Mr Anish Sharma vs Mrs Anamika Sharma @ Anamika Kalia
2023 Latest Caselaw 7649 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10th DAY OF NOVEMBER, 2023

                         BEFORE

          THE HON'BLE MR. JUSTICE K. V. ARAVIND

           WRIT PETITION No.24465/2022(GM-FC)

BETWEEN:

MR. ANISH SHARMA,
S/O LATE SH KRISHAN KUMAR SHARMA,
40 YEARS, R/AT WARD NO.4,
NEAR BDO OFFICE, NURPUR, DIST.
KANGRA, HIMACHAL PRADESH-176202.
                                            ...PETITIONER
(BY SRI MALLAN GOUD. H., ADVOCATE)

AND:

MRS. ANAMIKA SHARMA @ ANAMIKA KALIA,
W/O ANISH SHARMA,
34 YEARS, R/AT, A-1301,
VBHC SERENE TOWN,
KANNAMANGALA, UTTARAHALLI HOBLI,
BANGALORE-560067.
                                           ...RESPONDENT

(BY SRI PRABHUGOUD B. TUMBIGI, ADVOCATE)



       THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 17.08.2022 IN M.C.NO.4712/2017 PENDING
BEFORE THE 1ST ADDITIONAL FAMILY JUDGE, BANGALORE,
PRODUCED AS ANNEXURE-E AND DIRECT THE RESPONDENT TO
CONDUCT THE ENQUIRY OF THE ABOVE SAID LANDS.
                                 2


      THIS    WRIT   PETITION       HAVING     BEEN   HEARD     AND
RESERVED FOR ORDERS ON 03.11.2023, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:


                            ORDER

This petition by the petitioner-husband challenging

the order dated 17.08.2022 by the I Additional Principal

Judge, Family Court, Bengaluru, in M.C.No.4712/2017, on

application filed under Section 24 of the Hindu Marriage

Act, 1955 (hereinafter referred as 'Act' for short).

2. The marriage between the petitioner and the

respondent was solemnized on 19.02.2011. In view of the

dispute between the husband and wife, petition for divorce

under Section 13(1)(ia) and (ib) of the Act has been filed

by the petitioner husband and is pending in

M.C.No.4712/2017. The respondent-wife has filed an

application under Section 24 of the Act claiming a sum of

Rs.50,000/- per month as interim maintenance and

Rs.25,000/- towards litigation charges.

3. The Family Court after taking into consideration the

financial position of the husband and the wife has ordered

payment of Rs.20,000/- per month as interim maintenance

and Rs.25,000/- towards litigation charges to be payable

by the husband to wife.

4. Sri Mallan Goud H., learned counsel for the petitioner

submits that respondent-wife is earning a sum of

Rs.75,642/- per month. The husband and wife have no

children. It is further submitted that in view of the

respondent-wife capable of supporting herself, merely

because the respondent is earning higher salary of

Rs.2,15,604/-, the respondent is not entitled for any

interim maintenance and litigation expenses. The counsel

for the petitioner relies on the judgment of the Hon'ble

Delhi High Court in the case of Niharika Ghosh @

Niharika Kundu vs. Shankar Ghosh 1 to contend that

wife has earning capacity and not entitled for maintenance.

(MAT.APP. (F.C.)248/2019 & CM Appl.20720/2022), disposed of on 12.09.2023

5. Sri Prabhugoud B. Tumbigi, learned counsel for the

respondent would submit that the petitioner and the

respondent were married on 19.02.2011 and were living

together till 2017; in view of the dispute, both have

started living separately. In view of the relationship of

husband and wife continued till final adjudication of the

divorce petition pending consideration, the respondent-

wife is eligible to live to the standards as she was when

living with the husband. Hence, considering the difference

of salary of the petitioner and the respondent, Family

Court was justified in directing the petitioner to pay

monthly interim maintenance of Rs.20,000/-.

6. Heard learned counsel for the petitioner and the

respondent. Perused the material on record.

7. It is not in dispute that the petitioner is earning an

income of Rs.2,15,604/- per month and the respondent is

earning Rs.75,642/- per month. It is not disputed by the

parties that the marriage was solemnized on 19.02.2011

and both lived together till 2017. Though the respondent

is earning a sum of Rs.75,642/- per month, she would be

entitled to interim maintenance during pendency of the

petition for divorce. Considering the earning capacity of

the respondent and the comforts or standard of life

enjoyed by the petitioner if the husband and wife were not

living separately, it is just and proper to direct the

petitioner to pay monthly interim maintenance of

Rs.15,000/- to the respondent from the date of application

until further orders.

8. The Hon'ble Supreme Court in the case of Rajnesh

vs. Neha and another2 has held that earning capacity of

a wife cannot operate as bar from being awarded

maintenance by the husband. Similar view has been

expressed by the Hon'ble Supreme Court in the case of

Shailja and another vs. Khobbanna3 and Sunita

Kachwaha and others vs. Anil Kachwaha 4.

Crl.A.No.730/2020, dated 04.11.2020.

(2018)12 SCC 199

(2014)16 SCC 715

9. The order of the Family Court to pay a sum of

Rs.25,000/- towards litigation charges is just and proper.

Hence, the following;

ORDER

i) Writ petition is hereby partly allowed.

     ii)    The order of the I Additional Principal Judge,

            Family         Court,             Bengaluru,          in

            M.C.No.4712/2017,           dated       17.08.2022    is

            modified    directing      the    petitioner   to    pay

monthly interim maintenance of Rs.15,000/-

instead of Rs.20,000/- as ordered by the

Family Court from the date of application until

further orders.

iii) No interference in the order to pay litigation

charges of Rs.25,000/-.

iv) Considering the fact that petitioner and

respondent are living separately from 2017

and petition in M.C.No.4712/2017 is pending

from 2017, the Family Court is requested to

dispose of the above petition expeditiously with

an outer limit of six months from the date of

production of copy of this order.

v) No order as to costs.

Sd/-

JUDGE

mv ct:PR