IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2017 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA R.P.F.C. No.213/2015 BETWEEN :
MOHAMMED AREEF S/O LATE KHADARSAB, AGED ABOUT 28 YEARS, GOODS TRANSPORT BUSINESS, R/O 2ND MAIN, 2ND CROSS, VINOBHANAGARA, DAVANAGERE-577 002. ...PETITIONER (BY SRI S.VISHWAJITH SHETTY, ADV.) AND :
1. SMT.UMMIHANI W/O MOHAMMED AREEF, AGED ABOUT 44 YEARS, HOUSEWIFE 2. KUM.UMME ROOMAN D/O UMMIHANI, AGED ABOUT 7 MONTHS BOTH ARE R/AT DOOR NO.810, 1ST FLOOR, NEAR SIDDAMMA PARK, K.B.EXTENSION, DAVANAGERE-577 002. …RESPONDENTS THIS PETITION IS FILED UNDER SECTION 19(4) OF THE FAMILY COURT ACT, AGAINST THE ORDER DATED 17.10.2015 PASSED IN CRL.MISC.No.433/2014 ON THE FILE OF THE JUDGE, FAMILY COURT, DAVANGERE, PARTLY ALLOWING THE PETITION FILED UNDER SECTION 125 Cr.P.C. FOR MAINTENANCE.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is directed against the Judgment and Order passed by the Family Court, Davangere, [Family Court, for short] in Crl. Misc. No.433/2014.
2. Respondent No.1 is the legally wedded wife of the petitioner and respondent No.2 is the child born during the wedlock of the couple. The respondents filed a petition under section 125 of Criminal Procedure Code against the petitioner herein claiming monthly maintenance of Rs.20,000/- with costs of the petition.
3. The allegations and counter allegations are made between the parties. It is the contention of the wife/respondent No.1 herein that due to the ill treatment meted out by the petitioner, she was compelled to leave the matrimonial house and is now residing with her parents along with her child. She being unemployed and not an earning member, neglected by her husband/petitioner herein, sought for maintenance. The petitioner refuted the claim of the respondent on the ground that he has pronounced talak to the respondent No.1 as per Islamic tradition and the same was intimated to the respondent No.1 as such there is no relationship of husband and wife between the petitioner and the respondent No.1. It was further contended that the petitioner is suffering from mental disorder and is taking treatment for severe depression. Thus, he is not working and earning. Considering the material evidence on record, the Family Court partly allowed the petition ordering the monthly maintenance of Rs.1,500/- to the first respondent and Rs.800/- to the second respondent from the date of the petition. Aggrieved by the same, this petition is filed by the husband.
4. Learned Counsel appearing for the petitioner would contend that the Family Court failed to appreciate the material evidence Exhibits.D1 to D6 which clearly establishes that the petitioner is suffering from mental disorder and is not in a position to do any work and has no source of any independent income. It is contended that the petitioner has not neglected the respondents. It was the wrong conclusion arrived at by the Family Court that the petitioner had failed to maintain his wife and daughter much against the evidence on record. The relationship of husband and wife being not established by the wife/respondent No.1 in view of the pronouncement of the talak made by the husband/petitioner awarding of maintenance by the Family Court is totally untenable. Thus, the learned Counsel seeks for setting aside the impugned Judgment and Order and allow the revision petition.
5. Having heard the learned Counsel for the petitioner and perusing the material on record, it emerges that the marriage of the petitioner and the respondent No.1 was solemnized on 31.03.2013 in Rayal Shadhi Mahal, Davangere, as per the customs and traditions prevailing in Muslim community. During the wedlock, the Respondent No.2 was born to them and she is now under the care and custody of the respondent No.1. The material evidence on record establishes that the respondent No.1 was forced to leave the matrimonial house due to the alleged harassment and ill treatment meted out by the petitioner. The respondent No.1 being unemployed and having no independent income to maintain herself and minor respondent No.2 sought for maintenance due to the willful refusal and negligence on the part of the petitioner to maintain them.
6. It is the contention of the petitioner herein that he is suffering from depression and related mental disorders and as such not in a position to earn and maintain the respondents. This ground cannot be considered to be a valid reason, to escape the pious obligation of maintaining the wife and child. The object of enacting section 125 of Criminal Procedure Code is to prevent the wife, children and aged parents from the vagrancy and destitution. It is the social, moral and legal obligation on the part of the petitioner/husband to maintain his wife and child who are not able to maintain themselves. The reason assigned by the petitioner that the relationship of husband and wife is no more in existence in view of the talak pronounced by him is not proved in accordance with law. In the absence of the proof of talak said to have been pronounced, the husband/petitioner cannot take shelter that his relationship with the respondent No.1 is no more of a husband and he is not entitled to pay maintenance which is wholly untenable.
7. It is trite law that even the divorced wife is also entitled for maintenance. Though it is not accepted that the petitioner has divorced his wife, assuming so, also is liable to pay the maintenance. The maintenance amount awarded is a meager amount of Rs.1,500/- to the respondent No.1 and Rs.800/- to the respondent No.2 which do not warrant any interference by this Court.
8. It is settled legal position that husband even if he has no actual pecuniary resources, a man with able body must be held to possess the means to maintain wife and the child. In such circumstances, no fault can be found with the impugned Judgment and Order.
The revision petition stands dismissed as devoid of merits.
Sd/- JUDGE AN/-