Karnataka High Court
Sri Pankaj Singh Sengar vs Smt Priyanka Singh on 5 April, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 18.01.2024
Pronounced on : 05.04.2024 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.48615 OF 2013 (GM - FC)
C/W
WRIT PETITION No.41607 OF 2017 (GM - FC)
WRIT PETITION No.41608 OF 2017 (GM - FC)
IN WRIT PETITION No.48615 OF 2013
BETWEEN:
SMT.PRIYANKA SINGH
W/O PANKAJ SINGH SENGAR
AGED ABOUT 32 YEARS
R/AT B-5, FLAT NO.1405
L & T SOUTH CITY APARTMENTS
AREKERE MICO LAYOUT
OFF BANNERGHATTA ROAD
BENGALURU - 560 076.
... PETITIONER
(BY SMT.RADHIKA M., ADVOCATE)
AND:
SRI.PANKAJ SINGH SENGAR
S/O R.S.SENGAR
2
AGED ABOUT 34 YEARS
R/AT. B-5, FLAT NO.1405
L & T SOUTH CITY APARTMENTS
AREKERE MICO LAYOUT
OFF BANNERGHATTA ROAD
BENGALURU - 560 076.
... RESPONDENT
(BY SRI B.V.KRISHNA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 20.9.2013 PASSED ON THE MEMO FILED BY
THE PETITIONER ON THE FILE OF THE I ADDL. PRINCIPAL
FAMILY JUDGE AT BANGLAORE IN M.C. NO.3014/2012 VIDE
ANN-G; MODIFY THE ORDER DATED 30.11.2012 AND
ENHANCE THE MAINTENANCE AMOUNT FROM RS.15,000/- TO
RS.70,000/- PER MONTH BY ALLOWING I.A. NO.3 IN M.C.
NO.3014/2012 ON THE FILE OF THE I ADDL. PRINCIPAL
FAMILY JUDGE AT BANGALORE VIDE ANN-D.
IN WRIT PETITION No.41607 OF 2017
BETWEEN:
SRI PANKAJ SINGH SENGAR
S/O SRI R.S.SENGAR
AGED ABOUT 39 YEARS
R/A NO.A-1696
AWAS VIKAS COLONY
HANSPURAM NAUBASTA, KANPUR
KANPUR - 209 307
REPRESENTED BY
FATHER/GUARDIAN/NEXT FRIEND
3
SRI RAJENDRA SINGH SENGAR
S/O SHECRAM SINGH SENGAR
AGED ABOUT 66 YEARS,
R/A NO.A-1696
AWAS VIKAS COLONY
HANSPURAM NAUBASTA, KANPUR
KANPUR - 282 021.
... PETITIONER
(BY SRI B.V.KRISHNA, ADVOCATE)
AND:
SMT. PRIYANKA SINGH
W/O SRI PANKAJ SINGH SENGAR
AGED ABOUT 36 YEARS
R/A NO.B-5, FLAT NO.1405
L & T SOUTH CITY APARTMENTS
AREKERE MICO LAYOUT
OFF BANNERGHATTA ROAD
BENGALURU - 560 076.
... RESPONDENT
(BY SMT.RADHIKA M., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS IN M.C.3014/2012 ON THE FILE OF THE HON'BLE
1ST ADDL. PRL. JUDGE, FAMILY COURT AT BANGALORE; SET
ASIDE THE ORDER DATED 10.08.2017 ON I.A.8 IN
M.C.3014/2012 PASSED BY THE HON'BLE 1ST ADDL. PRL.
JUDGE, FAMILY COURT AT BANGALORE VIDE ANNEX-A BY
ISSUING A WRIT IN THE NATURE OF CERTIORARI AND ALLOW
THE SAID APPLICATION I.A.8.
4
IN WRIT PETITION No.41608 OF 2017
BETWEEN:
SRI PANKAJ SINGH SENGAR
S/O SRI. R.S. SENGAR
AGED ABOUT 39 YEARS
R/A NO.A-1696, AWAS VIKAS COLONY
HANSPURAM NAUBASTA, KANPUR,
KANPUR - 209 307
REPRESENTED BY
FATHER/GUARDIAN/NEXT FIREND
SRI RAJENDRA SINGH SENGAR
S/O SHECRAM SINGH SENGAR
AGED ABOUT 66 YEARS,
R/A NO. A-1696, AWAS VIKAS COLONY
HANSPURAM NAUBASTA, KANPUR,
KANPUR - 208 021.
