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Karnataka High Court · body

2000 DIGILAW 690 (KAR)

LAKSHMI SHARAN v. ANURAG SHARAN

2000-10-13

P.VISHWANATHA SHETTY

body2000
( 1 ) SINCE both these petitioners are directed against the order dated 6th of July 2000 made in M. C. No. 318 of 1998, on the file of the Court of I Additional Principal Judge, Family Court, Bangalore City, these petitions are heard together and though they are listed for preliminary hearing in 'b Group', with the consent of learned Counsel appearing for the parties, they are taken up for final disposal and disposed of by this common order. ( 2 ) THE petitioner in Writ Petition No. 25193/2000 is the wife of the respondent in the said writ petition. In Writ Petition No. 25830/2000, the petitioner is the husband and the respondent is the wife. A copy of the order made by the Family Court which is impugned is produced as Annexure-E to Writ Petition No. 25193/2000. The parties to these petitions will hereinafter be referred to as the wife and the husband. ( 3 ) THE few facts that may be relevant for disposal of these petitions, may be stated as hereunder : (a) The wife had filed a petition seeking dissolution of the marriage on the ground of adultery, cruelty and the husband is suffering from mental illness under S. 13 (1) (i), (ia) and (iii) of the Hindu Marriage Age. During the pendency of the petition filed seeking divorce, the wife had also filed an application under S. 24 of the Hindu Marriage Act for grant of interim maintenance at the rate of Rs. 25,000/- per month from 9th of November 1996 up to the date of the filing of the petition and also to continue to pay the maintenance during the pendency of the proceedings; and also for payment of Rs. 20,000/- towards the litigation expenses. It is her case that due to physical and mental cruelty and harassment meted out by the husband, she was forced to leave the matrimonial home along with her minor daughter on 9th of November 1996 and returned to her mother's home; and the sum of Rs. 4,000/- per month earned by her by way of part time employment is insufficient to meet her expenses and the expenses of her minor daughter. 4,000/- per month earned by her by way of part time employment is insufficient to meet her expenses and the expenses of her minor daughter. It is her further case that her husband is a businessman and a very rich person and owns number of properties in Bangalore and in Delhi and his monthly earning from the properties and the business is more than Rs. 2,00,000/- per month. (b) The husband resisted the claim of the wife for grant of interim maintenance. In the objections filed, he contended that the prayer of the wife for grant of interim maintenance should be deferred till the application filed by the husband under S. 12 of the Family Courts Act seeking for a direction to appoint an independent reputed expert Psychiatrist to examine the wife and husband is considered and also till the evidence is recorded in the case, and the wife is subjected to cross-examination. He also disputed the claim of the wife with regard to his income and contended that since the wife has sufficient income of her own, she is not entitled for award of any maintenance. (c) The Family Court, in the impugned order, after substantial progress was made in recording the evidence in the case, granted a sum of Rs. 5,000/- towards interim maintenance to the wife from the date of the order and a sum of Rs. 5,000/- towards the litigation expenses. While fixing the interim maintenance at the rate of Rs. 5,000/- per month, the Family Court has taken into account the income of the wife, the income of the husband, their status and also the expenses the wife is required to incur at that stage to maintain her minor daughter. (d) The wife has challenged the order passed by the Family Court to the extent it has negatived her claim for grant of maintenance from the date of the application filed seeking interim maintenance till the date of the order; and the husband has challenged the order passed by the Family Court granting maintenance to the wife. (d) The wife has challenged the order passed by the Family Court to the extent it has negatived her claim for grant of maintenance from the date of the application filed seeking interim maintenance till the date of the order; and the husband has challenged the order passed by the Family Court granting maintenance to the wife. ( 4 ) MISS M. Birdy Aiyappa, learned counsel appearing for M/s Sreevatsa Associates for the wife, challenging the correctness of the order impugned to the extent it has rejected the claim of the wife for grant of maintenance from the date of the application filed, submitted that the Family Court, without any justification and assigning any reason, has ordered payment of maintenance only from the date of the order though the application filed by the wife seeking maintenance has been pending consideration