Smt. Shwetha M vs Punith C
2023 Latest Caselaw 196 Kant

                                                -1-
                                                         WP No. 21310 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 4TH DAY OF JANUARY, 2023

                                              BEFORE


                             THE HON'BLE MR JUSTICE M.NAGAPRASANNA


                             WRIT PETITION NO. 21310 OF 2021 (GM-FC)


                      BETWEEN:

                      SMT. SHWETHA M.,
                      W/O PUNITH C.,
                      AGED ABOUT 34 YEARS
                      R/AT NO 68, 2ND CROSS
                      BENGALURU - 560 062.

                                                                ...PETITIONER

                      (BY SRI. M.B. RYAKHA., ADVOCATE)

Digitally signed by   AND:
PADMAVATHI B K
Location: HIGH
COURT OF              SRI PUNITH C.,
KARNATAKA             S/O CHIKKEHULUGAIAH
                      AGED ABOUT 37 YEARS
                      R/AT NO.3
                      BEERRESHWARA NAGAR
                      NEAR ESYHWARI LAYOUT BUS STOP
                      BENGALURU - 560 062.

                                                               ...RESPONDENT

                      (BY SRI. PANCHAM R.D., ADVOCATE)

                          THIS WRIT PETITION IS FILED UNDER ARTICLES 226
                      AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
                                   -2-
                                               WP No. 21310 of 2021




QUASH THE IMPUGNED ORDER DTD.21.9.2021 IN MC
NO.4509/2017 WHICH IS PASSED BY THE 2ND ADDITIONAL PRL
JUDGE FAMILY COURT AT BENGALURU VIDE ANNEXURE-G AND
PLEASED TO ALLOW IA NO.III/2019 FILED BY THE PETITIONER
ON 26.3.2019 U/S 24 AND 26 OF HINDU MARRIAGE ACT VIDE
ANNEXURE-C AND PLEASED TO AWARD THE INTERIM
MAINTENANCE OF RS.20,000/- PER MONTH TO THE
PETITIONER/WIFE.


     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                                 ORDER

Petitioner is before this Court calling in question an order

dated 21.09.2021 passed in M.C.No.4509 of 2017 whereby the

application filed by the petitioner for grant of interim

maintenance under Sections 24 and 26 of the Hindu Marriage

Act, 1955 comes to be allowed in part by granting interim

maintenance only to the child at Rs.5,000/- and not granting

any maintenance to the petitioner.

2. Heard Sri.M.B.Ryakha, learned counsel appearing for

petitioner and Sri.R.D.Pancham, learned counsel for

respondent.

WP No. 21310 of 2021

3. Brief facts that leads the petitioner to this Court in the

subject petition as borne out from the pleadings are as follows:

The marriage between the petitioner and the respondent

takes place on 24.07.2008 and from the wedlock a child is born

on 21.01.2009. It later transpires that the relationship

between the husband and the wife turns sore and the husband

initiates proceedings before the Family Court seeking

annulment of marriage. In those proceedings, the petitioner

files an application under Sections 24 and 26 of the Hindu

Marriage Act seeking interim maintenance and litigation

expenses in I.A.No.3 of 2021. The concerned Court allows the

application in part, grants maintenance of Rs.5,000/- to the

child and fails to award any maintenance to the wife/petitioner

herein. It is this order that drives the petitioner to this Court in

the subject petition.

4. Learned counsel appearing for the petitioner would

contend that clear details were placed before the Court as to

how the petitioner was in need of maintenance and it was the

duty of the husband to maintain the wife and the maintenance

WP No. 21310 of 2021

awarded to the child at Rs.5,000/- also is not paid for the last 9

months by the respondent/husband.

5. On the other hand, the learned counsel appearing for

the respondent/husband would seek to refute the submissions

to contend that the petitioner herself has given a statement

before the police that she is getting re-married and therefore,

permission be granted. On this circumstance, learned counsel

for the respondent would contend that the petitioner is not in

need of maintenance and the order of the concerned Court is in

tune with law.

6. I have given my anxious consideration to the

submissions made by the learned counsel for the respective

parties and have perused the material on record.

7. The afore-narrated facts are not in dispute. The

factum of marriage and the desertion of either the husband by

the wife or the wife by the husband is again not in dispute. The

petitioner files an application under Sections 24 and 26 of the

WP No. 21310 of 2021

Hindu Marriage Act, 1955 seeking interim maintenance. The

concerned Court by the impugned order grants maintenance to

the child and not to the petitioner/wife. The said order reads

as under:

".... ..... ....

Both the parties have filed their affidavits regarding their assets and liabilities. However, both of them have not produced any document to establish their contentions taken in the application or in the objections filed on behalf of the petitioner. According to the petitioner the respondent is working and according to the respondent the petitioner is drawing salary of Rs.50,000/- p.m., that he is also getting income from rented houses, that he has got duplex house and his family members are Government employees. While so contending the respondent has not at all produced any document to show that petitioner has got said income. Further it is also the contention of the petitioner that the respondent herself left the matrimonial home and joined her mother. When such being the case without given opportunity to the parties to lead evidence to establish the contentions taken by them, the Court cannot decide whether the respondent is entitled to interim maintenance or not. However as they have got child by name Chirag, if his school expenses the petitioner being father shall pay interim maintenance amount. In the absence of any document on behalf of both the parties, at this stage, this Court can only decide about payment of school expenses of the child and not more than that. Therefore, the following:

ORDER

The petitioner is hereby directed to pay Rs.5,000/- p.m., towards the school expenses and maintenance of the child Chirag till disposal of this petition."

