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NC: 2024:KHC:21669 RPFC No. 277 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JUNE, 2024 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI R.P. F. C. NO. 277 OF 2023 BETWEEN:
MR. SHINE T.A., S/O K. THAN KACHAN, AGED ABOUT 42 YEARS, R/AT NO. 7, 2ND CROSS, ANUBHAVANAGAR, NAGARBHAVI MAIN ROAD, BANGALORE 560 071. …PETITIONER [BY SRI. RAMACHANDRA R. NAIK, ADVOCATE (PH)] AND: 1. BABY CAROLYN SHINE, D/O SHINE T.A., AGED ABOUT 11 YEARS, REP. BY HER NATURAL GAURDIAN MOTHER, MRS. RENCY THOMAS,
MRS. RENCY THOMAS, W/O SHINE T.A., D/O C.K. THOMAS, AGED ABOUT 38 YEARS,
BOTH ARE R/A NO.15/B, 3RD MAIN, 11TH CROSS, NEW MANJUNATH LAYOUT, RAMAMURTHYNAGAR, BANGALORE - 560 016. …RESPONDENTS [BY SRI RADHAKRISHNA A., ADVOCATE (PH)]
THIS REVISION PETITION FAMILY COURT IS FILED UNDER SEC.19(4) OF THE FAMILY COURT ACT, AGAINST THE ORDER DATED 26.04.2023 PASSED IN C.MISC.NO.181/2016 ON THE FILE OF I ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, PARTLY ALLOWING THE PETITION FILED UNDER SEC.125(1)(a) OF CR.P.C.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka
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NC: 2024:KHC:21669 RPFC No. 277 of 2023
ORDER
Challenging judgment and order dated 26.04.20203 passed by I Addl. Prl. Judge, Family Court, Bengaluru, in C.Misc.no.181/2016, this petition is filed.
Sri Ramachandra R. Naik, learned counsel for petitioner submitted, petitioner and respondent no.2 were husband and wife and that their marriage was solmenised on 15.09.2009 as per christen traditions, at Bengaluru. It was submitted, from said wedlock, respondent no.1-daughter was born on 14.01.2012. Subsequently due to difference of opinion, respondents residing separately and filed C.Mis.no.181/2016 before Family Court, Bengaluru, claiming monthly maintenance of Rs.1,00,000/- under Section 125 (1) of Cr.P.C.
Though, same was opposed by petitioner, learned Family Judge under impugned order had allowed application and granted exorbitant monthly maintenance of Rs.25,000/- insofar as respondent no.1-daughter. It was submitted fact that respondent no.2 was working, though taken note of refusing maintenance to her, learned Family Judge erred in failing to note that maintenance amount was required to be contributed both by petitioner as well as respondent no.2. It was
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NC: 2024:KHC:21669 RPFC No. 277 of 2023
submitted, though petitioner was working and earning Rs.12,00,000/- per annum, fact that he was required to maintain old age parents suffering from ailments, apart from payment of installments towards loan taken for construction of house etc., were not accounted for. Consequently, order being passed without proper appreciation, called for interference.
On other hand, Sri A. Radhakrishna, learned counsel for respondents sought to oppose petition. It was submitted, during course of cross-examination, petitioner had admitted his net annual salary being more than Rs.16,00,000/- . Moreover, Family Court, had not awarded maintenance to respondent no.2-wife and ordered maintenance only insofar as daughter-respondent no.1. 5. Heard learned counsel and perused impugned order. 6. From above, point that would arise for consideration is: "Whether impugned order calls for interference?" 7. From above submissions, it is seen that challenge against impugned order is only on quantum. It is seen, learned Family Judge, referred to Ex.P.9 to hold that net annual income
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of petitioner was Rs.16,11,597/-, which is also admitted by petitioner during cross-examination. 8. Though, petitioner has contended that he was required to maintain old age parents and provide for their medical expenses, pay loan installments etc., none of material produced would substantiate same. Petitioner has merely produced certified copy of deposition in M.C.no.1029/2016, Prescription, letter by LIC Housing Finance, Certificate under Section 65(B) of Indian Evidence Act, Salary particulars and Income Tax Returns as Exhibits R.1 to R.6. Whereas, respondents have produced School fee receipts, Gold Ornament receipts, Bank statement of respondent no.2 and Salary Emoluments of petitioner as Exhibits P.6 to P9. 9. Insofar as considerations for determining quantum of maintenance, Hon'ble Supreme Court in Rajnesh v. Neha, reported in (2021) 2 SCC 324, held as follows: "84. The Delhi High Court in Bharat Hegde v. Saroj Hegde [Bharat Hegde v. Saroj Hegde, 2007 SCC OnLine Del 622 : (2007) 140 DLT 16] laid down the following factors to be considered for determining maintenance : (SCC OnLine Del para 8)
"1. Status of the parties. 2. Reasonable wants of the claimant. 3. The independent income and property of the claimant. 4. The number of persons, the non-applicant has to maintain.
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NC: 2024:KHC:21669 RPFC No. 277 of 2023
The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
Non-applicant's liabilities, if any.
Provisions for food, clothing, shelter, education, medical attendance and treatment, etc. of the applicant.
Payment capacity of the non-applicant.
Some guesswork is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
The non-applicant to defray the cost of litigation.