... PETITIONER
(BY SRI B.V.KRISHNA, ADVOCATE)
AND:
SMT. PRIYANKA SINGH
W/O SRI PANKAJ SINGH SENGAR
AGED ABOUT 36 YEARS
R/A NO.B-5, FLATNO.1405,
L & T SOUTH CITY APARTMENTS,
AREKERE MICO LAYOUT,
OFF BANNERGHATTA ROAD,
BENGALURU - 560 076.
... RESPONDENT
(BY SMT.RADHIKA M., ADVOCATE)
5
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS IN EX.C.NO.152/2015 ON THE FILE OF THE
HON'BLE I ADDL. PRINCIPAL JUDGE, FAMILY COURT AT
BANGALORE; SET ASIDE THE ORDER DTD.10.8.2017 IN
EX.C.NO.152/2015 PASSED BY THE HON'BLE I ADDL.
PRINCIPAL JUDGE, FAMILY COURT AT BANGALORE VIDE
ANNEX-A.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 18.01.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
These cases arise out of M.C.No.3014 of 2012 pending before
the Principal Family Court, Bangalore and parties to the lis in all
these cases are common; they are husband and wife. Therefore,
they are taken up together and considered by this common order.
For the sake of convenience, the parties are referred to as per their
ranking in the matrimonial case i.e., husband is referred to as the
petitioner and wife as the respondent. Writ Petition No.48615 of
2013 is preferred by the wife.
2. The facts, in brief, germane are as follows:-
The petitioner and the respondent got married on 16-05-2011
and have a daughter born from the wedlock. The marriage
between the two appears to have floundered and on the floundering
of the said relationship, the husband prefers M.C.No.3014 of 2012
seeking annulment of marriage that had taken place between the
two. The allegation of the husband was that the wife had left the
matrimonial house on her own volition. The issue in the lis does
not concern merit of the claim of the husband seeking annulment of
marriage or defence of the wife. In the said petition, the wife files
an application seeking interim maintenance under Section 24 of the
Hindu Marriage Act, 1955. The concerned Court, after hearing the
parties on the application, grants the wife interim maintenance of
`15,000/- per month in terms of its order dated 30-11-2012. The
wife then files a memo of calculation before the concerned Court on
08-07-2013 claiming arrears to be paid by the husband towards the
maintenance so awarded. The concerned Court rejects the memo.
The rejection of the memo forms the subject matter of challenge in
Writ Petition No.48615 of 2013 coupled with a prayer to enhance
interim maintenance. During the pendency of the said petition, the
husband/petitioner suffers a stroke resulting in 75% disability, due
to which, he had resigned from his work and on the ground that the
husband has not paid maintenance, to recover arrears of
maintenance, the wife/respondent initiates execution petition
seeking execution of the order of maintenance. The concerned
Court, in terms of its order dated 05-02-2016, directs the father of
the husband to pay arrears of maintenance. When that is not
adhered to, a fine levy warrant and arrest warrant are issued
against the husband on 12-07-2017 and 10-08-2017. This forms
the subject in Writ Petition No.41608 of 2017. The other writ
petition in W.P.No.41607 of 2017 is again preferred by the husband
calling in question the order passed on 10-08-2017 on I.A.No.8 in
M.C.No.3014 of 2012 whereby the application filed by the husband
to recall the order of maintenance comes to be rejected. Therefore,
Writ Petition No.41607 of 2017 is preferred by the husband
challenging the rejection of I.A.No.8 seeking recall of the order
granting maintenance and Writ Petition No.41608 of 2017
challenges the order of issuing fine levy warrant and arrest against
the husband.
3. Heard Sri B.V.Krishna, learned counsel appearing for the
husband/petitioner and Smt M. Radhika, learned counsel appearing
for the wife/respondent.
4. The learned counsel appearing for the wife/respondent
would vehemently contend that the husband/petitioner has
abandoned the wife at the time when she was carrying the child.
She has maintained herself all along and the husband has refused
to maintain either the wife or the child, and therefore, seeks
appropriate order enhancing grant of maintenance.
5. Per-contra, the learned counsel appearing for the
husband/petitioner would contend that maintenance today is a
dream to be paid by the husband as he has suffered disability of
75% which does not get him any job. He is no longer an able
bodied person to search for job and maintain the wife and the child.
