Sri Rakshith Kumar P vs Smt Shyamalashree T
2023 Latest Caselaw 398 Kant

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                                                        WP No. 23596 of 2022




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 6TH DAY OF JANUARY, 2023

                                              BEFORE
                             THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                              WRIT PETITION NO. 23596 OF 2022 (GM-FC)


                      BETWEEN:

                      SRI RAKSHITH KUMAR P.,
                      S/O PUNDALIKA NAYAK
                      AGED ABOUT 32 YEARS,
                      ASSISTACE PROFESSOR,
                      CHIKAMANGALURU
                      R/AT VENKATESHWARANAGAR,
                      CHURCH ROAD, KALUGUNDI,
                      KADOORU - 577 548.

                                                               ...PETITIONER

                      (BY SRI.DHANANJAY KUMAR, ADVOCATE)

                      AND:

                      1.    SMT. SHYAMALASHREE T.,
                            AGED ABOUT 27 YEARS,
Digitally signed by         W/O RAKSHITH KUMAR
PADMAVATHI B K
                            D/O THIMMANAYAK
Location: HIGH
COURT OF                    R/AT VIJAYANAGARA,
KARNATAKA
                            2ND CROSS, SHIVAMOGGA.

                      2.    SARTHAK R.,
                            S/O RAKSHITH KUMAR
                            AGED ABOUT 3 YEARS,
                            R/AT VIJAYANAGARA,
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                                         WP No. 23596 of 2022




    2ND CROSS,
    SHIVAMOGGA - 575 002
    REP. BY MOTHER/RES.NO.1.

                                               ...RESPONDENTS


     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 31.03.2022 PASSED ON I.A. FILED BY THE
RESPONDENT U/S 125(1) CR.P.C. IN THE CRL.MISC.NO
147/2020 PASSED BY THE PRL, JUDGE FAMILY COURT
SHIMOGA VIDE ANNEXURE-A.


    THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
                            ORDER

The petitioner is before this Court calling in question an

order dated 31.03.2022, allowing an application - I.A.No.1,

filed by the respondent No.1 - wife under Section 125(1) of the

Cr.P.C. in Crl.Misc.No.147/2020, passed by the Principal Judge,

Family Court, Shivamogga.

2. Heard Sri Dhananjay Kumar, learned counsel for

petitioner.

3. Brief facts of the case leading the petitioner to this

Court, as borne out from the pleadings are as follows:

WP No. 23596 of 2022

Petitioner is husband, respondent No.1 is the wife and

respondent No.2 is the child born from the wedlock of the

husband and the wife. Marriage between the two takes place

on 30.04.2017. It transpires that the relationship between the

couple turned sore after the child was born and had to move

away from the husband. It is then, respondent No.1 - wife

institutes proceedings under Section 125(1) of the Cr.P.C.,

seeking maintenance from the husband. The concerned Court

in terms of the order dated 31.03.2022, directs payment of the

maintenance at Rs.10,000/- p.m. to the wife and Rs.5,000/-

p.m. to the child, till the disposal of the petition. It is this order

that drives the petitioner to this Court in the subject petition.

4. Learned counsel for the petitioner would contend that

the award of maintenance at Rs.10,000/- p.m. to the wife and

Rs.5,000/- p.m. to the child is grossly exorbitant and has to be

reduced as he is not in such an avocation that would permit

maintenance.

5. The reasons rendered for passing the impugned order

is as follows:

WP No. 23596 of 2022

"Though petitioners contended that respondent has got sufficient income and he is getting salary of Rs.1,85,000/- of Asst. Professor and he has got house properties, landed properties and his annual income is Rs.3,00,000/-. But, in the affidavit of disclosure of assets and liabilities petitioner no.1 deposed that respondent is a business man, his income is Rs.70,000/-.

Respondent in his affidavit of discloser of assets and liabilities stated that he is an unemployee, he has no independent source of income, he has no any liabilities and responsibilities.

Further, order sheet dated 12.07.2021 revels that petitioner has received Rs.3,000/- from respondent. Further, order sheet dated 11-01-2022 revels that while hearing the arguments on IA No.1, the counsel for respondent submits that respondent is ready to pay Rs.3,000/- per month to the petitioners till disposal of this petition towards their interim maintenance. Further, order sheet revels that on 28.02.2022 and 23.03.2022 respondent has paid Rs.3,000/- to the petitioner no.1. Though, respondent in his affidavit of discloser of assets and liabilities stated that he has no independent income. Whereas, he has agreed to pay Rs.3,000/- p.m. But, he has no disclosed his source of income. So, considering the qualification of respondent who is a B.E., M.Tech, Ph.D. holder, who was already served as an Engineer and Asst. Professor and considering the present cost of leaving, it can be said that he has got capacity to pay interim monthly maintenance to the petitioners. So, considering his qualification and his experience, at this pre-trial stage if respondent is directed to pay Rs.10,000/- to the petitioner no.1 and Rs.5,000/- to the petitioner no.2 it will meet the ends of justice."

The concerned Court considers the contentions of both

the petitioner and the respondent and also records that the

WP No. 23596 of 2022

petitioner - husband was working as Junior Engineer and later,

he was working as a Lecturer in Srinivasa School of Engineering

at Mangalore and also a Ph.D. Notwithstanding this, the

affidavit has disclosed that the petitioner is unemployed and

ready to pay Rs.3,000/- p.m. to the child. The concerned Court

records that he has not disclosed the source of income in the

affidavit. Owing to the qualification of the husband, who is

B.E., M.Tech and Ph.D. and the fact that he is working as

Assistant Professor, the concerned Court awards Rs.10,000/-

p.m. to the wife and Rs.5,000/- p.m. to the child.

6. The contention of the learned counsel for the petitioner

that he is presently unemployed, would not mean that the

petitioner cannot be directed to pay maintenance to the wife

and the child. With the qualification that the petitioner has

possessed and being enabled bodied man, he has to search for

an employment and maintain the wife and the child. In

somewhat similar case, the Apex Court in the case of ANJU

WP No. 23596 of 2022

GARG AND ANOTHER v. DEEPAK KUMAR GARG1 has held

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, has reiterated the principle of law as to how the proceedings

2022 SCC OnLine SC 1314

WP No. 23596 of 2022

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. 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,

WP No. 23596 of 2022

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 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

WP No. 23596 of 2022

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 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

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WP No. 23596 of 2022

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

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WP No. 23596 of 2022

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

(Emphasis supplied)

In the light of the facts, the order of the concerned Court

and the judgment of the Apex Court (supra), I do not find any

warrant to interfere with the impugned order awarding

maintenance at Rs.10,000/- p.m. to the wife and Rs.5,000/-

p.m. to the child, who is three years old. The writ petition

lacking in merit, stands dismissed.

Sd/-

JUDGE

nvj