Sunday, 21 May 2017

When husband can claim maintenance from 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.     But it does not mean that the husband who

       is otherwise capable of earning his living should stop earning


       the living and start depending on the earning of the wife. In


       that    case   the husband    has incapacitated   himself   by


       stopping the running the auto rickshaw on hire. It is well


       established maxim of Anglo Saxion jurisprudence that no


       person can be allowed to incapacitate himself. That maxim is


       applicable to the case of earning husband. A person who


       voluntarily incapacitates himself from earning is not entitled


       to claim maintenance from the other spouse".


   
              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

OP.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 pendente

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

pendente     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

news paper 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. The petitioner herein

had produced Ext.B1, the salary certificate issued from the

college where she was working wherein her gross salary was

shown as Rs.19,600/- and take home salary was shown as

Rs.18,620/-. It is true that the respondent had produced Exts.A5

to A20 to prove that he was treated for hipertension and he had

resigned his employment. 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.   It is also seen from the documents produced

before this Court that at the instance of the respondent herein, a

case was registered against the petitioner and her father under

the provisions of SC/ST Act 1989. He had admitted that he was

going for ganamela and musical programmes, but now he is not

going. He had not examined any person to prove this fact. He

had not examined the Doctor       to prove that on account of his

illness, he is permanently     disabled from doing any work and

getting any income.

      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. The

same principle     has to be extended in a case where he is seeking

maintenance from the 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.     But it does not mean that the husband who

       is otherwise capable of earning his living should stop earning

       the living and start depending on the earning of the wife. In

       that    case   the husband    has incapacitated   himself   by

       stopping the running the auto rickshaw on hire. It is well

       established maxim of Anglo Saxion jurisprudence that no

       person can be allowed to incapacitate himself. That maxim is

       applicable to the case of earning husband. A person who

       voluntarily incapacitates himself from earning is not entitled

       to claim maintenance from the other spouse".

      17. Relying on the decision, the Madhya Pradesh High Court

has held that assuming that the respondent has resigned his job

in the High Court, not making any attempt to earn money though

capable of getting private job cannot claim maintenance from

the wife who was in Government service. So it is clear from the

dictum mentioned above that it is not a normal practice of husband

applying for maintenance from the wife who is employed though

he is capable of maintaining himself by doing some work.

      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. It is

also brought out in evidence that he was capable of raising funds

to pay huge fees by engaging senior counsel which is clear from

the pleadings in his petition itself. If he is capable for raising

funds   for that purpose, it is hardly believable that he is   not

capable of    raising funds for maintaining himself. He had not

examined any person to prove that he was not getting opportunity

to conduct any music concept which he was doing earlier. He had

not adduced any evidence to show that in spite of his        effort

made, he could not get any employment as well. 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. It was intended to    support only such

spouse who is really incapable of maintaining himself/herself to



get something for their sustenance and to conduct the litigation

which they were forced to face from the other party         to the

proeedings who is capable of supporting the other spouse and

nothing more. 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.


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