Karnataka High Court

Sri M Y Yashvanth vs Smt N A Ashwini on 30 July, 2024

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                                                   NC: 2024:KHC:30025
                                                 WP No. 13913 of 2024




             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 30TH DAY OF JULY, 2024

                                        BEFORE
              THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
                  WRIT PETITION NO. 13913 OF 2024 (GM-FC)
             BETWEEN:

                  SRI M. YASHVANTH
                  S/O LATE M.MAHESHWARAPPA
                  AGED ABOUT 42 YEARS,
                  R/AT SRI MANJUNATHA KRUPA,
                  NEAR MARAMMA TEMPLE ROAD,
                  KATARIPALYA
                  KOLAR-563 102.
                                                          ...PETITIONER
             (BY SMT.VEENA RAI K., ADVOCATE)

             AND:

             1.   SMT.N.ASHWINI
                  W/O M.YASHVANTH
                  D/O M.NAGARAJ,
                  AGED ABOUT 37 YEARS
Digitally    2.   KUM. HONMAYI
signed by
MEGHA             D/O M.YASHVANTH
MOHAN             AGED ABOUT 12 YEARS
Location:
HIGH COURT        RESPONDENT NO.2 IS A MINOR
OF                AND REP. BY THEIR MOTHER AND
KARNATAKA         NATURAL GUARDIAN
                  1ST RESPONDENT

                  BOTH ARE RESIDING AT
                  1ST FLOOR, SANNIDI HOUSE
                  NO.54, 2ND CROSS,
                  PARK EXTENTION
                  SHIMOGA
                                                       ...RESPONDENTS
             (BY SRI. P.N.HARISH, ADVOCATE)
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                                             NC: 2024:KHC:30025
                                          WP No. 13913 of 2024




      THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED
16.03.2024 VIDE ANNEXURE-A PASSED BY THE HONOURABLE PRL.
JUDGE FAMILY COURT, SHIVAMOGGA ON IA NO. I IN CRL. MISC. NO.
335/2023 FILED BY THE RESPONDENTS UNDER SEC 125(1)
CRIMINAL PROCEDURE CODE PRAYING FOR AN ORDER OF INTERIM
MAINTENANCE.
      THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM:        HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

                           ORAL ORDER

Aggrieved by the order passed in I.A.No.1 in

Crl.Misc.No.335/2023 dated 16.03.2024 by the Principal Judge,

Family Court, Shivamogga, the petitioner/husband is before

this Court.

2. The parties are referred to as husband and wife for the

sake of convenience.

3. The wife had filed I.A.No.1 under Section 125 of

Cr.P.C. for claiming maintenance of an amount of Rs.40,000/-

per month. It is the case of the wife that the husband had

neglected to maintain the wife and the child though he is

having sufficient income. According to the wife, the husband is

running a coaching, tuition classes, English spoken classes and

also counselling center at Hospete and earning an amount of

Rs.2,00,000/- per month from all his venture. He has let out

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his six houses on rentals and earning more than an amount of

Rs.70,000/- per month, whereas the wife has no income to

maintain herself and the child. It is stated that the wife is also

taking treatment and she sought for maintenance.

4. The husband has not filed separate objections to

I.A.No.1 filed by the wife, but the counsel has filed memo to

adopt his objections that are filed to the main petition. It is

submitted that due to Covid-19 the spoken English Classes

were closed down and he has faced severe financial issues. He

is not employed and he is getting an amount of Rs.17,000/-

from house rent, wherein his sister is also having share. Out of

his meagre earning, he is paying hand loans and it is difficult

for him to maintain himself and due to harassment, torture and

mental agony and filing of false case by the wife he could not

find any jobs. According to the husband, he has never failed to

discharge his duties as husband and father and he has shown

love and affection to the wife and the child.

5. The trial Court had considered the case of both the

parties and observed that the wife had filed her affidavit of

disclosure of assets and liabilities stating that her qualification

is B.A., she is residing in a rented house along with the minor

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child, she has no job and no income. But the qualification of the

husband is B.A., M.A., LL.B., B.Ed and he is running coaching

classes and earning an amount of Rs.2,00,000/- per month and

rental income of an amount of Rs.70,000/-. The Court has also

observed the qualification of the wife and the husband has

produced salary slip of the wife for the month of November

2016, but he has not produced the salary slip of the wife for the

relevant period. At this stage, at the most it can be said that

the wife is having earning capacity but she has no job and no

income. Section 125 of Cr.P.C. is conceived to ameliorate the

agony and anguish of the financially suffering women who has

left her matrimonial home, so that some suitable arrangements

could be made to enable her to sustain herself and the children

since it is a sacrosanct duty of the husband to provide financial

support to his wife and children. So, to prevent vagrancy and

destitution of deserted wife, the husband has to provide

maintenance.

