Karnataka High Court
Smt. Shylaja S.R vs Sri Hareesha A on 28 February, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 12.02.2024
Pronounced on : 28.02.2024 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.14094 OF 2023 (GM - FC)
BETWEEN:
1. SMT. SHYLAJA S. R.,
D/O M.RAJU,
W/O HAREESHA A.,
AGED ABOUT 40 YEARS,
R/AT HIG 66, BANNASHANKARI NILAYA,
4TH CROSS, SURYA CITY PHASE-1,
CHANDAPURA,
BENGALURU - 99.
2. MASTER PUNITH KUMAR
S/O HAREESHA A.,
AGED ABOUT 11 YEARS,
R/AT. HIG 66,
BANNASHANKARI NILAYA,
4TH CROSS, SURYA CITY PHASE-1,
CHANDAPURA,
BENGALURU-99.
3. MASTER ABHINAV
S/O HAREESHA A.,
AGED ABOUT 06 YEARS,
2
R/AT HIG 66, BANNASHANKARI NILAYA,
4TH CROSS, SURYA CITY PHASE-1,
CHANDAPURA,
BENGALURU-99.
PETITIONER NOS.2 AND 3 ARE
MINOR REPRESENTED BY
THE NATURAL GUARDIAN MOTHER.
... PETITIONERS
(BY SRI B.R.SRINIVASA GOWDA, ADVOCATE)
AND:
SRI HAREESHA A.,
S/O LATE ANNAYYAPPA,
AGED ABOUT 42 YEARS,
R/AT NO.177, KEMPANAYAKANAHALLI,
BANNERUGHATTA POST,
ANEKAL TALUK,
BENGALURU - 83,
AND ALSO WORKING AS MANAGER,
CANARA BANK,
LAKSHMIPURA BRANCH,
SRINIVASAPURA TALUK,
KOLAR DISTRICT.
... RESPONDENT
(BY SRI ANIL R., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER PASSED BY THE LEARNED II ADDL. SENIOR
CIVIL JUDGE AND JMFC ANEKAL IN IA II IN M.C.NO. 104/2022
VIDE ANNEXURE-E1 DTD 12/06/2023 IN THE INTEREST OF
JUSTICE AND EQUITY.
3
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 12.02.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court seeking quashment of an
order dated 12-06-2023 passed by the II Additional Senior Civil
Judge and JMFC, Anekal on I.A.No.II in M.C.No.104 of 2020 and
allowing I.A.No.II as prayed for.
2. Facts adumbrated are as follows:-
The 1st petitioner is the wife of the respondent, her husband.
The petitioners 2 and 3 are the two children born from the wedlock
who are aged 11 years and 6 years. The 1st petitioner and the
respondent got married on 09-05-2012 and as observed
hereinabove, the two have two children born from the wedlock. It
appears that the relationship between the two flounders and on
floundering of the relationship the two are before the Family Court
in M.C.No.104 of 2020. The issue in the lis does not concern the
merit of the claim of parties in M.C.No.104 of 2020. The wife files
an application in I.A.No.II invoking Section 24 of the Hindu
Marriage Act seeking grant of interim maintenance at `36,000/- per
month. The concerned Court, after analyzing assets and liabilities
statements produced by both the husband and the wife, orders
maintenance at `18,000/- per month. It is calling that in question
the said order, the wife is before this Court complaining that she is
entitled to maintenance as claimed in I.A.No.II, but the concerned
Court has granted half of what is sought for.
3. Heard Sri B.R. Srinivasa Gowda, learned counsel appearing
for the petitioners and Sri R.Anil, learned counsel appearing for the
respondent.
4. The learned counsel for the 1st petitioner/wife would take
this Court through the order and the documents to the petition to
demonstrate that the husband is a Manager in Canara Bank, earns
close to `90,000/- as salary and the wife though qualified and was
working, the husband makes her leave the job to take care of the
children and the children are now being taken care of by the wife by
leaving the job. Therefore, she would need maintenance as sought
for. The learned counsel would further submit that the school fee
and other incidental expenses of the children are not being met by
the husband and the husband every time dodges the issue of
payment of money.
5. Per-contra, the learned counsel representing the
respondent/husband who has filed his statement of objections,
vehemently opposes any order granting maintenance as sought for
by the petitioners. It is his submission that the 1st petitioner is not a
dutiful wife. She has not taken care of the needs of the husband
and the husband is in a job which is fluctuating; he may at any time
lose it. Therefore, with the fluctuating job he is not in a position to
pay any amount beyond what is ordered by the concerned Court.
