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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 18TH DAY OF NOVEMBER, 2016

BEFORE

THE HON' BLE MR. JUSTICE B. VEERAPPA

RPFC No. 23/2013

BETWEEN:

SRI G. K. HALESH,
S/O LATE BASAVANAGOUD,
AGE 44 YEARS,
OCCUPATION : AGRICULTURIST,
RESIDING AT GADIGUDAL VILLAGE,
HARAPANAHALLI TALUK-583131,
DAVANAGERE DISTRICT.
... PETITIONER
(BY SRI NEELAKANTAPPA K. PUJAR, ADVOCATE)

AND:

SMT. K. S. NAGARATHNA,
PETITIONER BEFORE THE
W/O G.K.HALESH,
D/O SHADAKSHARAPPA,
AGED ABOUT 39 YEARS,
OCCUPATION: HOUSE HOLD WORK,
RESIDING AT NO.3166,
10TH MAIN ROAD, 4TH CROSS,
MCC "B" BLOCK,
DAVANAGER-577002.
... RESPONDENT
(BY SRI MAHESH R UPPIN, ADVOCATE )
****
THIS RPFC IS FILED UNDER SECTION 19(4) OF FAMILY
COURT ACT, AGAINST THE JUDGEMENT AND DECREE DATED
7.7.12 PASSED IN Cr.MISC.NO.235/2011 ON THE FILE OF
JUDGE, FAMILY COURT, DAVANAGERE, PARTLY ALLOWING
THE PETITION FILED U/S 125 OF Cr.P.C. FOR MAINTENANCE.
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THIS PETITION COMING ON FOR ADMISSION THIS DAY,

THE COURT MADE THE FOLLOWING:

ORDER

The petitioner/husband filed the above

Revision Petition against the order dated

07.07.2012 made in Crl. Misc.No.235/2011 on the

file of the Judge, Family Court, Davanagere,

granting monthly maintenance of `1,500/- to the

wife, from the date of the petition.

2. The parties are referred to as per their ranking

before the Family Court.

3. The wife filed Crl.Misc.No.235/2011 before the

Family Court under Section 125 of the Code of Criminal

Procedure claiming monthly maintenance of `15,000/-

from the husband, contending that her marriage with

the respondent/husband was solemnized on

21.05.2003 at Sri Shamanur Shivashankarappa

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Parvatamma Kalyana Mantapa, Hadadi Road,

Davanagere. After the marriage, petitioner and

respondent lived together in the house of the

respondent at Gadigudalu village and after one month,

the respondent took the petitioner to Kodiyala

Kerenahalli where he was working and afterwards, he

again brought her back to his native place and left her

there and was coming to the village once in 15 days.

Eleven months after the marriage, the

respondent/husband started harassing the petitioner

physically and mentally and finally he drove her out of

his house. The petitioner filed petition for divorce in

M.C.No.50/2011, which was allowed. The

respondent/husband is working as Head Master in a

school and getting salary of `18,000/- to `20,000/- and

is also getting income from agricultural lands, and is

having capacity to provide maintenance to the wife and

therefore, she requires `15,000/- per month for her

maintenance etc.
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4. The respondent/husband filed objections,

admitted the relationship of wife and husband, denied

the averments made in the petition including the

income and sought to dismiss the petition.

5. Based on the pleadings of the parties, the Family

Court framed a point for consideration:

“Whether the petitioner is entitled for

maintenance? If so, what is the quantum of
maintenance and from what date?”

6. In order to substantiate her case, the petitioner/

wife examined herself as P.W.1, produced documents

Exs.P. 1 to P.11. The respondent/husband was

examined as R.W.1 and documents Exs.D.1 to D.4 were

marked.

7. After hearing both the parties, the Family Court,

by the impugned order dated 07.07.2012, allowed the

petition awarding maintenance of `1,500/- per month

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from the date of petition. Aggrieved by the said order,

the respondent/husband is before this Court.

8. I have heard the learned counsel for the parties to

the lis.

9. Sri Neelakantappa K.Pujar, learned counsel for the

petitioner/husband vehemently contended that the wife

is not entitled to any maintenance since she has got

decree of divorce from the Family court and her parents

have landed properties and the wife has voluntarily left

the husband, etc.

10. Per contra, Sri Mahesh R.Uppin, learned counsel

for the respondent/wife sought to justify the impugned

order passed by the Family Court and submitted that

the wife also filed RPFC No.128/2012 before this Court

for enhancement which was dismissed on 17.06.2013

with liberty to file an application before the Family

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Court under Section 127 of the Code of Criminal

Procedure.

11. In view of the rival contentions urged by the

learned counsel for the parties, the only point that arise

for consideration is:

“Whether the impugned order passed by the

Family Court granting maintenance of `1,500/-
to the wife, calls for interference?”

