Karnataka High Court
Sri. Vinay A.V vs Smt. Anusha D S @ Kavya on 15 November, 2023
Bench: M.Nagaprasanna
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NC: 2023:KHC:40712
WP No. 16306 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 16306 OF 2023 (GM-FC)
BETWEEN:
SRI. VINAY A.V.,
S/O A.B.VIJAYKUMAR
AGED ABOUT 38 YEARS
R/AT DOOR NO.2334
NEAR ESHWARA TEMPLE
VIDYANAGARA
DAVANAGERE - 577 501.
...PETITIONER
(BY SRI. V.B.SIDDARAMAIAH., ADVOCATE)
AND:
1. SMT. ANUSHA D.S. @ KAVYA
W/O VINAY A.V.,
AGED ABOUT 33 YEARS
Digitally signed by
PADMAVATHI B K R/A DOOR NO.938/1
Location: HIGH MYSURU MATADA GALLI
COURT OF
KARNATAKA BASAVESHWARA NAGARA
KAYIPET
DAVANAGERE - 577 501.
...RESPONDENT
(BY SRI.S.B.SRIKANTH., ADVOCATE FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DTD 08/06/2023, PASSED BY THE COURT OF THE
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WP No. 16306 of 2023
JUDGE, FAMILY COURT AT DAVANAGERE, PASSED ON I.A.NO.
6 FILED BY THE RESPONDENTS U/S 24 OF THE HINDU
MARRIAGE ACT, IN M.C.NO. 112/2022, VIDE ANNEXURE-E
THEREBY REJECT THE IA NO. 6 FILED BY THE RESPONDENT
U/S 24 OF THE HINDU MARRIAGE ACT, IN M.C.NO. 112/2022,
VIDE ANNEXURE-C.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner calls in question an order dated 08.06.2023
passed by leraned Judge, Family Court, Davanageere on
I.A.No.6 filed under Section 24 of the Hindu Marriage Act, by
which, maintenance of Rs.5,000/- is granted to the wife along
with litigation expenses at Rs.5,000/-.
2. Heard Sri V B Siddaramaiah, learned counsel appearing
for petitioner and Sri S B Srikanth, learned counsel appearing
for caveator/respondent.
3. The petitioner is the husband, respondent is the wife.
Marriage between the two takes place on 07.05.2017. A child
is also born from the wedlock. Relationship between the
husband the wife turns sore, which leads the wife to register
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M.C.112 of 2022 seeking a decree of divorce. In the said
proceeding the wife files an application I.A.No.6 under Section
24 of the Hindu Marriage Act seeking maintenance from the
hands of the husband. The Court grants maintenance at
Rs.5,000/- and litigation expenses at Rs.5,000/-. It is this that
has driven the petitioner to this Court in the subject petition.
4. Learned counsel appearing for the petitioner submits
that the respondent is also a graduate and working as an
Accountant, which fact is ignored by the concerned Court; he
would contend that the wife herself has left the matrimonial
house and therefore, maintenance should not be granted.
Above all, he would contend that he is not in a position to
maintain the wife and the child.
5. The afore-narrated facts are a matter of record. The
submission is that the respondent is working and has the
capacity to maintain herself. But the fact remains that the
respondent has also a child with her, which is now 3 years old,
and the maintenance that is granted is so meager that this
Court cannot even show any indulgence by entertaining the
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petition, as it is granted at Rs.5,000/- per month to both the
wife and the child. If the wife has capacity to earn, the
maintenance is to be granted to the child born from the
wedlock. The submission that the respondent herself has
neglected the petitioner and moved out of the house is a
matter of evidence, which cannot be considered at this
juncture.
6. Any further indulgence would run foul of the judgment
of the Apex Court in the case of ANJU GARG AND ANOTHER
v. DEEPAK KUMAR GARG1, wherein the Apex Court holds as
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
2022 SCC OnLine SC 1314
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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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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.
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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)
7. In the light of the afore-narrated facts 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.5,000/- to both, the respondent
and the 3 year old child.
8. In the result, the petition lacking in merit stands
dismissed.
Sd/-
JUDGE
bkp
