Karnataka High Court
Sri M Y Yashvanth vs Smt N A Ashwini on 30 July, 2024
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NC: 2024:KHC:30025
WP No. 13913 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 13913 OF 2024 (GM-FC)
BETWEEN:
SRI M. YASHVANTH
S/O LATE M.MAHESHWARAPPA
AGED ABOUT 42 YEARS,
R/AT SRI MANJUNATHA KRUPA,
NEAR MARAMMA TEMPLE ROAD,
KATARIPALYA
KOLAR-563 102.
...PETITIONER
(BY SMT.VEENA RAI K., ADVOCATE)
AND:
1. SMT.N.ASHWINI
W/O M.YASHVANTH
D/O M.NAGARAJ,
AGED ABOUT 37 YEARS
Digitally 2. KUM. HONMAYI
signed by
MEGHA D/O M.YASHVANTH
MOHAN AGED ABOUT 12 YEARS
Location:
HIGH COURT RESPONDENT NO.2 IS A MINOR
OF AND REP. BY THEIR MOTHER AND
KARNATAKA NATURAL GUARDIAN
1ST RESPONDENT
BOTH ARE RESIDING AT
1ST FLOOR, SANNIDI HOUSE
NO.54, 2ND CROSS,
PARK EXTENTION
SHIMOGA
...RESPONDENTS
(BY SRI. P.N.HARISH, ADVOCATE)
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NC: 2024:KHC:30025
WP No. 13913 of 2024
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED
16.03.2024 VIDE ANNEXURE-A PASSED BY THE HONOURABLE PRL.
JUDGE FAMILY COURT, SHIVAMOGGA ON IA NO. I IN CRL. MISC. NO.
335/2023 FILED BY THE RESPONDENTS UNDER SEC 125(1)
CRIMINAL PROCEDURE CODE PRAYING FOR AN ORDER OF INTERIM
MAINTENANCE.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
Aggrieved by the order passed in I.A.No.1 in Crl.Misc.No.335/2023 dated 16.03.2024 by the Principal Judge, Family Court, Shivamogga, the petitioner/husband is before this Court.
2. The parties are referred to as husband and wife for the sake of convenience.
3. The wife had filed I.A.No.1 under Section 125 of Cr.P.C. for claiming maintenance of an amount of Rs.40,000/- per month. It is the case of the wife that the husband had neglected to maintain the wife and the child though he is having sufficient income. According to the wife, the husband is running a coaching, tuition classes, English spoken classes and also counselling center at Hospete and earning an amount of Rs.2,00,000/- per month from all his venture. He has let out -3- NC: 2024:KHC:30025 WP No. 13913 of 2024 his six houses on rentals and earning more than an amount of Rs.70,000/- per month, whereas the wife has no income to maintain herself and the child. It is stated that the wife is also taking treatment and she sought for maintenance.
4. The husband has not filed separate objections to I.A.No.1 filed by the wife, but the counsel has filed memo to adopt his objections that are filed to the main petition. It is submitted that due to Covid-19 the spoken English Classes were closed down and he has faced severe financial issues. He is not employed and he is getting an amount of Rs.17,000/- from house rent, wherein his sister is also having share. Out of his meagre earning, he is paying hand loans and it is difficult for him to maintain himself and due to harassment, torture and mental agony and filing of false case by the wife he could not find any jobs. According to the husband, he has never failed to discharge his duties as husband and father and he has shown love and affection to the wife and the child.
5. The trial Court had considered the case of both the parties and observed that the wife had filed her affidavit of disclosure of assets and liabilities stating that her qualification is B.A., she is residing in a rented house along with the minor -4- NC: 2024:KHC:30025 WP No. 13913 of 2024 child, she has no job and no income. But the qualification of the husband is B.A., M.A., LL.B., B.Ed and he is running coaching classes and earning an amount of Rs.2,00,000/- per month and rental income of an amount of Rs.70,000/-. The Court has also observed the qualification of the wife and the husband has produced salary slip of the wife for the month of November 2016, but he has not produced the salary slip of the wife for the relevant period. At this stage, at the most it can be said that the wife is having earning capacity but she has no job and no income. Section 125 of Cr.P.C. is conceived to ameliorate the agony and anguish of the financially suffering women who has left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children since it is a sacrosanct duty of the husband to provide financial support to his wife and children. So, to prevent vagrancy and destitution of deserted wife, the husband has to provide maintenance.