12. It is undisputed fact that the marriage between

the petitioner and the respondent was solemnized on

21.05.2003. It is also not in dispute that the wife filed

M.C.No.50/2011 before the Family court for a decree of

divorce which was allowed.

13. When the relationship between the parties is not

in dispute, it is the duty of the husband to maintain his

wife, till she remarries or gets into a job, in view of

Section 125(a) of the Code of Criminal Procedure. As

per explanation (b) “wife” includes a woman who has

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been divorced by, or has obtained a divorce from, her

husband and has not remarried. My view is fortified by

the decision of the Hon’ble Supreme court in the case of

Shamima Farooqui vs. Shahid Khan reported in AIR

2015 SC 2025 while considering the provisions of

Section 125 of the Code of Criminal Procedure, wherein,

it has been held as under:

“9. It is submitted by Dr.Dubey, learned senior counsel

that Section 125, Cr.P.C. is applicable to the Muslim
women and the Family Court has jurisdiction to decide
the issue. It is urged by him that the High Court has
fallen into error by opining that the grant of maintenance
at the rate of Rs.4,000/- per month is excessive and
hence, it should be reduced to Rs.2,000/- per month from
the date of retirement of the husband i.e., 1.4.2012 till
her re-marriage. It is also contended that the High Court
failed to appreciate the plight of the appellant and
reduced the amount and hence, the impugned order is
not supportable in law.

10. First of all, we intend to deal with the applicability of

Section 125, CrPC to a Muslim woman who has been
divorced. In Shamim Bano V. Asraf Khan reported in
(2014)12 SCC 636, this Court after referring to the
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Constitution Bench decisions in Danial Latifi V Union of

India reported in (2001)7 SCC 740 and Khatoon Nisa V.
State of UP reported in (2014)12 SCC 646 had opined as
follows:

“13. The aforesaid principle clearly lays down that

even after an application has been filed under the
provisions of the Act, the Magistrate under the Act
has the power to grant maintenance in favour of a
divorced Muslim woman and the parameters and
the considerations are the same as stipulated in
Section 125 of the Code. We may note
that while taking note of the factual score to the
effect that the plea of divorce was not accepted by
the Magistrate which was upheld by the High
Court, the Constitution Bench opined that as the
Magistrate could exercise power under Section
125 of the Code for grant of maintenance in
favour of a divorced Muslim woman under the
Act, the order did not warrant any interference.
Thus, the emphasis was laid on
the retention of the power by the Magistrate under
Section 125 of the Code and the effect of ultimate
consequence.

14. Slightly recently, in Shabana Bano V.

Imran Khan reported in (2010)1 SCC 666, a two
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Judge Bench placing reliance on Danial Latifi

(supra), has ruled that:-

“21. The appellant’s petition under Section

125, CrPC would be maintainable before the
Family Court as long as the appellant does not
remarry. The amount of maintenance to be
awarded under Section 125, CrPC cannot be
restricted for the iddat period only.”

Though the aforesaid decision was rendered

interpreting Section 7 of the Family Courts Act,
1984, yet the principle state therein would be
applicable, for the same is in consonance with
the principle stated by the Constitution Bench
in Khatoon Nisa (supra).”

In view of the aforesaid dictum, there can be

no shadow of doubt that Section 125, CrPC
has been rightly held to be applicable by the
learned Family Judge.
11. x x x

12. x x x

13. x x x

14. Coming to the reduction of quantum by the High

Court, it is noticed that the High Court has shown
immense sympathy to the husband by reducing the
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amount after his retirement. It has come on record that

the husband was getting a monthly salary of Rs.17,654/-.

15. The High Court, without indicating any reason, has

reduced the monthly maintenance allowance to Rs.
2,000/-. In today’s world, it is extremely difficult to
conceive that a woman of her status would be in a
position to manage within Rs.2,000/- per month. It can
never be forgotten that the inherent and fundamental
principle behind Section 125, CrPC is for amelioration of
the financial state of affairs as well as mental agony and
anguish that woman suffers when she compelled to leave
her matrimonial home. The statute commands there has
to be some acceptable arrangements so that she can
sustain herself. The principle of sustenance gets more
heightened when the children are with her. Be it clarified
that sustenance does not mean and can never allow to
mean a mere survival. A women, who is constrained to
leave the marital home, should not be allowed to feel that
she has fallen from grace and move hither and thither
arranging for sustenance. As per law, she is entitled to
lead a life in the similar manner as she would have lived
in the house of her husband. And that is where the status
and strata of the husband comes into play and that is
where the legal obligation of the husband becomes a
prominent one. As long as the wife is held entitled to
grant of maintenance within the parameters of Section
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125, CrPC, it has to be adequate so that she can live with

