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2020 DIGILAW 1837 (KAR)

Ganesh Rao v. Sumana K

2020-09-23

JYOTI MULIMANI

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JUDGMENT Jyoti Mulimani, J. - Though the revision petition is listed for admission, with the consent of learned counsel appearing for both parties, it is heard finally. Learned counsels Sri.Prabhugoud. B. Tumbigi, has appeared in person Sri.Prasanna.V. R, has appeared through video conferencing. 2. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Family Court. 3. The order dated 08.01.2016, passed by the Family Court, Dakshina Kannada, Mangaluru, in Crl.Mc.No.56/2014 is called in question in this revision petition, whereby, learned Judge of the Family Court has directed respondent to pay Rs.8,000/- per month towards monthly allowance to 1st petitioner from the date of petition till her life time, a sum Rs.5,000/- to 2nd petitioner from the date of filing of the petition until he attains majority. It is this order which is called in question on various grounds as set out in the revision petition. 4. Sri.Prabhugoud. B. Tumbigi, learned counsel submitted that the order of the Family Court suffers from serious infirmities and the same is liable to be set aside. He submitted that the Family Court has failed to appreciate the oral and documentary evidence available on record. it has been contended that 1st petitioner and respondent lived blissfully in Bangalore. But differences cropped up only when respondent got transferred to Mangalore. According to respondent, he was always ready and willing to discharge his marital obligations but 1st petitioner has voluntarily left the company of respondent. Next, he submitted that after marriage, it is respondent who encouraged 1st petitioner to pursue her Post Graduation and with his help, she pursued the same and obtained degrees M.A. and B.Ed courses. Learned counsel urged that 1st petitioner is highly qualified and capable of maintaining herself as she is working in Al- Bradriya Composite P.U. College, Suratkal Mangaluru and drawing salary. Therefore, she is capable of maintaining herself and does not require any financial support from respondent. A further submission was made that his minor son is under the custody of 1st petitioner and has not allowed respondent to see his minor son. Therefore, he submitted that submitted learned Judge ought to have taken note of the said aspect before passing the order. It has been further urged that respondent is working as a Clerk in Karnataka Bank and he has to look after his aged parents. Therefore, he submitted that submitted learned Judge ought to have taken note of the said aspect before passing the order. It has been further urged that respondent is working as a Clerk in Karnataka Bank and he has to look after his aged parents. He is incurring huge expenses. Lastly, he contended that learned Judge has failed to appreciate the evidence on record in its right perspective and the entire order is based on mere assumption and presumption. Hence, order is illegal and contrary to the law and prays that this revision petition may be allowed. 5. Learned counsel for respondent relied upon the following decisions: - 1. SMT.MAMTA JAISWAL vs. RAJESH JAISWAL, (2000) 2 DMC 170 2. Dr E. SHANTHI v. Dr H.K. VASUDEV, (2005) ILR(Kar) 4981 3. MANDEEP SHARMA v. KIRAN SHARMA, (2002) AIR(J&K) 90 6. Per contra, Sri.Prasanna.V.R., learned counsel appearing on behalf of petitioner Nos.1 and 2 while justifying the order passed by the Family Court contended that, learned Judge has taken into consideration of all the material evidence on record and has rightly come to the conclusion that 1st petitioner is unable to maintain herself and her child and accordingly, passed the order of maintenance. He submitted that though petitioner was working in Al-Badriya Composite P.U. College, Surathkal, Mangalore, as a Teacher and was drawing salary of Rs.8,098/- per month, but the job was temporary and the income was insufficient to maintain herself and her son. Therefore, she was constrained to file a petition seeking maintenance. A further submission was made that currently, 1st petitioner is unemployed and she is unable to look after herself and her minor child. The minor son is pursuing his 10th Standard and therefore, she requires considerable amount to fulfill his educational expenses. He submitted that there are no justifiable grounds to interfere with the order passed by the Family Court. Accordingly, he prays for dismissal of the petition. In the last resort, learned counsel submitted that respondent is not paying maintenance in view of the stay order passed by the Court. Hence, petitioners are put to greater hardship. Hence, it is submitted that it may be taken note of while disposing of the revision petition. 7. I have considered the contentions urged on behalf of petitioners and respondent with care. 8. Hence, petitioners are put to greater hardship. Hence, it is submitted that it may be taken note of while disposing of the revision petition. 7. I have considered the contentions urged on behalf of petitioners and respondent with care. 8. The short facts are; - 1st petitioner is the legally wedded wife of respondent and their marriage was solemnized on 30.04.2006 at Shri Krishna Mandir, Kadri, Mangaluru, as per the customs and traditions prevailing in their community. They are blessed with one son who is 2nd petitioner. It is not in dispute that after the marriage, they lived blissfully for some time. Contending that her husband is having sufficient means, neglected and refused to maintain her and minor son, 1st petitioner brought action under Section 125 of Cr.P.C. According to respondent, minute differences of opinion cropped up between them, when he got transferred to Mangalore, and 1st petitioner herself left the company of respondent in the month of July, 2013. It has been vehemently urged that respondent was always ready and willing to perform his matrimonial obligations and made all possible efforts to secure his wife back to lead a happy marital life, but in vain. In this Court, respondent has adhered to two fold contentions; the first one is, there were no sufficient reasons for his wife to live apart from him and the second one is, his wife is well qualified and is capable of looking after herself and does not require any financial support from him; but I do not think that these contentions can be supported. With regard to the first contention, learned Judge in extenso referred to the evidence on record and has come to the conclusion that petitioner has justifiable reason / ground to stay away from the matrimonial house. The reasons have sufficiently stated by learned