Judgment:
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2023. KHC:38686 WP No.22501 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE31T DAY OF OCTOBER, 2023 BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION No.22501 OF2023(GM-FC) BETWEEN: MR.VIVEK ANANTHA NAYAK S/O S.A. NAYAKA, AGED ABOUT50YEARS, PERMANENT R/AT: “SHREYAS”, 15-9-483, NEAR ABHIMAN GARDENS, KADRI, MANGALURU – 575 003 NOW R/AT No.209, BLOCK-2 HARSHA LANDMARK, 11TH MAIN ROAD, BRINDHAVAN LAYOUT, HOYSALA NAGAR, HORAMAVU MAIN ROAD, OFF BANASWADI RING ROAD, BENGALURU – 560 043. …PETITIONER (BY SRI.D.R.RAVISHANKAR, SR.ADVOCATE FOR SRI. AJAY PRABHU M., ADVOCATE) AND: MRS.VARSHA NAYAK @ MRS SAVITHA KAMATH D/O S. RAMACHANDRA KAMATH, AGED ABOUT47YEARS, R/AT “USHA NILAYA”, ANEGUNDI ROAD, BEJAI, KAPIKAD, MANGALURU – 575 004. …RESPONDENT - 2 - NC:
2023. KHC:38686 WP No.22501 of 2023 THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DTD0709.2023 IN M.C.NO.512 OF2022C/W M.C.NO.563 OF2022ON THE FILE OF PRINCIPAL JUDGE, FAMILY COURT, DK, MANGALURU AS PER ANNEXURE-A. THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
The petitioner is before this Court calling in question an order dated 7-09-2023 passed by the Principal Judge, Family Court, D.K., Mangalore in M.C.No.512 of 2022 connected with M.C.No.563 of 2022, whereby the concerned Court grants maintenance on an application filed by the wife/respondent under Section 24 of the Hindu Marriage Act, 1955 (‘the Act’ for short) at Rs.60,000/- per month.
2. Heard Sri D.R.Ravishankar, learned senior counsel appearing for the petitioner/husband.
3. The facts, in brief, adumbrated are as follows:- The petitioner is the husband and the respondent is his wife. The two get married on 29-04-2002. After about 14 years of marriage, it appears that the relationship of the - 3 - NC:
2023. KHC:38686 WP No.22501 of 2023 petitioner and the respondent turned sore and had virtually floundered. It is the case of the petitioner that the wife goes into depression in the year 2016 and had to be treated by a Psychiatrist for her mental illness. The petitioner, therefore, files a petition seeking annulment of marriage invoking Section 13(1)(ib) and (iii) of the Act in M.C.No.512 of 2022. The wife later files another petition seeking annulment of marriage invoking the provisions under the Act. Therefore, there were two petitions pending before the concerned Court in M.C.Nos.512 of 2022 and 563 of 2022, both for the same purpose – annulment of marriage. The issue in the lis does not concern merit of the claim of parties. In the petition filed by the petitioner/husband, the respondent/wife files an application seeking maintenance at the hands of the husband at Rs1,50,000/- per month and Rs.50,000/- towards litigation expenses invoking Section 24 of the Act. The petition was filed through the sister of the wife. The concerned Court after considering the issue in its entirety qua the application, passes an order awarding maintenance at Rs.60,000/- per month to be paid by the husband on or before 7th of every month. It is this - 4 - NC:
2023. KHC:38686 WP No.22501 of 2023 order that has driven the petitioner to this Court in the subject petition.
4. The learned senior counsel appearing for the petitioner would contend with vehemence that the husband knows the position of the wife. He has led his life of fifteen years with the wife. She is now mentally unsound. Application is, therefore, preferred by her sister and maintenance at Rs.60,000/- is awarded to be paid to the wife. It is his submission that the money would not be utilized by the wife or for the wife but would be eaten away by others. It is his alternate submission that Rs.60,000/- granted is on the higher side and it may be reduced by 50% of the amount i.e., Rs.30,000/- per month. But, in effect he would seek quashment of the entire order.
5. I have given my anxious consideration to the submissions made by the learned senior counsel and have perused the material on record.
