Karnataka High Court
Smt.K.V.Padma W/O K.S.Vasu vs Sri.K.S.Vasu S/O K.G.Subramalu on 21 March, 2018
Equivalent citations: 2018 (4) AKR 655
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
RPFC.NO.200060/2017
C/W
RPFC.NO.200070/2017
IN RPFC.NO.200060/2017
SMT.K.V.PADMA W/O. K.S.VASU
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
R/O. GANESH NAGAR,
KALABURAGI - 585102. ... PETITIONER
(BY SRI.PRAKASH.S.MAISALGI, ADVOCATE)
AND:
SRI K.S.VASU S/O. K.G.SUBRAMALU
AGE: 44 YEARS, OCC: CLERK IN KOTAK MAHINDRA
(ING VYSYA) BANK DEGALMADI BRANCH,
TQ. CHINCHOLI, DIST. KALABURAGI,
R/O.8TH CROSS, KAPGAL ROAD,
RIGHT SIDE, BELLARY - 583101. ... RESPONDENT
(BY SRI.M.A.JAGIRDAR, ADVOCATE)
THIS RPFC IS FILED UNDER SECTION 19(4) OF THE
FAMILY COURT ACT PRAYING TO CALL FOR THE
RECORDS TO MODIFY THE IMPUGNED JUDGEMENT AND
ORDER DATED : 28.03.2017 PASSED IN CRIMINAL
MISC.NO.83/2015 ON THE FILE OF THE COURT OF THE
DISTRICT JUDGE FAMILY COURT AT KALABURAGI, BY
ALLOWING THE MAINTENANCE PETITION FILED BY THE
PETITIONER AND TO GRANT THE MAINTENANCE AS
CLAIMED BEFORE THE FAMILY COURT AT VIJAYAPUR.
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IN RPFC.NO.200070/2017
K.S.VASU S/O. K.G.SUDRAMALU
AGE: 43 YEARS, OCC: CLERK IN KOTAK MAHINDRA
(ING VYSYA) BANK, DEGALMADI BRANCH,
TQ. CHINCHOLI, DIST. KALABURAGI
R/O: 8TH CROSS, KAPAGAL ROAD,
RIGHT SIDE BELLARY. ... PETITIONER
(BY SRI.GOPALKRISHN.B.YADAV, ADVOCATE)
AND:
K.V.PADMA W/O. K.S.VASU
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O.GANESH NAGAR, KALABURAGI. ... RESPONDENT
(BY SRI.PRAKASH S.MAISALGI, ADVOCATE)
THIS RPFC IS FILED UNDER SECTION 19(4) OF THE
FAMILY COURT ACT PRAYING TO CALL FOR THE
RECORDS AND SET ASIDE THE ORDER DATED :
28.03.2017 PASSED BY THE LEARNED JUDGE FAMILY
COURT AT KALABURAGI IN CRL.MISC.NO.83/2015
AGAINST THE PETITIONER.
THESE PETITIONS COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The parties are referred to as per their ranking before the Family Court.
02. The revision petition No.200060/2017 is filed by wife for enhancement of maintenance and revision petition No.200070/2017 is filed by husband for reduction of the maintenance amount against the order dated 28.03.2017 made in Crl.Misc.No.83/2015 on the file of District Judge Family Court at Kalaburagi awarding maintenance of Rs.9,000/- per month to the wife from the date of petition.
