the wife can be treated only as exceptional case as normally he
has got the liability or obligation to maintain the wife and vice
versa is only exceptional.
15.The question under what circumstances the husband is
entitled to get maintenance under Section 24 of the Act has
been considered by the Bombay High Court in the decision
reported in Smt. Kanchan, w/o. Kamelendra Sawarkar v.
Kamalendra @ Kamalakar s/o. Rajaram Sawarkar (AIR 1992
Bombay 493) and it has been held that:
"Since the wife is in employment, the husband cannot
make himself wholly depend on her income through a devise
under Section 24 of the Act. In the absence of any handicap or
impediment to earn, to grant maintenance to such able bodied
person equipped with skill would promote idleness, which is
opposed to spirit of Section 34 of the Act".
16. The same question has been considered by the Madhya
Pradesh High Court in the decision reported in Yashpal Singh
Thakur v. Smt. Anjana Rajpu (AIR 2001 MP 67) relying on the
decision reported in Govind Singh v. Smt. Vidya (AIR 1999
Rajasthan 304) where it has been observed that:
"It is true that Section 24 of the Hindu Marriage Act,
1955 entitles either party to move an application for
maintenance provided such party has no means of
subsistence and the other party is in a position to provide
maintenance. But it does not mean that the husband who
is otherwise capable of earning his living should stop earning
the living and start depending on the earning of the wife. In
that case the husband has incapacitated himself by
stopping the running the auto rickshaw on hire. It is well
established maxim of Anglo Saxion jurisprudence that no
person can be allowed to incapacitate himself. That maxim is
applicable to the case of earning husband. A person who
voluntarily incapacitates himself from earning is not entitled
to claim maintenance from the other spouse".
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE A.M.SHAFFIQUE
&
MR. JUSTICE K.RAMAKRISHNAN
14TH DAY OF FEBRUARY 2017
OP (FC).No. 26 of 2015
NIVYA V.M, Vs SHIVAPRASAD N.K,
The respondent in IA.No.329/2014 in OP.No.200/2014 has
filed this petition challenging Ext.P5 order passed by the Court
below under Article 227 of the Constitution of India.
2. The marriage between the petitioner and the respondent
was solemnized on 31.1.2011 and it was registered before the
Marriage Registrar, Enmakaje. After some time, the relationship
between them strained. The petitioner herein earlier filed
O.P.No.234/2011 before the Family Court, Kasaragod for a
declaration that the marriage between the petitioner and the
respondent was null and void and the respondent herein filed
OP.No.172/2011 for restitution of conjugal rights and both these
cases were disposed of by Ext.R8 common judgment dated
18.3.2014 dismissing OP.No.234/2011 and allowing
OP.No.172/2011. Thereafter the petitioner herein filed
OP.No.200/2014 for dissolution of marriage under Section 13(ia)
of the Hindu Marriage Act (hereinafter referred to as 'the Act' for
short) on the ground of cruelty on the part of the respondent.
