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Karnataka High Court · body

2016 DIGILAW 725 (KAR)

MAHADEVA SWAMY v. SHASHIKALA

2016-09-28

B.VEERAPPA

body2016
ORDER : B. VEERAPPA, J. 1. The petitioner who is the husband of the 1st respondent and father of the 2nd respondent has filed the present revision petition against the impugned order dated 31.3.2015 made in Cri. Misc.No.314/2010 on the file of the Addl. Family Court, Mysuru, awarding maintenance of Rs.3,000/- to the wife and Rs. 1,000/- to the daughter from the date of the petition. 2. The parties are referred to as per their ranking before the family Court. 3. The respondents herein who are the petitioners before the Family Court have filed petition under Section 125 of Code of Criminal Procedure against the respondent/husband contending that the 1st petitioner is the legally wedded wife of the respondent and their marriage was solemnized on 22.4.2005 at Hulimavu Village, Chatra Hobli, Nanjangudu Taluk, Mysuru District as per the Hindu customs. The parents of the 1st petitioner performed the said marriage by spending huge amount besides giving cloths and watch etc., to the respondent. After their marriage, the 1st petitioner joined the respondent and led a married life with him. Out of the wedlock, the 2nd petitioner was born. Thereafter, the respondent started harassing the 1st petitioner by making false allegations. The respondent has also field a divorce petition in M.C.No.132/2006 and the said petition came to be disposed of by awarding judicial separation by an order dated 20.1.2010. Thereafter, the 1st petitioner had filed a petition under Section 24 of Hindu Marriage Act in M.C.No. 132/2006 and also filed an application under Section 25 of Hindu Marriage Act. During the pendency of the said divorce petition, no orders was passed on the said application. It is the further case of the petitioners that the father of the 1st petitioner being a coolie is not in a position to maintain the petitioners. The respondent is a labour contractor and earns Rs. 10,000/- per month as commission. The respondent also owns agricultural properties which are irrigated and is getting income of Rs.60,000/- per annum. The 1st petitioner requires Rs.3,000/- per month for herself and Rs.2,000/- per month for petitioner No.2. Therefore, prays for maintenance of Rs.5,000/- per month. 4. The respondent/husband filed the objections contending that petition filed by the petitioners is not maintainable either in law or on facts. The 1st petitioner requires Rs.3,000/- per month for herself and Rs.2,000/- per month for petitioner No.2. Therefore, prays for maintenance of Rs.5,000/- per month. 4. The respondent/husband filed the objections contending that petition filed by the petitioners is not maintainable either in law or on facts. Further, it is contended that since the respondent was subjected to cruelty in the hands of 1st petitioner, he sought for a decree of divorce in MC.No. 132/2006, wherein the Court granted judicial separation under Section 13(A) of Hindu Marriage Act and the family Court specifically observed about the conduct and behaviour of 1st petitioner. Even though, the custody of 2nd petitioner is not given to respondent as undertaken by the 1st petitioner in the said petition, since the respondent is ready to take the custody of the 2nd petitioner, the question of awarding any maintenance does not arise. Hence, he sought for dismissal of the maintenance petition. 5. Based on the aforesaid pleadings, the family Court framed the following issues : (i) Whether the petitioners are entitle to claim maintenance? If so, what is the quantum? (ii) What order? 6. The petitioner/wife in order to substantiate her case examined herself as RW.1 and marked documents Exs.P.1 to P.3. The respondent/husband was examined himself as R.W.1 and marked documents as Exs.R.1 to R7. 7. The family Court after considering the entire material on record, recorded a finding that the 1st petitioner is entitled for Rs.3,000/- per month and the 2nd petitioner is entitled for Rs.2,000/- per month respectively from the date of the petition. Being aggrieved by the same, the present revision petition is filed by the respondent/husband. 8. I have heard the learned counsel for the petitioner. 9. Sri M. Chidananda Kumar, the learned counsel for the petitioner vehemently contended that the respondents are not entitled for maintenance on account of cruelty by the wife. Insofar as 2nd respondent/daughter is concerned, the petitioner is ready to take back the custody of the child. Hence, the 2nd petitioner is also not entitled for any maintenance. The family Court is not justified in granting Rs.3,000/- and Rs.2,000/- to the respondents. Therefore, he sought for set aside the order of the family Court. 10. Insofar as 2nd respondent/daughter is concerned, the petitioner is ready to take back the custody of the child. Hence, the 2nd petitioner is also not entitled for any maintenance. The family Court is not justified in granting Rs.3,000/- and Rs.2,000/- to the respondents. Therefore, he sought for set aside the order of the family Court. 10. In view of the arguments advanced by the counsel for the petitioner, the only point that arises for consideration is : "Whether the petitioner has made out a case to interfere with the impugned order passed by the family Court, in the facts and circumstances of the present case”? 11. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioner and perused the entire material on record. 