NIRMALA W/O DATTU @ DATTAPPA NAIKODI AND ORS vs. DATTU @ DATTAPPA S/O MARUTI NAIKODI

1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 14TH DAY OF MARCH, 2018 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA RPFC NO.200078/2016 C/W RPFC NO.200001/2017 RPFC NO.200078/2016 BETWEEN: 1. Nirmala W/o. Dattu @ Dattappa Naikodi, Age: 35 years, Occ: Coolie, 2. Maruti S/o. Dattu @ Dattappa Naikodi, Age: 18 years, Occ: Student (Minor) 3. Aishwarya D/o. Dattu @ Dattappa Naikodi, Age: 13 years, Occ: Student (Minor) All R/o. H.No. E# 1/5100, Hanuman Nagar, Near Railway Under Bridge, Old Jewargi Road, Kalaburagi – 585102. Petitioner No.2 & 3 are being minors, This petition is filed through their next Friend & natural Mother Petitioner No.1 ... Petitioners (By Sri Kurkoti Rachanna Basawannappa and Sri Choodamani M Patil, Advocates)

2 AND: Dattu @ Dattappa S/o. Maruti Naikodi Age: 46 years, Occ: Business & Contractor, At Hindustan Petroleum, R/o. Plot No. 76, Renuka Nilaya, Maharaja Layout, Karuneshwar Nagar, Kalaburagi – 585102. ... Respondent (By Sri Anand Ture, Advocate) This RPFC is filed under Section 19(4) of the Family Courts Act praying to set aside the order dated :22-10-2016 passed by the District Judge Family Court, Kalaburagi in Crl.Misc.No.1/2015 and modify the award and pass award of monthly maintenance of Rs.10,000/- PM to petitioner No.1 Rs.15,000/- PM to petitioner No.2, Rs.25,000/- to petitioner No.3. RPFC NO.200001/2017 BETWEEN: Dattu @ Dattappa S/o. Maruti Naikodi Age: 46 years, Occ: Business & Contractor at Hindustan Petroleum, R/o. Plot No. 76, Renuka Nilaya, Maharaj Layout, Karuneshwar Nagar, Gulbarga – 585102. ... Petitioner (By Sri Anand Ture, Advocate)

3 AND: 1. Nirmala W/o. Dattu @ Dattappa Naikodi, Age: 34 years, Occ: Coolie, 2. Maruti S/o. Dattu @ Dattappa Naikodi, Age: 18 years, Occ: Student 3. Aishwarya D/o. Dattu @ Dattappa Naikodi, Age: 13 years, Occ: Student Respondent No.3 is minor U/g her natural mother respondent No.1 All R/o. H.No. E#1/5100, Hanuman Nagar, Old Jewargi Road, Gulbarga– 585102. ... Respondents (By Sri Rachanna B. Kurkoti, Advocate for R1 & R2; R3 minor R/by R1) This RPFC is filed under Section 19(4) of the Family Courts Act praying to set aside the judgement date:22.10.2016 passed by the District Judge Family Court at Kalaburagi in Crl.Misc.01/2015. These Petitions are coming on for Admission this day, the Court made the following: ORDER RPFC No.200078/2016 is filed by the wife, son and daughter for enhancement of maintenance amount and RPFC No.200001/2017 is filed by the husband for

4 reduction of maintenance amount against the order dated 22.10.2016 made in Crl.Misc.No.1/2015 on the file of the District Judge, Family Court, Kalabuargi awarding maintenance of Rs.8,000/- per month to petitioner No.1/wife, Rs.6,000/- per month each to petitioner Nos.2 and 3/son and daughter respectively. It is also held that petitioner No.3 is entitled for the said maintenance till her marriage and petitioner No.2 is entitled for maintenance till he attains age of majority. 2. The parties are referred to as per their ranking before the Family Court. 3. It is the case of the petitioners that they filed a petition before the Family Court under Section 125 of Cr.P.C. claiming maintenance of Rs.10,000/- per month to petitioner No.1, Rs.25,000/- per month to petitioner No.2 and Rs.15,000/- per month to petitioner No.3 against the respondent contending that petitioner No.1 is legally wedded wife of the respondent and petitioner