He would submit that the wife was working as a lecturer earlier
before marriage and for a little while after marriage. Therefore, she
is qualified to work and she has to work and earn money and not
depend on maintenance that is to be paid by the husband. He
would further contend that he has to maintain his aged mother. In
the teeth of inconsistent job in which he is placed, the wife is not
entitled to maintenance to lead a luxurious life.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The afore-narrated facts are not in dispute. The
relationship between the petitioners and the respondent is what is
narrated hereinabove. The 1st petitioner was earlier working as a
Lecturer. She gets married to the respondent in the year 2012.
Two children are born from the wedlock. It is the submission and a
matter of record that the husband asks the wife to quit the job so
that the children are taken care of. Accordingly the wife quits the
job. All was well for a long time. The relationship then flounders.
Therefore, the couple are before the concerned Court in M.C.No.104
of 2020 after about 8 years of marriage.
8. The wife files an application under Section 24 of the Hindu
Marriage Act, 1955 for grant of maintenance urging that it becomes
difficult for her to maintain herself and the children. The concerned
Court grants half the maintenance that she sought. The issue is
whether the wife is entitled to maintenance as was sought.
Maintenance is trite that it is granted to tide over the crisis that
befalls on the wife after leaving the matrimonial house, sometimes
with children and sometimes alone where there are no children. In
the case at hand, two children are born from the wedlock and
between the wife and the husband the relationship turns sore after
8 years of marriage. In these circumstances, with the growing
necessity of money qua the cost of living and the manner in which
the couple lived together along with the children, maintenance has
to be adjudged and granted. The Apex Court in the case of
SHAMIMA FAROOQUI v. SHAHID KHAN1 has held as follows:
".... .... ....
14. Coming to the reduction of quantum by the
High Court, it is noticed that the High Court has shown
immense sympathy to the husband by reducing the
amount after his retirement. It has come on record
that the husband was getting a monthly salary of Rs
17,654. The High Court, without indicating any reason,
has reduced the monthly maintenance allowance to Rs
2000. In today's world, it is extremely difficult to
conceive that a woman of her status would be in a
position to manage within Rs 2000 per month. It can
never be forgotten that the inherent and fundamental
principle behind Section 125 CrPC is for amelioration
of the financial state of affairs as well as mental agony
and anguish that a woman suffers when she is
compelled to leave her matrimonial home. The statute
commands that there have to be some acceptable
(2015) 5 SCC 705
arrangements so that she can sustain herself. The
principle of sustenance gets more heightened when
the children are with her. Be it clarified that
sustenance does not mean and can never allow to
mean a mere survival. A woman, who is constrained to
leave the marital home, should not be allowed to feel
that she has fallen from grace and move hither and
thither arranging for sustenance. As per law, she is
entitled to lead a life in the similar manner as she
would have lived in the house of her husband. And
that is where the status and strata of the husband
comes into play and that is where the legal obligation
of the husband becomes a prominent one. As long as
the wife is held entitled to grant of maintenance within
the parameters of Section 125 CrPC, it has to be
adequate so that she can live with dignity as she
would have lived in her matrimonial home. She cannot
be compelled to become a destitute or a beggar. There
can be no shadow of doubt that an order under Section
125 CrPC can be passed if a person despite having
sufficient means neglects or refuses to maintain the
wife. Sometimes, a plea is advanced by the husband that he
does not have the means to pay, for he does not have a job
or his business is not doing well. These are only bald excuses
and, in fact, they have no acceptability in law. If the husband
is healthy, able-bodied and is in a position to support
himself, he is under the legal obligation to support his wife,
for wife's right to receive maintenance under Section 125
CrPC, unless disqualified, is an absolute right.
15. While determining the quantum of maintenance,
this Court in Jasbir Kaur Sehgal v. District Judge,
Dehradun [(1997) 7 SCC 7] has held as follows : (SCC p. 12,
para 8)
"8. ... The court has to consider the status of
the parties, their respective needs, the capacity of
the husband to pay having regard to his reasonable
expenses for his own maintenance and of those he is
obliged under the law and statutory but involuntary
payments or deductions. The amount of maintenance
fixed for the wife should be such as she can live in
reasonable comfort considering her status and the
mode of life she was used to when she lived with her
husband and also that she does not feel handicapped
in the prosecution of her case. At the same time, the
amount so fixed cannot be excessive or
extortionate."
