Suresh vs Shailaja and Others

Aravind Kumar, J.—Heard Smt. Girija S. Hiremath, learned counsel appearing for the petitioner and Sri Anant P. Savadi, learned counsel appearing for the respondents.

By consent, the matter is taken up for final disposal.

The short point that arises for consideration in this petition is:

"Whether maintenance of Rs. 2,000/- awarded to the wife and Rs. 3,000/- awarded to the minor son is excessive, exorbitant and as such, liable to be set aside?

OR

Whether the order passed by the Family Court, Hubballi, is to be set aside or affirmed"?

There is no dispute with regard to relationship between the parties and as such, the facts in detail which has been delved upon by the Family Court, Hubballi, is not discussed in this petition as it would be repetition of facts.

Smt. Girija S. Hiremath, learned counsel appearing for the petitioner would vehemently submit that petitioner has no grievance insofar as maintenance awarded to the minor son though order in its entirety has been challenged in this petition. In that view of the matter, placing her submission on record, order passed by the Family Court, Hubballi, awarding maintenance of Rs. 3,000/- to 2nd respondent minor son is hereby affirmed and not being interfered.

First respondent/wife filed a petition under Section 125 of the Cr.P.C. seeking maintenance before the Family Court. It was her specific contention that she is without any avocation and she is completely depending on her parents and as such, she prayed for award of maintenance. On service of notice, respondent appeared, filed his statement of objections and denied the averments made in the petition. During the course of cross-examination, wife admitted that she is working as Anganawadi teacher from past six months and she is receiving Rs. 4,000/- p.m. though not regularly as honorarium. The contention of Smt. Girija Hiremath, learned counsel is that since the wife is earning and capable of maintaining herself, she would not be entitled for claiming maintenance and respondent/husband is not required to pay her any maintenance.

Per contra, Sri Anant P. Savadi, learned counsel would contend that mere working and earning does not prevent the wife seeking maintenance from her husband and in support of this proposition, he has relied upon the judgment of the Hon''ble Apex Court in the case of Sunita Kachwaha Vs. Anil Kachwaha, . Hence, he prays for rejection of the petition.

Either of the spouse would not be entitled to seek for maintenance, if they are able to maintain themselves as could be seen from clause (a) of sub Section (1) of Section 125 of Cr.P.C. Sub section (4) of Section 125 indicates that wife would not be entitled to receive maintenance from her husband i) if she is living in adultery, ii) without any sufficient reason, refuses to live with her husband and iii) living separately by mutual consent. Undisputedly, none of these three ingredients are present in the instant case so as to disentitle the 1st respondent-wife to seek maintenance from her husband. An incidental question which would rise is "Whether by virtue of her being appointed as an Anganawadi worker and earning by way of receiving the honorarium @ Rs. 4,000/- per month, per se disentitles her to claim maintenance?".

In a given case, if evidence on record would indicate that the party''s social status and other attendant circumstances are sufficient enough to arrive at a conclusion that income earned by the wife would be sufficient to maintain herself, then answer will have to be necessarily in the negative, namely to hold that wife would not be entitled to seek maintenance from her husband. On the other hand, if evidence available on record were to indicate that said income earned by her would not be sufficient or such income would not meet her requirement namely she would be unable to carry on her life as she was carrying on prior to her leaving away from her husband, the answer will have to be in her favour i.e., in the affirmative to hold that despite she being an earning member, she would also be entitled to seek maintenance from her husband. Thus, it depends on facts and circumstances of each case. There cannot be any straight jacket formula in this regard.

The Hon''ble Apex Court in Sunita Kachwaha''s case cited supra which has been relied upon by Mr. Anant P. Savadi, was examining the plea of the husband which was raised in the said case to stave off his liability wherein he contended that wife is a qualified Post Graduate and as such, it would be sufficient to hold that she is in a position to maintain herself. In this background, the Apex Court held that insofar as her employment as a teacher in Jabalpur which was pleaded by the husband was without any proof and there was no material placed before the Family Court or in the High Court to prove the employment and her earnings and as such, it came to the conclusion that merely because the wife was earning, same would not be a ground to reject her claim for maintenance.

In the instant case, as already noticed hereinabove, it cannot be held that wife would not be entitled to ask for maintenance, even, if she is earning. In the instant case, her own admission would indicate that she is earning Rs. 4,000/- per month. The Family Court has awarded Rs. 2,000/- per month by way of maintenance. However, said maintenance has been awarded only on the ground and that wife has stated that she was not receiving the honorarium regularly from the Government. This finding arrived at by the Family Court cannot be accepted for the reason that payment of honorarium to Anganawadi workers is mandatory and the State cannot absolve of its liability to pay the said honorarium. When there is undisputed evidence available on record indicating that 1st respondent herein is earning Rs. 4,000/- per month, a sum of Rs. 1,000/- if awarded to her, it would meet the ends of justice, particularly when 2nd respondent (minor son) also having been awarded Rs. 3,000/- toward his maintenance and same would meet the ends of justice. Hence, if the order passed by Family Court is modified insofar as award of maintenance to 1st respondent (wife) is concerned by reducing it to Rs. 1,000/- per month since she is already earning Rs. 4,000/- per month as honorarium on account of she being Anganawadi worker it would suffice. In the result, I proceed to pass the following:

"ORDER

i. Revision petition is hereby allowed in part,

ii. Order passed by the Family Court, Hubli, dated 28.12.2013 insofar as awarding of maintenance of Rs. 2,000/- per month to 1st respondent is modified and it is ordered that she would be entitled to Rs. 1,000/- per month from the date of petition till date of payment.

iii. Insofar as order passed by the Family Court, awarding Rs. 3,000/- to 2nd respondent/son, same stands affirmed.

iv. It is made clear that, if arrears as ordered by this Court on 25.04.2014 is not paid within three days from today, respondent would be at liberty to seek recall of this order."