Karnataka High Court

Sri. Ambarish vs Smt. Mola on 27 November, 2023

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                          NC: 2023:KHC:42696
                                                        WP No. 22109 of 2023




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 27TH DAY OF NOVEMBER, 2023

                                           BEFORE
                       THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                       WRIT PETITION NO. 22109 OF 2023 (GM-FC)
                BETWEEN:

                SRI. AMBARISH,
                S/O SUNDAR,
                AGED ABOUT 42 YEARS,
                SELF EMPLOYEE,
                C/O LESAPPA,
                S/O LATE DODPUR,
                R/O NEAR ATHIKATTE ROAD,
                BESIDE CHANNEL,
                HAKKI PIKKI CAMP,
                HOSUDI POST,
                SHIVAMOGGA - 577 222.

                    ALSO AT.
                    SRI. AMBARISH,
Digitally signed by S/O SUNDAR,
PADMAVATHI B K
                    AGED ABOUT 42 YEARS,
Location: HIGH
COURT OF            SELF EMPLOYEE
KARNATAKA           C/O THAMBU,
                    S/O LATE SHAKLAPUR,
                    R/O NEAR CIRCLE, RIGHT 1ST FIRST,
                    HAKKI PIKKI CAMP,
                    NEAR AMBEDKAR ROAD,
                    HOSUDI POST,
                    SHIVAMOGGA - 577 222.
                                                                ...PETITIONER
                (BY SRI. BALARAJ K. N., ADVOCATE)
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                                                 NC: 2023:KHC:42696
                                              WP No. 22109 of 2023




AND:

1.    SMT. MOLA,
      W/O AMBARISH,
      AGED ABOUT 36 YEARS,
      HOUSE WIFE,
      R/O 12, HAKKI PIKKI CAMP,
      OPPOSITE ANGANVADI,
      SADASHIVAPURA,
      HOSUDI POST,
      SHIVAMOGGA - 577 222.

2.    KUMAR. JAI KIRAN,
      S/O AMBARISH,
      AGED ABOUT 15 YEARS,
      STUDENT.

3.    KUMAR. SONU,
      S/O AMBARISH,
      AGED ABOUT 7 YEARS,
      BOTH ARE UNDER CARE AND
      CUSTODY OF THE NATURAL GUARDIAN
      (1ST PETITIONER).
                                                     ...RESPONDENTS
       THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE    CONSTITUTION         OF    INDIA    PRAYING     TO   CALL   FOR
RECORDS AND SET ASIDE THE ORDER DAED 05.05.2023
PASSED     BY    THE   LEARNED           PRINCIPAL   FAMILY    JUDGE,
SHIVAMOGGA IN C.MIS.NO.186/2021.

       THIS     PETITION,        COMING     ON   FOR    PRELIMINARY

HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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                                             NC: 2023:KHC:42696
                                          WP No. 22109 of 2023




                             ORDER

The petitioner is before this Court calling in question an

order dated 05.05.2023 passed in Crl.Misc.No.186/2021 a

proceeding instituted by the wife under Section 125 of the

Cr.P.C. seeking maintenance at the hands of the husband.

2. Heard Sri. Balaraj K.N., learned counsel appearing

for the petitioner and have perused the material on record.

3. The petitioner is the husband, the respondent, the

wife. The two get married in the year 2006 and after about 15

years of marriage, the relationship between the two appears to

have floundered and on such floundering, the wife instituted

proceedings invoking Section 125 of the Cr.P.C. seeking

monthly maintenance at Rs.15,000/- from the hands of the

husband. The concerned Court by its order dated 05.05.2023

directs maintenance to be paid at Rs.10,000/- to the wife and

the children born from the wedlock, who are still under 18

years.

4. Learned counsel appearing for the petitioner would

raise a solitary contention that the petitioner is an agricultural

coolie and is not in a position to pay Rs.10,000/- to the wife

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and the two children that she has to maintain. Barring this

submission, there is no other submission made.

5. The submission is unacceptable as the amount that

is granted is Rs.10,000/- to the wife and two children whom

the wife has to take care of. The petitioner sings the same

swam song that every husband would sing, that he is not in a

position to maintain the wife and the children on the score that

he has an ailing mother to maintain or his medical condition

does not permit him to maintain or he has no avocation of the

kind that would permit him to maintain the wife or the children

for the said amount so granted. Any of these submissions, if

accepted, would run foul of the judgment of the Apex Court in

the case of ANJU GARG AND ANOTHER V. DEEPAK KUMAR

GARG1, wherein at paragraphs 10 to 12 has held 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

2022 SCC OnLine SC 1314

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obligation, except on the legally permissible grounds mentioned in the statute. In Chaturbhuj v. Sita Bai2, 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 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

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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.