ever since the year 1998. It is her submission that the Family Court ought to have granted maintenance at least from the date of the application though the wife claimed maintenance from the 9th of November 1996, on which date the wife was compelled to leave the matrimonial home on account of the cruelty and harassment of the husband. It is her submission that for no fault of hers and on account of the objections raised by the husband that the application filed by the wife seeking maintenance could be considered only after the evidence is recorded, the application was not considered by the Family Court earlier; and under those circumstances, there was absolutely no justification for the Family Court to deny the maintenance to the wife from the date of the application till the date of the order. ( 5 ) HOWEVER, Sri Satischandra, learned Counsel appearing for the husband, made two submissions. Firstly, he submitted that since the wife has sufficient income, she is not entitled for grant of any maintenance. In this connection, he drew my attention to the statement made by the wife in Gandwc No. 47/98 filed by the wife seeking that she should be appointed as guardian of her minor child by removing the husband as legal guardian and also for the custody of the minor child, wherein she has stated that the she is a Painter and she has sufficient financial capacity to meet the needs of the child. He further pointed out that the fact that the wife did not press the application seeking maintenance earlier, clearly indicates that the wife has sufficient income and, therefore, she is not entitled to seek any maintenance from the husband. It is his further submission that even if it is to be held that the wife is entitled for any maintenance, the sum of Rs. 5,000/- granted to the wife is excessive and highly arbitrary since even, according to the wife, she is getting an income of Rs. 4,000/- to Rs. 6,000/- per month. Secondly, he submitted that since the Family Court, having regard to the facts and circumstances of the case, has taken the view that the wife is entitled for payment of maintenance from the date of the order, there is absolutely no justification to modify the said order by this Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India. Elaborating this submission, he pointed out that in a matter like this, the Court has wide discretion to determine as to from which date, maintenance should be awarded to the wife; and in exercise of that discretion, while fixing the quantum of maintenance at Rs. 5,000/-, if the Family Court has taken the view that maintenance should be granted from the date of the order, there is absolutely no justification for this Court to interfere with the said discretion. In support of his submission that the Court has wide discretion to fix a date subsequent to the date of the petition for grant of maintenance, he relied upon the decision of the Supreme Court in the case of Jasbir Kaur, ILR 1998 KAR 530 (AIR 1997 SC3397) and drew my attention to paragraph-9 of the said judgment. ( 6 ) IN the light of the rival contentions advanced by the learned Counsel appearing for the parties, the two questions that would emerge for consideration are - (1) Whether the quantum of maintenance fixed by the Family Court at Rs. 5,000/- payable to the wife by the husband is liable to be interfered with by this Court in exercise of its writ jurisdiction under Articles 226 and 227 of the Constitution of India? 5,000/- payable to the wife by the husband is liable to be interfered with by this Court in exercise of its writ jurisdiction under Articles 226 and 227 of the Constitution of India? (2) Whether the Family Court, in the facts and circumstances of the case, was justified in awarding maintenance to the wife only from the date of the order as against the claim of the wife from the date of the application?re: Question (1) : ( 7 ) THE Family Court, on consideration of the oral evidence of the wife, who was examined as P. W. 1, Income-tax Returns filed by the husband for the years 1996-97, 1997-98 and 1998-99 and the status and living standard of both the husband and wife and other materials on record, has taken the view that the wife is entitled for maintenance at the rate of Rs. 5,000/- per month. It is available on record that the gross income of the husband for the years 1996-97, 1997-98 and 1998-99, was in a sum of Rs. 2,61,948/-, Rs. 1,62,605/- and Rs. 1,73,614/- respectively. The wife, in her evidence, had asserted that her income per month is between Rs. 4,000/- and Rs. 6,000/- and she is working as a consultant with a Furniture Company and she is only a B. A. , Graduate. It is also her case that she owns a Maruthi Car. She has denied the suggestion that the Maruthi Car owned by her belonged to her husband. Her evidence also discloses that after the marriage, the husband and the wife went abroad for honey moon; the husband presently owns of 'honda City' Car; and he has