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2023 DIGILAW 99 (KAR)

Kailash v. Anashwara

2023-01-17

M.NAGAPRASANNA

body2023
JUDGMENT M. Nagaprasanna, J. - The petitioner is before this Court calling in question order dated 30-11-2022 passed by the V Additional Principal Judge, Family Court, Bangalore on I.A.No.2 in Criminal Miscellaneous No.836 of 2019 directing the petitioner to pay to the respondents Rs.20,000/- as maintenance per month, to be paid to the wife and a four year old child from the date of application. 2. Heard Sri P. Raveendran, learned counsel appearing for the petitioner and Sri E.P.Raghavendra, learned counsel appearing for the respondents/caveators. 3. Brief facts that lead the petitioner to this court, in the subject petition, are as follows: The petitioner is the husband and respondent No.1 is the wife. Respondent No.2 is the child born on 14-09-2018 from the wedlock of the husband and the wife. After the birth of the child, it appears the relationship between the petitioner and the wife turned sore and the 1st respondent moved out of the matrimonial house and began to live away. On 27-05-2019 the petitioner institutes M.C.No.2588 of 2019 seeking restitution of conjugal rights. The parties to the lis appeared and were referred to mediation; mediation was conducted on several occasions. It appears that the mediation did not bring about a concluded settlement between the parties. The 1st respondent/wife appears to have instituted certain criminal proceedings against the petitioner and his family members alleging offences punishable under Sections 498A and 506 of the IPC and under Sections 3 and 4 of the Dowry Prohibition Act, 1961. After the wife registers the criminal case against the husband and his family members the husband withdraws M.C.No.2588 of 2019 which was filed seeking restitution of conjugal rights and immediately files a petition in M.C.No.6749 of 2019 for dissolution of marriage. After registration of M.C.No.6749 of 2019 the wife registers the aforesaid Criminal Miscellaneous No.836 of 2019 on 12-12-2019 seeking maintenance at the hands of the husband for herself and the child. The Court considering the petition awards maintenance of Rs.20,000/- in all, both to the child and the 1st respondent/wife. 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 with vehemence that the wife is not entitled for maintenance as she on her own volition left the matrimonial house and is staying away. 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 with vehemence that the wife is not entitled for maintenance as she on her own volition left the matrimonial house and is staying away. She is herself working and earning good salary and is definitely in a position to take care of herself and the child. For the child the petitioner is ready and willing to pay maintenance and not to the wife and would seek either interjection or quashment of the order passed under Section 125(2) of the Cr.P.C. 5. The learned counsel for the respondents refutes to contend that the order impugned is passed considering the materials on record and as such, it may not be interfered with. 6. The afore-narrated facts are not in dispute. From the wedlock, 2nd respondent/child is born who is now 4 years old. The relationship between the petitioner and the 1st respondent/wife on turning sore, several rounds of mediation to arrive at a settlement takes place in a petition filed by the husband for restitution of conjugal rights. On the ground that the wife had registered several complaints against the husband and his family members alleging offences punishable under Sections 498A and 506 of the IPC and the Dowry Prohibition Act, the husband withdrew the petition filed seeking restitution of conjugal rights and immediately files a petition seeking annulment of marriage. It is then the wife files a petition seeking maintenance under Section 125(2) of the Cr.P.C for herself and the child who then was only one year old. The Court considers the application in I.A.No.2 and orders maintenance of Rs.20,000/- per month. While doing so, the Court records that both the parties have filed documents regarding their income and also records that the wife is paying school fee and meeting other expenses of the child and therefore, terms payment of Rs.20,000/-to be just for the wife and child. 7. The contention of the learned counsel for the petitioner that the wife has moved out of the matrimonial house on her own volition and, therefore, awarding of maintenance is contrary to law is unacceptable. 7. The contention of the learned counsel for the petitioner that the wife has moved out of the matrimonial house on her own volition and, therefore, awarding of maintenance is contrary to law is unacceptable. Reliance is placed on sub-section (4) of Section 125 of the Cr.P.C. to contend that the wife would not receive any allowance in the form of maintenance as she has refused to live with her husband without any sufficient reason. The wife moving out of the matrimonial house owing to certain allegations which formed part of a complaint against the husband or the family members of the husband cannot mean that the wife does not have sufficient reason in refusing to live with the husband. Sub-section (4) of Section 125 of the Cr.P.C. cannot be interpreted in the manner in which the husband wanting to get away without payment of any maintenance. The averment in the petition is clear that the petitioner withdrew the petition seeking restitution of conjugal rights and immediately filed a petition for annulment of marriage only on the ground that the wife had registered criminal case against the petitioner and his family members. 