6. The afore-narrated facts are not in dispute. Therefore, they would not require reiteration. The relationship between the parties and floundering of their relationship are as afore-noted. The Apex Court in the case of RAJNESH v. NEHA AND - 5 - NC:
2023. KHC:38686 WP No.22501 of 2023 ANOTHER1 has laid down certain guidelines as to filing of affidavits by respective parties before concerned Courts to consider an application under Section 24 of the Act or the proceedings under Section 125 of the CrPC or even claim of maintenance under the Domestic Violence Act. The concerned Court after taking note of respective affidavits filed by the parties makes its observations with regard to interim maintenance at Rs.60,000/-. The observations and the order read as follows: “15. If the affidavit of the husband along with the documents produced by him are carefully considered, then it can be said that he not only possessing several properties, but his yearly income from all the sources is more than ` 83,00,000/-. If the same is divided in 12 months, then it comes to `7,00,000/- per month approximately. It means the contention of the wife that he earns `.5,00,000/- appears to be just and proper. When the husband is having monthly income approximately of `.7,00,000/-, if 35% of the same is deducted as income tax, then his net income after deduction of the tax is around about `.5,00,000/-.
16. Admittedly, the wife is not having income of her own. It is her specific contention that due to her mental condition she is regularly taking treatment and spending huge amount for medical expenses.
17. The Hon'ble Apex Court in it decision reported in (2011) 13 SCC112in the case of Vinny Parmvir Parmar Vs. Parmvir Parmar, made the following observations:
1. (2021) 2 SCC324- 6 - NC:
2023. KHC:38686 WP No.22501 of 2023 "While granting permanent alimony, по arithmetic formula can be adopted as there cannot be any mathematical exactitude. It shall depend upon the status of the parties, their respective social needs, the financial capacity of the husband and other obligations. The duty of the Court is to see that the wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously she should not be left to live in discomfort.
18. When the husband is having yearly income of `.83,00,000/-, then the Court can imagine what is his standard of living and lifestyle. The wife is also entitled to lead a moderate life for which she certainly requires maintenance from the husband. If the income of the husband is considered as `.5,00,000/- per month, then justice would be met with, if the wife is awarded `.2,000/- per day as interim maintenance i.e., `.60,000/- per month from the date of filing of her petition till the disposal of this case. In my opinion at this stage there is no need to pass a separate order towards the cost of litigation as the same can be considered at the time of disposal of these cases.
19. I have carefully perused the entire judgment in the case of Rajnesh Vs. Neha relied by the counsel for the husband. After keeping in mind the directions given in the said decision and also observations made therein, I feel that interim maintenance of `.60,000/- per month is just and proper. With these observations, I have answered the point under consideration accordingly.
20. Point No.2:- For the forgoing reasons, I proceed to pass the following: :: ORDER
:: I.A. No.II filed by the wife/petitioner U/Sec.24 of the Hindu Marriage Act, is hereby allowed in part. The wife/petitioner is awarded interim maintenance of `.60,000/- per month from 03.12.2022 till the disposal of this case, which shall be inclusive of other orders of maintenance, if any passed by any other courts. The husband/respondent shall pay arrears of interim maintenance on or before - 7 - NC:
2023. KHC:38686 WP No.22501 of 2023 31.10.2023 and monthly interim maintenance on or before 7th of each month without fail. No order as to costs.” The concerned Court takes note of the fact that the husband, even according to his affidavit earns Rs.83/- lakhs per month which would be close to Rs.7/- lakhs per month and the wife does not have any independent income as she has been throughout a home maker. The Court further observes that the wife due to her mental condition would require regular treatment for which huge amount of money is to be spent. Therefore, the said amount is awarded. The learned senior counsel representing the husband would make a very futile attempt to convince the Court that the wife is mentally unsound and the money would not be spent for her treatment. This submission is noted only to be rejected as if the husband is aware that the wife is mentally unsound and she needs treatment for her depression, it is the duty of the husband to come forward and pay the maintenance that is required to the wife.
