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2024. KHC:3420 RPFC No.186 of 2019 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE24H DAY OF JANUARY, 2024 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR REV.PET FAMILY COURT No.186 OF2019BETWEEN:
1. B. SHALINI, W/O M. PRAKASH, AGED ABOUT38YEARS.
2. P. MAHADSEVAPRASAD, S/O M. PRAKASH, AGED ABOUT17YEARS.
3. P. MANIKYAM, S/O M. PRAKASH, AGED ABOUT15YEARS.
4. P. NAGASHRI, D/O M. PRAKASH, AGED ABOUT11YEARS.
5. P. NAGARJUNA, S/O M. PRAKASH, AGED ABOUT11YEARS. THE PETITIONER NOS.2 TO5ARE MINORS, THE PETITIONER NO.1, BEING A MOTHER REPRESENTED THEM AS A NATURAL GUARDIAN. ALL ARE R/AT D.NO.2368/2, - 2 - NC:
2024. KHC:3420 RPFC No.186 of 2019 NEW KANTHARAJA URS ROAD, JAYANAGARA, MYSURU - 570 014. …PETITIONERS (BY SRI. THUSHANATH C.V., ADVOCATE) AND: M. PRAKASH, S/O. LATE MAHADEVA, AGED ABOUT56YEARS, R/AT D.No.2368/2, NEW KANTHARAJA URS ROAD, JAYANAGARA, MYSURU - 570 014. …RESPONDENT (BY SRI. UMASHANKARA S., ADVOCATE) THIS RPFC IS FILED UNDER SECTION194) OF FAMILY COURT ACT, AGAINST THE ORDER
DATED2203.2019 PASSED IN CRL.MISC.173/2016 ON THE FILE OF THE III ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, MYSURU, PARTLY ALLOWING THE PETITION FILED UNDER SECTION125OF Cr.P.C FOR MAINTENANCE. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
This revision petition is filed by the wife and four minor children calling in question the order rejecting the maintenance to the wife and granting meager amount of maintenance to the children in Crl.Mis.No.173/2016 dated - 3 - NC:
2024. KHC:3420 RPFC No.186 of 2019 22.03.2019 by the Court of III Additional Principal Family Judge at Mysuru.
2. The relationship between the petitioners and respondent is not disputed. The petitioner No.1 is wife of the respondent and petitioner Nos.2 to 5 are minor children of the respondent. On certain allegations of cruelty and ill-treatment, the petitioners are compelled to leave the respondent and started to reside separately. Thus, filed maintenance petition under Section 125 of Cr.P.C. and the Family Court has granted maintenance amount of Rs.1,000/- per month each to the respondent Nos.2 to 5 and rejected the petition filed by the petitioner No.1 – wife. Hence, the instant revision petition is filed by the petitioners praying to grant maintenance to the wife and for enhancement of maintenance to the children.
3. Heard the arguments of learned counsel for both the parties and perused the record.
4. The Family Court in a very strange manner without applying its common sense how to consider these - 4 - NC:
2024. KHC:3420 RPFC No.186 of 2019 types of petition has dealt the case resulting the petitioners to put into a worsen situation. The Family Court has erroneously observed that the petitioner No.1 being wife is able to maintain herself. Hence, dismissed the petition filed by the petitioner No.1 – wife. The Family Court has not considered the fact how the petitioner – wife is able to maintain herself and her children when they are thrown out to the street from the respondent – husband. The Family Court has referred to the provisions of Section 125 of Cr.P.C. and discussed Article 15 (3) of the Constitution of India but has failed to apprehend for what object and reason those provisions are made in the statute. The Family Court has recorded the findings as if petitioners have committed fault. Hence, the findings and the reasoning of the Family Court is completely erroneous, illegal, perverse and nonsense.
5. The petitioner No.1, being wife was thrown out from the respondent and she was constrained to live separately from the respondent with four minor children.-. 5 - NC:
2024. KHC:3420 RPFC No.186 of 2019 This fact and circumstance is not visualized from the Family Court. Unfortunately, the Family Court has lost its consciousness and had dealt the case in a casual and cavalier manner. The respondent – husband has not produced any evidence to prove that the petitioner No.1 is working and earning income to maintain herself, the Family Court has assumed that the petitioner No.1 – wife is capable of maintaining herself and on this ground, denied the maintenance to the wife. The Family Court has lost its wisdom, fairness, intelligence in considering the petition filed by the petitioners.
6. The Hon’ble Supreme Court has also held that it is duty cast on the husband and it is the legal and basic obligation on the part of the husband to maintain his wife and minor children. The Family Court is constrained to go through some of the decisions of the Hon’ble Supreme Court. The Hon’ble Supreme Court in the case of Rajnesh vs. Neha and another reported in AIR2021SC569 has observed as under:- - 6 - NC:
2024. KHC:3420 RPFC No.186 of 2019 “2. Given the backdrop of the facts of the present case, which reveal that the application for interim maintenance under Section 125 Cr.P.C. has remained pending before the Courts for seven years now, and the difficulties encountered in the enforcement of orders passed by the Courts, as the wife was constrained to move successive applications for enforcement from time to time, we deem it appropriate to frame guidelines on the issue of maintenance, which would cover overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance. Guidelines/Directions on Maintenance 3. Maintenance laws have been enacted as a measure of social justice to provide recourse to dependant wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy.