8. The other submission of the learned counsel for the petitioner is the same old swan song that the husband has no income; he has to take care of the family members; the family members are bed ridden and needs money for their medication due to old age ailments, all would not become acceptable at this juncture. Whether the wife has income or otherwise would become a matter of evidence at a later stage. It cannot be forgotten that the wife has also a child born from the wedlock between the petitioner and the wife. The father of the child cannot shirk away from the responsibility of maintaining the child and the amount awarded at Rs.20,000/- per month is not so exorbitant in these days of increase in cost of living and considering the income of husband. In the considered view of this Court, the amount so awarded is meager, compared to the social status of the couple and cannot be interfered with. 9. Insofar as the judgments on which the learned counsel for the petitioner places reliance upon they are all distinguishable without much ado. The Apex Court in the case of SHRI BHAGWAN DUTT v. SMT. 9. Insofar as the judgments on which the learned counsel for the petitioner places reliance upon they are all distinguishable without much ado. The Apex Court in the case of SHRI BHAGWAN DUTT v. SMT. KAMLA DEVI AND ANOTHER reported in (1975) 2 SCC 386 was considering the phrase 'Unable to maintain itself' would apply to the wife also. If the wife is unable to maintain herself, maintenance should be awarded and not otherwise. Much water has flown after the aforesaid judgment of the Apex Court. Therefore, the same would not be applicable to the facts of the case at hand, as it is not a case where the wife claims maintenance that she is not able to maintain herself but the wife has claimed maintenance to maintain the child as well. The other judgment in the case of PADMJA SHARMA v. RATAN LAL SHARMA reported in (2000)4 SCC 266 the Apex Court was considering maintenance to be paid for the children of divorced parents. The Apex court holds that both the husband and wife who are earning have equal responsibility towards the children. Salaries of both the husband and wife were taken into consideration while ordering maintenance to the children. This situation has not yet arrived in the case at hand. The proceedings for annulment of marriage are still pending consideration. What is now awarded is maintenance under Section 125 of the Cr.P.C. Therefore, the said judgment also is inapplicable to the facts of the case. 10. The other judgment in the case of RAJNESH v. NEHA AND ANOTHER reported in (2021)2 SCC 324 is in fact in favour of the wife being granted maintenance. What the Apex Court has directed is that the concerned Court should consider assets and liabilities of both the husband and the wife which the Court does. The Apex Court formulates an issue whether the wife is earning some income and holds that earning of the wife will not operate as a bar from being awarded maintenance by the husband. The rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. So, this judgment also would be inapplicable to the facts of the case at hand. 11. The rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. So, this judgment also would be inapplicable to the facts of the case at hand. 11. Reference being made to the judgment of the Apex Court in the case of ANJU GARG AND ANOTHER v. DEEPAK KUMAR GARG 2022 SCC OnLine 1314, in the circumstances becomes apposite. The Apex Court in the said case has held has 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 Section 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 Bai, 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, Section 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. 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 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. 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. 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/- per month to the appellant-wife, over and above the maintenance allowance of Rs. 6,000/-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/- 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.' (Emphasis supplied) 12. In the light of the afore-narrated facts and inapplicability of the judgments relied on by the learned counsel appearing for the petitioner and the judgment of the Apex Court in the case of ANJU GARG (supra), I do not find any warrant to interfere with the order granting maintenance at Rs.20,000/- to both the respondents/wife and 4 year old child. 13. 13. In the result, the petition lacking in merit stands dismissed.