Sri Mervin Felix Caleb Vs. Smt Nisha - Court Judgment

1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE20H DAY OF NOVEMBER, 2020 BEFORE THE HON’BLE MS. JUSTICE JYOTI MULIMANI R.P.F.C. No.205 OF2016BETWEEN: SRI MERVIN FELIX CALEB, S/O MAHIPATHI, AGED ABOUT33YEARS, R/AT NO.347, 2/3 MAIN ROAD, 1ST BLOCK, RAMAKRISHNA NAGAR, MYSORE - 570 022. ... PETITIONER (BY SRI K.SRINIVASA, ADVOCATE) AND:

1. SMT.NISHA, W/O MERVIN FELIX CALEB, AGED ABOUT26YEARS.

2. SAMUEL LOBO, S/O MERVIN FELIX CALEB, AGED ABOUT4YEARS, REPRESENTED BY HIS MOTHER SMT.NISHA BOTH ARE R/O C/O R.M.JOSEPH, THUNGA NILAYA, DOOR NO.243, 1ST MAIN ROAD, 5TH CROSS, K.H.B. COLONY, GOPASHETTYKOPPA, 2 CHALUKYANAGAR, GOPALA, SHIVAMOGGA - 577 201. ... RESPONDENTS (BY SRI B.S.PRASAD, ADVOCATE FOR R1; R2 IS MINOR REPRESENTED BY R1) THIS R.P.F.C. IS FILED UNDER SECTION194) OF THE FAMILY COURTS ACT, CHALLENGING THE ORDER

DATED2107.2016 PASSED BY THE FAMILY COURT, SHIVAMOGGAIN CRL. MIS. NO.238/2013. THIS R.P.F.C. COMING ON FOR ADMISSION THIS DAY THE COURT MADE THE FOLLOWING: ORDER

Sri.K.Srinivasa, learned counsel for petitioner has appeared in-person.

2. The revision petition is posted for admission after notice to respondents.

3. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Family Court. 3

4. The order dated 21.07.2016, passed by the Family Court, Shivamogga in Crl.Misc.No.238/2013 is called in question in this revision petition, whereby, learned Judge has directed respondent to pay Rs.7,000/- per month towards monthly maintenance to petitioner No.2-minor son. It is this order which is called in question on various grounds as set out in the revision petition.

