Under
what circumstances courts will grant maintenance to a husband.
Whether granting maintenance to husband will promote idleness to the
husband.
IN
THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE A.M.SHAFFIQUE
&
MR.JUSTICE K.RAMAKRISHNAN
14TH DAY OF FEBRUARY 2017
OP (FC).No. 26 of 2015
NIVYA V.M,
Vs
SHIVAPRASAD N.K,
The respondent in
IA.No.329/2014 in OP.No.200/2014 has filed this petition challenging
Ext.P5 order passed by the Court below under Article 227 of the
Constitution of India.
2. The marriage between the
petitioner and the respondent was solemnized on 31.1.2011 and it was
registered before the Marriage Registrar, Enmakaje. After some time,
the relationship between them strained. The petitioner herein earlier
filed O.P.No.234/2011 before the Family Court, Kasaragod for a
declaration that the marriage between the petitioner and the
respondent was null and void and the respondent herein filed
O.P.No.172/2011 for restitution of conjugal rights and both these
cases were disposed of by Ext.R8 common judgment dated 18.3.2014
dismissing OP.No.234/2011 and allowing OP.No.172/2011. Thereafter the
petitioner herein filed OP.No.200/2014 for dissolution of marriage
under Section 13(ia) of the Hindu Marriage Act (hereinafter referred
to as 'the Act' for short) on the ground of cruelty on the part of
the respondent. The respondent herein entered appearance and filed
counter denying the allegations and praying for dismissal of the
application. He has also filed IA.No.329/2014 under Section 24 of the
Act and Section 151 of the Code of Civil Procedure (hereinafter
referred to as 'the Code' for short) seeking pendent lite maintenance
and litigation expenses from the petitioner herein. It is alleged in
that petition that at the time of marriage, the respondent was
working in a financial institution under the name and style
Thulunad Chits, Kasaragod and on account of a false news published in
Malayala Manorama daily dated 4.6.2011 alleging that the respondent
herein had abducted the petitioner and took her to different places
and committed rape on her, he was asked to resign from the post and
accordingly he was compelled to resign. The respondent herein filed
OP.No.234/2011 for annulment of the marriage and the same was
dismissed on 18.3.2014. He had incurred heavy expenses for
conducting the litigation in OP.No.234/2011. She has now filed the
present petition stating the same reasons mentioned in
OP.No.234/2011.
The petitioner also filed
CMP.No.4320/2011 against the respondent before the Judicial First
Class Magistrate Court, Kasaragod alleging commission of the offences
under Sections 341, 365, 366, 376, and 506 of the Indian Penal Code,
which was forwarded to the Kasaragod police for investigation who
registered Crime No.509/2011 of Kasaragod police Station. The
Kasaragod police also registered Crime No.1086/2011 against the
petitioner herein for the offence punishable under Section 500 of the
Indian Penal Code under Section 3(2)(ii) of the Scheduled
Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989
(hereinafter referred to as 'the SC/ST' Act for short). In that the
petitioner herein moved B.A.No.9598/2012 before this Court for
anticipatory bail and this Court had observed that this is a fight
between the wife and the husband who claimed to have been in love and
got married. The thing as it appears that the wife does not want to
continue her relationship with the husband for the reasons only known
to her, resorting to such methods are highly objectionable and which
would spoil his career. The respondent had to incur huge expenses by
way of paying legal fees to the extent of Rs. One lakh to the
senior counsel and Rs.25,000/- to the junior counsel. The minimum
expenses for conducting the cases will come to Rs.3 lakhs. The
respondent is without any employment now. He is suffering from
several illness. The petitioner herein is working as Assistant
Professor in Biology drawing a monthly income of Rs.50,000/-per
month. She requires only one third for her expenses. She is capable
of providing Rs.15,000/- per month to her husband who has no
independent source of income sufficient to support his necessary
expenses. So he prayed for a direction to the petitioner herein to
pay Rs.15,000/- per month as pendent lite maintenance and Rs.3
lakhs for litigation expenses.
