Karnataka High Court
Smt. Thrupthi R vs Sri Venkatesh Srinivas on 2 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:4634
WP No. 21691 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 21691 OF 2023 (GM-FC)
BETWEEN:
SMT. THRUPTHI R
W/O VENKATESH SRINIVAS,
AGED ABOUT 34 YEARS,
R/AT NO.15, SLN ENCLAVE,
THIPPENAHALLI,
NEAR BBMP PARK,
DODDA BIDARAKALLU,
NAGASANDRA,
BENGALURU - 560073.
...PETITIONER
(BY SMT. AISHWARYA R., ADVOCATE)
AND:
SRI VENKATESH SRINIVAS
Digitally signed
by NAGAVENI S/O LATE SRINIVAS,
Location: HIGH AGED 40 YEARS,
COURT OF R/A NO.1775,
KARNATAKA 2ND FLOOR, 22ND CROSS,
GOVINDARAJANAGARA,
BENGALURU - 560040.
...RESPONDENT
(BY SMT. S.SUSHEELA, SENIOR COUSNEL FOR
SRI. GIRISH D M., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO i) SET ASIDE THE
ORDER DATED 12/04/2023 ON IA NO III IN MC NO.5197/2019
PASSED BY THE HONBLE II ADDL PRINCIPAL FAMILY COURT,
BENGALURU (ANNEXURE-A) IN SO FAR AS NOT GRANTING
-2-
NC: 2024:KHC:4634
WP No. 21691 of 2023
MAINTENANCE AS PRAYED FOR IN THE APPLICATION IA NO. III
AND NOT GRANTING MAINTENANCE FROM THE DATE OF THE
APPLICATION AND ETC.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question the order passed by the concerned Court in M.C.No.5197/2019 on an application filed in I.A.No.III seeking maintenance for the child who is 9 years old. The concerned Court, by its order dated 12.04.2023 has awarded maintenance at Rs.10,000/- per month, enhancement of which is sought in the subject petition by the petitioner - wife.
2. Heard the learned counsel Smt.Aishwarya R., appearing for the petitioner and the learned Senior counsel Smt.S.Susheela, appearing for the respondent.
3. Facts in brief, germane are as follows:
The petitioner is the wife and the respondent is her husband. The two get married on 06.03.2013 and on the relationship of the two floundering are before the Family Court in M.C.No.5197/2019. The issue in the lis does not concern the -3- NC: 2024:KHC:4634 WP No. 21691 of 2023 merit of the claim in the matrimonial case or its defence either by the husband or the wife. The wife files an application under Section 26 of the Hindu Marriage Act,1955 seeking monthly maintenance of Rs.1,00,000/- to maintain the minor son, who is in the custody of the wife. The husband files his objections and the concerned Court considering the objections, grants maintenance of Rs.10,000/- apart from the 50% of total educational expenses. The wife challenges the said order on the score that what is granted is meager and would need enhancement.
4. The learned counsel appearing for the petitioner submits that the expenses incurred upon the child are manifold and the amount of Rs.10,000/- that is granted is too meager for bringing up the child in the age of today.
5. The leaned Senior counsel Smt.S.Susheela appearing for the respondent would submit that the husband though earns Rs.5,38,000/- that is before taxation and what he gets home is Rs.3,00,000/- and all the expenditure of the school fee, which is divided at 50% is paid diligently throughout. The learned Senior counsel would also submit that -4- NC: 2024:KHC:4634 WP No. 21691 of 2023 whatever expenditure that is projected by the wife, said to have incurred upon the child, the husband is ready and willing to pay, to the tune of 50%. The reason is that the wife is also earning Rs.2,47,000/- per month. The wife has not sought maintenance for herself, but it is only for the child.
6. In the teeth of the aforesaid facts, it is germane to notice the judgment of the Apex Court in the case of RAJNESH V. NEHA AND ANOTHER1, where the Apex Court draws down various factors of grant of maintenance to the wife or to the child, as the case would be. The Apex Court has observed as follows:
"III Criteria for determining quantum of maintenance
77. The objective of granting interim/permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.
78. The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the Applicant is educated and professionally qualified; whether the Applicant has any independent source of 1 (2021) 2 SCC 324 -5- NC: 2024:KHC:4634 WP No. 21691 of 2023 income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family;
reasonable costs of litigation for a non-working wife.
79. In Manish Jain v. Akanksha Jain this Court held that the financial position of the parents of the applicant-wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the court should mould the claim for maintenance based on various factors brought before it.
80. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications.
-6-NC: 2024:KHC:4634 WP No. 21691 of 2023
81. A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the Respondent, and the standard of living that the Applicant was accustomed to in her matrimonial home. The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.
82. Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of HAMA provides the following factors which may be taken into consideration: (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant's property and any income derived from such property, (v) income from claimant's own earning or from any other source.
83. Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman and/or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.
84. The Delhi High Court in Bharat Hedge v. Saroj Hegde laid down the following factors to be considered for determining maintenance: (SCC OnLine Del para 8) "1. Status of the parties.
