It is not in dispute that the petitioner is an able
bodied man and does not suffer from any disability or infirmity.
That being the case, if maintenance is awarded to the husband
as is claimed from the hands of the wife, merely because
Section 24 of the Act is gender neutral for grant of
maintenance, it would be promoting idleness notwithstanding
the fact that the husband has no impediment or handicap to
earn. Merely because he has lost his job on the onset of Covid-
19, it cannot be held that he is incapable of earning.
Therefore, it can be irrefutably concluded that the husband by
his own conduct has decided to lead a leisurely life by seeking
maintenance from the hands of the wife. In the considered
view of this Court, such an application cannot be granted, as
the husband cannot afford to incapacitate himself and sustain
an application under Section 24 of the Act to claim maintenance
from the hands of the husband. This would be an anathema to
the spirit of Section 24 of the Act. Therefore, the husband
cannot seek any maintenance unless he would demonstrate
such disability either physical or mental which incapacitates him
from earning money by finding a job for himself. It is in fact
the duty of an able bodied husband to maintain himself, the
wife and the child, if any. {Para 12}
13. The aforesaid view of mine, in this regard, is fortified
by the judgment rendered by the Apex Court in the case of
ANJU GARG AND ANOTHER v. DEEPAK KUMAR GARG –
2022 SCC OnLine SC 1314, wherein it is held as follows:
The Family Court had disregarded the basic canon of
law that it is the sacrosanct duty of the husband to
provide financial support to the wife and to the
minor children. The husband is required to earn
money even by physical labour, if he is an ablebodied,
and could not avoid his obligation, except
on the legally permissible grounds mentioned in
the statute.
The Apex Court holds that, if the husband is an able
bodied man, he cannot project the plea that, he has no means
to pay. It is necessary for any husband to earn by legitimate
means and maintain the wife and, the children, if any.
14. Therefore, I do not find any warrant of interference
with the order passed by the concerned Court directing
maintenance to be paid by the husband to the wife and
rejection of the claim of the petitioner/husband that he is in
need of maintenance from the hands of the wife. The
petitioner/husband must remember that ‘it is better to wear
out; than rust out’.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
WRIT PETITION NO. 24226 OF 2022 (GM-FC)
SRI. N. GIRISH S/O SRI. NARAYANASWAMY Vs SMT. M. KUSUMA.
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
DATED: 10TH DAY OF JANUARY, 2023
The petitioner / husband is before this Court calling in
question order dated 31-10-2022 rendered by the 4th Additional
Senior Civil Judge, Bangalore Rural allowing I.A.No.1 filed by
the respondent /wife under Section 24 of the Hindu Marriage
Act (‘the Act’ for short) seeking maintenance and litigation
expenses in M.C.No.78 of 2021.
2. Brief facts that leads the petitioner to this Court in
the subject petition, as borne out from the pleadings are as
follows:-
The petitioner and the respondent are husband and wife
who get married on 06-02-2017. On their relationship turning
sour, it appears that the respondent/wife leaves the
matrimonial house and begins to reside with her parents. Later
the husband institutes a petition under Section 13 (1)((i-a) and
(i-b) of the Act in M.C.No.78 of 2021 seeking a decree of
divorce against the wife. The wife in turn has instituted
proceedings under Section 9 of the Act seeking restitution of
conjugal rights. The issue in the case at hand is not with regard
to merit of claims of the petitioner or the respondent qua their
marriage.
