O R D E R

This petition of the wife and daughter arises out of the Judgment and Order dated 15.04.2011 passed by the Judge Family Court, Belgaum in Criminal Miscellaneous No.316 of 2008. By the impugned order the trial Court has dismissed the petition filed by the petitioners under Section 125 of Cr.P.C. claiming maintenance.

2. The marriage of the 1st petitioner with the respondent was solemnized in March-2002. Out of the said wedlock the 2nd petitioner was born and admittedly as on the date of filing of petition she was three years old. The respondent was serving in Border Security Force.

3. Respondent got issued notice Ex.P-1 dated

15.04.2008 to the 1st petitioner alleging that six months immediately after the marriage she has deserted him and calling upon her to join him, failing which to face the legal action. The 1st petitioner got issued reply Ex.P-2 contending that after the marriage, respondent and his family members subjected her to physical and mental cruelty in connection with their demand for cash of Rs.10,000/- and two tolas of gold and alleging that she does not have good working skills. She contended that in March-2008 ultimately they subjected her to physical assault and forced her and second petitioner to take shelter under her parents.

4. After issuing such reply, petitioners filed Criminal Miscellaneous No.316 of 2008 before the Family Court, Belgaum, under Section 125 of Cr.P.C. claiming maintenance of Rs.5,000/- per month to the 1st petitioner and Rs.3,000/- per month to the 2nd petitioner alleging that the respondent having sufficient means has failed and neglected to maintain them.

5. The respondent contested the petition denying the allegations of demand for dowry and cruelty to the 1st petitioner. He contended that six months immediately after the marriage, the 1st petitioner deserted him and despite efforts she did not join him. He admitted the paternity and age of the second petitioner. He contended that the petition is filed as counter blast to M.C.No.188 of 2008 filed by him for restitution of conjugal rights.

6. Parties adduced evidence. In support of their contentions, the 1st petitioner got herself examined as PW-1 and the notice and reply were marked as Exs.P-1 and 2. Respondent got himself examined as RW-1 and his father as RW-2. The trial Court after hearing the parties dismissed the petition on the following grounds:

(a) The allegations of cruelty to the 1st petitioner are not proved.

(b) The contention of the respondent that the 1st petitioner is guilty of willful desertion is proved by the evidence of RW-1 and his father RW-2.

(c) The evidence of RW-2 has gone uncontroverted as the petitioners did not cross examine him.

(d) If the respondent was guilty of cruelty, the petitioners should have proceeded against him in the Court Marshal as per the Military Rules.

(e) The petition is a counter blast to the matrimonial case filed by the respondent.

(f) The petitioners lived for more than five years without financial assistance by the respondent. Therefore, they are not destituted wife and child and petitioner No.1 has not stated that she is unable to maintain herself.

(g) During the conciliation proceedings, petitioner No.1 expressed her willingness to join the respondent after eight days, but she did not join accordingly.

7. Learned counsel for the petitioners produced the copy of Judgment in M.C.No.188 of 2008 passed by the Family Court as additional evidence before this Court. The respondent neither disputed the said document nor objected to receive the same on record.

8. Sri.Shreevatsa S.Hegde, the learned counsel for the petitioners seeks to assail the impugned order on the following grounds:

(i) The trial Court dismissed the petition of the respondent for restitution of conjugal rights in M.C.No.188 of 2008 holding that he has failed to prove that the 1st petitioner has deserted him and on the same day the trial Court has dismissed this petition also holding that the 1st petitioner is guilty of willful