6. The trial Court has also observed that in the affidavit of

disclosure of assets and liabilities, the husband has not stated

anything about his employment, monthly income etc. But in

part (G) of the affidavit, he stated that he has purchased the

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share of elder brother in the ancestral property, he is not

having any joint property, he is presently residing in the

ancestral property, he has given 3 houses for rent for an

amount of Rs.17,000/-, 2 houses on lease for an amount of

Rs.8,25,000/- and he has availed loan of an amount of

Rs.20,00,000/- from his sister, brother and friends. But he has

not produced any piece of document in support of his

contention. He has not produced the copies of Bank Statement

for the last three years to know his financial status and the wife

has also not stated anything about her Bank Statement and

also not produced the Bank Statement for the last three years.

The material produced by both the parties prima facie shows

that the husband is having income, capable to maintain the

wife and child. But the wife failed to make out prima facie case

to show that the husband is having capacity to pay an amount

of Rs.50,000/- per month. But considering the qualification and

the fact that the husband is getting rent from the rented house,

whereas the wife and child have no income to maintain

themselves, considering the present cost of living, the need of

the wife and child, the trial Court had granted the monthly

maintenance of an amount of Rs.12,000/- from the date of

application till the disposal of the petition.

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7. Learned counsel appearing for the petitioner/husband

submits that wife is employed and in fact the husband has

placed the salary certificate in the name of the wife before the

Court to show that the wife was earning in the year 2016.

Learned counsel submits that the wife had not produced her

Bank Statement and all the details to show what is the income

of the husband and just because he is qualified, it cannot be a

ground to grant maintenance. Learned counsel submits that the

trial Court had failed to consider all the contentions of the

husband and the relevant factors in granting the maintenance.

The wife who is a B.A. graduate and who is capable of earning

cannot seek maintenance from the husband. Accordingly, the

order is liable to be set aside.

8. Learned counsel appearing for the respondent/wife

also does not dispute the fact that the wife has also not filed

the Bank Statement. It is submitted that she is living in a rental

house and she is not having any other income and the trial

Court had rightly granted the maintenance.

9. Having heard the learned counsels on either side,

perused the entire material on record. In this case, the facts of

the case are that both the wife and husband are qualified and

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the salary slip in the name of the wife for the month of

November 2016 shows that she was employed and was

earning. The child is studying in 6th standard and for a child of

6th standard there cannot be any compelling reasons for the

wife not to work. No material is placed on record regarding the

fact that when she was working in the year 2016 why she was

not working in the year 2023. If the Bank Statements of both

the parties were filed before the trial Court, the Court would

have got a better picture to understand what is the income of

the wife and what is the income of the husband. In all these

cases, when the parties have an opportunity to file all the

documents and as per the judgment of the Hon'ble Apex Court

in the case of Rajnesh Vs. Neha1, mandates what are the

documents that has to be filed along with the petition.

Conveniently, the parties have not filed those documents

before the Court and after spending a long time on hearing the

case on the evidence and passing an order, whenever the

matters are coming up before the Court, now at that point of

time, like in the present case, the wife would say that the

husband has not filed his Bank Statement and the husband

2021 2 SCC 324

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would say that the wife has not filed Bank Statement or the

other documents which are as per the judgment of the Apex

Court. Again, the matter will be pending for several years

before the Court and again that order has to be set aside and

the matter has to be remanded to the trial Court, it has become

a routine exercise. This Court is of the view that when sufficient

opportunity is given to both the parties, consciously when they

have not filed the documents, questioning of granting another

opportunity to the parties would not arise. Hence, in this case,

this court is not inclined to remand the matter. As rightly

pointed out by the learned counsel, both the parties have not

filed their Bank Statement for the last three years for the best

reasons known to them.

10. When the wife is educated, why she is not working

why she has no job and what are the difficulties, nothing has

been placed before the Family Court. The Family Court has not

discussed the same. Then coming to the child, it is the

responsibility of the husband to maintain the child. Considering

that the child is studying in 6th standard and as he requires

maintenance, it is the duty of the father to maintain the child.

Accordingly, the following:

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ORDER

i. Accordingly, the writ petition is partly allowed.

ii. The wife is not entitled for maintenance and the child is entitled for maintenance of an amount of Rs.10,000/- per month.

iii. The observations are made by this Court only for the purpose of deciding this writ petition and both the parties are at liberty to advance their arguments on the merits of the matter and the trial Court without being influenced by any of the observations made by this Court shall decide the case independently.