4. Article 15(3) of the Constitution of India provides that: - 7 - NC:
2024. KHC:3420 RPFC No.186 of 2019 "Nothing in this article shall prevent the State from making any special provision for women and children.
5. Article 15 (3) reinforced by Article 39 of the Constitution of India, which envisages a positive role for the State in fostering change towards the empowerment of women, led to the enactment of various legislations from time to time.
6. Justice Krishna Iyer in his judgment in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors1. held that the object of maintenance laws is:
"9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause - the cause of the derelicts. 1 (1978) 4 SCC70AIR1978SC1807 - 8 - NC:
2024. KHC:3420 RPFC No.186 of 2019 7. The legislations which have been framed on the issue of maintenance are the Special Marriage Act 1954 ("SMA"), Section 125 of the Cr.P.C. 1973; and the Protection of Women from Domestic Violence Act, 2005 ("D.V. Act") which provide a statutory remedy to women, irrespective of the religious community to which they belong, apart from the personal laws applicable to various religious communities. (d) Section 125 of the Cr.P.C. Chapter IX of Code of Criminal Procedure, 1973 provides for maintenance of wife, children and parents in a summary proceeding. Maintenance under Section 125 of the Cr.P.C. may be claimed by a person irrespective of the religious community to which they belong. The purpose and object of Section 125 Cr.P.C. is to provide immediate relief to an applicant. An application under Section 125 Cr.P.C. is predicated on two conditions: (i) the husband has sufficient means; and (ii) "neglects" to maintain his wife, who is unable to maintain herself. In such a case, the husband may be directed by the Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the basis of the financial capacity of the husband and other relevant factors.-. 9 - NC:
2024. KHC:3420 RPFC No.186 of 2019 The remedy provided by Section 125 is summary in nature, and the substantive disputes with respect to dissolution of marriage can be determined by a civil court/family court in an appropriate proceeding, such as the Hindu Marriage Act, 1956. In Bhagwan Dutt v Kamla Devi(1975) 2 SCC386 (AIR1975SC83 the Supreme Court held that under Section 125(1) Cr.P.C. only a wife who is "unable to maintain herself" is entitled to seek maintenance. The Court held:
"19. The object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments."
(emphasis supplied) Prior to the amendment of Section 125 in 2001, there was a ceiling on the amount which could be awarded as maintenance, being Rs. 500 "in the whole". In view of the rising costs of living and - 10 - NC:
2024. KHC:3420 RPFC No.186 of 2019 inflation rates, the ceiling of Rs. 500 was done away by the 2001 Amendment Act. The Statement of Objects and Reasons of the Amendment Act states that the wife had to wait for several years before being granted maintenance. Consequently, the Amendment Act introduced an express provision for grant of "interim maintenance". The Magistrate was vested with the power to order the respondent to make a monthly allowance towards interim maintenance during the pendency of the petition. Under sub-section (2) of Section 125, the Court is conferred with the discretion to award payment of maintenance either from the date of the order, or from the date of the application. Under the third proviso to the amended Section 125, the application for grant of interim maintenance must be disposed of as far as possible within sixty days' from the date of service of notice on the respondent. In Chaturbhuj v. Sitabai (2008) 2 SCC316 (AIR2008SC530 this Court held that the object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife by providing her food, clothing and shelter by a speedy remedy. Section 125 of the Cr.P.C. is a measure of social justice especially enacted to protect women and children, - 11 - NC:
2024. KHC:3420 RPFC No.186 of 2019 and falls within the constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution. Proceedings under Section 125 of the Cr.P.C. are summary in nature. In Bhuwan Mohan Singh v Meena and Ors (2015) 6 SCC353 (AIR2014SC2875. this Court held that Section 125 of the Cr.P.C. was conceived to ameliorate the agony, anguish, financial suffering of a woman who had left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children. Since it is the sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical labour, if he is able -bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute. The issue whether presumption of marriage arises when parties are in a live-in relationship for a long period of time, which would give rise to a claim u/S125Cr.P.C. came up for the consideration in Chanmuniya v. Virendra Kumar Singh Kushwaha and Anr. (2011) 1 SCC141 (2011 Cri LJ96(SC)) before the Supreme Court. It was held that where a man and a woman have cohabited for a long period of time, in the absence of legal necessities of a valid marriage, such a woman would be entitled to - 12 - NC:
2024. KHC:3420 RPFC No.186 of 2019 maintenance. A man should not be allowed to benefit from legal loopholes, by enjoying the advantages of a de facto marriage, without undertaking the duties and obligations of such marriage. A broad and expansive interpretation must be given to the term "wife," to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time. Strict proof of marriage should not be a pre-condition for grant of maintenance u/S. 125 Cr.P.C. The Court relied on the Malimath Committee Report on Reforms of Criminal Justice System published in 2003, which recommended that evidence regarding a man and woman living together for a reasonably long period, should be sufficient to draw the presumption of marriage. The law presumes in favour of marriage, and against concubinage, when a man and woman cohabit continuously for a number of years. Unlike matrimonial proceedings where strict proof of marriage is essential, in proceedings u/S. 125 Cr.P.C. such strict standard of proof is not necessary.
