IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA WRIT PETITION No.30000 OF 2019 (GM-FC) BETWEEN:
SRI. SHIVAJI RAO PAWAR, SON OF RANGOJI RAO, AGED ABOUT 40 YEARS, RESIDING AT KEREBEERANAHALLI VILLAGE, GRAMA BHADRAVATHI-577301.
... PETITIONER (BY SRI. CUCKOO DELHI, ADVOCATE) AND:
1. SMT. JAYASHREE N., WIFE OF SRI. SHIVAJI RAO PAWAR, AGED ABOUT 30 YEARS, 2. MISS DEESHA S PAWAR, D/O. SHIVAJI RAO PAWAR, AGE 14 YEARS 3. MASTER VISHAL S PAWAR, S/O. SHIVAJI RAO PAWAR, AGE 9 YEARS (R2 & R3 ARE MINORS REP. BY MOTHER AS GUARDIAN) ALL ARE R/AT HOUSE NO.408, 14TH CROSS, 3RD STAGE, ‘B’ BLOCK, MYSURU-577412.
(BY SRI. V.R.PRASANNA, ADVOCATE) ---
... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER ON I.A.NO.2 ON 21.02.2019 IN C.MIS.NO.182/2017 PASSED BY HON’BLE III ADDITIONAL PRINCIPAL JUDGE FAMILY COURT AT MYSORE, AS PER ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has filed the present writ petition praying to set-aside the order dated 21.02.2019 on I.A.No.2 in C.Misc.No.182/2017 on the file of III Addl. Principal Family Judge, Mysuru, whereby the Family Court has awarded monthly maintenance of Rs.2,000/- to the wife and Rs.1,500/- each to respondent Nos.2 and 3-children of the present petitioner.
2. It is the case of the petitioner that the petitioner had filed M.C.No.116/2016 under the provisions of Sections 9 and 13 of Hindu Marriage Act on 24.11.2010. During the pendency of the said petition, for restitution of conjugal rights as well as divorce, the wife and children has initiated the proceedings on 21.03.2017 under the provisions of Section 125 (2) of Cr.P.C. for maintenance. During the pendency of the proceedings, respondent Nos.1 to 3, wife and children filed I.A.No.II under section 125(2) of Cr.P.C. seeking interim maintenance reiterating the averments made in the main petition. The same is opposed by the present petitioner-husband by filing objection to the main petition contending that the first respondent-wife is a Ph.D holder from Mysore University and she is receiving Rs.10,000/- as study fund and the petitioner-husband was paying rent of the house upto 2017. It is further contended that the wife is capable of maintaining herself and therefore she is not entitled for maintenance. The family Court considering the objections, by the impugned order dated 21.02.2019, allowed the application filed by the respondents under Section 125(2) of Cr.P.C. in part and awarded interim maintenance of Rs.2,000/- to wife and Rs.1,500/- each to the children. Aggrieved by the same, the petitioner is before this Court for the relief sought for.
3. I have heard the learned counsel for the parties to the lis.
4. Sri. Cuckoo Delhi, learned counsel for the petitioner contended that the impugned interim maintenance awarded by the Family Court in favour of wife and children is without any basis and cannot be sustained. He further contended that the petitioner is a farmer and has studied upto SSLC and from the date of marriage, both husband and wife had strained relationship and after the birth of two children, the respondent was ill-treating the petitioner and the respondent is a Ph.D Holder, she is getting stipend from the University and she can maintain herself. He fairly submits that respondent Nos.2 and 3 children are entitled for maintenance. Therefore, he sought to allow the writ petition.
5. Per-contra, learned counsel for respondent sought to justify the impugned order passed by the Family Court and contended that except the objections filed, the petitioner has not produced any material before the Court to show that respondent No.1 is getting a stipend. In the absence of any documents, it is duty of the husband to maintain his wife and children as contemplated under section 125 (1) of Hindu Marriage Act and sought to dismiss the writ petition.
6. Having heard learned counsel for the parties, it is not in dispute that first respondent-wife and respondent Nos.2 and 3 are children of the petitioner. It is also not in dispute that the petitioner husband had already filed a petition under sections 9 and 13 of Hindu Marriage Act in M.C.No.116/2016. Simultaneously, seeking restitution of conjugal rights and divorce under sections 9 and 13 (b) of Hindu Marriage Act. Respondent No.1- Wife has also filed objection and the same is pending adjudication. It is also not in dispute that during the pendency of the said M.C.No.116/2016, respondent Nos.1 and 3 filed C.Misc.No.182/2017 under section 125 of Cr.P.C. for interim monthly maintenance of Rs.30,000/- to wife and Rs.1,50,000/- for educational expenses to minor children. Contending that the petitioner is having four acres of coconut garden and also four acres of irrigation land and growing commercial crop and getting more than 15 lakhs, it is bounden duty of the petitioner- husband to maintain his wife and children. Hence, in the absence of any documents, the family court was of the considered view that the respondents being wife and children are entitled for maintenance from the petitioner. Though respondent No.1 has sought interim maintenance of Rs.30,000/- and Rs.1,50,000/- for the two minor children for their education, the Family Court has granted only Rs.2,000/- to the wife and Rs.1,500/- each to the children which is hardly sufficient for their livelihood. The petitioner had not denied that he is having agricultural land and irrigation land. It is the bounden duty of the petitioner-husband to pay maintenance to his wife and children in view of provision to section 125 (1) (a) & (b) of Cr.P.C. My view is fortified by the Hon’ble Supreme Court in the case of BHUWAN MOHAN SINGH vs. MEENA AND ORS., reported in AIR 2014 SC 2875 wherein in para 3 it is held as under:-
“Presently to the facts which lie in an extremely small compass. The marriage between the appellant and the husband was solemnized on 27.11.1997 as per Hindu rites and ritual, and in the wedlock a son was born on 16.12.1998. The respondent, under certain circumstances, had to leave the marital home and thereafter filed an application on 28.8.2002 under Section 125 of the Code in the Family Court, Jaipur, Rajasthan, claiming Rs.6000/- per month towards maintenance. The Family Court finally decided the matter on 24.8.2011 awarding monthly maintenance of Rs.2500/- to the respondent- wife and Rs.1500/- to the second respondent-son. Be it stated, during the continuance of the Family Court proceedings, number of adjournments were granted, some taken by the husband and some by the wife. The learned Family Judge being dissatisfied with the material brought on record came to hold that the respondent-wife was entitled to maintenance and, accordingly, fixed the quantum and directed that the maintenance to be paid from the date of the order.”
7. In view of the above, the petitioner has not made out any ground to interfere in the impugned order dated 21.02.2019 passed by the Addl. Principal Judge Family Court, Mysore.
Accordingly, the writ petition is dismissed.
Sd/-
JUDGE *mn/-