on the past maintenance of Rs.3,60,000/- from 12% granted under the impugned decree.
In view of the above, point No.2 is answered concluding that the entitlement of the wife and son for the interest on the past maintenance of Rs.3,60,000/- shall be @9% from 11.3.2013 to till the date of decree viz., 10.06.2018 and thereafter 6% p.a. till deposit or realization.
Point No. 3:
In the result, appeal is partly allowed, as follows:
(i) Maintenance granted Rs.10,000/- per month [@Rs.5000/- per month to each petitioner (wife and son)], for the period from 12.3.2010 to 11.3.2013 totalling to Rs.3,60,000/- shall stand confirmed, however, entitlement of wife and son for the interest and liability of the husband shall be @9% p.a. for the pendente lite period i.e., from 11.3.2013 to 10.6.2018 and thereafter @6% p.a. till the date of payment or realisation. Interest granted @12% p.a. under the impugned decree and judgment is modified accordingly.
(ii) Maintenance awarded @Rs.3000/- each in addition to existing maintenance already granted in FCOP No.13 of 2013, totalling to Rs.6000/- for both shall stand confirmed.
(iii) Save the above change as to the rate of interest, the decree and judgment under challenge shall stand confirmed.
There shall be no order as to costs in this appeal.
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