Karnataka High Court

Smt. Mala W/O Nagaraj vs Sri. Nagaraj Jyotheppa on 7 November, 2024

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                                                        RPFC No. 100134 of 2023




                       IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                             DATED THIS THE 7TH DAY OF NOVEMBER, 2024
                                              BEFORE
                           THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
                             REV.PET FAMILY COURT NO. 100134 OF 2023
                      BETWEEN:

                      1.   SMT. MALA W/O NAGARAJ,
                           AGE: 25 YEARS, OCC: NIL,
                           R/O: NEAR YALLAMMA TEMPLE,
                           KURUBAR ONI, BHUSAPPA CHOWK,
                           DHARWAD-580 001.

                      2.   KUMARI ADHYA D/O NAGARAJ,
                           AGE: 02 YEARS, OCC: NIL,
                           R/O: NEAR YALLAMMA TEMPLE,
                           KURUBAR ONI, BHUSAPPA CHOWK,
                           DHARWAD-580 001.
                           REPRESENTED BY HER MOTHER
                           NATURAL GUARDIAN PETITIONER NO.1.
                                                                 ...PETITIONERS
                      (BY SRI. CHETAN T. LIMBIKAI, ADVOCATE)

                      AND:
BHARATHI
HM
                      SRI. NAGARAJ JYOTHEPPA,
Digitally signed by
BHARATHI H M          AGE: 41 YEARS,
Location: HIGH
COURT OF
KARNATAKA             OCC: AGRICULTURE,
DHARWAD BENCH
                      R/O: CHIKK KUDALI,
                      TQ: AND DIST: SHIMOGGA-577 201.
                                                                 ...RESPONDENT
                      (BY SRI. M.A. KARIGANNAVAR, ADVOCATE)

                           THIS RPFC IS FILED UNDER SEC.19(4) OF THE FAMILY
                      COURT ACT, AGAINST THE JUDGMENT AND ORDER DATED
                      03.02.2023, IN CRL.MISC. NO.193/2021, ON THE FILE OF THE
                      PRINCIPAL JUDGE, FAMILY COURT, DHARWAD, PARTLY
                      ALLOWING THE PETITION FILED UNDER SEC.125 OF CR.P.C.
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                                          NC: 2024:KHC-D:16303
                                     RPFC No. 100134 of 2023




     THIS PETITION IS COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:

CORAM:      THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

                         ORAL ORDER

The present petition is filed by the wife and the daughter

aggrieved by the order passed in Crl.Misc.No.193/2021, dated

3.02.2023, by the Prl.Judge, Family Court, Dharwad, whereby

the Family Court had dismissed the application filed by the

petitioner/wife seeking maintenance and allowed the

application as far as the child is concerned and granted an

amount of Rs.3,000/- per month.

2. Learned counsel appearing for the petitioner/wife

submits that because of harassment meted out by the

husband/respondent and in view of difference between the

parties and also the fact that the husband has addicted to bad

vices, the wife came back to her parent's house and started

residing along with the child. The Family Court giving more

importance to the evidence of the husband and considering

whatever is the case of the husband, on it's face value has

dismissed the claim of the wife holding that without a

reasonable cause, she is staying away from the matrimonial

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home. He further submits that the Family Court has failed to

consider that because of the harassment of the husband, she is

staying away from the matrimonial home. The Family Court

had taken clue from the cross examination and basing on that,

the Family Court has come to the conclusion that the wife

wants a separate house at Dharwad and the father of the

husband was a bed ridden, it is not possible for the husband to

come and basing on that the Family Court has refused to grant

maintenance to the wife. Therefore, he submits that the same

cannot be the reason for the Family Court to come to such

conclusion. He further submits that the wife, who is not able to

maintain herself and the husband, who is able bodied person

has every duty and obligation to maintain the wife.

3. Learned counsel for the petitioners has relied on

the judgment of the Hon'ble Apex Court in case of Anju Garg

and another V/s. Deepak Kumar Garg1. He relied on para

No. 9 to 14 and the same reads thus:

9. At the outset, it may be noted that Section 125 of Cr.P.C. was conceived to ameliorate the agony, anguish and financial suffering of a woman who is

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required to leave the matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children, as observed by this Court in Bhuwan Mohan Singh v. Meena. This Court in the said case, after referring to the earlier decisions, has reiterated the principle of law as to how the proceedings under Section 125 Cr.P.C have to be dealt with by the Court. It held as under:

"In Dukhtar Jahan v. Mohd. Farooq [(1987) 1 SCC 624 : 1987 SCC (Cri) 237] the Court opined that : (SCC p. 631, para 16)

16. "... Proceedings under Section 125 [of the Code], it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner."