The respondent herein entered appearance and filed counter
denying the allegations and praying for dismissal of the
application. He has also filed IA.No.329/2014 under Section 24
of the Act and Section 151 of the Code of Civil Procedure
(hereinafter referred to as 'the Code' for short) seeking pendente
lite maintenance and litigation expenses from the petitioner
herein. It is alleged in that petition that at the time of
marriage, the respondent was working in a financial institution
under the name and style Thulunad Chits, Kasaragod and on
account of a false news published in Malayala Manorama
daily dated 4.6.2011 alleging that the respondent herein had
abducted the petitioner and took her to different places and
committed rape on her, he was asked to resign from the post and
accordingly he was compelled to resign. The respondent herein
filed OP.No.234/2011 for annulment of the marriage and the
same was dismissed on 18.3.2014. He had incurred heavy
expenses for conducting the litigation in OP.No.234/2011. She
has now filed the present petition stating the same reasons
mentioned in OP.No.234/2011. The petitioner also filed
CMP.No.4320/2011 against the respondent before the Judicial
First Class Magistrate Court, Kasaragod alleging commission of the
offences under Sections 341, 365, 366, 376, and 506 of the
Indian Penal Code, which was forwarded to the Kasaragod police
for investigation who registered Crime No.509/2011 of Kasaragod
police Station. The Kasaragod police also registered Crime
No.1086/2011 against the petitioner herein for the offence
punishable under Section 500 of the Indian Penal Code under
Section 3(2)(ii) of the Scheduled Caste/Scheduled Tribe
(Prevention of Atrocities) Act, 1989 (hereinafter referred to as
'the SC/ST' Act for short). In that the petitioner herein moved
B.A.No.9598/2012 before this Court for anticipatory bail and this
Court had observed that this is a fight between the wife and the
husband who claimed to have been in love and got married. The
thing as it appears that the wife does not want to continue her
relationship with the husband for the reasons only known to her,
resorting to such methods are highly objectionable and which
would spoil his career. The respondent had to incur huge
expenses by way of paying legal fees to the extent of Rs. One
lakh to the senior counsel and Rs.25,000/- to the junior
counsel. The minimum expenses for conducting the cases will
come to Rs.3 lakhs. The respondent is without any employment
now. He is suffering from several illness. The petitioner herein is
working as Assistant Professor in Biology drawing a monthly
income of Rs.50,000/-per month. She requires only one third for
her expenses. She is capable of providing Rs.15,000/- per month
to her husband who has no independent source of income
sufficient to support his necessary expenses. So he prayed for a
direction to the petitioner herein to pay Rs.15,000/- per month as
pendente lite maintenance and Rs.3 lakhs for litigation
expenses.
3. The petitioner herein, who is the respondent in the
application, filed counter contending as follows:
She admitted the solemnization of marriage and also the
litigations pending between the parties. She denied the allegation
that the respondent lost his employment as a result of the
news paper reports and also that he incurred heavy expenses for
conducting OP.No.234/2011 and also defending the present
case. She had also denied the allegation that she was drawing
a monthly income of Rs.50,000/- per month and a further
allegation that the respondent herein had spent lavishly for
promotion of their love affair and also for physical enjoyment and
he is not having source of income and he is sick requires expenses
for medical treatment etc. According to her, taking advantage
of her soft nature, he trapped her and virtually spoiled her life.
He had tortured her and she had escaped from him. He had also
filed several false cases against her and her family members. His
intention was to compel her to go after him. If he is not having
any income, he could have engaged a legal aid counsel by
applying to the Legal Services Authority. The harassment made
by the respondent herein caused premature death of her father.
He is without any human feelings. The application itself was filed
with an ulterior motive. She is having lot of liabilities. Since she
is the only earning member, the entire family burden is on her
shoulders. The salary shown is also not correct. The respondent,
who is the petitioner in the Court below in the application, is not
entitled to get any relief. So she prayed for dismissal of the
application.
4. The respondent herein, who is the petitioner in the
petition, was examined as PW1 and Exts.A1 to A27 were
marked on his side. No evidence was adduced from the side of
the petitioner herein except marking Ext.B1. After considering the
submissions of both the parties, the Court below by Ext.P5
impugned order directed the petitioner to pay Rs.6,000/- per month
as pendente lite maintenance and rejected the prayer for litigation
expenses. Aggrieved by the same, the present petition has been
filed.
5. The respondent filed a detailed counter denying the
allegations and also supporting the impugned order passed by the
Court below and produced Exts.R1 to R10 documents. The
petitioner herein also filed IA.No.2432/2015 to accept additional
documents Exts.P13 and P14 and that application was allowed.
The documents were received subject to its admissibility and
reliability can be considered in this petition.
6. Heard Sri.P.S. Sreedharan Pillai, learned counsel
appearing for the petitioner and Smt. R. Padmakumari, learned
counsel appearing for the respondent.
7. The learned counsel appearing for the petitioner
submitted that the Court below was not justified in allowing the
application. The petitioner had to resign her job and she is at
present without any employment or income. Further the
respondent is a well qualified person and a musician
conducting music programmes and getting income. There is
nothing on record to show that he is permanently disabled from
doing any work as well. The Court below has not considered the
scope and circumstances for providing maintenance to the
husband by the wife in such proceedings in the right perspective.
