Karnataka High Court
Sri Ashish S/O. Vilas Pingulkar vs Smt. Arpita D/O Arun Chipkar on 16 December, 2022
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
-1-
W.P. No.105360/2021
C/w. W.P. No.102083/2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 16TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA
WRIT PETITION NO.105360/2021 (GM-FC)
C/w. WRIT PETITION NO. 102083/2022 (GM-FC)
In W.P. No.105360/2021:
BETWEEN:
Shri Ashish S/o. Vilas Pingulkar,
Age 31 years, Occ: Service,
Resident of F-2, Nandanvan Park,
Kudal-Vengurla Road, Near MSEB Office,
KUDAL Taluka-416 500, Sindhudurg District,
Maharashtra State.
... Petitioner
(By Shri Ashish V.Pingulkar, Party-in-person)
AND:
Smt. Arpita D/o. Arun Chipkar,
Age 28 years, Occ: Serice,
Resident of HIG 91,
Athashree, New KHB Colony,
Habbuwada, Karwar-581 306,
Uttara Kannada District.
... Respondent
(By Shri S.V. Yaji, Advocate)
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India, praying to issue a writ or order in
the nature of writ of certiorari quashing the impugned order
passed by the Additional Senior Civil Judge, Karwar, Uttara
Kannada, in Matrimonial Case No.18/2020 on I.A. No.V, filed
-2-
W.P. No.105360/2021
C/w. W.P. No.102083/2022
under Section 24 of the Hindu Marriage Act, 1955, dated
23.11.2021, produced at Anneuxre-H to meet the ends of
justice.
IN W.P. NO.102083/2022:
BETWEEN:
Smt. Arpita D/o. Arun Chipkar,
Age 28 years, Occ: Serice,
Resident of HIG 91, Athashree,
New KHB Colony, Habbuwada,
Uttara Kannada District,
Karwar-581 306.
... Petitioner
(By Shri S.V. Yaji, Advocate)
AND:
Shri Ashish S/o. Vilas Pingulkar,
Age 32 years, Occ: Service,
Resident of F-2, Nandanvan Park,
Kudal-Vengurla Road, Near MSEB Office,
Tq: Kudal-416 812, Dist: Sindhudurg,
Maharashtra.
... Respondent
(By Shri Ashish V.Pingulkar, Party-in-person)
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India praying to issue a writ in the nature
of certiorari and quash the impugned order on I.A. No.V,
dated 23.11.2021, passed by the Additional Senior Civil
Judge, Karwar in M.C. No.18/2020 allowing the application in
part vide Annexure-E to the writ petition and consequently
the application filed by the petitioner at I.A. No.V may kindly
be allowed by awarding the interim maintenance at
Rs.75,000/- p.m. and cost of litigation as prayed in the
application vide Annexure-B to the writ petition.
These Writ Petitions, having been Heard & Reserved for
Orders, coming on for Pronouncement, this day, the Court
made the following:
-3-
W.P. No.105360/2021
C/w. W.P. No.102083/2022
ORDER
1. The husband, a party-in-person, has filed the writ petition in W.P. No.105360/2021 challenging the order of the Prl. Senior Civil Judge, Karwar, by which a sum of Rs.40,000/- per month has been awarded as maintenance to the wife from the date of the petition till the disposal of the petition.
2. The wife has also filed a writ petition in W.P. No.102083/2022 challenging the said order on the ground that it was inadequate and the same should be enhanced.
3. The marriage between the petitioner and the respondent which was performed under the Hindu customs and rituals on 4th December 2017 is not in dispute. The fact that both of them had a girl child, who was born on 30th January 2019, is also not in dispute. -4- W.P. No.105360/2021 C/w. W.P. No.102083/2022
4. It is the admitted case of both the parties that differences arose between them, which lead to issue of a legal notice and thereafter also resulted in filing by the wife of a complaint under the D.V. Act and a petition seeking for dissolution of the marriage.
5. As stated above, in the petition filed by the wife seeking for dissolution of marriage, she has sought for grant of maintenance.