6. The trial Court has also observed that in the affidavit of disclosure of assets and liabilities, the husband has not stated anything about his employment, monthly income etc. But in part (G) of the affidavit, he stated that he has purchased the -5- NC: 2024:KHC:30025 WP No. 13913 of 2024 share of elder brother in the ancestral property, he is not having any joint property, he is presently residing in the ancestral property, he has given 3 houses for rent for an amount of Rs.17,000/-, 2 houses on lease for an amount of Rs.8,25,000/- and he has availed loan of an amount of Rs.20,00,000/- from his sister, brother and friends. But he has not produced any piece of document in support of his contention. He has not produced the copies of Bank Statement for the last three years to know his financial status and the wife has also not stated anything about her Bank Statement and also not produced the Bank Statement for the last three years. The material produced by both the parties prima facie shows that the husband is having income, capable to maintain the wife and child. But the wife failed to make out prima facie case to show that the husband is having capacity to pay an amount of Rs.50,000/- per month. But considering the qualification and the fact that the husband is getting rent from the rented house, whereas the wife and child have no income to maintain themselves, considering the present cost of living, the need of the wife and child, the trial Court had granted the monthly maintenance of an amount of Rs.12,000/- from the date of application till the disposal of the petition. -6-
NC: 2024:KHC:30025 WP No. 13913 of 2024
7. Learned counsel appearing for the petitioner/husband submits that wife is employed and in fact the husband has placed the salary certificate in the name of the wife before the Court to show that the wife was earning in the year 2016. Learned counsel submits that the wife had not produced her Bank Statement and all the details to show what is the income of the husband and just because he is qualified, it cannot be a ground to grant maintenance. Learned counsel submits that the trial Court had failed to consider all the contentions of the husband and the relevant factors in granting the maintenance. The wife who is a B.A. graduate and who is capable of earning cannot seek maintenance from the husband. Accordingly, the order is liable to be set aside.
8. Learned counsel appearing for the respondent/wife also does not dispute the fact that the wife has also not filed the Bank Statement. It is submitted that she is living in a rental house and she is not having any other income and the trial Court had rightly granted the maintenance.
9. Having heard the learned counsels on either side, perused the entire material on record. In this case, the facts of the case are that both the wife and husband are qualified and -7- NC: 2024:KHC:30025 WP No. 13913 of 2024 the salary slip in the name of the wife for the month of November 2016 shows that she was employed and was earning. The child is studying in 6th standard and for a child of 6th standard there cannot be any compelling reasons for the wife not to work. No material is placed on record regarding the fact that when she was working in the year 2016 why she was not working in the year 2023. If the Bank Statements of both the parties were filed before the trial Court, the Court would have got a better picture to understand what is the income of the wife and what is the income of the husband. In all these cases, when the parties have an opportunity to file all the documents and as per the judgment of the Hon'ble Apex Court in the case of Rajnesh Vs. Neha1, mandates what are the documents that has to be filed along with the petition. Conveniently, the parties have not filed those documents before the Court and after spending a long time on hearing the case on the evidence and passing an order, whenever the matters are coming up before the Court, now at that point of time, like in the present case, the wife would say that the husband has not filed his Bank Statement and the husband 1 2021 2 SCC 324 -8- NC: 2024:KHC:30025 WP No. 13913 of 2024 would say that the wife has not filed Bank Statement or the other documents which are as per the judgment of the Apex Court. Again, the matter will be pending for several years before the Court and again that order has to be set aside and the matter has to be remanded to the trial Court, it has become a routine exercise. This Court is of the view that when sufficient opportunity is given to both the parties, consciously when they have not filed the documents, questioning of granting another opportunity to the parties would not arise. Hence, in this case, this court is not inclined to remand the matter. As rightly pointed out by the learned counsel, both the parties have not filed their Bank Statement for the last three years for the best reasons known to them.
10. When the wife is educated, why she is not working why she has no job and what are the difficulties, nothing has been placed before the Family Court. The Family Court has not discussed the same. Then coming to the child, it is the responsibility of the husband to maintain the child. Considering that the child is studying in 6th standard and as he requires maintenance, it is the duty of the father to maintain the child. Accordingly, the following:
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NC: 2024:KHC:30025 WP No. 13913 of 2024 ORDER i. Accordingly, the writ petition is partly allowed.
ii. The wife is not entitled for maintenance and the child is entitled for maintenance of an amount of Rs.10,000/- per month.
iii. The observations are made by this Court only for the purpose of deciding this writ petition and both the parties are at liberty to advance their arguments on the merits of the matter and the trial Court without being influenced by any of the observations made by this Court shall decide the case independently.
SD/-
(LALITHA KANNEGANTI) JUDGE MEG List No.: 1 Sl No.: 6