So according to the learned counsel, the order passed by the Court
below is not legal.
8. On the other hand, the learned counsel appearing for the
respondent submitted that on account of the defamatory
publication made by the petitioner, the respondent had to lose his
employment. He is suffering from hypertension on account of the
stress caused by facing the unnecessary litigations initiated by
the petitioner that prevented him from doing any work as well.
So according to the learned counsel, the Court below was
perfectly justified in allowing the application.
9. It is an admitted fact that the petitioner and the
respondent were in love for some time and they belonged to
different community. It is also an admitted fact that there was a
marriage ceremony conducted and they lived as husband and
wife. But due to some difference of opinion between them, their
relationship strained which resulted in initiation of several
litigations between them.
10. It is also an admitted fact that earlier the petitioner
filed OP.No.234/2011 for annulment of marriage solemnized
between the petitioner and the respondent and OP.No.172/2011
was filed by the respondent for restitution of conjugal rights
before the same Family Court and after evidence the petition
filed by the petitioner for anulment of the marriage was
dismissed and the petition filed by the respondent for restitution of
conjugal rights was allowed. It is thereafter that the petitioner
herein filed the present petition OP.No.200/2014 for dissolution of
marriage on the ground of cruelty. The respondent herein filed
IA.No.329/2014 under Section 24 of the Act read with Section
151 of the Code for pendente lite maintenance and litigation
expenses on the ground that he is without any employment and
the petitioner is employed getting good income and she liable to
pay the same.
11. Section 24 of the Act reads as follows:
24. Maintenance pendente lite and expenses of
proceedings:- Where in any proceeding under this Act it
appears to the court that either the wife or the husband, as
the case may be, has no independent income sufficient for
her or his support and the necessary expenses of the
proceeding, it may, on the application of the wife or the
husband, order the respondent to pay to the petitioner the
expenses of the proceeding, and monthly during the
proceeding such sum as, having regard to the petitioner's own
income and the income of the respondent it may seem to the
court to be reasonable:
[Provided that the application for the payment of the
expenses of the proceeding and such monthly sum during the
proceeding, shall, as far as possible, be disposed of within sixty
days from the date of service of notice on the wife or the
husband, as the case may be].
12. It is clear from Section 24 that a petition can be filed by
either wife or husband who is without any employment and no
source of income to support pendente lite maintenance and
litigation expenses from the other spouse, who is capable of
providing the same. So a petition filed by the husband for this
purpose is perfectly maintainable by virtue of the wordings of
Section 24 of the Act.
13. In this case, the case of the respondent herein was that
on account of the false publication made in Malayala Manorama
daily, he had to resign his employment as Director of a Chits
Fund and he is suffering from hipertension and he could not do
any work. It is true that he himself was examined as PW1 and
Exts.A1 to A27 were marked on his side. The petitioner herein
had produced Ext.B1, the salary certificate issued from the
college where she was working wherein her gross salary was
shown as Rs.19,600/- and take home salary was shown as
Rs.18,620/-. It is true that the respondent had produced Exts.A5
to A20 to prove that he was treated for hipertension and he had
resigned his employment. While cross examination of the
respondent herein, he stated that he is having weakness and he
had produced a medical certificate for that purpose but the
Doctor who issued certificate has not been examined. He had also
submitted that he had not approached the Legal Services Authority
seeking legal aid. It is also seen from the documents produced
before this Court that at the instance of the respondent herein, a
case was registered against the petitioner and her father under
the provisions of SC/ST Act 1989. He had admitted that he was
going for ganamela and musical programmes, but now he is not
going. He had not examined any person to prove this fact. He
had not examined the Doctor to prove that on account of his
illness, he is permanently disabled from doing any work and
getting any income.
14. In the case of wife filing an application for maintenance
from the husband, unless he is able to establish that he is
permanently disabled from getting any income, he cannot be
exonerated from the payment of maintenance to his wife. The
same principle has to be extended in a case where he is seeking
maintenance from the wife. A husband seeking maintenance from
the wife can be treated only as exceptional case as normally he
has got the liability or obligation to maintain the wife and vice
versa is only exceptional.