6. In reply the counsel for the wife/respondent would submit
that the father of the petitioner has several properties. Therefore,
the father could maintain the wife and the child of the petitioner
and they cannot be left in the lurch. Both the petitioner and the
respondent have placed reliance upon certain judgments which
would bear consideration in the course of the order.
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
8. The afore-narrated facts are not in dispute. The
relationship between the two and the birth of girl child from the
wedlock are all a matter of record. The genesis of the issue is on
the husband filing a petition seeking annulment of marriage in
M.C.No.3014 of 2012 in which the wife/respondent files an
application seeking interim maintenance. The Court considering the
application and submissions of both the parties, grants interim
maintenance by the following order:
".... .... .....
4. Point No.1 & 2:- Main petition is of the husband
seeking divorce from the respondent on the ground of cruelty
(U/sec. 13 (1) (la) of the Hindu Marriage Act). On service of
notice of this petition, the respondent appeared before this
Court personally on 10/10/2012 and later filed application
U/sec. 13 of the Family Courts Act on the adjourned date and
she is represented by advocate. On the same date, this IA has
been filed by the respondent. The matter came to be posted
for objections to IA No.3 as well as for the parties to go to the
Bangalore Mediation Centre for the purpose of mediation.
However, it is submitted by the advocate for the respondent
that there is urgency for the respondent for disposal of IA No.3
as she is in advanced stage of pregnancy. Advocate for the
applicant/respondent has addressed oral arguments. Advocate
for the opponent/petitioner apart from addressing oral
arguments has filed written arguments also on this IA No.3.
Opponent/petitioner has produced some documents along with
the memo. The applicant/respondent admits her relationship
with the opponent/petitioner as his wife. (For the sake of
convenience, the petitioner is referred to as the husband and
the respondent is referred to as the wife). The husband admits
that the wife is in advanced stage of pregnancy. The
documents and other records produced by the husband go to
show that the wife has filed police complaints against the
husband etc... Some of the records have been produced by the
husband to show that he has concern about the health of the
wife and he has spent substantial amount for her medical
expenses etc., The husband has stated that his monthly
salary as per the Salary Slip is Rs.76, 371/-. As per the
husband, he has the other liabilities to look after his
aged parents and has to make payment of rent amount
in respect of independent residences for the wife as well
as his parents. Now it will suffice, for the sake of
arriving at conclusion as to what amount the wife is
entitled to interim maintenance, to take into
consideration the salary income of the husband. Looking
to the status of the husband and the status of the wife
that was enjoyed by her during her stay with the
husband, I am of the opinion that Rs.15,000/- per
month will be the reasonable amount for maintenance
of the wife pending final disposal of the main petition
Rs. 10,000/- appears to be the reasonable amount
towards litigation expenses. For the foregoing reasons,
I proceed to pass the following:-
ORDER
IA No. 3 of the respondent is partly allowed.
The petitioner/husband is hereby directed to pay
to the respondent/wife Rs.15,000/-per month towards
interim maintenance pending final disposal of the
main petition. The petitioner/husband is further
directed to pay the Rs.10,000/- towards litigation
expenses."
(Emphasis added)
The Court grants the wife `15,000/- per month as interim
maintenance and `10,000/- towards one time litigation expenses.
This is not paid by the husband. The wife/respondent files a memo
of calculation before the concerned Court seeking huge arrears from
the hands of the respondent. This comes to be rejected by the
concerned Court in terms of the order dated 20-09-2013. This has
driven the wife/respondent to this Court in Writ Petition No.48615
of 2013. The issue now would be, whether the husband should be
directed to pay maintenance to the wife and the child, to which
certain facts need to be noticed.
9. The husband was employed in a company by name Textron
India Private Limited. During his employment, the petitioner suffers
a stroke and the disability is identified as Chronic Neurological
Condition and is assessed at 75%. The assessment is by NIMHANS,
Bangalore and the husband is also issued a disability certificate
based upon the assessment by NIMHANS. The disability certificate
reads as follows:
"Department of Empowerment of Persons with
Disabilities,
Ministry of Social Justice and Empowerment, Government
of India
Disability Certificate
Issuing Medical Authority, Bengaluru Urban,
Karnataka
PHOTO
Certificate No.: KA1891219770276312 Date: 20/01/2023
This is to certify that l/we have carefully examined Shri Pankaj
Singh Sengar, Son of Shri Rajendra Singh Sengar, Date of
Birth 24/09/1977, Age 45, Male, Registration No.