3. Before the concerned Court the respondent/wife
files an application in I.A.No.I on 10-11-2021 in
M.C.No.78/2021, under Section 24 of the Act, seeking grant of
interim maintenance at Rs.25,000/- per month and litigation
expenses at Rs.1,00,000/- from the hands of the husband. The
petitioner/husband objects to the said application contending
that he has no means to survive, but does not stop at that, files
another application to counter the application filed by the wife,
contending that he is in need of interim maintenance from the
hands of the wife, to maintain himself and his parents in
I.A.No.2, seeking monthly maintenance of Rs.2,00,000/- and
litigation expenses at Rs.30,000/- from the wife, till the
disposal of the petition. The concerned Court in terms of its
common order dated 31-10-2022 allows the application in
I.A.No.1 filed by the wife and rejects the application in I.A.No.2
filed by the husband and grants maintenance of Rs.10,000/-
and litigation expenses at Rs.25,000/- to the wife. While so
rejecting the application filed by the petitioner, the Court
imposes costs upon the husband for filing the application
seeking maintenance from the hands of the wife. It is this
common order that drives the petitioner to this Court in the
subject petition.
4. Heard Sri. M.K. Shivaraju, learned counsel appearing
for the petitioner and Sri R.Madhu, learned counsel appearing
for the respondent.
5. The learned counsel appearing for the petitioner/
husband would contend with vehemence, that though he has
challenged the order granting interim maintenance to the wife,
the application filed by the husband ought to have been
considered, as he has no means to maintain himself, let alone
maintaining the wife. He would contend that the concerned
Court has grossly erred in allowing the application filed by the
wife and rejecting the application filed by the husband.
6. On other hand, the learned counsel representing the
respondent/wife would refute the submissions to contend that
the petitioner is working and earning close to Rs.50,000/- to
Rs.60,000/- a month and also seeks to place on record
photographs of the place and nature of work of the petitioner
qua the employment of the petitioner, to contend that the
Court has rightly rejected the application filed by the husband
and allowed the application filed by the wife.
7. I have given my anxious consideration to the
submissions made by the respective learned counsel and
perused the material on record.
8. The afore-narrated facts are not in dispute and
therefore require no reiteration. Though the challenge is to the
award of maintenance to the wife, by the husband, vehement
submissions are made with regard to the husband being unable
to maintain his wife and requiring maintenance himself from
the wife, I deem it appropriate to consider the same noticing
the provision under which maintenance is claimed under the
Act. Section 24 of the Hindu Marriage Act reads as follows:
“24. Maintenance pendente lite and expenses of
proceedings.—Where in any proceedings 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.”
(Emphasis supplied)
Section 24 directs that in any proceeding under the Act if
it appears to the Court that either the wife or the husband, as
the case would be, has no independent and sufficient income to
support themselves, the Court may on an application filed by
the wife or the husband order payment of expenses of the
proceedings and monthly maintenance as the court would deem
reasonable. On a plain reading of Section 24 it depicts that the
provision is gender neutral. Maintenance pending proceedings,
can be claimed either by the wife or the husband. But, whether
it can be granted to the husband is what is to be considered.
9. The husband institutes proceedings seeking
annulment of marriage and the respondent/wife files
application under Section 24 of the Act seeking interim
maintenance and litigation expenses from the husband. The
husband puts up vehement opposition and later when the
hearing on the application was under progress, comes up with a
novel idea, to file an application under Section 24 of the Act
himself claiming maintenance to counter the application of the
wife.
10. It is the claim of the husband and he has become
unemployed on the onset of Covid-19 and for the last two years
he is not able to find a job and, therefore, no maintenance
should be awarded to the wife, but in turn, should be awarded
to him, from the hands of the wife. This plea is made on the
ground that the parents of the wife are well off and that the
wife has instituted several proceedings against the husband
including registration of a crime, in Crime No.104 of 2022,
against him and his family members alleging offences
punishable under Sections 498A, 323, 504, 506 of IPC and
Section 3 and 4 of the DP Act and he has to meet those
litigation expenses. Therefore, it is he who is in need of
maintenance and not the wife is the contention.
11. The Court considers the respective affidavits filed,
also notices the affidavit filed by the wife which depicts that the
husband is working as a Senior Executive and earning a salary
of Rs.50,000/- per month and gets monthly rent out of the
properties rented out to the tune of Rs.75,000/- per month,
and rejects the application of the husband and allows the
application filed by the wife. The order of the concerned Court
reads as follows:
“16. Both sides have filed assets and liabilities, but
both sides have failed to produce documents to show
that either wife or husband earns so and so rupees
except bald statements and objections.