5 Nos.2 and 3 are their children. The marriage between petitioner No.1 with the respondent was performed about 30 years back and out of their wedlock petitioner Nos.2 and 3 were born. It was specific case of the petitioners that the respondent was addicted to bad habits like drinking alcohol, gambling and womanizing. He was rarely visiting the petitioners and was not paying maintenance. He started to reside with a lady by name Sridevi who was already having a daughter by name Pooja. He was residing with her separately and gave birth to four daughters and a son and has performed the marriage of Pooja. The first daughter Pooja was born to Sridevi from her previous husband. Thereafter, he completely neglected the petitioners. Petitioner No.1 was leading her life with her income from coolie work and also educating the children. 4. It was further contended that petitioner No.2 has completed ITI Course in Government ITI College and

6 now is studying PUC in Vijay Vidyalaya College, Kalaburagi. Petitioner No.3 is studying in 7th standard in Government School. The respondent is doing Sundry Contract Work with Hindustan Petroleum and hired four oil tankers on contract basis. He earns about 3 to 4 lakhs per month and was income tax assessee. He owns car for his family use. The petitioners are in need of maintenance of Rs.50,000/- per month in all. Therefore, sought to allow the claim petition as prayed for. 5. The respondent filed objections contending that his marriage with petitioner No.1 was a child marriage and the same was void. He denied other averments and contended that the behavior of petitioner No.1 with the respondent and his family members were rude and she used to quarrel with the respondent on silly matters. He denied that he addicted to bad habits and neglected the petitioners. He also contended that

7 earlier he was doing contract work but due to harassment and cruel nature and other illegal activities of petitioner No.1, he could not concentrate on his work. Hence, he sought for dismissal of the petition. 6. In order to establish the case of the petitioners, petitioner No.1 examined as PW.1 and marked documents Exs.P1 to P10. The respondent examined as DW.1 and marked documents Exs.D1 to D3. 7. The Family Court considering the entire material on record recorded a finding that the petitioners proved that in spite of having sufficient means, the respondent has neglected to maintain them and they are entitled for maintenance. Accordingly, by the impugned judgment and order, the Family Court awarded Rs.8,000/- per month to petitioner No.1 and Rs.6,000/- per month each to petitioner Nos.2 and 3. It also held that petitioner No.2/son is entitled for

8 maintenance till he attains the age of majority and petitioner No.3/daugher till her marriage. Hence, the present revision petition in RPFC No.200078/2016 filed by the wife and children for enhancement of maintenance and RPFC No.200001/2017 filed by the husband for reduction of the maintenance. 8. I have heard the learned counsel for the parties to the lis. 9. Sri Kurkoti Rachanna Basawannappa, learned counsel for the petitioners in RPFC No.200078/2016 contended that the impugned judgment and order passed by the Family Court awarding maintenance of Rs.20,000/- to the petitioners is contrary to the material on record. The respondent is a contractor having sufficient means and was income tax assessee. The Family Court ought to have awarded maintenance as claimed in the petition. He would further contended that the respondent who is a

9 contractor having sufficient income to pay the maintenance and has neglected the petitioners. Therefore, the petitioners are entitled for maintenance taking into consideration the raise in essential commodities and petitioner Nos.2 and 3 are students. Therefore, he sought to allow the revision petition as prayed for. 10. Per contra, Sri Anand Ture, learned counsel for the respondent/husband who filed RPFC No.200001/2017 for reduction of maintenance contended that petitioner No.2 – son attained majority on 16.05.2017 and he is not entitled for maintenance in terms of the order of the Family Court. He further contended that the Family Court has proceeded to grant maintenance to the petitioners at Rs.20,000/- per month is without any basis. The petitioners have not produced any material documents before the Court to show that the respondent having sufficient means and

