IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NOS.39337 OF 2019 & 42236 OF 2019 (GM-FC) BETWEEN:
SRI. SHIVANNA S/O LATE GUDDADAIAH, AGED ABOUT 34 YEARS, WORKING AS DRIVER K.S.R.T.C., TUMAKURU DEPOT NO.1, R/AT " SUKRUTHA NILAYA", HEGGERE NEW EXTENSION, TUMAKURU-572103.
... PETITIONER (BY SRI. PRABHUSWAMY N. ADVOCATE FOR SRI. V.B.SIDDARAMAIAH, ADVOCATE) AND:
1. KUMAR. NANDANKUMAR S/O SHIVANNA, AGED ABOUT 8 YEARS, 2. KUMAR NIKHIL S/O SHIVANNA, AGED ABOUT 5 YEARS, R1 TO R2 ARE MINORS REPRESENTED BY THEIR MOTHER N.G., SMT V N NAGARATHNAMMA, W/O SHIVANNA R/AT VAJJANAKURIKE VILLAGE, KOLALA HOBLI, KORATAGERE TALUK-172129 TUMAKURU DISTRICT NOW RESIDING AT: NO.118, NANDAJYOTHI NILAYA, 4TH MAIN, SHARADADEVI NAGAR, OPP: M.G. STADIUM, KUVEMPUNAGARA, TUMAKURU-572103.
... RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 30.07.2019, PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT, AT TUMAKURU, PASSED ON I.A.NO.2, FILED BY THE RESPONDENTS U/S 125[2] OF CR.P.C. IN CRL.MISC.NO.39/2018, VIDE ANNX-E AND CONSEQUENTLY DISMISS THE APPLICATION FILED BY THE RESPONDENTS U/S 125[2] OF CR.P.C. VIDE ANNX-C.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner who is the father of respondents 1 and 2 filed the present writ petitions challenging the order dated 30.07.2019 on I.A.2, granting Rs.3,500/- each to the children from the date of petition in exercise of power under the provisions of Section 125(2) of Cr.P.C.
2. Respondent no.1 and 2 are the petitioner’s children aged about 4 and 7 years, represented by natural guardian - mother filed petition under Section
maintenance, i.e., Rs.20,000/- from the date of filing of the petition till they attain majority contending they are children of the petitioner, who married their mother Smt. V.M. Nagarathnamma on 21.10.2010. It is further contended that after the marriage the petitioner took the respondents’ mother to the matrimonial home and looked after the respondents’ mother happily till she gave birth to the respondents. Thereafter, the petitioner neglected to maintain the respondents. There was no reason for the petitioner to neglect the children and his wife. The petitioner ousted and necked out the petitioner and her sons from his house. The respondents’ mother requested the petitioner to provide maintenance and shelter to them. Though the respondents’ mother worked as helper in Tumakuru in KSRTC Depot, due to negligence on the part of the petitioner, the mother of the respondents is now residing at Tumkuru separately.
3. The 1st respondent is studying in 1st standard and the 2nd respondent is studying in UKG. Due to the meager salary of the respondents’ mother, it is very difficult for her to meet educational expenses of the respondents. She has to pay nearly Rs.60,000/- to Rs.70,000/-for their education. It is also very difficult to maintain the expenses of food, clothing etc. The petitioner is working as driver in KSRTC at Tumakuru and earning a handsome salary. It is his bounden duty to look after the minor children and his wife. Hence, the respondents have sought for the relief of maintenance. The petitioner filed objections to the main petition denying the averments and contended that the wife is also working as helper and getting salary and therefore there is no need for the petitioner to pay maintenance to the minor children and sought for dismissal of the application.
4. During the pendency of the said petition, the present respondents filed application under Section 125(2) of Cr.P.C. for interim maintenance of Rs.7,500/- per month to each of the children i.e., Rs.15,000/- per month, reiterating the averments made in the petition, the petitioner filed a memo praying to consider the objections filed by him to the application filed under Section 125(2).