03. It is the case of the petitioner/wife that, marriage of the petitioner with respondent-husband was solemnized on 18.05.2006 at Neelambika Kalyan Mantap Kalaburagi as per the Hindu customs. At the time of marriage 30 tola gold, cash of Rs.3,50,000/- and 500 grams silver and house articles was given to the respondent-husband as dowry demanded by the 4 respondent-husband. It is further case of the petitioner/wife that on 21.05.2006 petitioner went to the house of respondent and started residing in the said house. The respondent-husband was listening to say of his mother, sister and started quarreling with petitioner saying that he was not interested in marrying her and he was forced to marry her. Respondent and his family members have ill-treated the petitioner asking her to bring sufficient dowry as per their status. They were also alleging that petitioner was not cooking properly and she does not know household works. The respondent has assaulted and abused the petitioner on several occasions. They did not provided medical treatment when she was sick. She was not given basic needs such as food, medical aid during her stay in the respondent's house. The marriage of brother of respondent took place in the month of Febraury-2007, at that time the mother-in-law of petitioner has demanded five tolas gold for respondent. The father of 5 the petitioner has taken loan from others and handed over it to the mother-in-law of petitioner for purchasing gold. The family members of the respondent also ill- treated the petitioner by saying that petitioner is unable to give birth to child. Petitioner had come over to her parents house for taking treatment in respect of conceiving. At that time they have spent about Rs.4,00,000/- for her medical expenses. Respondent and his family members are not bothered to pay the amount or to inquire about the health of the petitioner.
04. It is further case of the petitioner that, she has been sent out of the house by respondent on 26.12.2010. Thereafter several attempts have been made by petitioner to rejoin the respondent but they have refused to take her back. She further contended that respondent is working as clerk in Kotak Mahindra Bank, Degal Madi Branch Tq: Chincholi District Kalaburagi and is getting salary of Rs.60,000/- per 6 month. He is also having landed property and getting income of Rs.2,00,000/- to Rs.3,00,000/- per annum from agriculture. Respondent has sufficient income to pay the maintenance. Hence, petitioner has filed petition for maintenance of Rs.25,000/- per month under Section 125 of Cr.P.C.
05. The respondent filed objections admitting the relationship between the petitioner and respondent as wife and husband. He denied other allegations made in the petition with regard to dowry. He also denied the harassment as alleged in the petition. He contended that he is getting take home salary Rs.15,000/- per month, after mandatory deductions made by the employer. The father of the respondent is aged about 70 years and mother is aged about 60 years, both are suffering from ailment and require Rs.10,000/- per month for their medical expenses. The respondent is working as clerk in Kotak Mahindra Bank bRnach Degal 7 Madi Tq: Chincholi which is at a distance of more than 500 km. from Bellary and it requires Rs.5,000/- once in a month. The respondent is unable to maintain his parents properly with his meager salary. Therefore, it is not possible to pay maintenance to petitioner. He further stated that petitioner has completed M.A. Degree and she is working as part time lecturer and get salary of Rs.8,000/- per month. The father of the petitioner is retired government servant, worked in judicial department and is getting pension of Rs.30,000/- per month. He is also getting income of Rs.50,000/- from business. Therefore, he sought for dismissal of the petition.
06. In view of the aforesaid pleadings of the parties the Family Court framed the following points:
1. Whether petitioner proves that respondent has neglected and refused to maintain her in spite of having sufficient means?
2. Whether petitioner proves that she is entitled for maintenance? If so what is the quantum 8
07. In order to establish her case the petitioner examined herself as PW.1 and the document marked as Ex.P.1. The respondent examined himself as DW.1 and witness examined as DW.2 and got marked the documents Ex.D.1 to 14.
08. The Family Court after considering oral and documentary evidence on record, recorded a finding that petitioner/wife has proved that respondent has neglected and refused to maintain her in spite of having sufficient means. Therefore, she is entitled for maintenance. Accordingly, petition came to be allowed in part on 28.03.2017 by granting maintenance of Rs.9,000/- per month to the petitioner from the date of petition. Hence, the revision petition No.200060/2017 is filed for further enhancement of maintenance.