7. It is not a case where the husband is not in a position to pay any amount of maintenance to the wife. His earning is - 8 - NC:
2023. KHC:38686 WP No.22501 of 2023 Rs.7/- lakhs per month, even according to his claim and therefore, lived a life of luxury within the parameters that it can be so called. The maintenance that is awarded at Rs.60,000/- per month can by no stretch of imagination be construed to be on the higher side. Looking at the state of the wife who has remained a home maker throughout in juxta position to the status of the husband who earns close to a crore per annum the amount of maintenance awarded cannot be branded to be more. Reference being made to the judgment of the Apex Court in the case of SHAMIMA FAROOQUI v. SHAHIDKHAN2 wherein the Apex Court considered grant of maintenance to be on manifold circumstances, one being the cost of living, style of living and income of the husband. The Apex Court holds as follows: “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 2000. 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 2000 per month. It can never be forgotten that the inherent and fundamental principle behind Section 125 CrPC is for amelioration of the financial state of affairs as well 2 (2015) 5 SCC705- 9 - NC:
2023. KHC:38686 WP No.22501 of 2023 as mental agony and anguish that a woman suffers when she is compelled to leave her matrimonial home. The statute commands that there have to be some acceptable arrangements so that she can sustain herself. The principle 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 woman, 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 CrPC, 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, in fact, they have no acceptability in 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.
15. While determining the quantum of maintenance, this Court in Jasbir Kaur Sehgal v. District Judge, Dehradun [(1997) 7 SCC7 has held as follows : (SCC p. 12, para
8) “8. … The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but - 10 - NC:
2023. KHC:38686 WP No.22501 of 2023 involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.
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 SCC316: (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356]. , it has been ruled that : (SCC p. 320, para
6) “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 SCC70 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 vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It 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 Gujarat [(2005) 3 SCC636:
2005. SCC (Cri) 787]..
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.
18. In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Parkash Bodh Raj v. Shila Rani Chander Prakash [1968 SCC OnLine Del 52 : AIR1968Del 174]. wherein it has been opined thus : (SCC OnLine Del para
7) - 11 - NC:
2023. KHC:38686 WP No.22501 of 2023 7. … an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him.” (Emphasis supplied) The afore-quoted judgment is consequently followed by the Apex Court in the case of REEMA SALKAN v. SUMER SINGH SALKAN,3 wherein it is held as follows: “13. Be that as it may, the High Court took into account all the relevant aspects and justly rejected the plea of the respondent about inability to pay maintenance amount to the appellant on the finding that he was well educated and an able-bodied person. Therefore, it was not open to the respondent to extricate from his liability to maintain his wife. It would be apposite to advert to the relevant portion of the impugned judgment which reads thus: (Reema Salkan case [Reema Salkan v. Sumer Singh Salkan, 2018 SCC OnLine Del 9380: (2018) 250 DLT16 , SCC OnLine Del paras 80-84) “80. The respondent during the cross- examination has admitted that he too is BCom, MA (Eco) and MBA from Kentucky University, USA; the respondent is a Canadian citizen working with Sprint Canada and is earning Canadian $(CAD) 29,306.59 as net annual salary. However, he has claimed that he has 3 (2019) 12 SCC303- 12 - NC:
2023. KHC:38686 WP No.22501 of 2023 resigned from Sprint Canada on 23-11-2010 and the same has been accepted on 27-11-2010 and the respondent since then is unemployed and has got no source of income to maintain himself and his family.
81. In the instant case, the petitioner has filed the case under Section 125 CrPC, 1973 for grant of maintenance as she does not know any skill and specialised work to earn her livelihood i.e. in Para 26 of maintenance petition against her husband. However, the respondent husband who is well educated and comes from extremely respectable family simply denies the same. The respondent husband in his written statement does not plead that he is not an able-bodied person nor he is able to prove sufficient earning or income of the petitioner.
