IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P. NO.22108/2019 A/W W.P.NO.31135/2019 (GM-FC) IN W.P. NO.22108/2019: BETWEEN:
SRI. Y. NAVEEN AGED ABOUT 31 YEARS S/O SRI. YOGANNA CHAR NO.6A (51) CENTRAL SILK BOARD PRAGATHI NAGARA CHIKKATHOGURU ROAD BANGALORE - 560 100.
(BY SMT. VARALAKSHMI P, ADVOCATE) AND:
SMT. M.S. NETHRAVATHI AGED ABOUT 30 YEARS W/O Y. NAVEEN D/O SRI. SHIVANANJA CHAR RES. AT. BEHIND JAYALAKSHMI TALKIES, GUTNALU ROAD MANDYA, BANGALORE - 560 096.
(BY SRI. MARIGOWDA, ADVOCATE) ... PETITIONER ... RESPONDENT THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR LOWER COURT RECORDS, OF M.C.NO.99/2017 VIDE ANNEXURE-D AND SET ASIDE THE INTERIM ORDER DATED:20.04.2019 ANNEXURE-A ON I.A. NO.II PASSED BY THE HON’BLE 1ST ADDL. PRL. SR.CIVIL JUDGE, BANGALORE RURAL DISTRICT, IN M.C.NO.99/2017.
IN W.P.NO.31135/2019: BETWEEN:
SMT. M.S. NETHRAVATHI W/O Y. NAVEEN D/O SRI. SHIVANANJA CHAR AGED ABOUT 31 YEARS R/ AT BEHIND JAYALAKSHMI TALKIES, GUTHALU ROAD MANDYA – 571 401.
(BY SRI. MARIGOWDA, ADVOCATE) AND:
SRI. Y. NAVEEN S/O YOGANNA CHAR AGED ABOUT 32 YEARS R/AT NO.6A (51) CENTRAL SILK BOARD, PRAGATHI NAGARA, CHIKKATHOGURU ROAD, BANGALORE - 560 100.
... PETITIONER ... RESPONDENT THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ENHANCE THE INTERIM MAINTENANCE FROM RS.5,000/- TO RS.15,000/- PER MONTH TO THE PETITIONER, IN M.C.NO.99/2017 ON THE FILE OF THE II ADDL SENIOR CIVIL JUDGE BANGALORE RURAL.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R These two (2) petitions are directed against the order dated 20.04.2019 whereunder an application filed by the respondent-wife under Section 24 of Hindu Marriage Act, 1955, seeking for interim maintenance of `15,000/- p.m., has been allowed in part with a direction to the husband to pay interim maintenance at `5,000/- p.m. to wife from the date of petition. Hence, husband has preferred W.P.No.22108/2019 for setting aside the order and in the alternate to reduce the quantum of award of maintenance.
2. Whereas W.P.No.31135/2019 has been preferred by the wife for enhancement of compensation contending what has been awarded by the trial court is abysmally on the lower side and she is unable to maintain herself and her minor daughter by a meager sum of `5,000/-.
3. I have heard the arguments of Smt.Varalakshmi P, learned counsel appearing for petitioner/husband and Sri.Marigowda, learned counsel appearing for respondent/wife. Perused the impugned order.
4. Marriage between petitioner-Sri. Y.Naveen and respondent-Smt.M.S.Nethravathi came to be solemnized on 30.05.2013 and out of said wedlock a daughter was born on 20.03.2014 and on account of differences of opinion petitioner and respondent have been residing separately, which has resulted in husband filing a petition under Section 13(1)(ia) of Hindu Marriage Act, 1955, for dissolution of marriage. In the said petition an interlocutory application under Section 24 of the Hindu Marriage Act came to be filed on 07.04.2018 seeking maintenance of `15,000/- p.m.
5. Learned trial Judge after having heard the learned Advocates appearing for parties and based on the pleadings held that wife is entitled for maintenance @ `5,000/- p.m. from the date of petition.