6. According to the wife, her husband was getting a salary of Rs.2,00,000/- per month and was working in ITC. It was her case that she has no independent source of income and was employed. She contends that her parents were maintaining her and her child and her husband had failed to take care of their needs. The wife having regard to the salary of Rs.2,00,000/- per month sought for payment of monthly maintenance of Rs.75,000/- per month and litigation expenses of Rs.50,000/-.
-5-W.P. No.105360/2021 C/w. W.P. No.102083/2022
7. This application seeking for maintenance was stoutly contested by the husband. He denied the assertion that he was earning a sum of Rs.2,00,000/- per month and went on to state that his wife was an author of a Book and was also a graduate in B.A. (Psychology) and was pursuing her Masters in Mass Communication and Journalism at NITTE University, Mangalore.
8. He also stated that she was well educated and she could easily secure a job. It was also contended that in March-2016, she had joined a Company called "Myntra" as a Content Writer and had later left the job in June-2017 as she was unhappy with the job. He stated that she was earning a sum of Rs.23,098/- per month, while working at "Myntra".
9. It was also contended that the wife worked at "Akkar Bakkar" as an Editor but she left this job in November-2017. It was stated thereafter she had joined -6- W.P. No.105360/2021 C/w. W.P. No.102083/2022 "KenFolios" a web based magazine but he admitted that she had left that job.
10. It was stated by him that after going to Karwar for delivering their child, she had taken up a job in "Writer's Rescue Centre" as Chief Mentor and had been working there till December-2018. It was also stated that she was working as an Actress in movies and had already acted in Tamil movie "Agan" as a lead actress and she earned enough money through advertisements and product endorsements.
11. Apart from these averments, the husband sought to highlight the fact that he spent considerable sums of money on his wife during their marital life and the allegations that she was not taken care were absolutely false.
12. The husband also took up the plea that his wife was having an affair with a person called Siddhartha Sahai and she had already proclaimed that -7- W.P. No.105360/2021 C/w. W.P. No.102083/2022 she was a divorcee and her conduct was immoral. He also relied upon certain messages on the Social Media applications to contend that her affair with another person had stood established.
13. During the pendency of the application seeking for maintenance, the husband also made an application requesting the Civil Judge to initiate proceedings against his wife on the ground that she had fabricated evidence and had committed perjury and was therefore required to be punished.
14. The Trial Court, on consideration of the said application, took the view that the parties were yet to lead any evidence and the intention of the parties could be looked into during the course of trial and for the present it would not be able to ascertain the intention and come to the conclusion that the perjury had been committed. The Civil Court accordingly directed that the -8- W.P. No.105360/2021 C/w. W.P. No.102083/2022 application filed by the husband under Section 340(1) of the Cr.P.C. kept in abeyance.
15. Thereafter, the Trial Court proceeded to consider the application for maintenance. The Trial Court taking note of the fact that the relationship was not in dispute and a female child was also born out of the wedlock and the fact that the husband was earning a net salary of Rs.1,53,224/- and taking into consideration his liabilities, it ordered the payment of Rs.40,000/- per month as maintenance.
16. The Trial Court noticed that the main allegation of the husband was that the wife was leading an adulterous life and at the stage of determining a claim for maintenance, the same could not be ascertained on the basis of the documents furnished by the husband, especially, when the adulterer was not made a party.
-9-W.P. No.105360/2021 C/w. W.P. No.102083/2022
17. The husband, argued extensively and in great detail in respect of the allegation that the wife had committed an offence of perjury. He contended that his wife had not come to the Court with clean hands and she would not be entitled for any maintenance. The entire thrust of the argument of the husband was to project as false, all the statements made by his wife.
18. The allegations of false statements were in respect of (a) wife's job status; (b) wife's educational certificates; (c) wife's gold ornaments and jewelries. The amount spent by the husband towards medical treatment and care of his wife; (d) the false averments made against the husband and wife; (e) production of partial conversations between the husband and wife on the social media in order to mislead the Court regarding the salary; (f) the expenses incurred by his family,
(g) incorrect submissions of assets filed by the wife;
(h) the financial assistance given by him to his wife during and after the pregnancy; (i) the false statement
- 10 -
W.P. No.105360/2021 C/w. W.P. No.102083/2022 about leaving with the job at "Myntra" after the marriage; and (j) the false claims regarding criminal background of the husband and questioning his upbringings.