82. It is an admitted fact emerging on record that both the parties got married as per Hindu rites and customs on 24-3-2002 and since then the petitioner was living with her parents from 10-8-2002 onwards, and the parents are under no legal obligation to maintain a married daughter whose husband is living in Canada and having Canadian citizenship. The plea of the respondent that he does not have any source of income and he could not maintain the wife is no answer as he is mature and an able-bodied person having good health and physique and he can earn enough on the basis of him being able-bodied to meet the expenses of his wife. In this context, the observation made in Chander Parkash v. Shila Rani [Chander Parkash v. Shila Rani, 1968 SCC OnLine Del 52 : AIR1968Del 174]. by this Court is relevant and reproduced as under : (SCC OnLine Del para
7) ‘7. … an able-bodied young man has to be presumed to be capable of earning - 13 - NC:
2023. KHC:38686 WP No.22501 of 2023 sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child.’ 83. The husband being an able-bodied person is duty-bound to maintain his wife who is unable to maintain herself under the personal law arising out of the marital status and is not under contractual obligation. The following observation of the Apex Court in Bhuwan Mohan Singh v. Meena [Bhuwan Mohan Singh v. Meena, (2015) 6 SCC353: (2015) 3 SCC (Civ) 321 : (2015) 4 SCC (Cri) 200 : AIR2014SC2875 , is relevant : (SCC p. 357, para
2) ‘2. 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, - 14 - NC:
2023. KHC:38686 WP No.22501 of 2023 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 the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder 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.’ 84. The respondent's mere plea that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife in presence of good physique along with educational qualification.” (emphasis in original) 14. The view so taken by the High Court is unassailable. Indeed, the respondent has raised a plea to question the correctness of the said view, in the reply-affidavit filed in this appeal, but in our opinion, the finding recorded by the High Court is unexceptionable.
15. The only question is: whether the quantum of maintenance amount determined by the High Court is just and proper. The discussion in respect of this question can be traced only to para 85 of the impugned judgment which reads thus: (Reema Salkan case [Reema Salkan v.-. 15 - NC:
2023. KHC:38686 WP No.22501 of 2023 Sumer Singh Salkan, 2018 SCC OnLine Del 9380 : (2018) 250 DLT16 , SCC OnLine Del) “85. So far the quantum of maintenance is concerned, nothing consistent is emerging on record to show the specific amount which is being earned by the respondent after 2010, however, the husband is legally bound to maintain his wife as per the status of a respectable family to which he belongs. The husband being able-bodied along with high qualification BCom, MA (Eco) and MBA from Kentucky University, USA could earn at least minimum of Rs 18,332 as per the current minimum wage in Delhi. Therefore, the petitioner being wife is entitled to Rs 9000 per month from 9-12-2010 onwards till further orders.
16. The principle invoked by the High Court for determination of monthly maintenance amount payable to the appellant on the basis of notional minimum income of the respondent as per the current minimum wages in Delhi, in our opinion, is untenable. We are of the considered opinion that regard must be had to the living standard of the respondent and his family, his past conduct in successfully protracting the disposal of the maintenance petition filed in the year 2003, until 2015; coupled with the fact that a specious and unsubstantiated plea has been taken by him that he is unemployed from 2010, despite the fact that he is highly qualified and an able-bodied person; his monthly income while working in Canada in the year 2010 was over Rs 1,77,364; and that this Court in Reema Salkan v. Sumer Singh Salkan [Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC312 has prima facie found that the cause of justice would be subserved if the appellant is granted an interim maintenance of Rs 20,000 per - 16 - NC:
2023. KHC:38686 WP No.22501 of 2023 month commencing from 1-11-2014. At this distance of time, keeping in mind the spiraling inflation rate and high cost of living index today, to do complete justice between the parties, we are inclined to direct that the respondent shall pay a sum of Rs 20,000 per month to the appellant towards the maintenance amount with effect from January 2010 and at the rate of Rs 25,000 per month with effect from 1-6-2018 until further orders. We order accordingly.
17. We, therefore, direct the respondent to pay the enhanced maintenance amount, as determined in terms of this order, to the appellant within a period of eight weeks from today after duly adjusting the amount already deposited in Court/paid to the appellant till date. The appellant will be entitled to forthwith withdraw the maintenance amount deposited by the respondent in Court, if any. The impugned judgment of the High Court is accordingly modified in the aforementioned terms.” (Emphasis supplied) 8. In the light of the facts narrated hereinabove and the income of the husband being at Rs.7,00,000/- per month, award of maintenance at Rs.60,000/- to the wife cannot be considered to be on the higher side. It is at 10% of the income of the husband. Therefore, I do not find any warrant to interfere with the well reasoned order of the concerned Court granting such maintenance.-. 17 - NC:
2023. KHC:38686 WP No.22501 of 2023 9. For the aforesaid reasons, the petition lacking in merit, stands rejected. Sd/- JUDGE NVJ List No.:
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