-7-NC: 2024:KHC:4634 WP No. 21691 of 2023
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
6. Non-Applicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
8. Payment capacity of the non-applicant.
9. Some guesswork is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded Under Section 125 CrPC is adjustable against the amount awarded Under Section 24 of the Act.
85. Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable.
(a) Age and employment of parties
86. In a marriage of long duration, where parties have endured the relationship for several years, it would be a relevant factor to be taken into consideration. On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the -8- NC: 2024:KHC:4634 WP No. 21691 of 2023 family being the primary caregiver to the minor children, and the elder members of the family, this factor would be required to be given due importance. This is of particular relevance in contemporary society, given the highly competitive industry standards, the separated wife would be required to undergo fresh training to acquire marketable skills and retrain herself to secure a job in the paid workforce to rehabilitate herself. With advancement of age, it would be difficult for a dependant wife to get an easy entry into the workforce after a break of several years.
(b) Right to residence
87. Section 17 of the D.V. Act grants an aggrieved woman the right to live in the "shared household". Section 2(s) defines ";shared household" to include the household where the aggrieved woman lived at any stage of the domestic relationship; or the household owned and rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which the respondent is a member.
88. The right of a woman to reside in a "shared household" defined Under Section 2(s) entitles the aggrieved woman for right of residence in the shared household, irrespective of her having any legal interest in the same. This Court in Satish Chander Ahuja v. Sneha Ahuja held that "shared household" referred to in Section 2(s) is the shared household of the aggrieved person where she was living at the time when the application was filed, or at any stage lived in a domestic relationship. The living of the aggrieved woman in the shared household must have a degree of permanence. A mere fleeting or casual living at different places would not constitute a "shared household". It is important to consider the intention of the parties, nature of living, and nature of the household, to determine whether the premises is a "shared household". Section 2(s) read -9- NC: 2024:KHC:4634 WP No. 21691 of 2023 with Sections 17 and 19 of the D.V. Act entitles a woman to the right of residence in a shared household, irrespective of her having any legal interest in the same. There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or the aggrieved woman has any right, title or interest. The shared household may not necessarily be owned or tenanted by the husband singly or jointly.
89. Section 19(1)(f) of the D.V. Act provides that the Magistrate may pass a residence order inter alia directing the Respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the- shared household. While passing such an order, the Magistrate may direct the Respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties.
(c) Where wife is earning some income
90. The courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The courts have provided guidance on this issue in the following judgments:
90.1. In Shailja v. Khobbanna, this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival.
- 10 -
NC: 2024:KHC:4634 WP No. 21691 of 2023 90.2. In Sunita Kachwaha v. Anil Kachwaha the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.
90.3. The Bombay High Court in Sanjay Damodar Kale v. Kalyani Sanjay Kale while relying upon the judgment in Sunita Kachwaha, held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance.
90.4. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Prakash v. Shila Rani. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the court.
90.5. This Court in Shamima Farooqui v. Shahid Khan cited the judgment in Chander Prakash with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife.
(d) Maintenance of minor children
- 11 -
NC: 2024:KHC:4634 WP No. 21691 of 2023
91. The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extra-curricular/coaching classes, and not an overly extravagant amount which may be claimed.
92. Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.
(e) Serious disability or ill health
93. Serious disability or ill health of a spouse, child/children from the marriage/dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance. "
In the teeth of the observations of the Apex Court, the order passed by the concerned Court is required to be noticed.
7. The Court observes the expenditure that the mother incurs upon the child is definitely at a higher state and further observes that it is the responsibility of both the parents who are earning, to take care of the child, where sharing the
- 12 -
NC: 2024:KHC:4634 WP No. 21691 of 2023 responsibility of bringing up the child. The concerned Court observes as follows:
" ORDER I.A.No.III filed by the respondent u/Sec.26 of Hindu Marriage Act, 1955 is hereby partly allowed.
The petitioner is directed to pay to the respondent at Rs.10,000/- per month towards the child support of their minor son from the date of this order until further orders within 5th of every succeeding calendar month.
The respondent is further directed to pay the 50% total educational expenses of his minor son on production of school fee structure by the respondent during every Academic year without fail.
The petitioner is further directed to reimburse the expenses towards medical expenses and educational expenses of their minor son as per the production of bills by the respondent i.e., Medical expenditure is Rs.41,556/- and Educational expenses is at Rs.99,570/, the 50% of the same comes to Rs.20,793/- towards medical bills and Rs.49,785/- towards educational expenses totally Rs.70,578/- at 50% of the total bills.
The petitioner is directed to pay the same within two months from the date of this order."
Observing thus, grants an amount of Rs.10,000/- as maintenance. The grant of maintenance at Rs.10,000/-
undoubtedly is at a lower side, though not meager, as is projected by the learned counsel appearing for the petitioner.