8. A three-Judge Bench in Vimala (K.) v. Veeraswamy (K.) [(1991) 2 SCC 375 : 1991 SCC (Cri) 442], while discussing about the basic purpose under Section 125 of the Code, opined that : (SCC p. 378, para 3)

3. "Section 125 of the Code of Criminal Procedure 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."

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9. A two-Judge Bench in Kirtikant D. Vadodaria v. State of Gujarat [(1996) 4 SCC 479 : 1996 SCC (Cri) 762], while adverting to the dominant purpose behind Section 125 of the Code, ruled that : (SCC p. 489, para 15)

15. "... While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents, etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation."

10. In Chaturbhuj v. Sita Bai [(2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356], reiterating the legal position the Court held :

(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)

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4 SCC 70 : 1978 SCC (Cri) 508] falls within 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]."

11. Recently in Nagendrappa Natikar v. Neelamma [(2014) 14 SCC 452 : (2015) 1 SCC (Cri) 407 : (2015) 1 SCC (Civ) 346], it has been stated that it is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children".

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

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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 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

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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 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

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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 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

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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.

Basing on the above judgment, he submits that the wife is

entitled for maintenance and the order passed by the Family

Court as far as wife's entitlement is concerned needs to be set

aside.

4. Learned counsel appearing for the

respondent/husband submits that the evidence on record

clearly discloses that without a reasonable cause the wife has

left the matrimonial home and staying away from the husband.

In the light of Section 125 (4) of Cr.P.C. she is not entitled for

maintenance. He has drawn the attention of this Court to the

findings of the Family Court particularly her admission that if

the husband shifts the resident to Dharwad, she is ready to

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join and this statement make it very clear that only for the

reason, she is not inclined to join the matrimonial home, which

clearly shows that without reasonable cause, she is staying

away from the husband and the Family Court had rightly held

that she is not entitled for maintenance. He further submits

that he is working as an agriculturist and having agriculture

land and also taking care of his parents and hence, it is not

possible for him to set up a new home at Dharwad. The wife is

not entitled for maintenance and the Family Court has rightly

dismissed the petition and there are no grounds to interfere

with the order passed by the Family Court.

5. Having heard learned counsel on either side and

perused the material on record.

6. Before going into the merits of the matter, it is

appropriate to look at Section 125(4) of Cr.P.C., which reads

thus:

(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any

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sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

Section 125(4) of Cr.P.C. envisages that no wife should be

entitled to receive the interim maintenance and expenses of

proceeding, as the case may be from the husband. If she is

living in adultery or if, without any sufficient reason, she

refuses to live with her husband or if they are living separately

by mutual consent. When an application is filed under Section

125(4) of Cr.P.C. on the ground that the wife without sufficient

cause is residing away from the matrimonial home, the Family

Court cannot do such a roving inquiry and give a finding as if it

is a criminal case. The Court has to prima facie look into the

facts of the case. In this particular case, it is the case of the

wife, in her petition that the husband is addicted to bad vices

and he has not taken proper care of the wife and he was not

bothered about the welfare of the child and as such, in view of

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the harassment, she was made to reside away from the

matrimonial home. Then husband had put forth his version

about how he has been harassed and she has not been

behaving how the wife or daughter-in-law has to behave. In

the cross examination, when it was suggested to her, if the

husband comes to Dharwad will she be willing to stay with him.

For that, she gave an answer saying that she will join with him.

Taking a clue from that, the Family Court has observed that

without a reasonable cause, only on the ground that the

husband has to move to Dharwad and set up a family, the wife

has left the matrimonial home and she is staying away from

the matrimonial home and hence, the Family Court disentitles

the wife from claiming compensation. The enquiry that is done

by the Family Court in the particular facts and circumstances of

the case is beyond the scope of Section 125(4) of Cr.P.C. In

that view of the matter, this Court is view that the wife is

entitled for maintenance.

7. Coming to the quantum of maintenance, there is no

material before this Court to decide that matter. Hence, this

Court is passing the following:

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ORDER

i) The order passed in Crl.Misc.No.193/2021, dated

3.02.2023, by the Prl. Judge, Family Court, Dharwad as far

as refusing the maintenance to the wife is concerned is set

aside and it is held that the petitioner No.1/wife is entitled

for maintenance and as far as the petitioner No.2/daughter

is concerned, as of now, there is no material before this

Court to enhance the maintenance, once after leading the

evidence, basing on that, the petitioners are at liberty to

seek enhancement of maintenance granted to the

petitioner No.2/daughter.

ii) Regarding the quantum of maintenance, both the

parties shall file their respective statements of assets and

liabilities as per the judgement of the Hon'ble Apex Court in

the case of Rajnesh V/s. Neha and another 2 within a

period of one month from the date of receipt of the copy of

this order.

iii) Both the parties are at liberty to adduce evidence

and basing on the same, the Family Court shall pass

AIR 2021 Supreme Court 569

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appropriate order within a period of four months from the