the services of maid servants, a mali and a driver in his house situated at Century Park, Richmond Road. Her evidence further discloses that the husband runs a company in the name and style "southern Fidelity Securities" dealing with stock and security; he also runs other Companies in the name and style "profession Protfolio" and "levanitiko Estates"; he travels by air to see his parents at Bombay twice a month; and he keeps on going to Ooty. The Family Court, at Paragraph-7 of the order, has categorically found that on this aspect of her evidence, there is no cross-examination with regard to the evidence of the wife. The Family Court, at Paragraph-7 of the order, has categorically found that on this aspect of her evidence, there is no cross-examination with regard to the evidence of the wife. Therefore, if the Family Court has taken into consideration the oral evidence of the wife, who was subjected to cross-examination; and keeping in mind the status of the parties, the Income-tax Returns filed by the husband; the number of Companies owned by the husband; the nature of the business carried on by him; his travel to Bombay twice a month by air and also to Oaty; the income of Rs. 4,000/- to Rs. 6,000/- per month the wife gets from her part time employment and also the insufficiency of the income to maintain herself and her child, had fixed the interim maintenance at Rs. 5000/- per month, I am of the view that this Court should not lightly interfere with the said conclusion reached by the Family Court, in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India. The discretion reached by the Family Court, in my view, cannot be dubbed as either arbitrary, capricious or perverse or based on no evidence. The statement made by the wife in G and W C No. 47/98 wherein she has stated that "she is a painter; she stays with her mother; she has sufficient financial to meet the needs of the child" cannot be understood as the wife, in unequivocal terms, asserting that she does not require any maintenance to be paid by the husband. The statement made by her in G and W C proceedings must be understood in the back drop of the claim made by a mother for the custody of her child. The said statement cannot be understood in isolation to come to the conclusion that she has sufficient financial capacity to maintain herself and her child. What she has stated is that she has financial capacity to meet the needs of the child. Further, it is necessary to point out that the maintenance fixed by the Family Court under S. 24 of the Act is an interim maintenance. The provisions of the Act do not provide for an appeal against such an order. What she has stated is that she has financial capacity to meet the needs of the child. Further, it is necessary to point out that the maintenance fixed by the Family Court under S. 24 of the Act is an interim maintenance. The provisions of the Act do not provide for an appeal against such an order. Therefore, unless the quantum of maintenance fixed by the Family Court is, on the face of it, perverse, arbitrary and no reasonable person can come to such a conslusion, this Court should not interfere with the quantum of the maintenance fixed by the Family Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India. In my view, I am also supported by the Division Bench decision of this Court in the case of Shashi Sharma alias Seema v. Praveen Sharma, ILR 1997 KAR 609. The Division Bench of this Court in the case of Shashi Sharma (supra) has observed as follows :"11. . . . The order of the Family Court was not found to be without jurisdiction or being contrary to law or resulting in miscarriage of justice. The grounds of the Writ Petition indicate that the pleas raised were such pleas which could have been adjudicated only in an appeal and not in only in an appeal and not in exercise of the writ jurisdiction. If the High Court decides to interfere with the interim orders passed by the Family Courts, the same is likely to frustrate the provisions of the Act which are intended to achieve a social object as is evident from the statement of object and reasons and the various provisions noticed herein above. No Writ Petition is therefore maintainable against the interim orders passed by the Family Court unless the same is shown to be in violation of the conditions noted herein above. "further, the Supreme Court, in the case of Jasbir Kaur Sehgal (supra), has referred to the matters the Family Court is required to take into account while fixing the quantum of maintenance. It is useful to refer to paragraph-8 of the Judgment, which reads as follows :"8. . . "further, the Supreme Court, in the case of Jasbir Kaur Sehgal (supra), has referred to the matters the Family Court is required to take into account while fixing the quantum of maintenance. It is useful to refer to paragraph-8 of the Judgment, which reads as follows :"8. . . The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate. In