1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2016 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA RPFC No. 23/2013 BETWEEN: SRI G. K. HALESH, S/O LATE BASAVANAGOUD, AGE 44 YEARS, OCCUPATION : AGRICULTURIST, RESIDING AT GADIGUDAL VILLAGE, HARAPANAHALLI TALUK-583131, DAVANAGERE DISTRICT. PETITIONER (BY SRI NEELAKANTAPPA K. PUJAR, ADVOCATE) AND: SMT. K. S. NAGARATHNA, PETITIONER BEFORE THE W/O G.K.HALESH, D/O SHADAKSHARAPPA, AGED ABOUT 39 YEARS, OCCUPATION: HOUSE HOLD WORK, RESIDING AT NO.3166, 10TH MAIN ROAD, 4TH CROSS, MCC "B" BLOCK, DAVANAGER-577002. RESPONDENT (BY SRI MAHESH R UPPIN, ADVOCATE ) THIS RPFC IS FILED UNDER SECTION 19(4) OF FAMILY COURT ACT, AGAINST THE JUDGEMENT AND DECREE DATED 7.7.12 PASSED IN Cr.MISC.NO.235/2011 ON THE FILE OF JUDGE, FAMILY COURT, DAVANAGERE, PARTLY ALLOWING THE PETITION FILED U/S 125 OF [ACT] FOR MAINTENANCE. 2 THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
The petitioner/husband filed the above Revision Petition against the order dated 07.07.2012 made in [CASE NUMBER] on the file of the Judge, Family Court, Davanagere, granting monthly maintenance of `1,500/- to the wife, from the date of the petition.
2. The parties are referred to as per their ranking before the Family Court.
3. The wife filed [CASE NUMBER] before the Family Court under [SECTION] of the [ACT] claiming monthly maintenance of `15,000/- from the husband, contending that her marriage with the respondent/husband was solemnized on 21.05.2003 at Sri Shamanur Shivashankarappa Parvatamma Kalyana Mantapa, Hadadi Road, Davanagere. After the marriage, petitioner and respondent lived together in the house of the respondent at Gadigudalu village and after one month, the respondent took the petitioner to Kodiyala Kerenahalli where he was working and afterwards, he again brought her back to his native place and left her there and was coming to the village once in 15 days. Eleven months after the marriage, the respondent/husband started harassing the petitioner physically and mentally and finally he drove her out of his house. The petitioner filed petition for divorce in [CASE NUMBER], which was allowed. The respondent/husband is working as Head Master in a school and getting salary of `18,000/- to `20,000/- and is also getting income from agricultural lands, and is having capacity to provide maintenance to the wife and therefore, she requires `15,000/- per month for her maintenance etc.
4. The respondent/husband filed objections, admitted the relationship of wife and husband, denied the averments made in the petition including the income and sought to dismiss the petition.
5. Based on the pleadings of the parties, the Family Court framed a point for consideration:
"Whether the petitioner is entitled for maintenance? If so, what is the quantum of maintenance and from what date?"
6. In order to substantiate her case, the petitioner/ wife examined herself as P.W.1, produced documents Exs.P. 1 to P.11. The respondent/husband was examined as R.W.1 and documents Exs.D.1 to D.4 were marked.
7. After hearing both the parties, the Family Court, by the impugned order dated 07.07.2012, allowed the petition awarding maintenance of `1,500/- per month from the date of petition. Aggrieved by the said order, the respondent/husband is before this Court.
8. I have heard the learned counsel for the parties to the lis.
9. Sri [ENTITY], learned counsel for the petitioner/husband vehemently contended that the wife is not entitled to any maintenance since she has got decree of divorce from the Family court and her parents have landed properties and the wife has voluntarily left the husband, etc.
10. Per contra, Sri [ENTITY], learned counsel for the respondent/wife sought to justify the impugned order passed by the Family Court and submitted that the wife also filed [CASE NUMBER] before this Court for enhancement which was dismissed on 17.06.2013 with liberty to file an application before the Family Court under [SECTION] of the [ACT].
11. In view of the rival contentions urged by the learned counsel for the parties, the only point that arise for consideration is:
"Whether the impugned order passed by the Family Court granting maintenance of `1,500/- to the wife, calls for interference?"
12. It is undisputed fact that the marriage between the petitioner and the respondent was solemnized on 21.05.2003. It is also not in dispute that the wife filed [CASE NUMBER] before the Family court for a decree of divorce which was allowed.
13. When the relationship between the parties is not in dispute, it is the duty of the husband to maintain his wife, till she remarries or gets into a job, in view of [SECTION] of the [ACT]. As per explanation (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. My view is fortified by the decision of the Hon'ble Supreme court in the case of [PRECEDENT] while considering the provisions of [SECTION] of the [ACT], wherein, it has been held as under:
"9. It is submitted by Dr.[ENTITY], learned senior counsel that [SECTION], [ACT] is applicable to the Muslim women and the Family Court has jurisdiction to decide the issue. It is urged by him that the High Court has fallen into error by opining that the grant of maintenance at the rate of Rs.4,000/- per month is excessive and hence, it should be reduced to Rs.2,000/- per month from the date of retirement of the husband i.e., 1.4.2012 till her re-marriage. It is also contended that the High Court failed to appreciate the plight of the appellant and reduced the amount and hence, the impugned order is not supportable in law.
