Karnataka High Court
Smt Ashwini W/O Kariyappa Chitigi Alias ... vs Kariyappa on 13 January, 2025
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RPFC No. 100084 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REV.PET FAMILY COURT NO. 100084 OF 2024
BETWEEN:
1. SMT ASHWINI W/O KARIYAPPA CHITIGI @ CHITAGI
AGE: 34 YEARS, OCC: HOUSEHOLD,
R/O. TEREDAHALLI, TQ. & DIST. HAVERI-581110.
2. KUM. HONNAMMA D/O KARIYAPPA CHITIGI @ CHITAGI
AGE. 10 YEARS, OCC. STUDENT,
R/O. TEREDAHALLI, TQ. & DIST. HAVERI-581110
SINCE MINOR RPTD.BY HER MINOR GUARDIAN/NATURAL
MOTHER SMT. ASHWINI W/O KARIYAPPA CHITAGI @
CHITAGI
...PETITIONERS
(BY SRI. VIJAYENDRA BHIMAKKANAVAR, ADVOCATE)
AND:
VN
BADIGER
1. KARIYAPPA S/O YALLAPPA CHITAGI,
AGE: 46 YEARS,
Digitally signed
by V N OCC: AGRICULTURE AND BUSINESS,
BADIGER
Date:
R/O. TEREDAHALLI, TQ/DIST. HAVERI - 581111.
2025.01.16
12:35:45 +0530
...RESPONDENT
(BY SRI. VIDYASHANKAR G. DALWAI, ADVOCATE)
RPFC FILED UNDER SEC.19(4) OF THE FAMILY COURT ACT,
1984, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
ORDER DATED 15.03.2024 IN CRL.MISC.NO. 119/2022 PASSED BY
THE COURT OF PRINCIPAL JUDGE FAMILY COURT HAVERI IN
DISMISSING THE PETITION U/SEC 125(1) OF CR.P.C. FILED BY THE
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RPFC No. 100084 of 2024
REV. PETITIONER NO.1 AND THEREBY ALLOW
CRL.MISC.NO.119/2022 BY DIRECTING THE RESPONDENT/HUSBAND
TO PAY REV. PETITIONER NO.1, MAINTENANCE OF RS. 20,000/- PER
MONTH AND MODIFY THE IMPUGNED JUDGMENT AND ORDER DATED
15.03.2024 IN CRL.MISC.NO. 119/2022 PASSED BY THE COURT OF
PRINCIPAL JUDGE FAMILY COURT, HAVERI, IN PARTLY ALLOWING
THE PETITION U/S 125(1) OF CRL.P.C. FILED BY THE REV.
PETITIONER NO. 2 AND THEREBY ALLOW CRL.MISC.NO.119/2022 BY
DIRECTING THE RESPONDENT/FATHER TO PAY REV. PETITIONER
NO.2, MAINTENANCE OF RS.10,000/- PER MONTH IN PLACE OF RS.
3,000/- PER MONTH, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
CORAM:
THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH)
Heard learned counsel appearing for the parties.
2. This petition is filed by the petitioner No.1 and 4
challenging the order dated 15.03.2024 in Crl.Misc.No.119/
2022 on the file of the Principal Judge, Family Court, Haveri
dismissing the petition insofar as petitioner No.1 is concerned
and allowing the petition in part in respect of petitioner No.4,
by awarding maintenance of ₹3,000/- per month to the
petitioner No.4.
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3. For the sake of convenience, the parties are
referred to as per their rank before the Trial Court.
4. It is the case of the petitioners that the marriage
between petitioner No.1 and respondent was solemnised on
30.04.2007 and in their wedlock petitioner No.2 to 5 were born.
It is stated in the petition that at the time of marriage, dowry
was given to respondent-husband and after marriage, the
respondent-husband has caused harassment to the petitioner
No.1 by suspecting her character and has not provided basic
necessities like food and shelter. It is also stated in the petition
that the respondent is a habitual drinker and his father used to
abuse the petitioners in filthy language and as such, petitioner
No.1 has left the matrimonial home having not tolerated
inhuman conditions in the matrimonial home and accordingly
stayed at her parents' house. It is also stated in the petition
that petitioner No.4 is a physically challenged girl and the
petitioner No.1 has to take care of the child also and
accordingly filed Crl.Misc.No.119/2022 seeking maintenance
from the husband.
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4.1. After service of notice, respondent-husband
entered appearance and filed detailed objection admitting the
marriage, however contended that the petitioner No.1 has left
matrimonial home without any cause and accordingly, sought
for dismissal of the petition. The Family Court, after considering
the material on record, by its order dated 15.03.2024
dismissed the petition insofar as petitioner No.1 is concerned,
however granted maintenance of ₹3,000/- to petitioner No.4.