dignity as she would have lived in her matrimonial home.
She cannot be compelled to become a destitute or a
beggar. There can be no shadow of doubt that an order
under Section 125, CrPC can be passed if a person
despite having sufficient means neglects or refuses to
maintain the wife. Sometimes, a plea is advanced by the
husband that he does not have the means to pay, for he
does not have job or his business is not doing well. These
are only bald excuse and, in fact, they have no
acceptability in law. If the husband is healthy, able
bodied and is in a position to support him self, he is
under the legal obligation to support his wife, for wife’s
right to receive maintenance under Section 125, CrPC
unless disqualified, is an absolute right. While
determining the quantum of maintenance, this Court in
Jabsir Kaur Sehgal V. District Judge Dehradun & Ors.
Reported in (1997)7 SCC 7 has held as follows:-
“The court has to consider the status of the parties,
their respective needs, the capacity of the husband to
pay having regard to his reasonable expenses for his
own maintenance and of those he is obliged under
the law and statutory but involuntary payments or
deductions. The amount of maintenance fixed for the
wife should be such as she can live in reasonable
comfort considering her status and the mode of life
she was used to when she lived with her husband
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and also that she does not feel handicapped in the

prosecution of her case. At the same time, the
amount so fixed can not be excessive or
extortionate.”

16. Grant of maintenance to wife has been perceived as a

measure of social justice by this Court. In Chaturbhuj V.
Sitabai, it has been ruled that:-

“Section 125, CrPC is a measure of social justice and

is specially enacted to protect women and children and
as noted by this court in Captain Ramesh Chander
Kaushal V. Veena Kaushal reported in (1978)4 SCC 70
falls within constitutional sweep of Article 15(3)
reinforced by Article 39 of the Constitution of India. It
is meant to achieve a social purpose. The object is to
prevent vagrancy and destitution. It provides a speedy
remedy for the supply of food, clothing and shelter to
the deserted wife, It gives effect to fundamental rights
and natural duties of a man to maintain his wife,
children and parents when they are unable to
maintain themselves. The aforesaid position was
highlighted in Savitaben Somabhai Bhatiya V. State of
Gujrat reported in (2005)3 SCC 636. This being the
position in law, it is the obligation of the husband to
maintain his wife. He cannot be permitted to plead
that he is unable to maintain the wife due to financial
constraints as long as he is capable of earning.
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17. x x x
18. x x x

19. In the instant case, as is seen, the High court has

reduced the amount of maintenance from Rs.4,000/- to
Rs.2,000/-. As is manifest, the High Court has become
oblivious of the fact that she has to stay on her own.
Needless to say, the order of the learned Family Judge is
not manifestly perverse. There is nothing perceptible
which would show that order is a sanctuary of errors. In
fact, when the order is based on proper appreciation of
evidence on record, no revisional court should have
interfered with the reason on the base that it would have
arrived at a different or another conclusion. When
substantial justice has been done, there was no reason to
interfere. There may be a shelter over her head in the
parental house, but other real expenses can not be
ignored. Solely because the husband had retired, there
was no justification to reduce the maintenance by 50%. It
is not a huge fortune that was showered on the wife that
it deserved reduction. It only reflects the non-application
of mind and, therefore, we are unable to sustain the said
order.”

14. Therefore, the contention of the learned counsel

for the petitioner/husband that the divorced wife is not

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entitled to maintenance is without any substance and is

rejected. So far as the contention of the learned counsel

that the wife is having landed properties, admittedly,

the husband has not produced any material documents

before the Court to prove that aspect of the matter.

Merely if some properties are in the name of the parents

of the wife, that cannot be a ground to reject the petition

for maintenance.

15. The Family Court, considering the materials on

record, specifically held that Exs.R.2 to R.4/ RTC

extracts stand in the name of the mother of the wife and

therefore, it cannot be held that the wife is having

income of her own. It is not in dispute that it is the

duty of the husband to maintain his wife.

16. It is also not in dispute that the husband is

working as head master in a school earning `18,000/-

to `20,000/- per month and the maintenance of

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`1,500/- awarded by the Family court to the wife is

insufficient for food, shelter and clothing.

17. In view of the above, the point raised for

consideration in this revision petition has to be

answered in the affirmative holding that the Family

Court is justified in granting maintenance to the wife.

18. For the aforesaid reasons, the impugned order

passed by the Family court does not call for interference

in exercise of revisional jurisdiction under Section 19(4)

of the Family Court Act. The RPFC is dismissed at the

stage of admission, with cost of `5,000/-.

In view of the dismissal of the petition,

I.A.No.2/2013 is dismissed as unnecessary.

Sd/-
JUDGE

kcm