Mr Kailash vs Mrs Anashwara
2023 Latest Caselaw 980 Kant

                              1



        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 17TH DAY OF JANUARY, 2023

                           BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

            WRIT PETITION No.197 OF 2023 (GM - FC)

BETWEEN:

MR. KAILASH,
AGED ABOUT 38 YEARS,
S/O LATE KRISHNA DASAN A.P.,
R/AT #3, SAI GOWRI PRAKRITI,
LAKE ROAD, 1ST CROSS,
BYRASANDRA, C.V.RAMAN NAGAR,
BENGALURU - 560 093.
                                                ...PETITIONER
(BY SRI RAVEENDRAN P., ADVOCATE)


AND:

1.     MRS. ANASHWARA,
       AGED ABOUT 33 YEARS,
       W/O MR. KAILASH,

2.     MASTER ADARV KAILASH,
       AGED ABOUT 4 YEARS,
       S/O MR. KAILASH,

       BOTH R/AT FLAT NO.301,
       3RD FLOOR,
       AVALON APARTMENT,
       BASITH ROAD, RAHAT BAGH,
       NAGAVARAPALYA,
       C.V.RAMAN NAGAR,
                                 2



      BENGALURU - 560 093.
                                                      ... RESPONDENTS

(BY SRI E.P.RAGHAVENDRA, ADVOCATE FOR C/R-1)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED
ORDER PASSED BY THE V ADDITIONAL PRINCIPAL JUDGE, FAMILY
COURT, BANGALURU DATED 30.11.2022 ON I.A NO.2 IN
CRL.MIS.NO.836/2019 AS PER ANNEXURE-A DIRECTING THE
PETITIONER TO PAY THE INTERIM MAINTENANCE OF RS.20,000/-
PER MONTH FROM THE DATE OF APPLICATION AND ETC.


     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 10.01.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-


                               ORDER

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. 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. 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. 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. Reference being made to the judgment of the Apex Court

in the case of ANJU GARG AND ANOTHER v. DEEPAK KUMAR

GARG1, 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 allegations made by the appellant-wife in her evidence before the

2022 SCC OnLine 1314

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. 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. In the result, the petition lacking in merit stands

dismissed.

Sd/-

JUDGE

bkp CT:BL