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2023 DIGILAW 239 (KAR)

Manjesh v. Abhilasha

2023-02-08

M.NAGAPRASANNA

body2023
JUDGMENT/ORDER 1. Heard Sri. Gurudath B.S. learned counsel appearing for the petitioner. 2. The petitioner is before this Court calling in question an order dtd. 21/9/2022 passed in Crl.Misc.661/2021 under Sub-sec. 1 of Sec. 125 of the Cr.P.C., which grants maintenance of Rs.4, 000.00 to the wife and Rs.4, 000.00 to the two children born from the wedlock, who are 4 years and 21/2 years, respectively. 3. The petitioner is the husband, the respondent his wife. On the relationship between the two turning sour, certain proceedings are instituted against each other. One such proceeding is instituted by the wife, invoking Sec. 125 of the Cr.P.C. claiming interim maintenance. The concerned Court after considering the averments made in the petition and the objections, awards maintenance of Rs.4, 000.00 to the wife and Rs.2, 000.00 each to the children, who are 4 years and 21/2 years. It is this order that drives the petitioner to this Court in the subject petition. 4. The learned counsel appearing for the petitioner would contend that the petitioner is an agricultural coolie and does not have any fixed avocation and his daily earning is about Rs.3, 300.00 and the total earning would come to Rs.9, 000.00. He has aged parents to take care and therefore, he is not in a position to pay any maintenance. 5. I have given my anxious consideration to the submissions made by the learned counsel appearing for the petitioner and have perused the material available on record. 6. The afore-narrated facts are not in dispute and lie in a narrow compass as to whether the order granting maintenance of Rs.4, 000.00 to the wife and Rs.2, 000.00 each to two of the children, who are aged 4 years and 21/2 years warrants any interference. The plea of the petitioner is that he is not in a position to pay any maintenance to the wife as he has no avocation of the kind that can give him that money to maintain the wife and the children. What is granted by the concerned Court is paltry sum of Rs.4, 000.00to the wife and Rs.2, 000.00 each to the children, born from the wedlock of the petitioner and the respondent. What is granted by the concerned Court is paltry sum of Rs.4, 000.00to the wife and Rs.2, 000.00 each to the children, born from the wedlock of the petitioner and the respondent. If the petitioner does not have an avocation that would fetch him more money, notwithstanding the fact that he is an able-bodied man has to search for an avocation and maintain the wife and the children. Any interference in the order of this kind would run foul of the of the judgment of the Apex Court in the case of ANJU GARG AND ANOTHER V. DEEPAK KUMAR GARG, 2022 SCC OnLine SC 1314. wherein at paragraphs 10 to 14 has held as follows: 10. This Court had made the above observations as the Court felt that the Family Court in the said case had conducted the proceedings without being alive to the objects and reasons, and the spirit of the provisions under Sec. 125 of the Code. Such an impression has also been gathered by this Court in the case on hand. The Family Court had disregarded the basic canon of law that it is the sacrosanct duty of the husband to provide financial support to the wife and to the minor children. The husband is required to earn money even by physical labour, if he is an able-bodied, and could not avoid his obligation, except on the legally permissible grounds mentioned in the statute. In Chaturbhuj v. Sita Bai2, it has been held that the object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife, by providing her food, clothing, and shelter by a speedy remedy. As settled by this Court, Sec. 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children. It also falls within the Constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution of India. 11. The Family Court, in the instant case had not only over-looked and disregarded the aforesaid settled legal position, but had proceeded with the proceedings in absolutely pervert manner. It also falls within the Constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution of India. 11. The Family Court, in the instant case had not only over-looked and disregarded the aforesaid settled legal position, but had proceeded with the proceedings in absolutely pervert manner. The very fact that the right of the respondent to cross-examine the witnesses of the appellant-original applicant was closed, as he had failed to appear before the Family Court despite the issuance of warrants, clearly established that he had no regards for his own family nor had any regards for the Court or for the law. The allegations made by the appellant-wife in her evidence before the Court had remained unchallenged and, therefore, there was no reason for the Family Court to disbelieve her version, and to believe the oral submissions made by the learned counsel appearing for the respondent which had no basis. In absence of any evidence on record adduced by the respondent disputing the evidence adduced by the appellant, the Family Court could not have passed the order believing the oral submissions of the learned counsel for the respondent. She had clearly stated as to how she was harassed and subjected to cruelty by the respondent, which had constrained her to leave the matrimonial home along with her children, and as to how the respondent had failed and neglected to maintain her and her children. She had also proved by producing the documentary evidence that her father had paid money to the respondent from time to time to help the respondent for his business. Even if the allegations of demand of dowry by the respondent were not believed, there was enough evidence to believe that money was being paid to the respondent by the father of the appellant-wife, which substantiated her allegation that the respondent was demanding money from her father and was subjecting her to harassment. The errant respondent had also gone to the extent of questioning her chastity alleging that Rachit was not his biological son. There was nothing on record to substantiate his such baseless allegations. His application for DNA test was also rejected by the Family Court. Of course, the Family Court granted the Maintenance petition so far as the appellant no. 2-son was concerned, nonetheless had thoroughly mis-directed itself by not granting the maintenance to the appellant-wife. 12. There was nothing on record to substantiate his such baseless allegations. His application for DNA test was also rejected by the Family Court. Of course, the Family Court granted the Maintenance petition so far as the appellant no. 2-son was concerned, nonetheless had thoroughly mis-directed itself by not granting the maintenance to the appellant-wife. 12. Such an erroneous and perverse order of Family Court was unfortunately confirmed by the High Court by passing a very perfunctory impugned order. The High Court, without assigning any reasons, passed the impugned order in a very casual manner. This Court would have remanded the matter back to the High Court for considering it afresh, however considering the fact that the matter has been pending before this Court since the last four years, and remanding it back would further delay the proceedings, this Court deemed it proper to pass this order. 13. Though it was sought to be submitted by the learned counsel for the respondent, and by the respondent himself that he has no source of income as his party business has now been closed, the Court is neither impressed by nor is ready to accept such submissions. The respondent being an able-bodied, he is obliged to earn by legitimate means and maintain his wife and the minor child. Having regard to the evidence of the appellant-wife before the Family Court, and having regard to the other evidence on record, the Court has no hesitation in holding that though the respondent had sufficient source of income and was able-bodied, had failed and neglected to maintain the appellants. Considering the totality of facts and circumstances, we deem it proper to grant maintenance allowance of Rs.10, 000.00 per month to the appellant-wife, over and above the maintenance allowance of Rs.6, 000.00 granted by the Family Court to the appellant no. 2-son. 14. It is accordingly directed that the respondent shall pay maintenance amount of Rs.10, 000.00 per month to the appellant-wife from the date of filing of her Maintenance Petition before the Family Court. 2-son. 14. It is accordingly directed that the respondent shall pay maintenance amount of Rs.10, 000.00 per month to the appellant-wife from the date of filing of her Maintenance Petition before the Family Court. The entire amount of arrears shall be deposited by the respondent in the Family Court within eight weeks from today, after adjusting the amount, if any, already paid or deposited by him." In the light of the undisputed facts and the paltry sum of Rs.4, 000.00 to the wife and Rs.2, 000.00 each to the children, who are in their tender ages of 4 years and 21/2 years, I do not find any warrant of interference to the order impugned. Accordingly, the petition stands dismissed.