7. The Family Court by referring to Article 15 (3) of the Constitution of India about the object and reasoning to protect the interest and welfare of women and children - 13 - NC:
2024. KHC:3420 RPFC No.186 of 2019 but has failed to appreciate the case in what way present proceedings can be considered. The Family Court Judge has much discussed theory on the legal provisions with Article 15(3) of the Constitution of India, but practically failed to apply theory and application of mind into reality of life of destitute wife and children. Therefore, the Presiding Officer of the Family Court, who has delivered the impugned order needs training from the Karnataka Judicial Academy. Therefore, the Registrar General is directed to assign the Presiding Officer of the Family Court for training in family related matters making the Presiding Officer to sensitize to consider the proceedings in true and correct perspective manner.
8. The respondent has not produced any evidence to prove that the petitioner No.1 - wife is earning and without any evidence, the Family Court by assuming itself that the petitioner No.1 is capable of maintaining herself has denied maintenance, which is not correct. It is legal and basic obligation on the part of the respondent – husband - 14 - NC:
2024. KHC:3420 RPFC No.186 of 2019 to maintain his wife and children and meet their needs to lead normal life. The petitioners are not seeking to live luxurious and lavish lifestyle but in order to bear minimum requirement to lead their life, they have filed petition. The petitioner No.1 has contended that the respondent is owner of the eight shops and is fetching rent from the same at Rs.20,000/- per month and the respondent is also a businessmen, which is not disputed by the respondent.
9. The petitioner No.1 being mother is looking after and nurturing the four minor children. The Family Court has granted meager maintenance amount of Rs.1,000/- per month each to the children, which also proves that the Presiding Officer of the Family Court has not comprehended the mental agony, hardship, sufferings, difficulties etc., being faced by the petitioners. Therefore, this is also one of the reasons as to why the Presiding Officer is liable to be assigned for training in Karnataka Judicial Academy.-. 15 - NC:
2024. KHC:3420 RPFC No.186 of 2019 10. Considering the facts and circumstances of the case, applying theory of preponderance of probabilities while appreciating evidence on record and making guess work what would be the income of the respondent and in what way the wife and children are suffering, the case has to be decided quantifying the maintenance amount. Grant of maintenance amount shall be in such a way that the wife and children should not be compelled to live in miserable life and what would be the minimum amount that is required for sustaining themselves in the Society that much amount shall be awarded. The grant of maintenance by the husband to the wife and children is not for the charity purpose but it is responsibility, duty and obligation of the respondent – husband. Therefore, considering the facts that the respondent is owner of eight shops fetching rent and is a businessmen, petitioners who are wife and children of the respondent are entitled for enhancement of maintenance amount. Therefore, it is ordered that the petitioner No.1 – wife is entitled to maintenance amount of Rs.8,000/- per month payable by - 16 - NC:
2024. KHC:3420 RPFC No.186 of 2019 the respondent from the date of petition till her lifetime or till her re-marriage and petitioner Nos.2 to 5 are entitled to additional maintenance amount of Rs.4,000/- per month, in addition to what has been awarded by the Family Court till attaining the age of majority in case of male children and till the marriage of the daughter in so far as petitioner No.4 is concerned.
11. The Registrar General is directed to assign the Presiding Officer of the Family Court, who passed the order for training at Karnataka Judicial Academy in Family Law and related matters. Hence, I proceed to pass the following:- ORDER
i. The petition is allowed-in-part. ii. The order passed in Crl.Mis.No.173/2016 dated 22.03.2019 by the Court of III Additional Principal Family Judge at Mysuru is hereby modified to the extent that the petitioner No.1 – wife is entitled to maintenance amount of Rs.8,000/- per month and petitioner Nos.2 to 5 - 17 - NC:
2024. KHC:3420 RPFC No.186 of 2019 are entitled to additional maintenance of Rs.4,000/- per month, in addition to what has been awarded by the Family Court till attaining the age of majority in case of male children and till the marriage of the daughter in so far as petitioner No.4 is concerned. iii. No order as to costs. iv. The respondent shall pay entire arrears amount as ordered and shall continue to pay maintenance amount every month as ordered above. v. The Registrar General is directed to assign the Presiding Officer of the Family Court, who passed the order for training at Karnataka Judicial Academy in Family Law and related matters. Sd/- JUDGE MH/- List No.:
1. Sl No.:
45. CT:SNN