WP No. 21310 of 2021

The concerned Court has observed that grant of

maintenance to the wife/petitioner herein shall be decided at

the time of trial, as several facts on the basis of evidence has

to be established and it was not the appropriate time to grant

interim maintenance to the wife and only grants maintenance

to the child.

8. The contention of the learned counsel for the

respondent is that the petitioner is doing a menial job and

earns only Rs.200/- per day i.e., Rs.6,000/- per month and

therefore, he is not in a position to pay any maintenance to the

wife. It is the contention that she herself is earning more than

the husband and therefore, would not need any maintenance.

9. The said contention is noted only to be rejected, as the

petitioner who claims to be an able bodied man, has to look out

for an employment that would fetch him more money to

maintain his wife and child. The view of mine, in this regard, is

fortified by the judgment of the Apex Court in the case of ANJU

WP No. 21310 of 2021

GARG v. DEEPAK KUMAR GARG1 wherein the Apex Court

considers the concept of maintenance to be paid by the

husband to the wife. The Apex Court holds as follows:

"8. The learned counsel for the appellants vehemently submitted that the High Court had passed the impugned order in a very perfunctory manner without appreciating the conduct of the respondent during the proceedings before the Family Court. He submitted that the version of the appellant-wife, who had stepped into the witness box, as also the version of the other witnesses examined by her had remained unchallenged, as the Family Court had closed the right of the respondent to cross-examine the witnesses and, therefore, there was no reason for the Family Court not to believe the version of the appellant-wife which was stated by her on oath. However, the Family Court accepted all the oral submissions of the learned counsel for the respondent, without there being any evidence on record adduced by the respondent, and disallowed the Maintenance application qua the appellant-wife, and the High Court also erroneously confirmed the said order passed by the Family Court. The learned counsel for the respondent however submitted that the appellant-wife had left the matrimonial home along with the children without any justifiable reason and had failed to prove that she was unable to maintain herself. He further submitted that though the respondent has a party plot, the same having been closed, he has no source of income. According to him, the concurrent findings of facts recorded by the two courts, should not be interfered by this Court.

9. At the outset, it may be noted that Section 125 of Cr.P.C. was conceived to ameliorate the agony, anguish and financial suffering of a woman who is required to leave the matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children, as observed by this Court in Bhuwan Mohan Singh v. Meena1. This Court in the said case, after referring to the earlier decisions,

2022 SCC OnLine SC 1314

WP No. 21310 of 2021

has reiterated the principle of law as to how the proceedings under Section 125 Cr.P.C have to be dealt with by the Court. It held as under:

"In Dukhtar Jahan v. Mohd. Farooq [(1987) 1 SCC 624 : 1987 SCC (Cri) 237] the Court opined that : (SCC p. 631, para 16)

16. "... Proceedings under Section 125 [of the Code], it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner."

8. A three-Judge Bench in Vimala (K.) v. Veeraswamy (K.) [(1991) 2 SCC 375 : 1991 SCC (Cri) 442], while discussing about the basic purpose under Section 125 of the Code, opined that : (SCC p. 378, para 3)

3. "Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing, and shelter to the deserted wife."

9. A two-Judge Bench in Kirtikant D.

Vadodaria v. State of Gujarat [(1996) 4 SCC 479 : 1996 SCC (Cri) 762], while adverting to the dominant purpose behind Section 125 of the Code, ruled that : (SCC p. 489, para 15)

15. "... While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents, etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress.

WP No. 21310 of 2021

The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation."

10. In Chaturbhuj v. Sita Bai [(2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356], reiterating the legal position the Court held : (SCC p. 320, para 6)

6. "... Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Capt. Ramesh Chander Kaushal v. Veena Kaushal [(1978) 4 SCC 70 : 1978 SCC (Cri) 508] falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat [(2005) 3 SCC 636 : 2005 SCC (Cri) 787]."

11. Recently in Nagendrappa Natikar v. Neelamma [(2014) 14 SCC 452 : (2015) 1 SCC (Cri) 407 : (2015) 1 SCC (Civ) 346], it has been stated that it is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children".

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

- 10 -

WP No. 21310 of 2021

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, 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 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

- 11 -

WP No. 21310 of 2021

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. 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

- 12 -

WP No. 21310 of 2021

eight weeks from today, after adjusting the amount, if any, already paid or deposited by him."

(Emphasis supplied)

10. In the light of the judgment of the Apex Court

(supra), the contention of the learned counsel for the

respondent that he does not have an avocation that would fetch

him such money to pay maintenance to the wife tumbles down.

Therefore, the following:

ORDER

(i) Writ Petition is allowed.

     (ii)          The petitioner/wife is entitled to maintenance of

                   Rs.5,000/-   per        month    from   the     date    of

application filed before the concerned Court.

(iii) It is made clear that if the respondent/husband

has not paid maintenance as was directed to the

child, it is open to the petitioner to initiate

appropriate steps for recovery of such money

from the husband.

(iv) Since the issue is of the year 2017, the

concerned Court shall endeavour to conclude the

proceedings as expeditiously as possible, at any

- 13 -

WP No. 21310 of 2021

rate within six months from the date of receipt of

the copy of this order, subject to petitioner

paying maintenance to the wife and the child.

Sd/-

JUDGE

BKP