- 13 -
NC: 2024:KHC:4634 WP No. 21691 of 2023
8. Therefore, in the facts circumstance of both the husband and the petitioner - wife earning Rs.3,38,000/- and Rs.2,47,000/- respectively month on month, I deem it appropriate to enhance the maintenance payable by the father towards the upbringing of the child at Rs.20,000/- per month, as against Rs.10,000/-. Reserving liberty to the wife to seek its enhancement, as the cost of living would grow higher year by year. For the present, I deem it appropriate to double it up to Rs.20,000/-, apart from all the expenditure that the wife would project claiming 50% of it to be paid by the husband from time to time or any time hereafter.
9. Yet another modification would ensue on a perusal of the order of the concerned Court. The order reads that the maintenance would begin from the date of the order, which runs counter to what the Apex Court has held in the case of RAJNESH V. NEHA (supra) where the apex court observes as follows:
"(a) From date of application
96. The view that maintenance ought to be granted from the date when the application was made, is based on the rationale that the primary
- 14 -
NC: 2024:KHC:4634 WP No. 21691 of 2023 object of maintenance laws is to protect a deserted wife and dependant children from destitution and vagrancy. If maintenance is not paid from the date of application, the party seeking maintenance would be deprived of sustenance, owing to the time taken for disposal of the application, which often runs into several years.
97. The Orissa High Court in Susmita Mohanty v. Rabindra Nath Sahu held that the legislature intended to provide a summary, quick and comparatively inexpensive remedy to the neglected person. Where a litigation is prolonged, either on account of the conduct of the opposite party, or due to the heavy docket in courts, or for unavoidable reasons, it would be unjust and contrary to the object of the provision, to provide maintenance from the date of the order.
98. In Kanhu Charan Jena v. Nirmala Jena, the Orissa High Court was considering an application Under Section 125 CrPC, wherein it was held that even though the decision to award maintenance either from the date of application, or from the date of order, was within the discretion of the court, it would be appropriate to grant maintenance from the date of application. This was followed in Arun Kumar Nayak v. Urmila Jena, wherein it was reiterated that dependents were entitled to receive maintenance from the date of application.
99. The Madhya Pradesh High Court in Krishna v. Dharam Raj held that a wife may set up a claim for maintenance to be granted from the date of application, and the husband may deny it. In such cases, the court may frame an issue, and decide the same based on evidence led by parties. The view that the "normal rule"
was to grant maintenance from the date of order, and the exception was to grant maintenance from the date of application, would be to insert something more in
- 15 -
NC: 2024:KHC:4634 WP No. 21691 of 2023 Section 125(2) CrPC, which the legislature did not intend. Reasons must be recorded in both cases. i.e. when maintenance is awarded from the date of application, or when it is awarded from the date of order.
100. The law governing payment of maintenance under Section 125 CrPC from the date of application, was extended to HAMA by the Allahabad High Court in Ganga Prasad Srivastava v. Addl. District Judge, Gonda. The Court held that the date of application should always be regarded as the starting point for payment of maintenance. The Court was considering a suit for maintenance under Section 18 of HAMA, wherein the Civil Judge directed that maintenance be paid from the date of judgment. The High Court held that the normal inference should be that the order of maintenance would be effective from the date of application. A party seeking maintenance would otherwise be deprived of maintenance due to the delay in disposal of the application, which may arise due to paucity of time of the court, or on account of the conduct of one of the parties. In this case, there was a delay of seven years in disposing of the suit, and the wife could not be made to starve till such time. The wife was held to be entitled to maintenance from the date of application/suit.
101. The Delhi High Court in Lavlesh Shukla v. Rukmani held that where the wife is unemployed and is incurring expenses towards maintaining herself and the minor child/children, she is entitled to receive maintenance from the date of application. Maintenance is awarded to a wife to overcome the financial crunch, which occurs on account of her separation from her husband. It is neither a matter of favour to the wife, nor any charity done by the husband."
(Emphasis supplied)
- 16 -
NC: 2024:KHC:4634 WP No. 21691 of 2023 The maintenance therefore, shall run from the date of the application.
10. The learned counsel for the petitioner submits that the application was filed on 24.09.2021. Therefore, the husband shall pay arrears of maintenance, as its grant would run from the date of the application.
11. The learned Senior counsel would submit that the husband would need some time to clear the arrears of maintenance, as is directed. The arrears be cleared, within four months from today, not in one go, but on staggered payment, month on month in Equally Distributed Installments.
12. For the aforesaid reasons, the following:
ORDER
i) The writ petition is allowed in part;
ii) The maintenance of Rs.10,000/- per month
awarded is enhanced to Rs.20,000/-,
reserving liberty to the wife to seek its enhancement, in the event need arises.
(iii) This would be apart from all the expenditure on the child that the wife would project to be
- 17 -
NC: 2024:KHC:4634 WP No. 21691 of 2023 payable by the husband at 50% of the said expenditure.
Sd/-
JUDGE KG List No.: 1 Sl No.: 8