the circumstances of the present case we fix maintenance pendente lite at the rate of Rs. 5000/- per month payable by the respondent -husband to the appellant wife. "in my view, in this case, the Family Court, while fixing the quantum of maintenance, had kept in mind the principle laid down by the Hon'ble Supreme Court in the case, referred to above. Therefore, I am of the considered view that the quantum of maintenance fixed by the Family Court in the impugned order, is not liable to be interfered with. Accordingly, Question No. (1) is answered against the husband. Re : Question (2) : ( 8 ) LET me now examine whether, in the facts and circumstances of the case, the Family Court was justified in awarding the maintenance only the date of the order. Having heard the learned Counsel appearing for the parties, I have no hesitation to come to the conclusion that the Family Court was not justified in awarding the maintenance to the wife only from the date of the order. In the impugned order, the Family Court has not assigned any reason to deny the maintenance to the wife from the date of the application. In the impugned order, the Family Court has not assigned any reason to deny the maintenance to the wife from the date of the application. On the other hand, the materials on record disclose that the application filed by the wife seeking maintenance was deferred on account of the two objections raised by the husband firstly, on the ground that the husband had filed an application under S. 12 of the Act to appoint an Expert Psychiatrist to examine the husband and the wife for necessary counselling, and till the said application is disposed of, the application filed by the wife cannot be considered for interim maintenance; and secondly. , on the ground that till the wife is subjected to cross-examination, the application filed by the wife for interim maintenance should not be considered. Therefore, it is clear that on account of the objections raised by the husband in the matter of consideration of the application filed by the wife seeking interim maintenance at an early date, the same was not considered by the Family Court. It is only after the wife had examined herself as P. W. 1 and subjected herself for cross-examination, the application filed by the wife for interim maintenance was taken up for consideration and disposed of by the order impugned in this petition. Learned Counsel for the husband except asserting that the wife had not pressed for consideration of her application seeking interim maintenance earlier, has not been able to show one good ground which disentitled her to claim interim maintenance from the date of the application. From the very beginning, it is the case of the wife that the income she derives from her part time employment, was not sufficient for her maintenance and the maintenance of her minor child and she was at the mercy of her mother and the brother. As noticed by me earlier, the husband, who has an obligation to maintain his wife, had raised two preliminary objections, referred to above, for consideration of the application filed by the wife seeking interim maintenance. As noticed by me earlier, the husband, who has an obligation to maintain his wife, had raised two preliminary objections, referred to above, for consideration of the application filed by the wife seeking interim maintenance. ( 9 ) THE question now is whether such a husband who tries to deny the maintenance amount payable to the wife at the earliest point of time, can be allowed to contend that the wife should be deprived of her legitimate right to claim maintenance from the date of the application on the ground that the discretion is conferred on the Court to fix the date later than the date of the application filed seeking maintenance and when it is so fixed by the Family Court, the said discretion should not be interfered with by this Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India. In my view, such a contention cannot be countenanced. No doubt, as contended by the learned Counsel appearing for the husband, the Hon'ble Supreme Court, in the case of Jasbir Kaur Sehgal (supra), has held that a discretion is conferred on the Court to fix a date later than the date of the application filed seeking maintenance. However, it is necessary to point out that in the very decision, the Hon'ble Supreme Court has held that the right of a wife "to claim maintenance fructifies on the date of the filing of the petition for divorce under the Act. " Therefore, in my view, while the discretion is conferred on the Court to fix a date for award of maintenance other than the one from the date of the filing of the petition for divorce, such discretion should be exercised reasonably, fairly and consistent with the right guaranteed to the wife to be maintained by her husband and the obligation cast on the husband to maintain his wife under Section 24 of the Act. Section 24 of the Act provides