10. First of all, we intend to deal with the applicability of [SECTION], [ACT] to a Muslim woman who has been divorced. In [PRECEDENT], this Court after referring to the Constitution Bench decisions in [ENTITY] V Union of India reported in (2001)7 SCC 740 and [ENTITY] V. State of UP reported in (2014)12 SCC 646 had opined as follows:
"13. The aforesaid principle clearly lays down that even after an application has been filed under the provisions of the Act, the Magistrate under the Act has the power to grant maintenance in favour of a divorced Muslim woman and the parameters and the considerations are the same as stipulated in [SECTION] of the Code. We may note that while taking note of the factual score to the effect that the plea of divorce was not accepted by the Magistrate which was upheld by the High Court, the Constitution Bench opined that as the Magistrate could exercise power under [SECTION] of the Code for grant of maintenance in favour of a divorced Muslim woman under the Act, the order did not warrant any interference.
Thus, the emphasis was laid on the retention of the power by the Magistrate under [SECTION] of the Code and the effect of ultimate consequence.
14. Slightly recently, in [PRECEDENT], a two Judge Bench placing reliance on [ENTITY] (supra), has ruled that:-
"21. The appellant's petition under [SECTION], [ACT] would be maintainable before the Family Court as long as the appellant does not remarry. The amount of maintenance to be awarded under [SECTION], [ACT] cannot be restricted for the iddat period only."
Though the aforesaid decision was rendered interpreting [SECTION] of the [ACT], yet the principle state therein would be applicable, for the same is in consonance with the principle stated by the Constitution Bench in [ENTITY] (supra)."
In view of the aforesaid dictum, there can be no shadow of doubt that [SECTION], [ACT] has been rightly held to be applicable by the learned Family Judge.
11. x x x
12. x x x
13. x x x
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/-.
15. The High Court, without indicating any reason, has reduced the monthly maintenance allowance to Rs. 2,000/-. 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.2,000/- per month. It can never be forgotten that the inherent and fundamental principle behind [SECTION], [ACT] is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she compelled to leave her matrimonial home. The statute commands there has 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 women, 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], [ACT], 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], [ACT] 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 job or his business is not doing well. These are only bald excuse and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support him self, he is under the legal obligation to support his wife, for wife's right to receive maintenance under [SECTION], [ACT] unless disqualified, is an absolute right. While determining the quantum of maintenance, this Court in [PRECEDENT] & Ors. Reported in [PRECEDENT] has held as follows:-
"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 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 can not be excessive or extortionate."
16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In [PRECEDENT], it has been ruled that:-
"[SECTION], [ACT] is a measure of social justice and is specially enacted to protect women and children and as noted by this court in [PRECEDENT] falls within constitutional sweep of [SECTION] reinforced by [SECTION] of the [ACT]. 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 [PRECEDENT]. 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.
17. x x x
18. x x x
19. In the instant case, as is seen, the High court has reduced the amount of maintenance from Rs.4,000/- to Rs.2,000/-. As is manifest, the High Court has become oblivious of the fact that she has to stay on her own. Needless to say, the order of the learned Family Judge is not manifestly perverse. There is nothing perceptible which would show that order is a sanctuary of errors. In fact, when the order is based on proper appreciation of evidence on record, no revisional court should have interfered with the reason on the base that it would have arrived at a different or another conclusion. When substantial justice has been done, there was no reason to interfere. There may be a shelter over her head in the parental house, but other real expenses can not be ignored. Solely because the husband had retired, there was no justification to reduce the maintenance by 50%. It is not a huge fortune that was showered on the wife that it deserved reduction. It only reflects the non-application of mind and, therefore, we are unable to sustain the said order."
14. Therefore, the contention of the learned counsel for the petitioner/husband that the divorced wife is not entitled to maintenance is without any substance and is rejected. So far as the contention of the learned counsel that the wife is having landed properties, admittedly, the husband has not produced any material documents before the Court to prove that aspect of the matter. Merely if some properties are in the name of the parents of the wife, that cannot be a ground to reject the petition for maintenance.
15. The Family Court, considering the materials on record, specifically held that Exs.R.2 to R.4/ RTC extracts stand in the name of the mother of the wife and therefore, it cannot be held that the wife is having income of her own. It is not in dispute that it is the duty of the husband to maintain his wife.
16. It is also not in dispute that the husband is working as head master in a school earning `18,000/- to `20,000/- per month and the maintenance of `1,500/- awarded by the Family court to the wife is insufficient for food, shelter and clothing.
17. In view of the above, the point raised for consideration in this revision petition has to be answered in the affirmative holding that the Family Court is justified in granting maintenance to the wife.
18. For the aforesaid reasons, the impugned order passed by the Family court does not call for interference in exercise of revisional jurisdiction under [SECTION] of the [ACT]. The RPFC is dismissed at the stage of admission, with cost of `5,000/-.
In view of the dismissal of the petition, [CASE NUMBER] is dismissed as unnecessary.
JUDGE kcm