2918/00000/2207/1531923, resident of House No. Flat No.
L1-116, Sowparnika Phase 1. Sarjapura - Attibele Road,
Bidarguppe - 562107, Sub District Anekal, District
Bengaluru Urban. State / UT Karnataka, whose photograph is
affixed above, and I am/we are satisfied that:
(A) He is a case of Chronic Neurological Conditions
(B) The diagnosis in his case is Right Hemiparesis with
cognitive disfunction and Aphasia
(C) He has 75%(in figure) Seventy Five percent(in words)
Permanent Disability in relation to his RIGHT UPPER LIMB,
RIGHT LOWER LIMB as per the guidelines (Guidelines for the
purpose of assessing the extent of specified disability in a
person included under RPWD Act, 2016 notified by Government
of India vide S.O. 76(E) dated 04/01/2018).
The applicant has submitted the following document(s) as proof
of residence:
Nature of Document(s): Registered Sale/Lease Agreement
Signature/Thumb Impression of the Person with Disability
Sd/-
Signatory of notified Medical Authority Member(s)"
The condition of the husband is a Chronic Neurological disability
with cognitive disfunction and is said that he is unable to walk even.
After suffering the said disability the petitioner submits his
resignation to his employment. The letter of resignation reads as
follows:
"Name: Pankaj Sengar
Employee ID: 1000840188
Sub: Resignation acceptance Letter
This refers to the email dated 22 May 2015, sent by Priyanka
Sengar (your sister) on your behalf, resigning from the services
of the company and the subsequent discussions we had over
phone.
We hereby inform you that your resignation, under
reference, has been accepted by the management with
regret and you will be relieved from the services of the
company with effect from 31 May 2015.
We draw your attention to your continuing obligation of
confidentiality with respect to any proprietary and
confidential information of Textron that you may have
had access to during the course of your employment. As a
part of the separation process, we are attaching the exit
documents. Please sign on these documents and send it
back to the undersigned as soon as possible to expedite
the full & final and relieving process.
We thank you for your valuable contributions and wish you a
speedy recovery. Do contact us in future to explore the job
opportunities. Get well soon.
Wish you all the very best.
Thanking You,
Yours sincerely, For Textron India Private Limited"
(Emphasis added)
The petitioner is relieved from service of the Company with effect
from 31-05-2015. Prior to that on account of continuous absence
of the husband, he was placed on loss of pay from 16-12-2013 till
09-07-2014. This communication reads as follows:
"To Whom It May Concern
Dear Sir/Madam,
This is to certify that Pankaj Singh Sengar is an employee at
Textron India Private Limited.
Date of Joining : 14th March 2011
Designation : Technical Specialist
Employee ID : 1000840188
Employee is on loss of pay from 16th December 2013 till
date and the letter has been issued for insurance
purpose.
Yours sincerely.
For Textron India Private Limited
Sd/-
Reshma B S
Sr.Executive - HR Ops"
(Emphasis added)
Therefore, on and from the husband suffering disability he has
remained outside employment. The State Government has issued a
disability certificate as is required in law. Government of India has
also issued such certificate which is quoted supra. Therefore, it is
an admitted fact that the husband suffers from a disability which is
to the tune of 75% and takes away all the badge of the husband to
be an "able bodied man" as disability is admitted.
10. The husband files an application seeking recall of the
order granting interim maintenance. This is rejected on the plea of
the wife/respondent that the husband/petitioner has recovered
from illness and now he is an able bodied person. This is the
challenge in Writ Petition No.41607 of 2017. The wife does not stop
at that. She initiated execution petition against the husband
contending that the father of the husband had to pay her the
maintenance and to the child. The husband is projected to be
represented by the father and accordingly execution is preferred.
In the execution petition, the Court issues fine levy warrant against
the husband for non-payment of maintenance. Therefore, all these
petitions are before this Court.
11. The only issue that false for consideration is,
"Whether the husband is to be directed to pay
maintenance and the order passed by the concerned Court
directing issuance of arrest warrant or fine levy warrant
should be sustained?"
12. What is the status of the wife/respondent is also
necessary to be noticed. The admitted qualification of the wife is
that she has Masters in Computer Application and Pre-MCA
completion. The wife is working as a teacher in several schools. The
resume of the wife insofar as it is relevant reads as follows:
".... .... ...