19. The husband reiterated the contentions advanced before the Trial Court and once again demanded that the proceedings be initiated against his wife under Section 340 of the Cr.P.C. read with S. 195 of the Cr.P.C. for fabricating evidences and for making false statement.
20. The Trial Court has stated in its order dated 04.09.2021 that it was a prerequisite of Section 340 that the Court should form an opinion that it would be expedient in the interest of justice that an enquiry be made into an offence referred to under Section 195(b) and there was materials indicating that the offence had been committed in relation to a proceeding
- 11 -
W.P. No.105360/2021 C/w. W.P. No.102083/2022 in that Court or in respect of which had been produced or given in evidence before that Court.
21. The Trial Court has noticed that based on the documents produced, it would not be possible to form an opinion and this could be ascertained only after a full fledged trial and has ordered to keep the application in abeyance.
22. In my view, the decision taken by the Trial Court on the application filed under S. 340 (2) is just and legal and proper. In this writ petition also, for the very same reasons stated in the impugned order, the request of the petitioner for initiating the proceedings before this Court under Section 340 cannot be entertained.
23. It is to be stated here that the Trial Court has merely kept the application in abeyance and has stated that it would consider it after the trial. By this order, no harm or prejudice would be caused to the petitioner.
- 12 -
W.P. No.105360/2021 C/w. W.P. No.102083/2022
24. It is to be kept in mind that a Husband or a wife for that matter, cannot demand a criminal complaint be lodged by a Court on a mere assertion that a crime had been conducted and it was for the Court to come to the conclusion that a crime had been contemplated.
25. In a bitter marital dispute, the allegations made against each other by the respective spouses would have to be established with adequate proof at the time of trial and merely on the basis of allegations made on affidavit, it would be unsafe to initiate criminal proceedings against a spouse. In fact, if these kinds of pleas are accepted, even before a trial commences, the parties to a marital dispute can successfully prevent the adjudication of their main dispute and they can also thereby use them as a tool to intimidate the other spouse. It would be therefore not proper to entertain such a plea.
- 13 -
W.P. No.105360/2021 C/w. W.P. No.102083/2022
26. The only question to be considered in this writ petition is as to whether the order of the Trial Court awarding Rs.40,000/- as monthly maintenance to the wife and the 3½ year old girl is just and proper?
27. The Trial Court has taken note of the fact that the petitioner was drawing a net salary of Rs.1,53,000/- and having regard to the affidavit filed by him regarding assets and liabilities, it would be appropriate to award a sum of Rs.40,000/- per month as maintenance.
28. The husband argued that the affidavit of assets and liabilities filed by the wife was not as per the decision of the Hon'ble Apex Court rendered in Rajanesh Vs. Neha (2021) SCC 324 and hence, she was not entitled for any maintenance at all.
29. It may also be pertinent to state here that the wife has filed an affidavit of assets and liabilities before this Court and objections to the said affidavit has also been filed.
- 14 -
W.P. No.105360/2021 C/w. W.P. No.102083/2022
30. This Court after hearing arguments, directed the husband to furnish his present pay slip. He, however, expressed an apprehension that if the details of his present employment and salary is disclosed, there was a distinct possibility that the wife would misuse the said information for lodging false complains against him to his employers and this would thereby cause severe prejudice to him.
31. In the light of this apprehension, the husband was called upon to produce his salary details in a sealed cover and he has accordingly produced the same in a sealed cover. This cover shall be kept in safe custody by the Registry after resealing it.
32. The husband though contended that his wife had an adequate source of income has not been able to produce any credible documentary evidence indicating that she was gainfully employed. According to his objections, it is contended that she had taken up a job
- 15 -
W.P. No.105360/2021 C/w. W.P. No.102083/2022 in "Writer's Rescue Centre" as Chief Mentor and had been working there till December-2018. He has however not stated that as to whether she was being paid any wages for being a Chief Mentor at Writer's Rescue Center.