3. The petitioner herein, who
is the respondent in the application, filed counter contending as
follows:
She admitted the solemnization
of marriage and also the litigations pending between the parties. She
denied the allegation that the respondent lost his employment as a
result of the newspaper reports and also that he incurred heavy
expenses for conducting OP.No.234/2011 and also defending the
present case. She had also denied the allegation that she was
drawing a monthly income of Rs.50,000/- per month and a further
allegation that the respondent herein had spent lavishly for
promotion of their love affair and also for physical enjoyment and he
is not having source of income and he is sick requires expenses for
medical treatment etc. According to her, taking advantage of her soft
nature, he trapped her and virtually spoiled her life. He had
tortured her and she had escaped from him. He had also filed several
false cases against her and her family members. His intention was
to compel her to go after him. If he is not having any income, he
could have engaged a legal aid counsel by applying to the Legal
Services Authority. The harassment made by the respondent herein
caused premature death of her father. He is without any human
feelings. The application itself was filed with an ulterior motive.
She is having lot of liabilities. Since she is the only earning
member, the entire family burden is on her shoulders. The salary
shown is also not correct. The respondent, who is the petitioner in
the Court below in the application, is not entitled to get any
relief. So she prayed for dismissal of the application.
4. The respondent herein, who is the petitioner in the petition, was
examined as PW1 and Exts.A1 to A27 were marked on his side. No
evidence was adduced from the side of the petitioner herein except
marking Ext.B1. After considering the submissions of both the
parties, the Court below by Ext.P5 impugned order directed the
petitioner to pay Rs.6,000/- per month as pendente lite maintenance
and rejected the prayer for litigation expenses. Aggrieved by the
same, the present petition has been filed.
5. The
respondent filed a detailed counter denying the allegations and also
supporting the impugned order passed by the Court below and produced
Exts.R1 to R10 documents. The petitioner herein also filed
IA.No.2432/2015 to accept additional documents Exts.P13 and P14 and
that application was allowed. The documents were received subject to
its admissibility and reliability can be considered in this petition.
6. Heard Sri.P.S. Sreedharan
Pillai, learned counsel appearing for the petitioner and Smt. R.
Padmakumari, learned counsel appearing for the respondent.
7. The learned counsel
appearing for the petitioner submitted that the Court below was not
justified in allowing the application. The petitioner had to resign
her job and she is at present without any employment or income.
Further the respondent is a well qualified person and a musician
conducting music programmes and getting income. There is nothing on
record to show that he is permanently disabled from doing any work as
well. The Court below has not considered the scope and
circumstances for providing maintenance to the husband by the wife
in such proceedings in the right perspective. So according to the
learned counsel, the order passed by the Court below is not legal.
8. On the other hand, the
learned counsel appearing for the respondent submitted that on
account of the defamatory publication made by the petitioner, the
respondent had to lose his employment. He is suffering from
hypertension on account of the stress caused by facing the
unnecessary litigations initiated by the petitioner that prevented
him from doing any work as well. So according to the learned
counsel, the Court below was perfectly justified in allowing the
application.
9. It is an admitted fact that
the petitioner and the respondent were in love for some time and
they belonged to different community. It is also an admitted fact
that there was a marriage ceremony conducted and they lived as
husband and wife. But due to some difference of opinion between them,
their relationship strained which resulted in initiation of
several litigations between them.
10. It is also an admitted
fact that earlier the petitioner filed OP.No.234/2011 for annulment
of marriage solemnized between the petitioner and the respondent and
OP.No.172/2011 was filed by the respondent for restitution of
conjugal rights before the same Family Court and after evidence the
petition filed by the petitioner for anulment of the marriage was
dismissed and the petition filed by the respondent for restitution of
conjugal rights was allowed. It is thereafter that the petitioner
herein filed the present petition OP.No.200/2014 for dissolution of
marriage on the ground of cruelty. The respondent herein filed
IA.No.329/2014 under Section 24 of the Act read with Section 151 of
the Code for pendente lite maintenance and litigation expenses on the
ground that he is without any employment and the petitioner is
employed getting good income and she liable to pay the same.
