Karnataka High Court

Smt M N Malavika vs Sri H R Rajesh on 2 June, 2023

Bench: Alok Aradhe Hegde, Arhj

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                                                   MFA No.1916 of 2017




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                         DATED THIS THE 2ND DAY OF JUNE, 2023
                                        PRESENT
                         THE HON'BLE MR. JUSTICE ALOK ARADHE
                                           AND
                    THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
                    MISCELLANEOUS FIRST APPEAL NO.1916 OF 2017 (FC)
               BETWEEN:

               1.    SMT. M.N. MALAVIKA
                     W/O H.R. RAJESH
                     AGED 32 YEARS
Digitally            FLAT NO 202, PARNAKUTEERA
signed by            3RD MAIN, BIKASIPURA
RUPA V               UTTARAHALLI HOBLI
Location:            BANGALORE - 560061.
High Court                                                 ...APPELLANT
of Karnataka
               (BY SRI. SAKET BISANI, ADV.,)
               AND:

               1.    SRI. H.R. RAJESH
                     S/O H.S. RAGHUMURTHY
                     AGED 36 YEARS
                     SRI NARASIMHA SWAMY NILAYA
                     2ND FLOOR, 31ST MAIN
                     BTM 1ST STAGE, BANGALORE - 560068.
                                                          ...RESPONDENT
               (BY SRI. AKARSH S. KANADE, ADV.,)

                    THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
               COURT ACT, AGAINST THE JUDGEMENT AND DECREE DATED
               19.01.2017 PASSED IN M.C.NO.3374/2015 ON THE FILE OF
               THE PRINCIPAL JUDGE, FAMILY COURT, BENGALURU,
               ALLOWING THE PETITION FILED UNDER SECTION 13(1)(ia) OF
               THE HINDU MARRIAGE ACT, 1955, FOR DISSOLLUTION OF
               MARRIAGE.
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                                    MFA No.1916 of 2017




     THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal under Section 19(1) of the Family Courts

Act, 1984 has been filed by the wife against judgment

dated 19.01.2017 passed by the Family Court by which,

on a petition filed by the wife under Section 13 of the

Hindu Marriage Act, 1955 (hereinafter referred to as 'the

Act'), the marriage performed between the parties has

been dissolved by a decree of divorce on the ground of

cruelty.

2. Admittedly, after the impugned judgment and

decree dated 19.01.2017, respondent has re-married and

has a son from the second marriage. The grievance of the

wife in this appeal is confined only to quantum of

maintenance.

3. The marriage between the parties was solemnized

on 08.08.2013 as per Hindu rites and customs. The wife

MFA No.1916 of 2017

filed a petition on or about 29.07.2015 seeking dissolution

of marriage on the ground of cruelty. In addition, the wife

also sought permanent alimony to the tune of

Rs.25,00,000/-. The Family Court vide judgment dated

19.01.2017, allowed the petition filed by the wife under

Section 13(1)(ia) of the Act. However, no order was

passed with regard to the claim of the wife seeking

permanent alimony. Hence, this appeal.

4. Learned counsel for the appellant submitted that

appellant has obtained a Bachelor of Engineering Degree

and is employed as a Teacher in a private school. While

inviting the attention of this Court to the affidavit filed on

behalf of the wife, it is contended that the monthly income

of the wife is Rs.26,913/-. It is further submitted that out

of the aforesaid meager amount, the appellant is unable to

maintain herself and is dependant on her parents. It is

submitted that the appellant is entitled to claim

maintenance from the respondent. It is also pointed out

MFA No.1916 of 2017

that the appellant is suffering from various ailments and is

required to spend a considerable amount on medicine.

5. On the other hand, learned counsel for the

respondent has submitted that monthly salary of the

appellant - wife is Rs.31,126/-. It is further submitted

that the appellant is a single women and can lead a

luxurious life on her own and is not entitled to any

maintenance. It is also contended that the respondent is

required to maintain his present wife as well as the child

and his ailing mother.

6. We have considered the submissions made on

both sides and perused the record. The Hon'ble Supreme

Court in RAJNESH Vs. NEHA AND ANOTHER1 has laid

down the criteria for determining the quantum of

maintenance. Paragraphs 77 to 82 of the aforesaid

decision is re-produced below for the facility of reference.




    (2021) 2 SCC 324

                                      MFA No.1916 of 2017




"77. The          objective       of        granting

interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.

78. The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable

MFA No.1916 of 2017

costs of litigation for a non-working wife. [ Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290].

79. In Manish Jain v. Akanksha Jain [Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] this Court held that the financial position of the parents of the applicant wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the court should mould the claim for maintenance based on various factors brought before it.

MFA No.1916 of 2017

80. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able-bodied and has educational qualifications. [Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339].

81. A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her

MFA No.1916 of 2017

matrimonial home. [Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356] The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.

82. Section 23 of the HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub- section (2) of Section 23 of the HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant,

(iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant's property and any income derived from such property, (v) income

MFA No.1916 of 2017

from claimant's own earning or from any other source."

7. On the touchstone of aforesaid well settled legal

principles, to determine the quantum of maintenance

payable to the wife, we may advert to the evidence on

record.

8. Admittedly, from the affidavit of assets and

liabilities filed by the respondent, it is evident that the

respondent is a B.Com Graduate and also holds a

Bachelor of Business Administration Degree. He is

employed as a sales professional and from the salary

certificate annexed with the affidavit, it is evident that