The relationship between the parties is not in dispute. The defendant-husband having contracted a second marriage some time prior to the filing of the suit for maintenance, is also not disputed. When once the defendant-husband has contracted a second marriage, the first wife is entitled in law to claim for separate residence and maintenance. The question of the wife deserting the husband or the husband deserting the wife pales into insignificance in the light of this development. The fact that the wife could not get maintenance earlier under Section 125 of the Cr. P.O. proceeding also cannot have any bearing in a suit for maintenance filed subsequent to the defendant-husband having contracted a second marriage. This is so, even if the personal law of the defendant permit him to contract more than one marriage.
The plaintiff-wife could not have been denied maintenance on the ground of not joining her husband. She is in law entitled to seek maintenance for separate living.
Karnataka High Court
Ashabi vs Bashasab Takke And Anr. on 7 January, 2003
Equivalent citations: I (2003) DMC 725, 2003 (2) KarLJ 429
Bench: A Farooq, D S Kumar
1. This appeal by the wife is directed against the judgment and decree of the Family Court at Bijapur, dated 1-1-1997, whereby the Family Court dismissed the appellant-plaintiffs claim for maintenance. The appellant-wife had sought for monthly maintenance of Rs. 1,500/- from the defendant-husband on the premise that he has neglected to maintain her; that he has driven her out of the house and also contracted a second marriage and is living with the second wife. The plaintiff also pleaded that she had borne a son to the defendant from out of the marriage and that as the defendant has neglected to take care of them, she is compelled to seek for maintenance through the Court.
2. The defendant contested the suit. The marriage between the parties was admitted. The birth of the son was also not disputed. But he denied certain allegations of demand for dowry made in the claim and also denied that the defendant had deserted the plaintiff-wife. It was averred that it was the wife who on the other hand, had deserted the husband and had gone away. He also admitted the contracting of a second marriage, but pleaded that the plaintiff was not entitled for maintenance as she had herself deserted the husband and that he was ready and willing to take her and she is not willing to join him and as such is not entitled to claim maintenance. It was also pleaded that he was getting a salary of only Rs. 2,000/-; that he did not have any other properties as pleaded in the plaint and that he is not in a position to pay any maintenance to the wife.
3. The fact that earlier criminal miscellaneous case filed under Section 125 of the Code of Criminal Procedure ('Cr. P.C.', for short) by the wife claiming maintenance, had been dismissed, was also pleaded as a circumstance justifying denial of maintenance to the wife in the present suit also.
4. On such pleadings, the Trial Court framed as many as seven issues, the material issues being as to whether the plaintiff was able to prove that the husband has deserted her, as to whether she was entitled for maintenance and if so, at what amount and also as to whether the plaintiff proves that the defendant has taken a second wife.
5. The Family Court found that the plaintiff was unable to prove that the husband had deserted her and as such she was not entitled for any maintenance, but held that in view of the admission that the defendant-husband himself has pleaded that he has contracted a second marriage, the issue relating to the second marriage really did not arise in the light of the admission of the party. The Family Court held that as the plaintiff-wife had turned down the offer of the husband offering her to take her back if she is prepared to live with him, she is not entitled for maintenance. This is the main ground on which the Court non-suited the plaintiff. It is aggrieved by this judgment and decree, the plaintiff-wife is in appeal before us.
6. We have heard Sri Ramesh B. Anneppannavar, learned Counsel for the appellant as also Sri Vijayakumar, learned Counsel appearing for second respondent-North-West Karnataka State Road Transport Corporation.
7. Sri Ramesh B. Anneppannavar, learned Counsel for the appellant submits that the Family Court is in error in dismissing the suit only on the ground that the wife has not accepted the offer of the husband who had offered to take her back and as such "desertion" is not on the part of the husband, but is on the part of the wife. Learned Counsel for the appellant submits that the question of "desertion" did not have any significance particularly in the light of the admitted fact that the defendant had contracted a second marriage and the suit for maintenance has been brought after the defendant had contracted the second marriage. Learned Counsel also submits that the Trial Court was in error in looking into the outcome of the criminal miscellaneous petitions which had been filed by the plaintiff-wife for maintenance and such petitions had been dismissed by the Courts as having no bearing on the outcome of the present proceedings. Learned Counsel prays for setting aside the judgment dismissing the suit and fixing a reasonable amount of maintenance. Learned Counsel also submits that the defendant-husband was an employee of the second respondent-Corporation, was in service, but during the pendency of this appeal has taken voluntary retirement and as such taken steps for impleading the second respondent- Corporation as a party to this proceedings so that the retiral benefits due to the defendant-husband are not released without meeting the legitimate entitlement of the plaintiff-wife.
8. Learned Counsel for the first respondent-husband on the other hand submits that the appellant-wife having not accepted the offer of the husband and having refused to live with him, she is not entitled to claim any maintenance and the Trial Court was justified in dismissing the prayer for maintenance. It is also submitted that the wife having failed in her claim for maintenance in a proceeding under Section 125 of the Cr. P.C. in itself shows that there is no claim for maintenance nor any justification and as such the Trial Court was justified in dismissing the suit. Learned Counsel for the first respondent also submits that the first respondent himself has since retired from service by taking voluntary retirement; that he is a sick and bedridden person and is also having no income as of now and as such he is not in a position to pay maintenance and this fact also we should take note of.
9. Learned Counsel for the second respondent-Corporation submits that the retiral benefits due to the first respondent-husband have been withheld as per the orders of this Court and they have not been disbursed.
10. We have given our anxious consideration to the submissions of the learned Counsels for the parties and perused the judgment under appeal. The relationship between the parties is not in dispute. The defendant-husband having contracted a second marriage some time prior to the filing of the suit for maintenance, is also not disputed. When once the defendant-husband has contracted a second marriage, the first wife is entitled in law to claim for separate residence and maintenance. The question of the wife deserting the husband or the husband deserting the wife pales into insignificance in the light of this development. The fact that the wife could not get maintenance earlier under Section 125 of the Cr. P.O. proceeding also cannot have any bearing in a suit for maintenance filed subsequent to the defendant-husband having contracted a second marriage. This is so, even if the personal law of the defendant permit him to contract more than one marriage.
11. The plaintiff-wife could not have been denied maintenance on the ground of not joining her husband. She is in law entitled to seek maintenance for separate living. In this view of the matter, the finding recorded by the Family Court that she is not entitled for any maintenance is not sustainable and is set aside. We hold that the plaintiff is entitled for a reasonable amount of maintenance from the defendant-husband.
12. The defendant-husband was employed as a technician and as an auto-mechanic in the services of the second respondent-Corporation. It is also submitted by the learned Counsel for the parties that he was in service till 9-10-1999 when he was allowed to retire on request for voluntary requirement. Being a technician and working as an auto-mechanic, the defendant was getting a salary of not less than Rs. 2,000/- while in service. In the circumstances, it is just and reasonable to award maintenance in a sum of Rs. 750/- p.m. from the date of the suit till the period during which the defendant was in service. The amount of monthly maintenance is fixed at Rs. 500/- thereafter.
13. In the circumstances, the second respondent-Corporation is directed to release the arrears of maintenance that the plaintiff-wife is entitled to as per this judgment from out of the retiral benefits that are due to the defendant-husband and pay this amount directly to the appellant-plaintiff. Balance of the amount may be released in favour of the retired employee.
14. Appeal allowed accordingly. Parties to bear their own costs.
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