10 neglected to maintain them. In the absence of any material document, the maintenance awarded by the Family Court at Rs.20,000/- per month to the petitioners is exorbitant and liable to be reduced. Hence, he sought for reduction of maintenance amount. 11. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully. 12. When the matter was posted for arguments before this Court on 28.02.2018, this Court has directed the respondent to produce the income tax returns for the years 2014-15, 2015-16, 2016-17 and 2017-18. Accordingly, the husband filed the income tax returns on 06.03.2017, which clearly depicts that his income for the year 2014-15 is declared as Rs.5,13,850/-, for the year 2015-16 is declared as Rs.7,59,820/-, for the year 2016-17 is declared as Rs.5,96,320/- and for the year

11 2017-18 is declared as Rs.3,13,206/-. Though there is variance of the income year to year but the fact remains that he is an income tax assessee having sufficient means to maintain the petitioners. 13. The income tax returns produced before this Court clearly depicts that the respondent having sufficient means and he has not produced any document to prove that the petitioners having sufficient means to maintain themselves. In the absence of any material document before the Court, taking into consideration that petitioner No.1 is housewife and petitioner Nos.2 and 3 are students and it is difficult for petitioner No.1 to maintain herself and her children. The relationship between the petitioners and the respondent as husband, wife, children is not in dispute and the petitioners have no means to maintain themselves and it is the bounden duty of the respondent being a husband and father to pay maintenance as

12 contemplated under the provisions of Section 125 (1) (a) (b) of Cr.P.C. 14. The material on record clearly depicts that the respondent – husband is having sufficient and substantial income and he is an income tax assessee as already stated supra. It is also not in dispute that the respondent is having two storied building and a portion is let out on rent, he owns a car, he has four tankers lived on contract basis and he is doing contract work. Therefore, he is under legal obligation to pay maintenance to the petitioners. 15. The Hon’ble Apex Court, while considering the provisions of Section 125 of the Code of Criminal Procedure in the case of Bhuwan Mohan Singh vs. Meena and others reported in AIR 2014 SC 2875 at paragraph No.3 held as under:- “3. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short

13 “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, 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 statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a begger. A situation is not to be

14 maladroitly created where under 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.” 16. The Hon’ble Supreme Court also while considering the provisions of Section 125 of the Code of Criminal Procedure in the case of Shamima Farooqui vs Shahid Khan reported in AIR 2015 5 SCC 705 at Paragraph Nos.14, 16, 17 and 19 held as under:- “Para No.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

15 monthly salary of Rs.17,654. 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 Section125 CrPC is for amelioration of financial state of affairs as well as mental agony and anguish that a woman suffers when she is compelled to leave her matrimonial home. The statue commands that there have to be some acceptable arrangements so that she can sustain herself. The principal 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

16 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 Cr{C, 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 nod, 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

17 CrPC, unless disqualified, is an absolute right”. “Para No.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 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356, it has been ruled that : (SCC p.320, para6) “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 SCC 70 :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 vegrancy and destitution. It provided 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

18 Bhatiya V. State of Gujaraj (2005) 3 SCC 636: 2005 SCC (Cri) 787.” “Para No.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”. “Para No.19 :- From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort Sometimes her faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this state, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the

19 only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance”. 17. In view of the aforesaid reasons, the revision petition filed by the petitioners/wife, son and daughter is allowed in part. The impugned judgment and order passed by the Family Court is modified holding that petitioner No.1/wife is entitled to maintenance of Rs.12,000/- per month and petitioner No.3/daughter is entitled to maintenance of Rs.10,000/- per month till her marriage from the respondent from today. If petitioner No.2 attains age of majority as contended, it is for the respondent to file a documentary evidence before the Family Court that he attains majority and he is not entitled any maintenance. 18. For the reasons stated supra, the revision petition filed by the respondent/husband for reduction

20 of maintenance amount in RPFC No.200001/2017 is dismissed as devoid of merits. Sd/- JUDGE Srt Ct: VK