16. Grant of maintenance to wife has been
perceived as a measure of social justice by this Court.
In Chaturbhuj v. Sita Bai [(2008) 2 SCC 316 : (2008) 1 SCC
(Civ) 547 : (2008) 1 SCC (Cri) 356] , it has been ruled that :
(SCC p. 320, para 6)
"6. ... Section 125 CrPC is a measure of social
justice and is specially enacted to protect women
and children and as noted by this Court in Capt.
Ramesh Chander Kaushal v. Veena Kaushal [(1978)
4 SCC 70 : 1978 SCC (Cri) 508] falls within the
constitutional sweep of Article 15(3) reinforced by
Article 39 of the Constitution of India. It is meant to
achieve a social purpose. The object is to prevent
vagrancy and destitution. It provides a speedy
remedy for the supply of food, clothing and shelter
to the deserted wife. It gives effect to fundamental
rights and natural duties of a man to maintain his
wife, children and parents when they are unable to
maintain themselves. The aforesaid position was
highlighted in Savitaben Somabhai Bhatiya v. State
of Gujarat [(2005) 3 SCC 636 : 2005 SCC (Cri) 787]
."
17. This being the position in law, it is the obligation
of the husband to maintain his wife. He cannot be permitted
to plead that he is unable to maintain the wife due to
financial constraints as long as he is capable of earning.
18. In this context, we may profitably quote a passage
from the judgment rendered by the High Court of Delhi
in Chander Parkash Bodh Raj v. Shila Rani Chander
Prakash [1968 SCC OnLine Del 52 : AIR 1968 Del 174]
wherein it has been opined thus : (SCC OnLine Del para 7)
7. ... an able-bodied young man has to be
presumed to be capable of earning sufficient money
so as to be able reasonably to maintain his wife and
child and he cannot be heard to say that he is not in
a position to earn enough to be able to maintain
them according to the family standard. It is for such
able-bodied person to show to the Court cogent
grounds for holding that he is unable, for reasons
beyond his control, to earn enough to discharge his
legal obligation of maintaining his wife and child.
When the husband does not disclose to the Court the
exact amount of his income, the presumption will be
easily permissible against him."
(Emphasis supplied)
Later, the Apex Court in the case of REEMA SALKAN v. SUMER
SINGH SALKAN2 has held as follows:
".... .... ....
13. Be that as it may, the High Court took into
account all the relevant aspects and justly rejected the plea
of the respondent about inability to pay maintenance amount
to the appellant on the finding that he was well educated and
an able-bodied person. Therefore, it was not open to the
respondent to extricate from his liability to maintain
his wife. It would be apposite to advert to the relevant
portion of the impugned judgment which reads thus :
(Reema Salkan case [Reema Salkan v. Sumer Singh Salkan,
2018 SCC OnLine Del 9380 : (2018) 250 DLT 16] , SCC
OnLine Del paras 80-84)
"80. The respondent during the cross-
examination has admitted that he too is BCom, MA
(Eco) and MBA from Kentucky University, USA; the
respondent is a Canadian citizen working with Sprint
Canada and is earning Canadian $(CAD) 29,306.59
as net annual salary. However, he has claimed that
he has resigned from Sprint Canada on 23-11-2010
(2019) 12 SCC 303
and the same has been accepted on 27-11-2010 and
the respondent since then is unemployed and has
got no source of income to maintain himself and his
family.
81. In the instant case, the petitioner has filed
the case under Section 125 CrPC, 1973 for grant of
maintenance as she does not know any skill and
specialised work to earn her livelihood i.e. in Para 26
of maintenance petition against her husband.
However, the respondent husband who is well
educated and comes from extremely respectable
family simply denies the same. The respondent
husband in his written statement does not plead that
he is not an able-bodied person nor he is able to
prove sufficient earning or income of the petitioner.
82. It is an admitted fact emerging on record
that both the parties got married as per Hindu rites
and customs on 24-3-2002 and since then the
petitioner was living with her parents from 10-8-
2002 onwards, and the parents are under no legal
obligation to maintain a married daughter whose
husband is living in Canada and having Canadian
citizenship. The plea of the respondent that he
does not have any source of income and he
could not maintain the wife is no answer as he
is mature and an able-bodied person having
good health and physique and he can earn
enough on the basis of him being able-bodied
to meet the expenses of his wife. In this
context, the observation made in Chander
Parkash v. Shila Rani [Chander Parkash v. Shila
Rani, 1968 SCC OnLine Del 52 : AIR 1968 Del
174] by this Court is relevant and reproduced
as under : (SCC OnLine Del para 7).
