Mr. Mudasaar S/O Hassansab ... vs Wahida W/O Mudassar Navgekar
2021 Latest Caselaw 493 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH
       DATED THIS THE 08TH DAY OF JANUARY, 2021
                               BEFORE
        THE HON'BLE MR.JUSTICE RAVI V.HOSMANI

                    R.P.F.C. No.100032/2015

BETWEEN:

Mr. Mudassar S/o. Hassansab Navgekar,
Age 28 years, Occ: Private Business,
R/o. New Ansar Galli, Peeranwadi,
Belagavi.

                                                      ...Petitioner

(By Sri. Vitthal S. Teli, Advocate)

AND

1.    Smt. Wahida W/o. Mudassar Navgekar,
      Age : 26 years, Occ: Household work,

2.    Ms. Musaddikun D/o. Mudassar Navgekar,
      Age about 3 years, since minor
      Represented by mother respondent No.1
      Both R/o. New Ansar Galli, Peeranwadi,
      Belagavi.

                                                    ...Respondents


      This RPFC is filed under Section 19(4) of the Family Courts
Act, 1984, against the Judgment and Order dated 15.04.2014 in
Criminal Miscellaneous No.308/2013 on the file of the Judge Family
                                    2




Court, Belgaum, partly allowing the petition filed under Section 125
of Cr.P.C.

      This RPFC coming on for orders, this day, the Court, made the
following:

                                ORDER

This petition is filed challenging the order dated 15.04.2014

passed by the Judge Family Court, Belagavi, in Crl. Misc. No.308 of

2013.

2. The brief facts leading to this petition are that the

application under Section 125 of the Code of Criminal Procedure,

1973 (Cr.P.C.) seeking for monthly maintenance of Rs.10,000/- for

the 1st petitioner and Rs.5,000/- per month for 2nd petitioner was

filed by the Mrs. Wahida W/o. Mudassar Navgekar and Ms.

Musaddikun D/o. Muddasar Navgekar against respondent Sri.

Mudassar S/o. Hassansab Navgekar. In the application, it was

stated that the petitioner No.1 is the legally wedded wife of the

respondent the petitioner No.2 is their daughter. It was stated that

the couple led happy married life for a period of three months. After

marriage, thereafter the respondent began ill-treating and

neglecting the petitioner. She was also assaulted on many

occasions for which she had filed complaint against the respondent.

The respondent was in private service as a Welder and earning

Rs.25,000/- per month. He was also having agricultural lands and

was earning more than Rs.2,00,000/- per annum and was capable

of paying the maintenance amount sought for.

3. Despite service of notice, the respondent did not appear

and contest the matter. He was placed ex-parte.

4. In support of her claim, the petitioner No.1 examined

herself as P.W.1 and got marked her wedding card as Ex.P.1.

5. On consideration, the Family Court framed following

points for its consideration:

i) Whether the petitioners prove that the respondent having sufficient means has neglected or refused to main them?

ii) Whether the petitioners are entitled for monthly maintenance of Rs.10,000/- to first petitioner and Rs.5,000/- per month to second petitioner from the respondent as sought for?

iii) What order?

6. On consideration of the evidence, the Family Court

answered point No.1 in the affirmative, point No.2 partly in the

affirmative and passed the impugned order holding the petitioner

No.1 entitled for monthly maintenance of Rs.3,000/- and the 2nd

respondent for monthly maintenance of Rs.1,000/- from the date of

the order payable by the respondent. Challenging the said order,

the respondent-husband is in appeal. Despite order of notice to

respondents, petitioner has failed to take effective steps for service

of notice on respondents.

7. Heard the learned counsel for the petitioner and

perused the impugned Judgment.

8. Learned counsel for the petitioner submitted that

without proper service, the Family Court placed the petitioner ex-

parte. Without any proper justification or adequate evidence, the

Family Court determined the monthly maintenance payable by the

petitioner to the respondents at the rate of Rs.3,000/- to petitioner

No.1 and Rs.1,000/- to petitioner No.2. The Family Court failed to

notice that absolutely no reliable evidence was placed by the

petitioners to support their claim for maintenance. Except the self

serving evidence, the petitioner absolutely failed to lead evidence.

The petitioner merely produced copy of the wedding card and no

document were produced to substantiate that the respondent was

capable of paying the maintenance sought for nor to establish that

the respondent neglected or refused to maintain them.

9. Heard the learned counsel and perused the impugned

judgment.

10. In an application for maintenance under Section 125 of

Cr.P.C., petitioner is required to establish that she is unable to

maintain herself and respondent having sufficient means neglects

or refuses to maintain her. The Hon'ble Supreme Court in the case

of Rajathi Vs. C.Ganesan reported in 1999 (6) SCC 326 has held

that, a statement by wife that she was unable to maintain herself

would be sufficient and it would be for the husband to prove

otherwise. It was further held that, burden lies on husband to prove

that he has no sufficient means to discharge his obligation or he did

not neglect or refuse to maintain her. In the case on hand,

petitioner has unequivocally asserted that she is unable to maintain

herself. She has also stated about hostile treatment meted out to

her by respondent constraining her to leave her husband. On the

other hand, respondent-husband failed to lead any evidence either

to disprove her inability to maintain herself or to substantiate his

defence that he does not have sufficient means or that he did not

neglect or refuse to maintain her. Thus, it has to be held that

petitioner established that she is unable to maintain herself.

11. Insofar as the amount of maintenance required to be

awarded, the petitioner has stated that the respondent was a skilled

workman working as a Welder and earning more than Rs.25,000/-

per month. The proceedings under Section 125 of Cr.P.C. being

summary in nature, the strict proof of all the assertions is not

necessary. In the absence of any definite evidence led by the

respondent-husband, the Family Court has assessed the monthly

maintenance required by the petitioners, notionally at the rate of

Rs.3,000/- in favour of the petitioner No.1 and Rs.1,000/- in favour

of petitioner No.1. The same is not exorbitant and appears bare

minimum for sustenance of the petitioners. Therefore, no ground

for interference is made out on quantum of maintenance.

In the result, the petition is devoid of merits and is

accordingly dismissed.

Sd/-

JUDGE

*Svh/-