11. Section 24 of the Act
reads as follows:
24. Maintenance pendente lite
and expenses of proceedings:-
Where in any proceeding 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].
12. It is clear from
Section 24 that a petition can be filed by either wife or husband who
is without any employment and no source of income to support pendente
lite maintenance and litigation expenses from the other spouse, who
is capable of providing the same. So a petition filed by the husband
for this purpose is perfectly maintainable by virtue of the wordings
of Section 24 of the Act.
13. In this case, the case of
the respondent herein was that on account of the false publication
made in Malayala Manorama daily, he had to resign his employment as
Director of a Chits Fund and he is suffering from hipertension and he
could not do any work. It is true that he himself was examined as PW1
and Exts.A1 to A27 were marked on his side. While cross examination
of the respondent herein, he stated that he is having weakness and he
had produced a medical certificate for that purpose but the Doctor
who issued certificate has not been examined. He had also submitted
that he had not approached the Legal Services Authority seeking legal
aid.
14. In the case of wife
filing an application for maintenance from the husband, unless he is
able to establish that he is permanently disabled from getting any
income, he cannot be exonerated from the payment of maintenance to
his wife. A husband seeking maintenance from the wife can be treated
only as exceptional case as normally he has got the liability or
obligation to maintain the wife and vice versa is only exceptional.
15. The question under what
circumstances the husband is entitled to get maintenance under
Section 24 of the Act has been considered by the Bombay High Court in
the decision reported in Smt. Kanchan, w/o. Kamelendra Sawarkar v.
Kamalendra @ Kamalakar s/o. Rajaram Sawarkar (AIR 1992 Bombay 493)
and it has been held that:
"Since the wife is
in employment, the husband cannot make himself wholly depend on her
income through a devise under Section 24 of the Act. In the absence
of any handicap or impediment to earn, to grant maintenance to such
able bodied person equipped with skill would promote idleness, which
is opposed to spirit of Section 34 of the Act".
16. The same question has been
considered by the Madhya Pradesh High Court in the decision reported
in Yashpal Singh Thakur v. Smt. Anjana Rajpu (AIR 2001 MP 67) relying
on the decision reported in Govind Singh v. Smt. Vidya (AIR 1999
Rajasthan 304) where it has been observed that:
"It is true that Section
24 of the Hindu Marriage Act, 1955 entitles either party to move an
application for maintenance provided such party has no means of
subsistence and the other party is in a position to provide
maintenance. A person who voluntarily incapacitates himself from
earning is not entitled to claim maintenance from the other spouse".
18. In this case, the case of
the respondent was that he was compelled to resign from his job on
account of the alleged defamatory publication made by the petitioner
herein. It was admitted by him in his evidence that he is a
musician and attending musical programmes both karnatic and cinematic
and attending ganamelas and getting additional income apart from the
employee of a private chits fund at the time of marriage. These
aspects were not considered by the Court below before coming to the
conclusion that the respondent is entitled to get maintenance from
the petitioner herein under section 24 of the Act. If such an
attitude has been taken by the Courts, then idleness of husbands will
be promoted and they will be tempted not to do any work and depend on
the wife for their livelihood, and such thing is not expected to be
promoted in the society and that was not the intention of Section 24
of the Act providing maintenance to either party to the proceedings.
So under such circumstances, the order passed by the Court below
directing the petitioner herein to pay pendente lite maintenance of
Rs.6,000/- is unsustainable in law and the same is liable to be set
aside. In the result, this petition is allowed and Ext.P5 order
passed by the Court below in IA.No.329/2014 in OP.No.200/2014 of the
Family Court, Kasaragod is hereby set aside and the petition filed by
the respondent for interim maintenance and litigation expenses is
hereby dismissed. Registry is directed to communicate a copy of
this judgment to the Court below at the earliest.
