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WP No. 20737 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 20737 OF 2021 (GM-FC)
BETWEEN:
1. SRI PUNARVASU @ VASU
S/O LATE RAJANNA
AGED ABOUT 41 YEARS
R/AT D.NO.228
MADEGOWDA EXTN
K. M. DODDI, MADDUR TQ
MANDYA DISTRICT - 571422
…PETITIONER
(BY SRI. R. KUMAR, ADVOCATE)
AND:
1. SMT INDRANI S
W/O SRI PUNARVASU
Digitally signed
by PADMAVATHI AGED ABOUT 32 YEARS
BK
R/AT C/O MRS GEETHA
Location: HIGH
COURT OF W/O SRI ANANDA
KARNATAKA
NO.60, MANANDAVADI ROAD
SRIRAMPURA
MYSURU 570008
2. AGNAY GOWDA P
S/O SRI PUNARVASU @ VASU
AGED ABOUT 2 YERS
SINCE MINOR
REP. BY NATURAL GUARDIAN
MOTHER, 1ST PETITIONER
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WP No. 20737 of 2021
RESIDENT WITH 1ST PETITIONER
…RESPONDENT
(BY SRI. TRIVIKRAM S., ADVOCATE)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH OR SET
ASIDE THE ORDER DT 18.09.2021 PASSED BY THE PRINCIPAL
JUDGE, FAMILY COURT, MYSORE IN C.MIS.NO.319/2021 VIDE
ANNEXURE-E.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question an
order dated 18.09.2021 passed by the Principal Judge, Family
Court, Mysore in C.Mis.No.319/2021.
2. Heard Sri. R. Kumar, learned counsel appearing for
the petitioner and Sri. Trivikram S., learned counsel appearing
for the respondent.
3. Brief facts that leads the petitioner to this Court in
the subject petition, as borne out from the pleadings, are as
follows:
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WP No. 20737 of 2021
The petitioner is the husband and the respondent-wife,
the two get married on 24.11.2014 and the relationship turning
sore, are before the concerned Court seeking annulment of
marriage.
It transpires that the respondent-wife has instituted
several proceedings against the husband one being setting the
criminal law in motion in Crime No.62/2021 for offences
punishable under Sections 504, 323, 498A read with Section 34
of the IPC and Sections 3 and 4 of the Dowry Prohibition Act,
1961. Later, the respondent-wife files a petition under Section
125 of the Cr.P.C. in C.Mis.No.319/2021 seeking maintenance
from the hands of the husband, the petitioner. The petitioner
filed his objections on 18.09.2021. The concerned Court in
terms of the order impugned dated 18.09.2021 directs
Rs.6,000/- maintenance to be paid to the wife and Rs.4,000/-
maintenance to be paid to the child, which is born from the
wedlock, who at that point in time was 2 years old.
4. This Court entertaining the petition had granted an
interim order directing the petitioner to pay Rs.7,500/- as
against Rs.10,000/- which would be subject to the result of the
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subject petition and therefore, the petitioner has paid
Rs.7,500/- to the wife from the date of the interim order.
5. Learned counsel appearing for the petitioner
submits that he is not in a position to pay any maintenance to
the wife as he is himself suffering from several ailments and is
not earning more than Rs.15,000/- per month for him to pay
maintenance of Rs.10,000/- to the wife and the child. He would
submit that with great difficulty, the arrears according to him
have been cleared as on date.
6. Learned counsel appearing for the respondent-wife
would refute the submissions to contend that the petitioner has
landed properties and those are looked into by the concerned
Court by directing payment of paltry sum of Rs.6,000/- to the
wife and Rs.4,000/- to the child, who was then 2 years old and
he is now 4 years old and would submit that the petitioner is
still in arrears of payment of maintenance as what he is paid is
Rs.7,500/- from the date of the interim order and not any
payment from the date of the impugned order.
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WP No. 20737 of 2021
7. I have given my anxious consideration to the
respective submissions made by the learned counsel and have
perused the material on record.
8. The afore-narrated facts are not in dispute. Several
proceedings instituted by the wife against the husband is again
not in dispute. The wife files a petition under Section 125 of the
Cr.P.C. seeking maintenance for herself and the child born out
of the wedlock. The concerned Court after considering the
averments made in the petition and the objections, awards
maintenance of Rs.6,000/- to the wife and Rs.4,000/- to the
child as an interim measure.
9. The contention of the learned counsel appearing for
the petitioner that he is not in a position to even pay
Rs.10,000/- maintenance sans countenance, as the petitioner
who is an able-bodied man has to take care of the wife and the
child, if he has no avocation, by finding an avocation. The
amount Rs.6,000/- and Rs.4,000/- to the wife and the child is
not so exorbitant for the petitioner has to wash off his
responsibility of taking care of the wife and his child. The
submission that he is himself suffering from certain liver
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WP No. 20737 of 2021
diseases is without substance, as no document is produced to
demonstrate that he is suffering from certain liver diseases,
which does not permit him to work at all.
