Rajanna vs Nagarathnamma

Krishna S Dixit, J

Petitioner-husband is knocking at the doors of writ court in its supervisory jurisdiction constitutionally vested under Article 227, for laying a challenge to the order dated 13.12.2021 made by the II Addl. Principal Judge, Family Court at Bengaluru whereby respondent’s Crl.Misc.No.531/2017 has awarded a monthly maintenance of Rs.10,000/- from the date of application ie., 22.09.2017.

Learned counsel for the petitioner vehemently argues that his client is not in a position to make this payment on regular basis; the respondent is capable of earning her livelihood; she having deserted his client during the tough times of his life, namely when he was suffering from cancer, she is not entitled to any payment; learned Judge of the court below did not give a reasonable opportunity to the petitioner to put forth his version and thus there is violation of principles of natural justice. Learned counsel appearing for the respondent opposes the petition making submission in justification of the impugned order and the reasons on which it has been structured.

Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant a limited indulgence in the matter as under and for the following reasons:

(a) Petitioner is the husband and respondent is the wife; they are an estranged couple since a decade or so. Admittedly petitioner having been employed in the Defence Department has been drawing regular salary. Way back in October 2019 his take home salary was Rs.42,591/-. He had agreed before the Court below to pay Rs.7,000/- as monthly maintenance, which fact has been recorded in the impugned order and that cannot be disputed.

(b) Whether the respondent along with the son during the relevant period of his tough times had deserted the petitioner, need not be much examined by this court since it is for the other Forum to undertake its scrutiny based upon the evidentiary material, if & when such an issue arises for consideration. Even otherwise, if for the fear of contracting a disease from others, if one withdraws from the company, it cannot be hastily said that it is absolutely wrong to do. It all depends upon a host of factors.

(c) The vehement submission of learned counsel for the petitioner that the respondent has been residing with the son who has got good income and therefore his client need not pay a rupee, is bit difficult to countenance. In the absence of demonstrable income, the dependent wife can seek sustenance from the earning husband. No material is placed on record to prima facie show that the said son has been earning good amount and therefore the respondent should seek refuge under his umbrella.

(d) The submission of learned counsel for the petitioner that his client had no reasonable opportunity of resisting respondent’s claim for maintenance is very difficult to agree with. The claim was made on 22.09.2017. Petitioner took long time for filing objections i.e., 01.06.2019. He had sought for several adjournments also. Of course, some adjournments were taken by the respondent too. This court is absolutely unhappy with the longevity of the pendency of the claim of maintenance.

(e) All the above having been said, this Court is of a considered opinion that the petitioner should pay atleast Rs.7,000/- per month as was agreed to before the court below, even if he has some justification in terms of allegations which have been denied by the other side. The petitioner has to make this payment with retrospective effect from 22.09.2017 i.e., the date when the claim for maintenance was put forth. The petitioner has to pay the litigation expenses of Rs.5,000/- as a lump sum.

In the above circumstances, this petition is allowed in part; the impugned order of maintenance having been modified, the monthly payment is downwardly revised from Rs.10,000/- to Rs.7,000/- (Rupees seven thousand) only with retrospective effect from 22.09.2017. Petitioner to make the payment of arrears within a period of eight weeks, failing which the impugned order stands revived as originally made. The petitioner shall pay the regular maintenance to the respondent on or before 8th day of every calendar month. Petitioner is also liable to pay the litigation expenses of Rs.5,000/- within one month, failing which he has to pay additional sum of Rs.50/- per day of delay, if brooked.