5. Sri.K.Srinivasa, learned counsel submits that the order of the Family Court suffers from serious infirmities and the same is liable to be set aside. He submits that the Family Court has failed to appreciate the oral and documentary evidence available on record. Next, he submitted that petitioner No.2 is just aged 4 years, and hence, award of maintenance of Rs.7,000/- per month is highly arbitrary and unreasonable. A further submission was made that respondent is working as a Lecturer in Private College. In reality, he was drawing a salary of Rs.15,463/- per month. 4 The order for payment of Rs.7,000/- per month is on the misconception that respondent was drawing a salary of Rs.46,390/- per month. Counsel submitted that respondent had received a consolidated salary of Rs.46,390/- for the period of three months from April 2013 to June 2013. It has been contended that learned Judge has totally erred in directing for payment of Rs.7,000/- per month which is almost half of the salary being drawn by respondent. Hence, it was sought to contend that learned Judge has not properly appreciated the facts. Lastly, he contended that learned Judge has failed to appreciate the evidence on record in its right perspective and the entire order is based on mere assumption and presumption. Hence, order is illegal and contrary to the law and prays that this revision petition may be allowed. In the last resort, learned counsel argued that at present, respondent is unemployed due to Covid-19 Pandemic. Therefore, counsel submitted that respondent is 5 not in a position to pay maintenance to petitioner No.2 as ordered by the Family Court. I have heard the contentions urged on behalf of respondent and perused the record with care. The real question involved to be determined is whether the Family Court justified in directing respondent to pay maintenance of Rs.7,000/- per month to his minor son?. It is not in dispute that first petitioner is the legally wedded wife of respondent and their marriage was solemnized on 02.10.2011 in Wesley Church, Tumkur, as per the customs and traditions prevailing in their community. They are blessed with a son. They lived blissfully for some time. Due to differences of opinion, petitioner No.1 was constrained to live apart from her husband. Contending that her husband is having sufficient means, willfully neglected and refused to maintain her and 6 minor child, she sought the aid of the Court for maintenance. Learned Judge in extenso referred to the evidence on record and found that respondent has willfully neglected and refused to pay maintenance to his minor son. It is relevant to note that learned Judge partly allowed the petition and found that petitioner No.1 is a graduate in Bachelor of Science and is capable of maintaining herself and accordingly, rejected her claim. Insofar as minor son is concerned, learned Judge directed respondent to pay monthly maintenance of Rs.7,000/- from the date of petition. It is this order which is challenged by respondent. To substantiate the claim, petitioner No.1 examined herself as PW1 and has produced several documents, in particular, salary certificate of respondent to show that he is earning sufficiently. 7 On the contrary, respondent contended that petitioner No.1 has voluntarily deserted him without justifiable cause. Therefore, it was urged that he is not liable to maintain his wife. But he stated that he is ready to pay maintenance to his minor child. In this Court, respondent adhered to the contention that he was working as a Lecturer in private college. It has been specifically contended that he was getting a salary of Rs.15,463/-per month. Hence, the direction for payment of Rs.7,000/- per month is unjustified. Learned counsel vehemently urged that a sum of Rs.46,390/ - was paid as a salary for a period of 3 months from April 2013 to June 2013. It has been specifically urged that learned Judge has not properly appreciated Ex.P6. It is not in dispute that petitioner No.2 is the minor son of respondent. It is pertinent to note that respondent in his cross examination admitted that he is ready to look after and maintain his minor child. Learned Judge in extenso referred to the evidence on record and directed 8 respondent to pay a sum of Rs.7,000/- per month to the minor child. In my opinion, learned Judge is justified in passing the order. While arguing the case, learned counsel vehemently urged that respondent has no source of income. Due to Covid-19 Pandemic, respondent is un-employed. Hence, it is sought to urge that respondent is not in a position to pay maintenance as ordered by the Family Court. With great respect to learned counsel, this Court is not inclined to accept the said contention. Respondent himself admitted before the Family Court that he is ready and willing to take care of and maintain his son. This has been accepted by the Family Court. Ironically, now he is back-tracking on his own commitment under the guise of COVID-19 Pandemic. I may venture to say that this is an interesting case to address the question whether a father can shirk his 9 responsibility from maintaining his minor son under the guise of pandemic?. It is true that the world is facing an unprecedented crisis. No doubt, COVID-19 has brought several parts of the globe almost to the brink of extinction of mankind what with scientists, doctors et al, toiling day and night for not only the treatment of patients but also in search of vaccine for the effective treatment of the pandemic. It is also true that the COVID-19 pandemic has left millions of people around the world jobless and are coping with trauma caused by the pandemic. Whether it's temporary or permanent, unemployment can lead to stress, anxiety, depression and other mental health challenges. Uncertainty related to the COVID-19 pandemic only adds to the angst. But one must learn how to cope with the mental and emotional effects of unemployment during this pandemic. 10 It is perhaps well to observe that insofar as a family is concerned, the head of the family [particularly, if it is a male member]., has the onus of maintaining his family. He cannot shirk his responsibility from maintaining the family under the garb of pandemic. Every person has to develop multi-tasking skills so that if he loses one vocation, he should be able to switch over to the other. Alternatively, one option is that every person has to search for alternative mode of employment at least as a temporary measure [or till he is restored to his original vocation]. and try to fill not only his stomach but also of those who are dependent on them, be it employees or family members. Reverting to the facts of the present case, it is not in dispute that the minor son is pursuing his primary education and therefore, he requires considerable financial assistance from his father to fulfill his educational expenses. 11 Basic necessities which a father must provide to his ward shall always included food, clothing, shelter and usually education. The college/school education is a necessary which the father should be required to provide to his ward/s. In this regard, it is necessary to note that a uniform school education of reasonable standard, is now fully recognized as one of the necessities of an infant. With the cost of school and college tuitions continuing to increase year after year, paying for a school and college education has become a cause for concern particularly in urban areas. It is needless to observe that a father is under a personal obligation to maintain his minor child. Hence, factors like unemployment, earning a meager income can’t be an excuse for not maintaining wife and children. He cannot shirk his responsibility from maintaining the family, in particular, his minor son under the garb of pandemic. 12 Reverting to the main point, learned Judge in extenso referred to the evidence on record and passed the order of maintenance. I find no reason to interfere with the Judge’s order. Accordingly, the revision petition is dismissed. In conclusion, this Court would observe that Section 125 of Cr.P.C is the measure of social justice and is specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. Sd/- JUDGE SB