09. The respondent-husband has filed the revision petition No.200070/2017 for reduction.
10. I have heard the learned counsel for the parties to the lis.
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11. Sri.Prakash.S.Maisalagi, learned counsel for the petitioner/wife contended that impugned order passed by the Family Court granting Rs.9,000/- per month as maintenance is insufficient and contrary to the material on record. He would further contend that, the Family Court failed to notice that respondent- husband working as Clerk in Kotak Mahindra Bank Degal Madi Branch Tq: Chincholi Dist: Kalaburagi and getting salary of Rs.60,000/- per month. The Family Court has not considered the oral and documentary evidence produced by the petitioner/wife thereby passed impugned order by granting Rs.9,000/- per month as maintenance, which is insufficient. He would further contend that respondent-husband taken loan from Bank as per Ex.D.9 to Ex.D.11 and constructed two houses in Bellary and getting rent from both the houses. Therefore, sought for allow the revision petition filed by the wife as prayed for.
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12. Per contra Sri.M.A.Jagirdar, appearing for Sri.Gopalkrishna.B.Yadav, learned counsel for the respondent-husband who filed petition No.200070/ 2017 for reduction vehemently contended that impugned order passed by the Family Court awarding Rs.9,000/- is exorbitant and contrary to the material on record. He further contended that the respondent- husband getting salary of Rs.15,000/- per month after deductions. Therefore, maintenance granted by the Family Court is exorbitant and contrary to the material on record. He would further contend that the Family Court has not appreciated the evidence regarding treatment given to petitioner/wife at Bellary. The amount spent for treatment from Dr.Jalajakshi Maskikar at Bellary for about six months and Dr.Arun at Bellary for more than a year and this fact is admitted by the petitioner/wife. The material documents Ex.D.3, 4 and Ex.D.4A dated 23.03.2011 and there is no reply 11 nor any petition is filed for restitution of conjugal rights by the petitioner/wife. The respondent-husband tried his best to secure her for leading matrimonial life, but this important aspect has not been considered by the Family Court. Thereby impugned order passed granting maintenance of Rs.9,000/- per month which is exorbitant. The respondent-husband is not in a position to pay maintenance. The parents of the petitioner/wife having agricultural land, own house and petitioner/wife is working at Chittapur and getting Rs.10,000/- per month. Therefore, he sought for set-aside the order passed by the Family Court by allowing the revision petition filed by him.
13. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
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14. It is undisputed fact that marriage of petitioner and respondent was solemnized on 18.05.2006 at Neelambika Kalyan Mantap, Kalaburagi as per the Hindu Customs. There are allegations and counter allegations against each other. The fact remained, that there is no dispute between the parties as wife and husband. It is the specific case of the petitioner/wife that respondent-husband is working as clerk in Kotak Mahindra Bank, Degal Madi Branch Tq:
Chincholi Dist: Kalaburagi and getting salary of Rs.60,000/- per month and having agricultural income of Rs.2 to 3 lakhs per annum. He has sufficient source of income to maintain the petitioner/wife. It is the case of the husband-respondent that he is getting meager salary, which is not sufficient to maintain himself and his old aged parents.13
15. It is not in dispute that as per Ex.P.1 pay slip clearly indicates that his gross salary is Rs.70,000/- per month after deductions he would get Rs.13,050/- per month. There are deductions towards employee society, housing loan, P.F. loan, Misc. loan, festival advance and employees P.F. It is the specific case of the petitioner/wife that only to avoid maintenance the respondent-husband has deliberately allowed all those deductions. It is also specifically contended by the learned counsel for the petitioner/wife that respondent-husband is having two houses at Bellary and getting rent, but no material is produced before the Court. It is specifically contended by the learned counsel for the respondent-husband that petitioner/wife is also working at Chittapur and getting Rs.10,000/- per month. But no documents are produced before the Court to prove the same.14
16. The Family Court after considering rival contentions, material on record, recorded a finding that relationship between the parties is not dispute and entitlement of maintenance is also not in dispute. It is not the case of the respondent-husband that his wife is having source of income to maintain herself and she is not entitled to maintenance. In the absence of the material on record, it is the obligation on the part of the respondent-husband to maintain his wife who has no source of income for day to day livelihood as contemplated under Section 125 (1a) of Cr.P.C.