Judge and I am satisfied that the evidence has been appreciated in right perspective. I find no reason to interfere with the same. It is perhaps well to observe that the proceedings under Section 125 of Cr.P.C is summary in nature. In a proceeding under Section 125 of Cr.P.C, it is not necessary for the Court to ascertain as to who was in wrong and the minute details of the matrimonial dispute between the husband and wife need not be gone into. It is perhaps well to observe that the proceedings under Section 125 of Cr.P.C is summary in nature. In a proceeding under Section 125 of Cr.P.C, it is not necessary for the Court to ascertain as to who was in wrong and the minute details of the matrimonial dispute between the husband and wife need not be gone into. With regard to the second contention, learned counsel has put forth two-fold contentions; the first one is qualification; the second is employment. With regard to the latter it has been contended that petitioner is working as a Teacher and she has income of her own and therefore, she does not require any financial support from respondent. I do not think even this contention can be supported. I can find no record to show that the job is permanent. In fact, the Head Master of the College was summoned and was examined as PW-2. He has stated that 1st petitioner was working in their Institution as a temporary Teacher with a salary of Rs.8,098/- per month. While arguing the case, learned counsel for petitioners submitted that currently 1st petitioner is un-employed. In these circumstances, I think that it is hopeless to contend that she is employed and capable of maintaining herself and her minor son. In any event, merely because she was / is working and earning income, it would not be a ground to reject her claim for maintenance. I would observe, further, that a normal healthy person, may be fairly educated, is presumed to be capable of earning. The presumption does not extend to conclude that such earning would be sufficient to maintain such a person. Learned Judge has held that petitioners have proved that respondent has willfully neglected and refused to maintain his wife and minor son and while exercising judicial discretion has directed the respondent to pay maintenance of Rs.8,000/- per month to the 1st petitioner and Rs.5,000/- per month to the 2nd petitioner from the date of petition till he attain the age of majority, to meet the ends of justice. 9. Learned counsel for respondent has cited number of cases referred to supra. But I do not think that the law is in doubt. 9. Learned counsel for respondent has cited number of cases referred to supra. But I do not think that the law is in doubt. In the cases referred to by learned counsel, actions were brought under of the provisions of the Hindu Marriage Act, 1955 i.e., for divorce, and an application for grant of maintenance pendente lite were made under Sections 24 and 25 of the Hindu Marriage Act. Whereas, in the present case, 1st petitioner brought action under the provisions of Section 125 of Cr. P.C. With all respect to learned counsel, my view is that on the facts, they plainly are not applicable to the present case. In my opinion, the case really falls within a small compass, and I think that the clue is to be found in the proper interpretation of the Sections 24 and 25 of the Hindu Marriage Act on one hand and Section 125 of the Cr.P.C. on the other. The object of Section 24 of the Hindu Marriage Act, 1955, is to enable the husband or the wife, as the case may be, who has no independent income sufficient for his or her support and the necessary expenses of any proceeding under the Hindu Marriage Act to obtain maintenance and expenses pendente lite. The proceedings under Section 24 of the Hindu Marriage Act are summary in nature. Its object is ad hoc and duration is temporary. It is not necessary to record evidence. Moreover, Sections 24, 25 of the Hindu Marriage Act and Section 18 of the Hindu Adoption and Maintenance Act, 1956, do not stand in the way of a Magistrate granting relief under Section 125 of the Cr.P.C. Section 24 of the Act is not Pari materia with Section 125 of the Cr.P.C. There is no controversy that the remedies under Section 24 of the Hindu Marriage Act and Section 125 of the Cr.P.C., are quite independent. The proceedings under Section 24 of the Hindu Marriage Act and under Section 125 of the Cr.P.C. are different and they are invoked for different purpose before the Competent Jurisdiction. The proceedings under Section 24 of the Hindu Marriage Act are only invoked to meet a special situation where the proceedings are pending before the Matrimonial Court and to withstand the litigation the uncared wife is provided with succor pendente lite. The proceedings under Section 24 of the Hindu Marriage Act are only invoked to meet a special situation where the proceedings are pending before the Matrimonial Court and to withstand the litigation the uncared wife is provided with succor pendente lite. The benefit granted under Section 24 Hindu Marriage Act is purely temporary in nature and gets extinguished after the matter is finally decided. It follows therefore, that the facts of the present case cannot be brought within the ruling of decisions referred to by learned counsel for respondent. It is an unfortunate result from the respondents point of view, and it is undoubtedly hard that his case should fail on this ground. 10. In the last resort, learned counsel contended that he has to look after his aged parents. He is incurring huge expenses and has other financial commitments. Therefore, he is not in a position to pay maintenance. I am quite unable to accept this contention. If a man is healthy and able-bodied, he must be held to have the means to support his wife and children and he cannot be relieved of his obligations. It is perhaps well to observe that that Section 125 of Cr.P.C is the measure of social justice and is specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) re-in forced by Article 39 of the Constitution. It will not be out of context to observe further that under Hindu Law, the maintenance of a wife by her husband is, of course, a matter of personal obligation which attaches from the moment of marriage. From the date of marriage, her home is necessarily in her husband s home. He is bound to maintain her. The doctrine of maintenance of a wife can be traced to the smritis, and the principal Hindu commentaries upon them. These texts enjoin a mandatory duty upon the husband to maintain his wife. It imposes a personal obligation on him enforceable by the sovereign or state. 11. In my opinion, the revision petition should be dismissed and accordingly, it is dismissed.