• Both sides mentioned about fathers’ properties,
which cannot be considered while deciding an
application filed under Section 24 of HM Act.
• The both husband and wife should have mentioned
how much amount is required for food, cloth,
medical expenses and for shelter and even for
unexpected future expenditures.
• Based on bald statements Court cannot accept the
statements of both sides.
17. To decide the interim applications the Court
has to keep in mind the status of parties, reasonable
wants of spouse, independent income and property of
the claimant which are the relevant factors which are to
be taken into consideration.
18. As per both sides statement, the husband and
wife are depending upon their respective parents for
their eke-out.
19. As per pleadings both are having able body
capable to earn independently.
20. It is true Section 24 of HM Act is a beneficial
legislation and gender neutral Act, it empowers either
husband or wife can seek monthly maintenance and also
litigation expenses.
21. The Court holds that husband’s application
amounts to action to re-action because the husband filed
an application number 2 on 18-08-2022 seeking monthly
maintenance of rupees 2,00,000/- and litigation
expenses of rupees 30,000 after lapse of nearly 9
months from when the wife filed an application on 10-
11-2021 seeking interim maintenance of Rs.1,00,000/-
and also litigation expenses of rupees 25,000/-.
22. The IA No.2 filed by husband it’s a kind of
counter blast to interim application number one in the
statement made by husband which says just because
after filing this petition wife slapped criminal cases so in
order to defend those cases he needs an advocate
therefore, he is in dire need of litigation expenses.
23. Regarding maintenance, he says after
pandemic no job was offered to him or he could not get
any job. If really these statements were true along with
the petition husband should have filed IA.No.II. This
petition was filed on 1-01-2021, it means on the date of
petition, though pandemic was in peak he was capable to
earn, there but after filing this became he became
jobless person. It shows an after though application is
being filed. Further, when the husband having able
body, it is presumed that he has the capacity to earn and
looked after his wife.
24. The learned counsel for respondent wife files
the following citations Criminal Appeal No.1693/2022
dated 28-09-2022 (Anju Garg and another v.
Deepak Kumar Garg) M.F.A. No.1797 of 20221
(MC) dated 1.07.2022 (Sri T.Sadanada Pai v/s Mr.
Sujatha S.Pai) The citations speak that when the
husband having able body, it is presumed that he has
the capacity to earn and looked after his wife. The
husband cannot say he does not have any job even by
doing as bonded labour he should maintain his wife.
25. Therefore, Court holds averments made in the
application by husband that he is incapable and jobless
person, hence wife has to maintain him is bizarre
statement and afterthought application has been filed by
misusing Section 24 H.M. Act by him. Hence he should
be hammered with iron rod therefore his application is
rejected with cost of rupees 10,000/-. The cost to be
paid to wife bye next date of hearing, otherwise his
petition will be dismissed for non-payment of above said
amount. Accordingly the point No.1 is answered in
the negative.
26. Point No.ii: In view of point No.i is answered
in the negative and even wife failed to produce any
documents to show the income of her husband to claim
interim maintenance of Rs.1,00,000/- and also litigation
expenses of rupees 25,000/-. But being a husband his
bounded and duty to look after his wife as long as he
alive and maintains hale and healthy body and as long as
wife id incapable to maintain herself.
27. As per cause title of the petition, the husband
is aged about to 28 years and wife is aged about 25
years by considering the present year, it means both are
young couple and even on perusing the petition and
counterclaim averments for small issue both failed to
come to right conclusion. Even before taking up this
matter, the matter was referred to mediation and even
in open court may times this court as well as learned
counsel for both parties made attempt to reunion
them. Though wife was eager to join husband, but
husband refused, therefore, the medication was
failed.