5. The Family Court considering the application and objections has proceeded to grant only Rs.3,500/- each to the children directing the petitioner-father to pay the said maintenance from the date of petition, holding that the petitioner as well as the respondents’ mother are working and both have submitted their salary slips showing that the petitioner is getting a monthly salary of Rs.27,709/- and his take-home salary is Rs.18,785/- and the wife, i.e., the mother of the children, is getting a monthly salary of Rs.23,255/- and her take-home salary is Rs.16,180/-. The Family Court is of the opinion that both the father and mother should equally contribute to the welfare of the children. The petitioner, herein being the father is bound to pay maintenance of Rs.3,500/- each in exercise of Section 125(2) Cr.P.C. Hence the present writ petitions for the relief sought for.
6. I have heard the learned counsel for the parties to the lis.
7. Sri. Prabhuswamy N., learned counsel for the petitioner contended that the impugned order passed by the Family Court granting Rs.3,500/- each to the children as interim maintenance is erroneous and contrary to the material on record. He would further contend that the petitioner is drawing salary of nearly Rs.22,782.28, net salary is Rs.14,524.00 as on 6.7.2018 as per Annexure ‘F’. The interim maintenance granted by the Family Court is on the higher side. He would further contend that the wife is also earning. Therefore there is no need for the present petitioner-father to pay any maintenance to the children. Therefore he sought to allow the writ petitions.
8. Having heard the learned counsel for the parties, it is an undisputed fact that the petitioner and the mother of the respondents, Smt. V.N.Nagarathnamma married on 21.01.2019 at Ranganathaswamy Temple, Vajjankurike, Koratagere Taluk. Out of the wedlock, the present respondents no.1 and 2 are born, now aged about 4 and 7 years. It is their specific case that though their mother is also doing the work of helper in KSRTC and drawing salary, it is insufficient to maintain their day to day livelihood and it is very difficult for her to meet the educational expense of the children, who are studying 1st standard and UKG respectively and she has to spend nearly Rs.60,000/- to Rs.70,000/- every year for their educational expenses. The material on record clearly discloses that the petitioner is not disputing the fact that the respondents who filed application under Section 125 Cr.P.C. are the children of the present petitioner, born out of the marriage between the petitioner and Nagarathnamma. The employment of the petitioner as a driver is also not disputed. The marriage is also not disputed and relationship is also not in dispute.
9. The Family Court considering the salary of the wife Nagarathnamma and considering the entire material on record is of the considered opinion that though the respondents’ sons of the present petitioner aged about 4 and 7 years, sought Rs.7,500/- each per month, in total Rs.15,000/-, the Family Court has awarded a meager amount of Rs.3,500/- each to the children taking into consideration the fact that the petitioner is getting monthly salary of Rs.27,709/- as per the pay slip and his take home is Rs.18,785/- exercising the powers under Section 125(2) Cr.P.C. It is also well settled that the respondents are the minors represented by natural guardian unable to maintain themselves and petitioner having sufficient means, neglected to maintain them is bounden duty being the dutiful father and maintain the children.
10. The maintenance under Section 125 Cr.P.C., is the obligation of the husband to maintain wife and children; not limited to sustain them as animals. It is the duty as father to provide maintenance even if he has no earnings by physical labour, as held by the Hon’ble Supreme Court in the case of Bhuwan Mohan Singh Vs. Meena and others – AIR 2014 SC 2875, in view of the aforesaid reasons, the impugned order passed by the Family Court granting Rs.3,500/- per month to each of the children is hardly sufficient to meet the educational expenses of the children. The petitioner has not made out any ground to interfere with the order of the Family Court under Article 227 of the Constitution of India. Accordingly Writ Petitions are dismissed with cost of Rs.10,000/- payable by the petitioner to the respondents, represented by their natural guardian - mother, on the next date of hearing before the Family Court.
Ordered accordingly.
SD/- JUDGE sd/-