Project Work
Completed Six months project on "Personal Information
Management system"
Role: Initial role was for initial understanding of the project
along with coding of the project for complete behavior and
integrating it with "BAAN ERP".
Technology Used: Project coding specification:
Front End: Oracle Developer.
Backend server: DB2
Intermediate Development: JSP
Education Qualification
Masters of Computer Application with 67.18%.
Certificate in computing i.e.: CIC with 60%.
Technical Proficiency:
Languages : C++/JAVA/Oracle
Web Technologies : JSP/HTML
Operating Systems : Windows 98/2000/XP
Databases : SQL Server
Middleware : Apache/Tomcat
Employment History
• Official training of six month from INDIAN
TELEPHONE INDUSTRY (I.T.I MANKAPUR)
Pre MCA Completion:
• Teaching Experience as a Computer Instructor
from KENDRIYAVIDYALAYA I.T.I Mankapur.
• Teaching as a Computer Teacher in Fatima
Convent School Mankapur.
• Teaching as a Computer Teacher in Fatima
Convent School GONDA.
.... .... ...."
The situation now is, the wife is qualified and is even working and
earning certain amount of money. Whether that would be enough
or not is a different circumstance. The issue is whether the
husband can be directed to pay maintenance.
13. On a few occasions, this Court directed the parties to
appear before the mediation centre and settle the issue. Every time
it was only the father of the husband appears and the husband did
not. Therefore, the husband also was directed to be present.
Photographs of the husband are produced before Court. The
husband walks with the help of crutches. Therefore, in the
considered view of the Court, no direction can be issued to the
husband to pay maintenance to the wife/respondent as he is no
longer an able bodied man to search for employment and pay
maintenance to maintain the wife and the child.
14. The learned counsel for the wife/respondent projects
several grievances against the husband. It is the submission of the
wife/respondent that the husband is a fraud and he has fraudulently
projected himself to be a disabled man inter alia. These would all
be in the realm of evidence. This Court, for the present, would go
by the disability certificate issued by both Government of India and
State Government which is based upon the assessment of disability
by NIMHANS. If the husband is incapable of earning due to
disability, it is highly ununderstandable as to why and how the wife
is insisting on payment of maintenance looking at the admitted
disability of the husband.
15. It becomes germane to notice the judgment of the Apex
Court in the case of RAJNESH v. NEHA1 which dealt with the grant
of maintenance and its forms and hues. The Apex Court at
paragraph 93 has held as follows:
"(e) Serious Disability and ill health:
93. Serious disability or ill health of a spouse,
child/children from the marriage/dependent relative who
require constant care and recurrent expenditure, would
also be a relevant consideration while quantifying
maintenance."
(Emphasis supplied)
The Apex Court observes that serious disability or ill-health of a
spouse who would require constant care and recurring expenditure
(2021) 2 SCC 324
would also be a relevant consideration while quantifying
maintenance. The High Court of Calcutta in a similar circumstance
in a judgment rendered in INDRANIL ADHIKARI v. ARUNIMA
ADHIKARY2 has held as follows:
".... .... ....
12. That both the Courts failed to appreciate the fact that
the petitioner is not an able bodied person and has no earning
capacity.
13. The Ld. Appellate Court should have considered the
disability/handicap certificate and on that basis, should have set
aside the said order dated 25.04.2018 without putting any
condition of payment of 25% arrears of maintenance but failed
to do so.
14. The impugned order dated 25th April, 2018 passed by
the Trial Court/Executing Court is illegal, bad in the eye of law,
perverse and without jurisdiction and as such is liable to be set
aside unconditionally.
15. The impugned order dated 25.04.2018 is also liable
to be set aside and the entire proceeding of the Misc. Execution
Case No. 281/2015 pending before the Court of Ld. 5th Judicial
Magistrate at Howrah is liable to be quashed.
16. In spite of the opposite party being represented on
earlier occasions, they have failed to appear at the time of
hearing.
17. The Contention of the petitioner is that he has met
with an accident and has in support filed a copy of the disability
certificate dated 27.10.2018, wherein it appears that the
petitioner/husband has been diagnosed with 60%
2023 SCC OnLine Cal 3318
permanent disability (left foot) and he cannot travel with
assistance of escort.
18. But the present revision is against the order of the
appellate court in an appeal against an order passed by the
Magistrate in a Misc Execution Case in a proceeding under the
Protection of Women from Domestic Violence Act.