28. Moreover there is no disability factors
from husband’s side and even failed to produce
any materials to show that wife is capable to earn
herself. At this stage, court holds there are no
grounds to desert his wife when wife eager to join
him and just because without his permission she
attended his sister’s child’s birthday cannot be
ground for desert. It becomes child’s play.
29. As stated above it is the bounden duty of
husband to look after his estranged wife. It is not
his case that he assisted his wife financially.
Further due to non-producing of documents to
show the income of wife, at least, the minimum
supporting amount is to be paid by husband till he
gets the relief what he has sought. To claim
Rs.1,00,000 as monthly maintenance, the wife
failed to give details therefore if rupees 10,000 is
ordered for food, cloth, medicine and shelter to
wife, the justice will be done by considering the
present living cost and also by considering the
economic status of husband, because even by
considering minimum rupees 1000 per day.
30. Regarding litigation expenses what the wife
seeks proper and correct by considering the present
litigation expenses, she is entitled to rupees 25,000/-
because she has to defend and contest petition as well
as counterclaim. Any observation made in this order
shall not be taken granted especially wife. Accordingly
point number two is answered in party affirmative
and I proceed to pass the following:”
(Emphasis supplied)
The Court rejects the application filed by the husband
imposing costs of Rs.10,000/- and allows the application filed
by the wife by awarding interim maintenance at Rs.10,000/-
and litigation expenses at Rs.25,000/- from December, 2021 till
the disposal of the petition. The contention that the petitioner
has no job and has no means to maintain himself and,
therefore, is not in a position to maintain the wife and in turn
wants maintenance from the wife, is unacceptable as it is
fundamentally flawed.
12. It is not in dispute that the petitioner is an able
bodied man and does not suffer from any disability or infirmity.
That being the case, if maintenance is awarded to the husband
as is claimed from the hands of the wife, merely because
Section 24 of the Act is gender neutral for grant of
maintenance, it would be promoting idleness notwithstanding
the fact that the husband has no impediment or handicap to
earn. Merely because he has lost his job on the onset of Covid-
19, it cannot be held that he is incapable of earning.
Therefore, it can be irrefutably concluded that the husband by
his own conduct has decided to lead a leisurely life by seeking
maintenance from the hands of the wife. In the considered
view of this Court, such an application cannot be granted, as
the husband cannot afford to incapacitate himself and sustain
an application under Section 24 of the Act to claim maintenance
from the hands of the husband. This would be an anathema to
the spirit of Section 24 of the Act. Therefore, the husband
cannot seek any maintenance unless he would demonstrate
such disability either physical or mental which incapacitates him
from earning money by finding a job for himself. It is in fact
the duty of an able bodied husband to maintain himself, the
wife and the child, if any.
13. The aforesaid view of mine, in this regard, is fortified
by the judgment rendered by the Apex Court in the case of
ANJU GARG AND ANOTHER v. DEEPAK KUMAR GARG –
2022 SCC OnLine SC 1314, wherein it is held as follows:
“10. This Court had made the above
observations as the Court felt that the Family Court
in the said case had conducted the proceedings
without being alive to the objects and reasons, and
the spirit of the provisions under Section 125 of
the Code. Such an impression has also been
gathered by this Court in the case on hand. The
Family Court had disregarded the basic canon of
law that it is the sacrosanct duty of the husband to
provide financial support to the wife and to the
minor children. The husband is required to earn
money even by physical labour, if he is an ablebodied,
and could not avoid his obligation, except
on the legally permissible grounds mentioned in
the statute. In Chaturbhuj v. Sita Bai, it has been
held that the object of maintenance proceedings is
not to punish a person for his past neglect, but to
prevent vagrancy and destitution of a deserted
wife, by providing her food, clothing, and shelter
by a speedy remedy. As settled by this Court,
Section 125 Cr.P.C. is a measure of social justice
and is specially enacted to protect women and
children. It also falls within the Constitutional
sweep of Article 15(3), reinforced by Article 39 of
the Constitution of India.