12. It is an undisputed fact that the marriage between the 1st petitioner and the respondent was solemnized on 20.1.2010 at Hulimavu Village, Chatra Hobli, Nanjangudu Taluk, Mysuru District as per the Hindu customs. Out of their wedlock, the 2nd petitioner was born. It is the specific case of the petitioners that the respondent is a labour contractor and earns Rs. 10,000/- per month as a commission and also owns agricultural properties which are irrigated and is getting income of Rs.60,000/- per annum. The relationship between the parties are not in dispute. The respondent has not disputed the fact that the petitioners have no sufficient means to maintain themselves and no materials are produced before the Court to prove that they are capable of maintaining themselves. In the absence of any material evidence, it is the duty of the respondent to maintain them under the provisions of Section 125(a) and (b) of the Code of Criminal Procedure. It is not in dispute that the respondent is owning agricultural properties and he is a labour contractor. Taking into consideration the entire material on record, the family Court proceeded to grant Rs.3,000/- to the 1st petitioner/wife and Rs.2,000/- to the 2nd petitioner/daughter. Same is in accordance with law. 13. It is not in dispute that the respondent is owning agricultural properties and he is a labour contractor. Taking into consideration the entire material on record, the family Court proceeded to grant Rs.3,000/- to the 1st petitioner/wife and Rs.2,000/- to the 2nd petitioner/daughter. Same is in accordance with law. 13. The Hon'ble Supreme Court while considering the provisions of Section 125 of the Code of Criminal Procedure in the case of Shamima Farooqui v. Shahid Khan reported in (2015) 5 SCC 705 held that even a muslim divorced woman is entitled for maintenance under Section 125 of the Code of Criminal Procedure and it is the duty of the husband to maintain his wife and daughter who have no sufficient means. Further, the Hon'ble Supreme Court in Shamima Farooqui's case at paragraph Nos.11, 13, 14, 16, 17 and 19 (paras 12, 13, 14, 16 & 18 of AIR) held as under : "The aforesaid finding of the High Court, affirming the view of the learned Family Judge is absolutely correct. But what is disturbing is that though the application for grant of maintenance was filed in the year 1998, it was not decided till 17.2.2012. It is also shocking to note that there was no order for grant of interim maintenance. It needs no special emphasis to state that when an application for grant of maintenance is filed by the wife the delay in disposal of the application, to say the least, is an unacceptable situation. It is, in fact, a distressing phenomenon. An application for grant of maintenance has to be disposed of at the earliest. The family courts, which have been established to deal with the matrimonial disputes, which include application under Section 125, Cr.P.C., have become absolutely apathetic to the same. When the aforesaid anguish was expressed, the predicament was not expected to be removed with any kind of magic. However, the fact remains, these litigations can really corrode the human relationship not only today but will also have the impact for years to come and has the potentiality to take a toll on the society. It occurs either due to the uncontrolled design of the parties or the lethargy and apathy shown by the Judges who man the Family Courts. As far as the first aspect is concerned, it is the duty of the Courts to curtail them. It occurs either due to the uncontrolled design of the parties or the lethargy and apathy shown by the Judges who man the Family Courts. As far as the first aspect is concerned, it is the duty of the Courts to curtail them. There need not be hurry but procrastination should not be manifest, reflecting the attitude of the Court. As regards the second facet, it is the duty of the Court to have the complete control over the proceeding and not permit the lis to swim the unpredictable grand river of time without knowing when shall it land on the shores or take shelter in a corner tree that stands "still" on some unknown bank of the river. It cannot allow it to sing the song of the brook. "Men may come and men may go, but go on for ever." This would be the greatest tragedy that can happen to the adjudicating system which is required to deal with most sensitive matters between the man and wife or other family members relating to matrimonial and domestic affairs. There has to be a pro-active approach in this regard and the said approach should be instilled in the Family Court Judges by the Judicial Academies functioning under the High Courts. For the present, we say no more. Coming to the reduction of quantum by the High Court, it is noticed that the High Court has shown immense sympathy to the husband by reducing the amount after his retirement. It has come on record that the husband was getting a monthly salary of Rs. 17,654/-. The High Court, without indicating any reason, has reduced the monthly maintenance allowance to Rs.2,000/-. In today's world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs.2,000/- per month. It can never be forgotten that the inherent and fundamental principle behind Section 125, Cr.RC. is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home. The statute commands there has to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. The statute commands there has to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125, Cr.RC., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125, Cr.RC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife,for wife's right to receive maintenance under Section 125, Cr.P.C., unless disqualified, is an absolute right. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai ( AIR 2008 SC 530 ), it has been ruled that :- "Section 125, Cr.RC. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal ( AIR 1978 SC 1807 ) falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat ( AIR 2005 SC 1809 )". This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning. From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes the faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance." 14. The Hon'ble Supreme Court in the case of Bhuwan Mohan Singh v. Meena and Ors. reported in AIR 2014 SC 2875 , has held that the concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. That is where the status and strata come into play, and that is where obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created where under she is compelled to resign to her fate and think of life "dust unto dust". 15. In view of the aforesaid reasons, the issue raised in this petition has to be answered in negative holding that the petitioner has not made out any case for interference with the impugned order passed by the family Court based on legal evidence on record. Accordingly, revision petition is dismissed.