Karnataka High Court

Mr. Dinesh D vs Smt. Amrutha Sindhu B on 21 November, 2023

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

                                                -1-
                                                         NC: 2023:KHC:41874
                                                       WP No. 25020 of 2023




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 21ST DAY OF NOVEMBER, 2023

                                           BEFORE
                        THE HON'BLE MR JUSTICE M.NAGAPRASANNA

                         WRIT PETITION NO. 25020 OF 2023 (GM-FC)

                 BETWEEN:

                       MR. DINESH D
                       S/O MR. VISHWESHWARA BHAT D.,
                       AGED 33 YEARS
                       R/AT NO.T-7, SAI RESIDENCY
                       DEVASANDRA MAIN ROAD
                       AIYYAPPA NAGAR, K R PURAM
                       BENGALURU-560036
                                                               ...PETITIONER
                 (BY SRI. K RAVISHANKAR, ADVOCATE)

                 AND:

                 1.    SMT. AMRUTHA SINDHU B.,
                       W/O DINESH D
                       AGED ABOUT 35 YEARS
Digitally signed by
PADMAVATHI B K 2.      ANIKA BHAT
Location: HIGH         D/O DINESH D
COURT OF               AGED 2 YEARS
KARNATAKA
                       REP BY THE NATURAL GUARDIAN
                       i.e., MOTHER RESPONDENT NO.1,

                       BOTH ARE R/AT NO.201
                       DEEPANJALI APARTMENT
                       BIJAI MAIN ROAD, BIJAI
                       MANGALURU TALUK
                       D.K. DISTRICT-575004
                                                            ...RESPONDENTS
                                   -2-
                                                  NC: 2023:KHC:41874
                                             WP No. 25020 of 2023




     THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE
IMPUGNED     ORDER    DTD    04.03.2023   PASSED   IN
CRL.M.C.NO.2/203 PASSED ON I.A.NO.II PENDING ON THE
FILE OF THE I ADDL. PRINCIPAL JUDGE, FAMILY COURT, DK
MANGALURU PRODUCED VIDE ANNEXURE-A TO THE WRIT
PETITION AND ETC.

    THIS 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 04.03.2023 passed by the I Additional Principal

Judge, Family Court, D.K., Mangaluru in Crl.M.C.No.2/2023

directing payment of maintenance of Rs.15,000/- per month to

the wife and Rs.5,000/- per month to the child.

2. Heard the learned counsel Sri.K.Ravishankar,

appearing for the petitioner.

3. The petitioner is the husband and respondent No.1

is the wife. The two get married on 28.05.2015. From the

wedlock, a child is born on 16.07.2020. It transpires that the

relationship between the husband and the wife flounders. On

such floundering of the relationship, the petitioner files

M.C.No.5093/2021 seeking annulment of marriage and in turn

a petition for restitution of conjugal rights by the wife. The

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present proceeding does not concern the proceedings in

M.C.No.18/2023 or M.C.No.5093/2021. The wife registers

Crl.M.C.No.2/2023 invoking Section 125(1) of the Code of

Criminal Procedure, 1973, seeking interim maintenance. The

concerned Court by the impugned order direct maintenance at

Rs.15,000/- per month to be paid to the wife and Rs.5,000/-

per month to the child, apart from litigation expenses. The

petitioner is before this Court calling in question the said order.

4. Learned counsel Sri.K.Ravishankar appearing for

the petitioner submits that the petitioner is not in a position to

pay the amount as is directed, as he has no job today, as he

has been thrown out of employment during the on set of

COVID-19.

5. Learned counsel would submit that on account of

non-payment, the defence of the petitioner is sought to be

stuck off and the applications filed to recall the said order are

not being considered on account of non-payment of

maintenance.

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6. I have given my anxious consideration to the

contentions of learned counsel appearing for the petitioner and

have perused the material on record.

7. The afore-narrated facts are not in dispute. The

concerned Court passes an order after considering the law as

laid down by the Apex Court in the case of Rajnesh v. Neha,1 to

direct Rs.15,000/- to the wife, Rs.5,000/- to the child and

Rs.10,000/- as litigation expenses. In total, the maintenance

that is awarded is Rs.20,000/- per month for the child, who is

aged two years and the wife.

8. The submission of the petitioner that he is thrown

out of employment and he is not in a position to pay

maintenance is sans countenance, as acceptance of the said

submission would run counter to the judgment of the Apex

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

KUMAR GARG reported in 2022 SCC OnLine SC 1314, wherein it

is held as follows:

"10. This Court had made the above observations as the Court felt that the Family Court

(2021) 2 SCC 324

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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 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

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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

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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)

9. The Apex Court holds that it is the duty of an

able-bodied man to take care of the wife and the child during

the subsistence of marriage. The subsistence of marriage is

not in dispute. What is projected is inability of the petitioner to

pay the said amount, which is exactly what the Apex Court has

turned down in the aforesaid case. Therefore, finding no merit

in the petition, the petition deserves to be rejected and hence,

the petition is rejected.

At this juncture, the learned counsel appearing for the

petitioner submits that striking of the defence is only a last

resort that the concerned Court should undertake.