IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE BETWEEN:
THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.50770/2019(GM-FC) SRI S. YOGESH, S/O LATE SHANTHAVEERAPPA, AGED ABOUT 40 YEARS, R/AT NO.307, 2ND CROSS, VINAYAKA LAYOUT, K R NAGAR TOWN, MYSORE-571301.
...PETITIONER (BY SRI ASHWATH C.M., ADVOCATE FOR SRI MOHAN B.K., ADVOCATE) AND:
SMT. ANUSHA C W/O S. YOGESH, AGED ABOUT 27 YEARS, R/AT NO.4752/1, GAUTHAM ROAD, NILKANTHA NAGAR, NANJANGUD TOWN, MYSORE DISTRICT-571301.
…RESPONDENT …… THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE INTERIM ORDER DATED 27.06.2019 PASSED BY THE HON’BLE SENIOR CIVIL JUDGE AND JMFC AT NANJANAGUD IN M.C. No.37/2015 THE RESPONDENT HAD FILED APPLICATION UNDER SECTION 24 OF HINDU MARRIAGE ACT, 1956 DATED 18.08.2018 (ANNEXURE-C) THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The husband filed the present writ petition challenging the Order dated 27.06.2019 made in M.C.No.37/2015 on the file of the Senior Civil Judge and JMFC, Nanjanagudu, partly allowing the I.A. filed by the wife under Section 24 of the Hindu Marriage Act, 1956, awarding interim maintenance of `3,000/- per month in favour of the wife, from 18.08.2018 until the conclusion of the said proceedings, periodically, and also directing the husband to pay litigation expenses of `5,000/- per month, pending disposal of the petition.
2. It is the case of the petitioner-husband that the marriage of the petitioner with the respondent was solemnized on 21.04.2014 at Nanjangud. After the marriage, the respondent came and joined the petitioner’s matrimonial home, where the petitioner and his mother were residing. Within few days of marriage, the respondent, to the shock and surprise of the petitioner, started demanding the petitioner to make arrangement to provide a shop to her father to run his business as he was doing the same on the street and to get a laptop to her brother who was studying. Later, rift started between the parties and the respondent-wife voluntarily left the matrimonial home. Therefore, petitioner-wife was constrained to file M.C.No.21/2015 for restitution of conjugal rights under Section 9 of the Hindu Marriage Act which came to be allowed. Since the respondent failed to honour the said Order, the petitioner filed Execution Petition No.48/2018. At that time, respondent-wife filed Misc.No.1/2017 seeking to set-aside the order passed in M.C.No.21/2015 which came to be dismissed for non-prosecution. The respondent-wife again filed another Miscellaneous Petition No.2/2018 praying to restore the earlier miscellaneous petition. In the mean time, the respondent-wife also filed M.C.No.37/2015 under Section 13 of the Hindu Marriage Act, for dissolution of marriage, raising various contentions. The petitioner- husband filed objections and denied the averments made in the petition. During pendency of the said petition, respondent-wife filed I.A. under Section 24 of the Hindu Marriage Act seeking interim maintenance of `15,000/- per month and `20,000/- towards litigation expenses, reiterating the averments made in the main petition. The said application was opposed by the petitioner-husband by filing objections. The Family Court, considering the application and the objections, by the impugned Order dated 27.06.2019, allowed the application in part and awarded interim maintenance of `3,000/- per month and `5,000/- per month towards litigation expenses. Hence the present writ petition is filed by the husband for the relief sought for.
3. I have heard the learned counsel for the petitioner.
4. Sri Ashwath, learned counsel for Sri Mohan B.K. learned counsel for the petitioner-husband contended with vehemence that the impugned Order passed by the Family Court awarding interim maintenance of `3,000/- per month and litigation expenses of `5,000/- per month is erroneous and without any basis. He further contended that the respondent-wife voluntarily left the matrimonial home without any reasons and cannot take advantage of her own act by not joining the petitioner inspite of the Order passed in M.C.No.21/2015 filed seeking restitution of conjugal rights under Section 9 of the Hindu Marriage Act, therefore, not entitled to any maintenance.
5. The learned counsel further contended that though the respondent-wife claimed that the petitioner- husband is having 18 sites and doing money lending business and is earning `4,00,000/- per month, since no material document has been produced, the Family Court ought not to have granted interim maintenance. Inspite of allowing of the petition filed by the petitioner for restitution of conjugal rights, the respondent did not join the petitioner. Therefore, the respondent is not entitled to any maintenance as awarded by the Family Court. It is further contended that the litigation expenses awarded by the Family Court at `5,000/- per month is without any basis and it has to be modified. Therefore, he sought to allow the writ petition.
6. Having heard the learned counsel for the petitioner, it is undisputed fact that the respondent wife filed M.C.No.37/2015 under the provisions of Section 13 of the Hindu Marriage Act, raising various contentions. The same was objected by the petitioner- husband by filing objections. During the interregnum, wife filed application under Section 24 of the Hindu Marriage Act seeking monthly maintenance of `15,000/- and litigation expenses of `20,000/-. The Family Court, considering the entire material on record, has come to the conclusion that, “the petitioner-wife has produced three property register extracts which stands in the name of the respondent-husband. The said properties are situated at K.R. Nagar. Though, what is the rental income from the said property is not clear at this stage, the existence of such properties in the name of the respondent-husband is relevant. It can be held prima- facie at this stage that the husband must be having some considerable income from such properties. Even otherwise, the respondent is able bodied man who must be having capacity to maintain himself and his wife. Therefore, respondent cannot evade his liability to pay the maintenance, having admitted the marital tie with the petitioner”. Accordingly, taking into consideration the day to day expenditure and having regard to the general capacity of a human being to earn income on his own, the Family court was of the view that `3,000/-
per month has to be awarded as interim maintenance and `5,000/- per month towards litigation expenses.
7. The relationship between the parties is not in dispute. Whether the wife left the matrimonial home on her own or not is matter of adjudication after trial. The argument canvassed by the learned counsel for the petitioner that M.C.No.21/2015 filed by the husband for restitution of conjugal rights came to be allowed and the wife did not honour the said judgment and therefore, she is not entitled for maintenance, cannot be accepted and that cannot be a ground to reject the interim maintenance. It is well settled that even a divorced wife is entitled for maintenance till she gets remarried. While considering the interim maintenance pendente lite, the Court has to take into consideration the earning capacity and monthly income of the husband.
8. Admittedly, in the present case, the marriage between the parties is not in dispute. The petitioner aged about 40 years. Once the relationship is admitted, the husband is duty bound to maintain his wife. In the absence of any documents produced to show that the wife is also earning and is having capacity to maintain herself, the husband is bound to maintain his wife as contemplated under Section 125(1)(a) of the Code of Criminal Procedure. My view is fortified by the judgment of the Hon’ble Supreme Court in the case of Bhuwan Mohan Sing vs. Meena and others reported in AIR 2014 SC 2875. At para-3, it is held as under:
“3. 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 statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a begger. A situation is not to be maladroitly created where under 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.”
9. For the reasons stated above, the impugned Order insofar as awarding of monthly maintenance of `3,000/- does not call for any interference. The Family Court is not justified in awarding `5,000/- per month towards litigation expenses.
10. In view of the above, the writ petition is allowed in part. The impugned order only with regard to awarding of `5,000/- per month towards litigation expenses is modified. The wife is entitled to maintenance of `3,000/- per month and litigation expenses of `5,000/-.
Ordered accordingly.
Sd/- JUDGE kcm