10. Even the document that is now handed over in the
Court with regard to diagnosis of chronic liver disease would
not inspire any confidence for this Court to intervene on the
grant of such paltry sum of Rs.6,000/- to the wife and
Rs.4,000/- to the child. The acceptance of the submissions of
the petitioner would amount to rendering a finding contrary to
the judgment of the Apex Court in the case of ANJU GARG
AND ANOTHER V. DEEPAK KUMAR GARG1, wherein the
Apex Court has held as follows:
"10. This Court had made the above
observations as the Court felt that the Family Court
in the said case had conducted the proceedings
without being alive to the objects and reasons, and
the spirit of the provisions under Section 125 of the
Code. Such an impression has also been gathered
by this Court in the case on hand. The Family Court
had disregarded the basic canon of law that it is the
sacrosanct duty of the husband to provide financial
support to the wife and to the minor children. The
husband is required to earn money even by physical
labour, if he is an able-bodied, and could not avoid
his obligation, except on the legally permissible
grounds mentioned in the statute. In Chaturbhuj v.
Sita Bai2, it has been held that the object of
1
2022 SCC OnLine SC 1314
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WP No. 20737 of 2021
maintenance proceedings is not to punish a person
for his past neglect, but to prevent vagrancy and
destitution of a deserted wife, by providing her
food, clothing, and shelter by a speedy remedy. As
settled by this Court, Section 125 Cr.P.C. is a
measure of social justice and is specially enacted to
protect women and children. It also falls within the
Constitutional sweep of Article 15(3), reinforced by
Article 39 of the Constitution of India.
11. The Family Court, in the instant case had not
only over-looked and disregarded the aforesaid settled
legal position, but had proceeded with the proceedings in
absolutely pervert manner. The very fact that the right of
the respondent to cross-examine the witnesses of the
appellant-original applicant was closed, as he had failed
to appear before the Family Court despite the issuance of
warrants, clearly established that he had no regards for
his own family nor had any regards for the Court or for
the law. The allegations made by the appellant-wife in her
evidence before the Court had remained unchallenged
and, therefore, there was no reason for the Family Court
to disbelieve her version, and to believe the oral
submissions made by the learned counsel appearing for
the respondent which had no basis. In absence of any
evidence on record adduced by the respondent
disputing the evidence adduced by the appellant,
the Family Court could not have passed the order
believing the oral submissions of the learned
counsel for the respondent. She had clearly stated
as to how she was harassed and subjected to
cruelty by the respondent, which had constrained
her to leave the matrimonial home along with her
children, and as to how the respondent had failed
and neglected to maintain her and her children. She
had also proved by producing the documentary
evidence that her father had paid money to the
respondent from time to time to help the
respondent for his business. Even if the allegations
of demand of dowry by the respondent were not
believed, there was enough evidence to believe that
money was being paid to the respondent by the
father of the appellant-wife, which substantiated
her allegation that the respondent was demanding
money from her father and was subjecting her to
harassment. The errant respondent had also gone
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WP No. 20737 of 2021
to the extent of questioning her chastity alleging
that Rachit was not his biological son. There was
nothing on record to substantiate his such baseless
allegations. His application for DNA test was also
rejected by the Family Court. Of course, the Family
Court granted the Maintenance petition so far as the
appellant no. 2-son was concerned, nonetheless
had thoroughly mis-directed itself by not granting
the maintenance to the appellant-wife.
12. Such an erroneous and perverse order of
Family Court was unfortunately confirmed by the High
Court by passing a very perfunctory impugned order. The
High Court, without assigning any reasons, passed the
impugned order in a very casual manner. This Court
would have remanded the matter back to the High Court
for considering it afresh, however considering the fact
that the matter has been pending before this Court since
the last four years, and remanding it back would further
delay the proceedings, this Court deemed it proper to
pass this order.
13. Though it was sought to be submitted by the
learned counsel for the respondent, and by the
respondent himself that he has no source of income as his
party business has now been closed, the Court is neither
impressed by nor is ready to accept such submissions.
The respondent being an able-bodied, he is obliged to
earn by legitimate means and maintain his wife and the
minor child. Having regard to the evidence of the
appellant-wife before the Family Court, and having
regard to the other evidence on record, the Court
has no hesitation in holding that though the
respondent had sufficient source of income and was
able-bodied, had failed and neglected to maintain
the appellants. Considering the totality of facts and
circumstances, we deem it proper to grant
maintenance allowance of Rs. 10,000/- per month
to the appellant-wife, over and above the
maintenance allowance of Rs. 6,000/- granted by
the Family Court to the appellant no. 2-son.
14. It is accordingly directed that the respondent
shall pay maintenance amount of Rs. 10,000/- per month
to the appellant-wife from the date of filing of her
Maintenance Petition before the Family Court. The entire
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amount of arrears shall be deposited by the respondent in
the Family Court within eight weeks from today, after
adjusting the amount, if any, already paid or deposited by
him."
(emphasis supplied)
For the aforesaid reasons, finding no merit in the petition,
the petition stands dismissed.
Any other claim with regard to arrears of maintenance
shall be agitated before the concerned Court by the
respondent-wife.
SD/-
JUDGE
SJK
List No.: 1 Sl No.: 6