'7. ... an able-bodied young man has to be
presumed to be capable of earning sufficient
money so as to be able reasonably to maintain his
wife and child and he cannot be heard to say that
he is not in position to earn enough to be able to
maintain them according to the family standard. It
is for such able-bodied person to show to the Court
cogent grounds for holding that he is unable, for
reasons beyond his control, to earn enough to
discharge his legal obligation of maintaining his
wife and child.'
83. The husband being an able-bodied
person is duty-bound to maintain his wife who
is unable to maintain herself under the
personal law arising out of the marital status
and is not under contractual obligation. The
following observation of the Apex Court
in Bhuwan Mohan Singh v. Meena [Bhuwan
Mohan Singh v. Meena, (2015) 6 SCC 353 :
(2015) 3 SCC (Civ) 321 : (2015) 4 SCC (Cri)
200 : AIR 2014 SC 2875] , is relevant : (SCC p.
357, para 2)
'2. Be it ingeminated that Section 125 of the
Code of Criminal Procedure (for short "the Code")
was conceived to ameliorate the agony, anguish,
financial suffering of a woman who left her
matrimonial home for the reasons provided in the
provision so that some suitable arrangements can
be made by the court and she can sustain herself
and also her children if they are with her. The
concept of sustenance does not necessarily mean
to lead the life of an animal, feel like an unperson
to be thrown away from grace and roam for her
basic maintenance somewhere else. She is entitled
in law to lead a life in the similar manner as she
would have lived in the house of her husband. That
is where the status and strata come into play, and
that is where the obligations of the husband, in
case of a wife, become a prominent one. In a
proceeding of this nature, the husband cannot take
subterfuges to deprive her of the benefit of living
with dignity. Regard being had to the solemn
pledge at the time of marriage and also in
consonance with the statutory law that governs the
field, it is the obligation of the husband to see that
the wife does not become a destitute, a beggar. A
situation is not to be maladroitly created
whereunder she is compelled to resign to her fate
and think of life "dust unto dust". It is totally
impermissible. In fact, it is the sacrosanct duty to
render the financial support even if the husband is
required to earn money with physical labour, if he
is able-bodied. There is no escape route unless
there is an order from the court that the wife is not
entitled to get maintenance from the husband on
any legally permissible grounds.'
84. The respondent's mere plea that he does
not possess any source of income ipso facto does not
absolve him of his moral duty to maintain his wife in
presence of good physique along with educational
qualification."
(emphasis in original)
14. The view so taken by the High Court is
unassailable. Indeed, the respondent has raised a plea to
question the correctness of the said view, in the reply-
affidavit filed in this appeal, but in our opinion, the finding
recorded by the High Court is unexceptionable.
15. The only question is: whether the quantum of
maintenance amount determined by the High Court is
just and proper. The discussion in respect of this
question can be traced only to para 85 of the
impugned judgment which reads thus: (Reema Salkan
case [Reema Salkan v. Sumer Singh Salkan, 2018 SCC
OnLine Del 9380: (2018) 250 DLT 16], SCC OnLine Del)
"85. So far the quantum of maintenance
is concerned, nothing consistent is emerging on
record to show the specific amount which is
being earned by the respondent after 2010,
however, the husband is legally bound to
maintain his wife as per the status of a
respectable family to which he belongs. The
husband being able-bodied along with high
qualification BCom, MA (Eco) and MBA from
Kentucky University, USA could earn at least
minimum of Rs 18,332 as per the current
minimum wage in Delhi. Therefore, the
petitioner being wife is entitled to Rs 9000 per
month from 9-12-2010 onwards till further
orders."
16. The principle invoked by the High Court for
determination of monthly maintenance amount
payable to the appellant on the basis of notional
minimum income of the respondent as per the current
minimum wages in Delhi, in our opinion, is untenable.