6. It is the contention of Smt. Varalakshmi, learned counsel appearing for petitioner/husband that trial Judge erred in not considering the fact that respondent-wife had deserted the petitioner and she had continued to stay at her parents house and had failed to discharge her marital obligations. She would also contend that respondent has treated the petitioner with cruelty and as such he is entitled for decree of dissolution of marriage and when there is no fault of petitioner, question of payment of maintenance would not arise and payment of maintenance would arise only when there is willful neglect. Hence, she has sought for setting aside the order of trial Court.
7. She would submit in the alternate that even if wife is entitled for award of maintenance, quantum of maintenance awarded by the family Court be reduced by taking into consideration that petitioner is drawing a salary of `12,361/- and wife being a graduate, would be capable of getting herself gainful employment. However, she would hasten to add that petitioner/husband would take care of educational expenses of daughter.
8. Per contra, Sri. Marigowda, learned counsel appearing for respondent-wife would submit that orders passed by the family court granting a meager sum of `5,000/- would not suffice and particularly in the backdrop of escalation of cost of living and as such he seeks for enhancement of maintenance awarded by the family court.
9. Having heard the learned Advocates appearing for parties and on perusal of impugned order it would clearly indicate that matrimonial dispute between petitioner and respondent is pending in M.C.No.99/2017. Any opinion expressed by this Court with regard to rival contentions on merits would definitely prejudice the rights of parties. For the limited purpose of examining as to whether wife is entitled for enhancement of maintenance and if so, to what extent, pleadings have been looked into.
10. Even before Family Court salary certificate of the petitioner came to be produced and same would disclose the gross salary of petitioner is `15,427/-. Though a sum of `2,568/- has been deducted, it is on account of late hours deduction, ESI and provident fund contribution, which would definitely enure to the benefit of petitioner himself. As such on account of deduction so made husband is not entitled to contend that wife is not entitled for maintenance and this Court is of the considered view that even a divorced would be entitled for maintenance.
11. In the instant case, no material has been produced by the petitioner/husband to demonstrate that wife was gainfully employed so as to maintain herself or so as to sustain herself by extending minimum amount to meet her day-to-day expenses. In the absence of such material being placed, trial Judge was fully justified in taking into consideration the salary of the petitioner. However, learned trial Judge erred in holding take home salary of the petitioner as `12,361/- by deducting statutory deductions and same has to be considered for the purposes of awarding of maintenance to the wife.
12. As already observed hereinabove, deduction made by trial Court towards ESI and provident fund from gross salary of husband is erroneous as it would go to the account of petitioner himself. In these hard days of cost of living having been escalating everyday, it cannot be gainsaid that wife has to live in penury by receiving a paucity sum as compensation. She would be entitled to seek for award of maintenance by keeping in mind the social strata from which she hails from as also her status in matrimonial home. As such this Court is of the considered view that in order to balance the equities between parties and a sum of `6,500/- is awarded, it would meet the ends of justice. Though proceedings came to be initiated by petitioner before Family Court in M.C.No.99/2017 by filing the petition on 29.05.2017 and statement of objections came to be filed on 29.05.2017 vide Annexure-D, yet, respondent/wife did not choose to file application for awarding maintenance. It was only on 07.04.2018 she filed the application for award of maintenance. Hence, she would be entitled to maintenance from the date of application and not from the date of petition filed by the husband.
Hence, I proceed to pass the following: ORDER (i) W.P.Nos.22108/2019 and 31135/2019 are allowed in part.
(ii) Order dated 20.04.2019 passed in M.C.No.99/2017 by allowing the application filed under Section 24 of the Hindu Marriage Act is hereby modified and in substitution to same it is ordered that petitioner/husband shall pay interim maintenance to respondent/wife @ `6,500/- per month from date of application i.e., 27.04.2018 and continue to pay till disposal of the petition i.e., M.C.No.99/2017.
SD/- JUDGE DR