19. An execution is filed to execute the order in a
principle case. The court while taking steps to execute an order
of a court only proceeds to execute the order and does not
decide the validity of the order.
20. The order which was being executed is dated
25.04.2018 in an execution proceedings being Misc Execution
Case No. 281/2015.
21. The disability certificate has been issued on
27.10.2018.
22. Admittedly there is no dispute regarding the disability
of the petitioner. It is also noted that till his accident, the
petitioner had been paying maintenance diligently.
23. But any prayer for modification etc. in such
proceedings due to subsequent developments and change in
circumstances is to made by a separate proceedings (herein
Misc 127 of 2018 filed by the petitioner praying for revocation
and cancellation of the maintenance order is pending before the
learned Judicial Magistrate, 5th Court, Howrah) as per the
relevant provisions of law, which the court is to consider in
accordance with the guidelines of the Supreme Court is such
proceedings (Rajnesh v. Neha, (2021) 2 SCC 324).
24. The order under revision is thus modified to the
extent that the direction for payment of 25% of the
arrear maintenance is set aside."
(Emphasis supplied)
The Calcutta High Court was considering the disability of a husband
at 60%. What was challenged by the husband was a condition to
pay 25% of the arrears in the execution case. The said condition
was set aside on the ground that the husband is no longer an able
bodied man.
16. It is trite that while considering grant of maintenance all
the factors will have to be taken note of. Maintenance cannot spring
in thin air. The primary factor is whether the husband is an able
bodied man to maintain the wife or the child. In the teeth of the
disability of the petitioner who also suffers from cognitive
dysfunction, the trial Court ought to have allowed the application
seeking recall of the order of maintenance and restricted the recall
up to the date on which the husband became disabled. As the
disability happens in the month of December, 2013, by then there
was already arrears to be paid by the husband. The Court ought to
have taken at least that date into consideration. Today the
husband/petitioner is wanting maintenance to himself and not in a
position to pay maintenance to the wife/respondent.
17. The learned counsel for the wife/respondent has placed
on record a memo of calculation. The memo depicts that as on
today, the maintenance that is to be paid by the husband is a
whooping sum of Rs.19,04,000/-. The duration of maintenance
covers the period of disability of the husband right from its
beginning till today, except for a few months prior to the husband
getting disabled. If this would be directed to be paid, at the behest
of the wife, it would undoubtedly leave the husband/petitioner
bleeding, apart from the agony that he is living with of suffering
75% disability. By no means he can be depicted to be an able
bodied man to direct that he should search for such avocation that
would enable him to maintain the wife and the child. The wife is
earning, even if not earning is completely qualified and is capable of
earning. Therefore, the orders that are now sought to be passed by
the wife cannot even be considered to be passed.
18. It is projected that the father of the husband/petitioner
has several properties and is able to pay the wife and the child
maintenance. This submission cannot be accepted at this juncture.
As the wife is said to be earning and maintaining herself to-day and
for the last 10 years there is no maintenance paid; obviously the
wife who is qualified is working and earning. Insofar as grant of
maintenance to the child is concerned, I deem it appropriate to
observe that the father of the husband/petitioner should take care
of the grandchild's necessities including her education and other
necessities of her career and all walks of life of the grandchild. This
is the only relief that the wife/respondent is entitled to, in the case
at hand. The claim of the wife for enhancement of maintenance to
70% is, on the face of it, untenable and is rejected. The fine levy
arrest warrant issued by the executing Court/Trial Court requires to
be set aside. Likewise the application filed for recalling the order
dated 30-11-2012 is to be allowed in part, up to the date when the
husband/petitioner suffered disability i.e., December, 2013.
Therefore, till the said date the wife/respondent is entitled to such
maintenance, which the father of the husband/petitioner can pay,
not to the wife but to the child.
19. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition No.48615 of 2013 stands rejected
however, observing that arrears of maintenance till the
date of disability, shall be fulfilled by the father of the
husband/petitioner.
(ii) Writ Petition No.41607 of 2017 is allowed in part, again
restricting the order of maintenance to the date on
which the husband/petitioner suffers disability.
(iii) Writ Petition No.41608 of 2017 is allowed. The order
passed in Execution Petition No.152 of 2015 in terms of
its order dated 10-08-2017 stands quashed.
Consequently, pending applications, if any, also stand
disposed.
Sd/-
JUDGE
bkp
CT:MJ