11.The amount awarded under Section 125 Cr.P.C.is adjustable against the amount awarded under Section 24 of the Act.”
Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable.
(a) Age and employment of parties
Section 17 of the DV Act grants an aggrieved woman the right to live in the “shared household”. Section 2(s) defines “shared household” to include the household where the aggrieved woman lived at any stage of the domestic relationship; or the household owned and rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which the respondent is a member.
The right of a woman to reside in a “shared household” defined under Section 2(s) entitles the aggrieved woman for right of residence in the shared household, irrespective of her having any legal interest in the same. This Court in Satish Chander Ahuja v. Sneha
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Ahuja [Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, by a Bench comprising of Hon'ble Ashok Bhushan, R. Subhash Reddy and M.R. Shah, JJ.] held that “shared household” referred to in Section 2(s) is the shared household of the aggrieved person where she was living at the time when the application was filed, or at any stage lived in a domestic relationship. The living of the aggrieved woman in the shared household must have a degree of permanence. A mere fleeting or casual living at different places would not constitute a “shared household”. It is important to consider the intention of the parties, nature of living, and nature of the household, to determine whether the premises is a “shared household”. Section 2(s) read with Sections 17 and 19 of the DV Act entitles a woman to the right of residence in a shared household, irrespective of her having any legal interest in the same. There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or the aggrieved woman has any right, title or interest. The shared household may not necessarily be owned or tenanted by the husband singly or jointly.
Section 19(1)(f) of the DV Act provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household. While passing such an order, the Magistrate may direct the respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties.
(c) Where wife is earning some income
The courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The courts have provided guidance on this issue in the following judgments:
90.1. In Shailja v. Khobbanna [Shailja v. Khobbanna, (2018) 12 SCC 199 : (2018) 5 SCC (Civ) 308; See also the decision of the Karnataka High Court in P. Suresh v. S. Deepa, 2016 SCC OnLine Kar 8848 : 2016 Cri LJ 4794 (Kar)] , this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The court has to determine whether the income of
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the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. [Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356] Sustenance does not mean, and cannot be allowed to mean mere survival. [Vipul Lakhanpal v. Pooja Sharma, 2015 SCC OnLine HP 1252 : 2015 Cri LJ 3451]
90.2. In Sunita Kachwaha v. Anil Kachwaha [Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715 : (2015) 3 SCC (Civ) 753 : (2015) 3 SCC (Cri) 589] the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.
90.3. The Bombay High Court in Sanjay Damodar Kale v. Kalyani Sanjay Kale [Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694] while relying upon the judgment in Sunita Kachwaha [Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715 : (2015) 3 SCC (Civ) 753 : (2015) 3 SCC (Cri) 589] , held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance.
90.4. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Parkash v. Shila Rani [Chander Parkash v. Shila Rani, 1968 SCC OnLine Del 52 : AIR 1968 Del 174] . The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the court.
90.5. This Court in Shamima Farooqui v. Shahid Khan [Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705 : (2015) 3 SCC (Civ) 274 : (2015) 2 SCC (Cri) 785] cited the judgment in Chander Parkash [Chander
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Parkash v. Shila Rani, 1968 SCC OnLine Del 52 : AIR 1968 Del 174] with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife.
(d) Maintenance of minor children
The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extracurricular/coaching classes, and not an overly extravagant amount which may be claimed.
Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.
(e) Serious disability or ill health
Serious disability or ill health of a spouse, child/children from the marriage/dependent relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance".
However, material placed on record by parties herein would not confirm to such method. It is also observed therein that some amount of guess work would also be required to be adopted. 11. While, Apex Court has stated that from salary of husband, need for personal maintenance as well as that of parents etc., in addition to deductions compelled by law are to be taken into account. But, insofar as other deductions, this
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Court, in Y.G. Rajesh v. M. Ramya reported in 2024 SCC OnLine Kar.16, has held artificially inflating deductions for avoiding payment of appropriate maintenance have to be overlooked. 12. Normally, '1/3' of net income of husband is found appropriate as maintenance to wife and it would be appropriate to consider it at '1/5' to children, even where there is dearth of material. High Court of Allahabad in Veena Panda alias Seema Panda v. Devendra Kumar Panda reported in 2006 SCC OnLine All 332 and High Court of Gujarat in Ashokkumar Kantilal Rathod v. Bhavnaben Ashokkumar Rathod reported in 1999 SCC OnLine Guj 342, have held normal rule for awarding maintenance in case of wife would be 1/3rd of net income of husband and in case of a child, it could be taken as 1/5th.
Admitted annual income of petitioner is Rs.16,00,000/-, while learned Family Judge, has taken note of income of respondent no.2 at Rs.9,00,000/- per annum. Thus, total income would be Rs.25,00,000/-.
Thus, maintenance would be 1/5th of Rs.25,00,000/- would be Rs.5,00,000/- and 1/12th of same i.e.
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2,08,335/- would be monthly maintenance. It is seen that ratio of income of petitioner to total net income would be 64%, while that of respondent no.2, would be 36 %. 15. Thus, even applying principle of joint parenting, proportion of monthly maintenance granted against petitioner cannot be held to be excessive or unsubstantiated. Hence, point for consideration is answered in negative. Consequently, petition is dismissed.
Sd/- JUDGE
Psg* List No.: 1 Sl No.: 60