We are of the considered opinion that regard must be
had to the living standard of the respondent and his
family, his past conduct in successfully protracting the
disposal of the maintenance petition filed in the year
2003, until 2015; coupled with the fact that a specious
and unsubstantiated plea has been taken by him that
he is unemployed from 2010, despite the fact that he
is highly qualified and an able-bodied person; his
monthly income while working in Canada in the year
2010 was over Rs 1,77,364; and that this Court
in Reema Salkan v. Sumer Singh Salkan [Reema
Salkan v. Sumer Singh Salkan, (2019) 12 SCC 312] has
prima facie found that the cause of justice would be
subserved if the appellant is granted an interim
maintenance of Rs 20,000 per month commencing
from 1-11-2014. At this distance of time, keeping in
mind the spiraling inflation rate and high cost of living
index today, to do complete justice between the
parties, we are inclined to direct that the respondent
shall pay a sum of Rs 20,000 per month to the
appellant towards the maintenance amount with effect
from January 2010 and at the rate of Rs 25,000 per
month with effect from 1-6-2018 until further orders.
We order accordingly.
17. We, therefore, direct the respondent to pay the
enhanced maintenance amount, as determined in terms of
this order, to the appellant within a period of eight weeks
from today after duly adjusting the amount already
deposited in Court/paid to the appellant till date. The
appellant will be entitled to forthwith withdraw the
maintenance amount deposited by the respondent in Court,
if any. The impugned judgment of the High Court is
accordingly modified in the aforementioned terms."
(Emphasis supplied)
In the light of the judgments rendered by the Apex Court in the
aforesaid cases, maintenance has to be awarded to the wife and
children which would be commensurate to the cost of living or
continued living as they lived along with the respondent. Therefore,
the concerned Court has undoubtedly fallen in error in directing
maintenance only at `18,000/- per month, as against `36,000/- per
month, as was sought on the ground that the wife is qualified and
can make a living by earning self.
9. The contention of the learned counsel appearing for the
respondent/husband that the wife is not dutiful towards the
husband; was throughout quarrelsome or his job is inconsistent are
all submissions which have to be rejected on the face of them. The
petitioner is an employee at Canara Bank, a Government of India
undertaking working in the cadre of Manager - an Officer in Middle
Management Grade Scale-II and the salary of an officer under
Middle Management Grade Scale-II is beyond `70,000/-. It is not a
job that can be taken away like how pink slips are issued by private
employers, who sometimes practice the role of hire and fire, nor the
petitioner is bound by the principle of last come first go. He is in a
job that offers security of tenure. The pay that he receives can
never be reduced; it can only grow. Therefore, those submissions
of the learned counsel for the respondent/husband are to be
rejected as misleading and mischievous.
10. The other submission is that the 1st petitioner/wife is not
a dutiful wife. While this Court would not enter upon the claims of
the husband and the wife on discordant relationship between them,
as that is not the issue in the case at hand, but would consider it
germane to observe that a dutiful mother is on a higher pedestal
than a dutiful wife.
11. It is not in dispute that on the birth of the first child the
wife was asked to leave the job of a Teacher to take care of the
child. The second child is born, therefore, the wife completely quits
the employment only to take care of the children and becomes a
homemaker and a dutiful mother taking care of her children. All
was well till the relationship turned sore and till the maintenance is
sought. Once the maintenance is sought, the husband now alleges
that though the wife is qualified, she is not willing to work and earn
money and wants to live on the maintenance that the husband
pays.
12. It is trite law that merely because the wife is qualified she
is barred from seeking any maintenance. Every case will have to be
considered on the strength of the merit obtaining in those cases.
The wife-mother admittedly has quit the job to take care of the
children and taking care of the children cannot be taking care of
mere existence. It is shrouded by countless responsibilities and
necessary expenditure from time to time. The wife, as a
homemaker and mother, works indefatigably round the clock. The
respondent being the husband, cannot be seen to contend that the
wife is lazing around and not earning money to take care of the
children, as observed hereinabove, taking care of the children, for
a mother, is a whole time job. Therefore, such submissions made
by the learned counsel for the respondent-husband, is noted only to
be rejected as, to say the least, they are preposterous.
13. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition is allowed.
(ii) The order dated 12-06-2023 passed by the II
Additional Senior Civil Judge and JMFC, Anekal on
I.A.No.II in M.C.No.104 of 2020 is modified and the
Application - I.A.No.II in M.C.No.104 of 2020 filed
by the wife is allowed.
(iii) It is declared that the 1st petitioner/wife is entitled to
maintenance at `36,000/- per month as was sought
for in the application. Arrears of maintenance if any,
shall be cleared by the respondent/husband within a
time frame that will be fixed by the concerned Court.
Accordingly, I.A.No.1 of 2023 also stands disposed.
Sd/-
JUDGE
bkp