17. The Hon'ble Supreme Court, while considering the provisions of Section 125 of the Code of Criminal Procedure in the case of Bhuwan Mohan Singh vs. Meena and Ors. reported in AIR 2014 SC 2875 at paragraph No.3 held as under:-15
"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 16 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."
18. The same view is reiterated by the Hon'ble Supreme Court, while considering the provisions of Section 125 of the Code of Criminal Procedure in the case of Shamima Farooqui vs Shahid Khan reported in AIR 2015 5 SCC 705 at Paras No.14, 16, 17 and 19held as under:-
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"Para No.14 :- Coming to the reduction of quantum by the High Court, it is noticed that the High Court has shown immense sympathy to the husband by reducing the amount after his retirement. It has come on record that the husband was getting a monthly salary of Rs.17,654. The High Court, without indicating any reason, has reduced the monthly maintenance allowance to Rs.2,000/-. In today's world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs.2,000/- per month. It can never be forgotten that the inherent and fundamental principle behind Section125 CrPC is for amelioration of financial state of affairs as well as mental agony and anguish that a woman suffers when she is compelled to leave her matrimonial home. The statue commands that there have to be some acceptable arrangements so that she can sustain herself. The principal of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A 18 women, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Cr{C, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125 CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife.
Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and nod, in fact, they have no acceptability in 19 law. If the husband is healthy, able-bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right".
"Para No.16 :- Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj V. Sita Bai (2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356, it has been ruled that : (SCC p.320, para6) "6. ... Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Capt. Ramesh Chander Kaushal V. Veena Kaushal (1978) 4 SCC 70 :1978 SCC (Cri) 508, falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vegrancy and destitution. It provided a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It 20 gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya V. State of Gujaraj (2005) 3 SCC 636:
2005 SCC (Cri) 787."
"Para No.17 :- This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning".
"Para No.19 :- From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort Sometimes her faith in life reduces.
Sometimes, she feels she has lost the tenderest friend. There may be a feeling that 21 her fearless courage has brought her the misfortune. At this state, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance".
19. Therefore, the Family Court after considering entire material on record and the fact that respondent is working as clerk in Kotak Mahindra Bank, Degal Madi Branch Tq: Chincholi District Kalaburagi, is of the considered opinion that the respondent-husband getting salary of Rs.35,000/- per month after deduction. It is further held that petitioner/wife has to maintain herself equal to the status of the respondent-husband. Therefore, proceeded to grant maintenance of Rs.9,000/- per month to the petitioner/wife and the same is in accordance with law.
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20. If the petitioner/wife able to prove the income of the respondent-husband, the promotion subsequent the impugned order passed by the Family Court, it is always open for her to file petition under Section 127 of Cr.P.C. for alteration of the maintenance after production of sufficient oral and documentary evidence before the Family Court.
21. It is also needless to observe that it is always open for the respondent-husband to file application for alteration for reduction of the maintenance if he is able to prove that wife is also getting salary of Rs.10,000/- per month.
22. Both the parties are at liberty to produce both oral and documentary evidence before the Family Court for consideration of application if any, filed under the provisions of Section 127 of Cr.P.C. and in accordance with law.
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23. The Family Court by impugned order dated 28.03.2017 granted maintenance of Rs.9,000/- per month from the date of petition. According to respondent-husband has not paid amount. But he has only paid Rs.72,000/- still respondent-husband is due at Rs.1,53,000/-.
24. Sri.M.A.Jagirdar, learned counsel for the respondent-husband on instructions from K.S.Vasu respondent-husband who present before the Court, submits that out of Rs.1,53,000/- due of maintenance the respondent-husband will deposit Rs.1,00,000/- before the Family Court within one month, from today and balance of Rs.53,000/- will be paid thereafter another 15 days.
The said submission is placed on record. 24
25. In view of the aforesaid reasons, the revision petitions filed by both the wife and husband are dismissed with a liberty to the parties to file an application for modification as contemplated under the provisions of 127 of Cr.P.C. in accordance with law.
Sd/-
JUDGE KJJ