33. Similarly, though it is asserted that the wife was working as an Actress in movies and has already acted in Tamil movie as lead actress, it is not forthcoming as to when she had acted and the income that she had secured for working as an actress.
34. An allegation is also made that she was earning through advertisements and product endorsement. However, in respect of these assertions also, no credible evidence has been produced. Unless credible and acceptable proof of these assertions is produced, it would be extremely difficult to accept the same and conclude that the wife is able to maintain herself and her daughter.
- 16 -
W.P. No.105360/2021 C/w. W.P. No.102083/2022
35. It is to be kept in mind that the wife is the mother of a three year old girl child and it would obviously be very difficult, if not impossible, for her to secure a job and at the same time take care of her three year old child.
36. It is also to be kept in mind that, since the wife has been living separately, it would be extremely difficult for her to secure a job without there being support or assistance to take care of her 3 ½ year daughter. It would also be unreasonable to expect her parents, who are also senior citizens, to take care of a 3 ½ year girl so as to enable the wife to secure a job.
37. It cannot be in dispute that for a mother, her first priority, when she has a young infant, would be to nurture the child and it would not be to secure a job.
38. In this case, the husband has been unable to establish that the wife had secured a job, which met her financial needs and it cannot therefore be held that the
- 17 -
W.P. No.105360/2021 C/w. W.P. No.102083/2022 wife had a definite source of income to maintain herself and her daughter.
39. In my view therefore, the wife could be entitled to maintenance commensurate with her husband's income and the standard of living that she can legitimately expect as a result of her husband's income and standard of living.
40. As per the salary details produced by the husband in a sealed cover, he is earning a gross monthly salary in the region of Rs. 1,70,000/- and a net salary in the region of Rs. 1,30,000/-.
41. The husband has also filed an affidavit of assets and liabilities in which he has indicated that his gross yearly salary, as follows:
Assessment Gross yearly Net yearly year salary salary 2017-18 1560153 1382621 2018-19 1754201 1548228 2019-20 2172576 1838689
- 18 -W.P. No.105360/2021 C/w. W.P. No.102083/2022
42. Having regard to the fact that, the income of the husband is consistently on the upswing from the year 2017-18 and his present annual gross salary is in the region of Rs. 19 lakhs, in my view, it would be appropriate to award a sum of Rs.60,000/- as monthly maintenance to the wife and the child as against the sum of Rs. 40,000/- awarded by the Trial Court.
43. It is to be kept in mind that the wife, having married a man, who was earning at the time of marriage, a sum in excess of Rs.1,50,000/- p.m., it is but natural that she would be entitled to lead a life style that is commensurate with that kind of salary. It may also be kept in mind that she has the additional task of taking care of a three year old girl, which would also add to the expenses. It would therefore be appropriate to modify the monthly maintenance and award a sum of Rs.60,000/- as monthly maintenance as against the sum of Rs.40,000/- awarded by the Trial Court.
- 19 -
W.P. No.105360/2021 C/w. W.P. No.102083/2022
44. Though the claim for legal proceedings were made in the Trial Court, the Trial Court has not awarded any sum in this regard. The wife has been forced to litigate before this Court in order to claim maintenance and therefore, it would be appropriate to award a sum of Rs.50,000/- towards litigation expenses.
45. Consequently, the writ petition filed by the husband in W.P. No.105360/2021 is dismissed.
46. The writ petition filed by the wife in W.P. No.102083/2022 is allowed in part and the monthly maintenance is enhanced to Rs.60,000/- and a further sum of Rs.50,000/- shall be paid by the husband towards litigation expenses.
47. The husband shall pay the said maintenance amount from the date of petition till the disposal of the petition that has been filed for dissolution of the marriage.
- 20 -
W.P. No.105360/2021 C/w. W.P. No.102083/2022
48. The husband is directed to ensure that the maintenance as ordered above shall be paid to the wife within a period of eight weeks from the date of this order.
Sd/-
JUDGE Vnp*