Karnataka High Court
Channakeshavaiah vs Smt. Lakshmi And Another on 29 May, 2000
Equivalent citations: 2001CRILJ187, II(2001)DMC314, 2001(3)KARLJ458
ORDER
1. This revision petition arises from the judgment and order dated 16-7-1998 delivered by the Additional Principal Judge, Family Court, Bangalore (Sri P. Seetaramaiah) whereby the Trial Court i.e., the Family Court has awarded a maintenance of Rs. 500/- per month in favour of the present respondent 1-Smt. Lakshmi and a sum of Rs. 200/- as maintenance to the present respondent 2-Master Deepak from the date of petition for maintenance. The learned Trial Judge, after consideration of materials on record, arrived at the conclusion that the present revision petitioner who was respondent before the Family Court had been negligent by his conduct in maintaining the claimants in the maintenance case namely his wife and the minor child. It found that the husband, i.e., the present revision petitioner who was respondent 1 before the Family Court, without any rhyme or reason has been neglecting his wife and child and was not maintaining them. The Court also found that the claimants-petitioners were unable to maintain themselves and that the income of respondent 1 before the Family Court namely present petitioner in the revision petition was about Rs. 3,000/- per month. Having recorded these findings, the Family Court awarded maintenance to the tune of Rs. 500/- per month to Smt. Lakshmi, petitioner 1 in the maintenance case who is respondent 1 in the revision petition and also awarded maintenance to the tune of Rs. 200/- per month in favour of Master Deepak, petitioner 2 in the maintenance case who is respondent 2 in the revision petition.
2. The learned Counsel for the revision petitioner contended that the revision petitioner has always been agreeable and yet prepared to take bis wife and the child with him, but they themselves are not agreeable to live with the revision petitioner. He further contended that the award of maintenance of Rs. 700/- is heavy as revision petitioner's income is not more than Rs. 3,000/-.
3. I have applied my mind to the contentions raised by the learned Counsel for the revision petitioner.
Under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, it has been provided that a Hindu wife is entitled to be maintained by her husband during her lifetime. Sub-section (2) of Section 18 provides that the Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance in the circumstances and cases covered by clauses (a) to (g) of sub-section (2) of Section 18 and sub-section (3) no doubt provides a defence to the husband and it provides that a Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion. It will be appropriate to quote Section 18 in extenso. It reads as under:--
"Section 18. Maintenance of wife.--(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance.-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
(0 if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying her living separately.
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion".
4. Under Section 20, an obligation has been cast on a Hindu to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
5. Section 125 of the Criminal Procedure Code also makes a provision for order for maintenance being granted in favour of wife, children and parents. Sub-section (1) no doubt further provides that in respect of each claimants separately maintenance can be awarded to the extent of Rs. 500/- means wife is entitled to maintenance for herself to the tune of Rs. 500/-, similarly such children and the parents. But the minor children are entitled to their maintenance till they attain the age of majority. Second proviso to sub-section (3) to Section 125 provides that if the person liable to pay maintenance offers to maintain his wife on condition of her living with him and she refuses to live with him, the Magistrate may consider any grounds of refusal stated by her and may make an order under this section irrespective of the offer made by the husband provided the Magistrate or the Court concerned is satisfied that there is just ground for the wife to refuse to live with her husband. Explanation to proviso (2) further indicates that if the husband has contracted marriage with another woman or keeps mistress, that shall be considered to be just ground for his wife's refusal to live with him and sub-section (4) of Section 125 provides that no wife will be entitled to receive an allowance from her husband under Section 125 if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. Sub-section (5) also provides that if it has been proved even after order of maintenance is granted that the wife in whose favour the maintenance is granted is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate may cancel the order of maintenance.
(emphasis supplied)
6. Thus a reading of the two provisions will per se reveal as to in what circumstances a Hindu wife is entitled to live separately from her husband and claim maintenance and in what cases and circumstances she may not be entitled to live separately and claim maintenance. The cases in what a Hindu wife shall not be entitled to separate residence and to claim maintenance may in brief be said to be, if she is a unchaste woman or that she, without any sufficient cause or reasons, refuses to live with her husband. The sufficient causes may be said to be those which may be covered by the circumstances as indicated in sub-section (2) of Section 18 or the like. A Hindu wife is not entitled to maintenance if she ceases to be a Hindu by conversion. Subject to those exceptions, ordinarily a Hindu wife is entitled to maintenance and in cases covered by clauses (a) to (g) of sub-section (2) to one provided in proviso to sub-section (3), a wife is entitled to live separately and claim maintenance. If the circumstances mentioned in sub-section (2) are established or shown to be existing, the wife no doubt is entitled to claim maintenance and live separately.
(emphasis supplied)
7. In the present case, no doubt, the revision petitioner i.e., the husband had made allegations against the wife in his objections to the claim for maintenance and alleged that the claimant-wife had withdrawn from the company of the husband and is living separately. He has made assertions that the character of the claimant is not good and that the claimant-wife had illegitimate intimacy with her brother-in-law by name Narayana Swamy of K.S.R.P. He also denied the paternity of the child that the claimant was not pregnant through the respondent before the Family Court i.e., through the revision petitioner. It is to be taken note of that the revision petitioner who was the respondent before the Family Court did not press any issue on the point of allegations which he had made about the character of the wife i.e., respondent 1 in the revision petition. There was no issue pressed before the Trial Court that the wife Lakshmi was living in adultery or that she was a unchaste woman nor any evidence has been produced to that effect. The points for determination that were pressed are indicated in para 7 of the order. They read as under:--
1. Whether the petitioners prove that the respondent having sufficient means has neglected or refused to maintain the petitioner?
2. Whether the petitioners are unable to maintain themselves?
3. What is the rate at which the petitioners are entitled for maintenance?
4. What order?
8. These issues which appear in para 7 do not indicate that the revision petitioner pressed that point and got that issue framed. The bald allegation of unchastity without establishment of those allegations or the factum of that the allegation to the effect that she is living in adultery, that may amount to nothing but a mental cruelty and harassment. No doubt, if allegations of unchastity or wife's living in adultery are established by evidence by proper proof, then that could suffice the ground to the husband for rejection of the claim for maintenance or for cancellation of the order of maintenance. But, here it does not appear that the allegations of unchastity against the wife have been established. No ground has been pointed out to me to the effect nor urged that the revision petitioner had produced any evidence to prove the unchastity of the wife or the circumstances which may support the revision petitioner in denying the paternity of the child. Section 112 of the Evidence Act clearly provides that a child born to husband and wife during their lawful wedlock is to be presumed to be the child horn out of that wedlock. So, bare and bald allegations are not sufficient to dislodge the claim of the wife or child for maintenance. Hence, as mentioned earlier, the record also proves that the complaint which had been filed by the revision petiioner against Narayana Swamy had also been dismissed.
9. In this view of the matter, in my opinion, the wife had sufficient ground to live separately from her husband and claim maintenance against the petitioner applying the principles of Section 18(2)(a).
10. As regards the quantum of maintenance, it does not appear to be excessive looking to the present circumstances. Really, I could have exercised my power to enhance, but at this stage, I don't wish to exercise. The finding of the Trial Court that the husband/revision petitioner has not produced any salary certificate from his employer about his monthly income and looking to the circumstances of having revision of pay scales and increments in the absence of salary certificate from the revision petitioner, the Trial Court i.e., the Family Court cannot be said to be unjustified in holding that the revision petitioner's income must be near about Rs. 3,000/-.
In this view of the matter, in my opinion, the order of the Trial Court cannot be said to suffer from any illegality or error of law or bad. The revision petition, as such, is hereby dismissed.