In the High Court of Karnataka Dharwad Bench
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: 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 19 TH DAY OF JANUARY, 2016 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA WRIT PETITION No.100265/2016 BETWEEN : NAGARAJ S/O BHARMAPPA MANGALGATTI AGE:46 YEARS OCC:FDC, EDN DEPT. R/O:H.NO:79 & 80, KHB COLONY SADANAKERI, 5TH CROSS, DHARWAD TQ:DIST:DHARWAD ... PETITIONER (BY SRI MALLIKARJUN B MADANALLI, ADV.) AND 1. SMT.DRAKSHYANI MANGALGATTI W/O NAGARAJ AGE:33 YEARS OCC:HOUSEWIFE R/O:C/O:MAHADEVAPPA ANTAL MEDAR ONI, OLD HUBBALLI TQ:HUBBALLI DIST:DHARWAD 2. KUM.SNEHAL MANGALAGATTI D/O NAGARAJ AGE:17 YEARS OCC:STUDENT R/O:C/O:MAHADEVAPPA ANTAL MEDAR ONI, OLD HUBLI TQ:HUBLI : 2 : DIST:DHARWAD 3. ROHIT MANGALAGATTI S/O NAGARAJ AGE:13 YEARS OCC:STUDENT R/O:C/O:MAHADEVAPPA ANTAL MEDAR ONI, OLD HUBLI TQ:HUBLI DIST:DHARWAD 4. KUM.TEJAL MANGALAGATTI D/O NAGARAJ AGE:10 YEARS OCC:STUDENT R/O:C/O:MAHADEVAPPA ANTAL MEDAR ONI, OLD HUBLI TQ:HUBLI DIST:DHARWAD (THE RESPONDENT NOS.2 TO 4 ARE MINORS REP BY HER NATURAL GUARDIAN MOTHER RESP.NO.1 SMT.DRAKSHAYANI MANGALAGATTI) ...RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED:10.08.2015, PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT AT HUBBALLI IN CRL.MISC.NO.119/2015 ON INTERIM APPLICATION VIDE ANNEXURE-D TO THE WRIT PETITION. THIS WRIT PETITION COMING ON FOR PRELIMINARY THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The heartless father and husband filed this writ petition against the order dated 10.08.2015 made in Crl.Misc.No.119/2015 : 3 : on the file of the Principal Judge, Family Court, Hubli, allowing I.A. filed under Section 125 (1) of the Code of Criminal Procedure, in part granting maintenance of Rs.6,000/- to the four petitioners i.e., Rs.1,500/- each to the wife and children from the date of application till the date of disposal of the petition. 2. For the sake of convenience the parties are referred to as per their ranking before the Family Court. 3. The petitioners are the wife and children of the respondent, who filed the petition under Section 125 of the Code of Criminal Procedure seeking maintenance of Rs.10,000/- contending that they are the wife and minor daughters and son of the respondent, who has neglected them and they are unable to maintain themselves and they are presently living with their mother, who has taken shelter in her father’s house. They also contended that the respondent is working as FDA and now promoted as Office Superintendent at the Office of the Commissioner of Education, Dharwad. The children are studying in II PUC and Higher Secondary School in 9 th and 5 th standard respectively and also : 4 : contended that the respondent being a Government servant is drawing a salary of more than Rs.35,000/- per month, but he has never bothered to look after his wife and minor children. Even though he has sufficient means, has neglected his wife and minor children, who are helpless and unable to maintain themselves etc. Therefore, they have filed the petition for maintenance. 4. The respondent filed objections before the Family Court, Hubli. He does not dispute the relationship with the petitioners as wife and children and also not denied the salary as well as the job that he is working as Office Superintendent. 5. The petitioners along with the petition have filed a interim application for grant of interim maintenance of Rs.10,000/- per month reiterating the averments made in the petition. 6. After hearing both the parties, the Family Court by an order dated 10.08.2015 has allowed the application in part granting Rs.6,000/- per month i.e., Rs.1,500/- to each petitioner from the date of application till the date of disposal of the petition. Hence : 5 : the present writ petition is filed by the husband of the 1st petitioner and father of the petitioner Nos.2 to 4. 7. I have heard the learned counsel for the petitioner. 8. Sri Mallikarjun B. Madanalli, learned counsel for the petitioner has contended that the petitioner-husband has to maintain his mother, four brothers and sisters. Therefore, the impugned order passed by the Family Court granting Rs.6,000/- per month is contrary to the material on record. He also contended that in fact he has paid Rs.45,000/- and Rs.35,000/- to his daughters, who are studying and the Family Court without considering the objections filed by the petitioner has proceeded to pass the impugned order, which is arbitrary and contrary to law. Therefore, he sought to set aside the impugned order. 9. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record. : 6 : 10. It is an admitted fact that respondent Nos.1 to 4 herein are the wife and children of the petitioner herein. It is not in dispute that he has deserted his wife and children without maintaining them. It is an undisputed fact that the petitioner who was working as FDC was promoted and is now working as Office Superintendent and earning more than Rs.35,000/- per month. The only contention raised by the learned counsel for the petitioner herein is that he has to maintain his mother, 3 sisters and 4 brothers. Admittedly all the brothers and sisters are majors and are married. Under the law he has no responsibility to maintain his major brothers and sisters, except the mother. The petitioner has not produced any material documents to show how much amount he is spending to the mother, brothers and sisters. He has also not produced any material documents to show that he has paid Rs.45,000/- and Rs.35,000/- for education purpose of his children. In the absence of any material documents, it is not possible for this Court to re-assess the entire impugned order : 7 : passed by the Family Court with reference to the pleadings on record. 11. While filing the application under Section 125 of the Code of Criminal Procedure, the respondents specifically stated that it is the duty of the petitioner who is the husband and father of respondent Nos 2 to 4 to maintain themselves and it is very difficult for their day to day livelihood. The petitioner herein is drawing a salary of more than Rs.35,000/- per month and there would not be any difficulty for him, if the interim application is allowed. The fact that the petitioner is working in Education Department and earning Rs.35,000/- per month is not disputed by the learned counsel for the petitioner. The interim maintenance granted by the Trial Court at the rate of Rs.1,500/- each to four respondents is very meager. 12. The Hon’ble Supreme Court while considering the provisions of Section 125 of the Code of Criminal Procedure in the decision of BHUWAN MOHAN SINGH Vs. MEENA AND OTHERS reported in (2015) 6 SCC 353 has held as under :- : 8 : “2. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short “the Code”) was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in a similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created : 9 : whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able-bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.” 13. In view of the admitted pleadings of the parties and the position of the petitioner as Office Superintendent and he is earning more than Rs.35,000/- per month, the interim maintenance granted by the Family Court is inadequate and the petitioner has not made out any good ground to interfere with the impugned order under Articles 226 and 227 of the Constitution of India. Accordingly, writ petition stands dismissed. Sd/- JUDGE NG*.