for grant of interim maintenance during the pendency of the proceedings initiated under the Act. Section 24 of the Act provides for grant of interim maintenance during the pendency of the proceedings initiated under the Act. Therefore, when the Court, on the basis of the materials on record, finds that the wife is entitled for grant of maintenance, the maintenance awarded cannot be denied to the wife from the date of the application filed by her seeking maintenance unless her conduct or the evidence on record discloses that the wife had sufficient financial capacity to maintain herself till the date of the order and she deserves to be awarded maintenance only from the date of the order. That is not the position in the instant case. As noticed by me earlier, it is only on account of the objections raised by the husband, the application filed by the wife seeking interim maintenance was not considered earlier. Further, the finding recorded by the Family Court shows that the wife had no sufficient income of her own from the date of the application till the date of the order. It is also necessary to point out that the parties to the proceedings have no control over the proceedings pending before the Court. Under such circumstances, without justifiable and valid reason, if a wife is to be denied maintenance from the date of the application filed seeking maintenance till the date of the order of the ground that the application was not disposed of immediately, it would result in great injustice to the wife or such other person who is entitled to claim maintenance in law. I am of the view that in the present case, there is absolutely no application of mind by the Family Court on this aspect of the matter. The Family Court has failed to exercise the jurisdiction conferred on it under law by not awarding maintenance to the wife from the date of the application filed till the date of the order. The decision of the Hon'ble Supreme Court in the case of Jasbir Kaur Sehgal (supra) relied upon by the learned Counsel for the husband, in my view, is of no assistance to the husband. On the other hand, in my view, the principle laid down by the Hon'ble Supreme Court in the said decision would support the case of the wife for grant of maintenance from the date of the application filed by her. On the other hand, in my view, the principle laid down by the Hon'ble Supreme Court in the said decision would support the case of the wife for grant of maintenance from the date of the application filed by her. It is useful to extract paragraph-9 of the judgment, which reads as hereunder at pages 3399-3400, of AIR. "9. The question then arises as to from which date the wife would be entitled to claim the enhanced amount of maintenance pendente lite. If the wife has no source of income, it is the obligation of the husband to maintain her and also the children of the marriage on the basis of the provisions contained in the Hindu Adoptions and Maintenance Act, 1956. Her right to claim maintenance fructifies on the date of the filing of the petition for divorce under the Act. Having thus fixed the date as the filing of the petition for divorce it is not always that the Court has to grant the maintenance from that date. The Court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted. The discretion of the Court would depend upon multiple circumstances which are to be kept in view. . . . . . . . . . . . " (Emphasis supplied) Therefore, in the light of the discussion made above, I am of the view that the order passed by the Family Court granting maintenance to the wife only from the date of the order requires to be modified and in its place, an order directing payment of maintenance from the date of the application filed under Section 24 of the Act seeking maintenance, has to be substituted. ( 10 ) IN the light of the above conclusion, I make the following: ORDER (i) Order dated 6th of July 2000 made by the Family Court in M. C. No. 318/98 is modified to the extent it directs payment of maintenance from the date of the Order and in its place, an Order is made directing the husband to pay maintenance to the wife from the date of the application filed under Section 24 of the Act seeking maintenance. Accordingly, Writ Petition No. 25193/2000 filed by the wife is allowed and the Rule is issued and made absolute. (ii) Wirt Petition No. 29830/2000 filed by the husband is rejected. Accordingly, Writ Petition No. 25193/2000 filed by the wife is allowed and the Rule is issued and made absolute. (ii) Wirt Petition No. 29830/2000 filed by the husband is rejected. (iii) The husband is given four weeks time from today to pay the entire arrears of maintenance to the wife. (iv) The husband shall pay a sum of Rs. 5,000/- to the wife towards the litigation expenses in respect of both the writ petitions, within four weeks from today. ( 11 ) IN terms stated above, these petitions are disposed of. Order accordingly. --- *** --- .