15.The question under what circumstances the husband is
entitled to get maintenance under Section 24 of the Act has
been considered by the Bombay High Court in the decision
reported in Smt. Kanchan, w/o. Kamelendra Sawarkar v.
Kamalendra @ Kamalakar s/o. Rajaram Sawarkar (AIR 1992
Bombay 493) and it has been held that:
"Since the wife is in employment, the husband cannot
make himself wholly depend on her income through a devise
under Section 24 of the Act. In the absence of any handicap or
impediment to earn, to grant maintenance to such able bodied
person equipped with skill would promote idleness, which is
opposed to spirit of Section 34 of the Act".
16. The same question has been considered by the Madhya
Pradesh High Court in the decision reported in Yashpal Singh
Thakur v. Smt. Anjana Rajpu (AIR 2001 MP 67) relying on the
decision reported in Govind Singh v. Smt. Vidya (AIR 1999
Rajasthan 304) where it has been observed that:
"It is true that Section 24 of the Hindu Marriage Act,
1955 entitles either party to move an application for
maintenance provided such party has no means of
subsistence and the other party is in a position to provide
maintenance. But it does not mean that the husband who
is otherwise capable of earning his living should stop earning
the living and start depending on the earning of the wife. In
that case the husband has incapacitated himself by
stopping the running the auto rickshaw on hire. It is well
established maxim of Anglo Saxion jurisprudence that no
person can be allowed to incapacitate himself. That maxim is
applicable to the case of earning husband. A person who
voluntarily incapacitates himself from earning is not entitled
to claim maintenance from the other spouse".
17. Relying on the decision, the Madhya Pradesh High Court
has held that assuming that the respondent has resigned his job
in the High Court, not making any attempt to earn money though
capable of getting private job cannot claim maintenance from
the wife who was in Government service. So it is clear from the
dictum mentioned above that it is not a normal practice of husband
applying for maintenance from the wife who is employed though
he is capable of maintaining himself by doing some work.
18. In this case, the case of the respondent was that he was
compelled to resign from his job on account of the alleged
defamatory publication made by the petitioner herein. It was
admitted by him in his evidence that he is a musician and
attending musical programmes both karnatic and cinematic and
attending ganamelas and getting additional income apart from the
employee of a private chits fund at the time of marriage. It is
also brought out in evidence that he was capable of raising funds
to pay huge fees by engaging senior counsel which is clear from
the pleadings in his petition itself. If he is capable for raising
funds for that purpose, it is hardly believable that he is not
capable of raising funds for maintaining himself. He had not
examined any person to prove that he was not getting opportunity
to conduct any music concept which he was doing earlier. He had
not adduced any evidence to show that in spite of his effort
made, he could not get any employment as well. These aspects
were not considered by the Court below before coming to the
conclusion that the respondent is entitled to get maintenance
from the petitioner herein under section 24 of the Act. If such an
attitude has been taken by the Courts, then idleness of husbands
will be promoted and they will be tempted not to do any work
and depend on the wife for their livelihood, and such thing is not
expected to be promoted in the society and that was not the
intention of Section 24 of the Act providing maintenance to either
party to the proceedings. It was intended to support only such
spouse who is really incapable of maintaining himself/herself to
get something for their sustenance and to conduct the litigation
which they were forced to face from the other party to the
proeedings who is capable of supporting the other spouse and
nothing more. So under such circumstances, the order passed by
the Court below directing the petitioner herein to pay pendente lite
maintenance of Rs.6,000/- is unsustainable in law and the same is
liable to be set aside.
In the result, this petition is allowed and Ext.P5 order
passed by the Court below in IA.No.329/2014 in OP.No.200/2014
of the Family Court, Kasaragod is hereby set aside and the
petition filed by the respondent for interim maintenance and
litigation expenses is hereby dismissed.
Registry is directed to communicate a copy of this
judgment to the Court below at the earliest.
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