Feeling aggrieved by the same, petitioner No.1 and 4 have filed
this petition.
5. I have heard Sri. Vijayendra Bhimakkanavar,
learned counsel appearing for the petitioners and
Sri.Vidyashankar G Dalawai, learned counsel appearing for the
respondent.
6. Sri. Vijayendra Bhimakkanavar, learned counsel
appearing for the petitioners contended that the finding
recorded by the Family Court based on the evidence of PW1,
who has stated that her parents are having sufficient means for
taking care of her livelihood and the said finding recorded by
the Family Curt denying the maintenance to petitioner No.1 is
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incorrect as the Family Court has not considered the scope and
ambit of Section 125 of Cr.P.C. In the light of the judgment of
the Hon'ble Supreme Court in the case of Shamima Farooqui
v. Shahid Khan reported in (2015) 5 SCC 705 petitioner has
sought for grant of maintenance.
7. Per contra, learned counsel appearing for the
respondent-husband referred to the finding of the Family Court
at paragraph 25 and contended that the petitioner No.1-wife
herself has admitted in her evidence in Crl.Misc.No.119/2022
that her parents are well being and taking care of the
petitioners and accordingly, sought for dismissal of the petition.
8. In the light of the submissions made by the learned
counsel for the parties and on careful examination of the
finding recorded by the Family Court, I find force in the
submission made by the learned counsel appearing for the
petitioners that the learned Judge of the Family Court has
committed an error in not considering the well established
principle in law as laid down by the Hon'ble Supreme Court in
the case of Abhilasha v. Parakash and others reported in
AIR 2020 SC 4355 and in the case of Rajnesh v. Neha and
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another reported in AIR 2021 SC 569. Though the learned
counsel for the respondent-husband refers to paragraph 25 of
the impugned order wherein the PW1 has stated that her
parents are having sufficient means to take care of the
livelihood of petitioner No.1. The said aspect cannot be
considered as ground as an admission in the matter, and a
stray sentence in the cross-examination cannot be considered
as an admission to deny the relief to the petitioner No.1 herein.
In that view of the matter, taking into account the fact that the
petitioner No.4 is physically challenged baby staying along with
the petitioner No.1 herein, I am of the view that the finding
recorded by the Family Court at paragraph 27 relating to
immovable properties of the respondent-husband, though it is a
joint family property, the finding recorded by the Family Court
denying the maintenance to petitioner No.1 requires be set
aside. The Hon'ble Supreme Court in the case of Shamima
Farooqui (supra) at paragraph No.14 to 19 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
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Rs.17,654/-. The High Court, without indicating any
reason, has reduced the monthly maintenance
allowance to Rs.2,000/-. 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.2,000/- 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
woman suffers when she is compelled to leave her
matrimonial home. The statute commands there has to
be some acceptable 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
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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 Jabsir Kaur Sehgal v. District Judge
Dehradun & Others reported in (1997) 7 SCC 7 has
held as follows:-
"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."
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16. Grant of maintenance to wife has been perceived
as a measure of social justice by this
Court. In Chaturbhuj v. Sita Bai reported in (2008)
2 SCC 316, it has been ruled that:-
"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 Captain Ramesh Chander Kaushal v.
Veena Kaushal reported in (1978) 4 SCC 70
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
reported in (2005) 3 SCC 636"
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
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in Chander Prakash Bodhraj v. Shila Rani Chander
Prakash reported in (1968) SCC OnLine Del 52,
wherein it has been opined thus:-
"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-bodies person to
show to the Court cogent grounds for holding
that he is unable to 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."
19. From the aforesaid enunciation of law it is limpid
that the obligation of the husband is on a higher
pedestal when the question of maintenance of wife and
children arises. When the woman leaves the
matrimonial home, the situation is quite different. She
is deprived of many a comfort. Sometimes the faith in
life reduces. Sometimes, she feels she has lost the
tenderest friend. There may be a feeling that her
fearless courage has brought her the misfortune. At
this stage, the only comfort that the law can impose is
that the husband is bound to give monetary comfort.
That is the only soothing legal balm, for she cannot be
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allowed to resign to destiny. Therefore, the lawful
imposition for grant of maintenance allowance."
9. In that view of the matter, the impugned order
passed by the Family Court insofar as denying maintenance to
petitioner No.1-wife is hereby set aside and taking into
consideration the fact that petitioner No.1 is residing at
Teredahalli village of Haveri Taluk and the prevailing basic
necessities including the facilities that may be required for
petitioner No.1 is concerned, the respondent-husband is hereby
directed to pay maintenance of ₹10,000/- per month to
petitioner No.1 from the date of petition till realisation. Insofar
as monthly maintenance of ₹3,000/- payable to petitioner No.4
is concerned, the same is unaltered.
Sd/-
(E.S.INDIRESH)
JUDGE
YAN
CT:GSM