11. The Family Court, in the instant case had not
only over-looked and disregarded the aforesaid settled
legal position, but had proceeded with the proceedings in
absolutely pervert manner. The very fact that the right
of the respondent to cross-examine the witnesses of the
appellant-original applicant was closed, as he had failed
to appear before the Family Court despite the issuance
of warrants, clearly established that he had no regards
for his own family nor had any regards for the Court or
for the law. The allegations made by the appellant-wife
in her evidence before the Court had remained
unchallenged and, therefore, there was no reason for the
Family Court to disbelieve her version, and to believe the
oral submissions made by the learned counsel appearing
for the respondent which had no basis. In absence of any
evidence on record adduced by the respondent disputing
the evidence adduced by the appellant, the Family Court
could not have passed the order believing the oral
submissions of the learned counsel for the respondent.
She had clearly stated as to how she was harassed and
subjected to cruelty by the respondent, which had
constrained her to leave the matrimonial home along
with her children, and as to how the respondent had
failed and neglected to maintain her and her children.
She had also proved by producing the documentary
evidence that her father had paid money to the
respondent from time to time to help the respondent for
his business. Even if the allegations of demand of dowry
by the respondent were not believed, there was enough
evidence to believe that money was being paid to the
respondent by the father of the appellant-wife, which
substantiated her allegation that the respondent was
demanding money from her father and was subjecting
her to harassment. The errant respondent had also gone
to the extent of questioning her chastity alleging that
Rachit was not his biological son. There was nothing on
record to substantiate his such baseless allegations. His
application for DNA test was also rejected by the Family
Court. Of course, the Family Court granted the
Maintenance petition so far as the appellant no. 2-son
was concerned, nonetheless had thoroughly mis-directed
itself by not granting the maintenance to the appellantwife.
12. Such an erroneous and perverse order of
Family Court was unfortunately confirmed by the
High Court by passing a very perfunctory
impugned order. The High Court, without assigning
any reasons, passed the impugned order in a very
casual manner. This Court would have remanded
the matter back to the High Court for considering it
afresh, however considering the fact that the
matter has been pending before this Court since
the last four years, and remanding it back would
further delay the proceedings, this Court deemed it
proper to pass this order.
13. Though it was sought to be submitted by the
learned counsel for the respondent, and by the
respondent himself that he has no source of income as
his party business has now been closed, the Court is
neither impressed by nor is ready to accept such
submissions. The respondent being an able-bodied,
he is obliged to earn by legitimate means and
maintain his wife and the minor child. Having
regard to the evidence of the appellant-wife before
the Family Court, and having regard to the other
evidence on record, the Court has no hesitation in
holding that though the respondent had sufficient
source of income and was able-bodied, had failed
and neglected to maintain the appellants.
Considering the totality of facts and circumstances,
we deem it proper to grant maintenance allowance
of Rs. 10,000/- per month to the appellant-wife,
over and above the maintenance allowance of Rs.
6,000/- granted by the Family Court to the
appellant no. 2-son.
14. It is accordingly directed that the
respondent shall pay maintenance amount of Rs.
10,000/- per month to the appellant-wife from the
date of filing of her Maintenance Petition before
the Family Court. The entire amount of arrears shall be
deposited by the respondent in the Family Court within
eight weeks from today, after adjusting the amount, if
any, already paid or deposited by him.”
(Emphasis supplied)
The Apex Court holds that, if the husband is an able
bodied man, he cannot project the plea that, he has no means
to pay. It is necessary for any husband to earn by legitimate
means and maintain the wife and, the children, if any.
14. Therefore, I do not find any warrant of interference
with the order passed by the concerned Court directing
maintenance to be paid by the husband to the wife and
rejection of the claim of the petitioner/husband that he is in
need of maintenance from the hands of the wife. The
petitioner/husband must remember that ‘it is better to wear
out; than rust out’.
15. In the result, the petition lacking in merit, stands
dismissed.
SD/-
JUDGE
JY
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