Sunday 29 January 2023

Whether husband is entitled to get maintenance from wife if he has lost job due to Covid 19 pandemic?

 It is not in dispute that the petitioner is an able

bodied man and does not suffer from any disability or infirmity.

That being the case, if maintenance is awarded to the husband

as is claimed from the hands of the wife, merely because

Section 24 of the Act is gender neutral for grant of

maintenance, it would be promoting idleness notwithstanding

the fact that the husband has no impediment or handicap to

earn. Merely because he has lost his job on the onset of Covid-

19, it cannot be held that he is incapable of earning.

Therefore, it can be irrefutably concluded that the husband by

his own conduct has decided to lead a leisurely life by seeking

maintenance from the hands of the wife. In the considered

view of this Court, such an application cannot be granted, as

the husband cannot afford to incapacitate himself and sustain

an application under Section 24 of the Act to claim maintenance

from the hands of the husband. This would be an anathema to

the spirit of Section 24 of the Act. Therefore, the husband

cannot seek any maintenance unless he would demonstrate

such disability either physical or mental which incapacitates him

from earning money by finding a job for himself. It is in fact

the duty of an able bodied husband to maintain himself, the

wife and the child, if any. {Para 12}

13. The aforesaid view of mine, in this regard, is fortified

by the judgment rendered by the Apex Court in the case of

ANJU GARG AND ANOTHER v. DEEPAK KUMAR GARG –

2022 SCC OnLine SC 1314, wherein it is held as follows:

 The Family Court had disregarded the basic canon of

law that it is the sacrosanct duty of the husband to

provide financial support to the wife and to the

minor children. The husband is required to earn

money even by physical labour, if he is an ablebodied,

and could not avoid his obligation, except

on the legally permissible grounds mentioned in

the statute. 

The Apex Court holds that, if the husband is an able

bodied man, he cannot project the plea that, he has no means

to pay. It is necessary for any husband to earn by legitimate

means and maintain the wife and, the children, if any.


14. Therefore, I do not find any warrant of interference

with the order passed by the concerned Court directing

maintenance to be paid by the husband to the wife and

rejection of the claim of the petitioner/husband that he is in

need of maintenance from the hands of the wife. The

petitioner/husband must remember that ‘it is better to wear

out; than rust out’.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

WRIT PETITION NO. 24226 OF 2022 (GM-FC)

SRI. N. GIRISH S/O SRI. NARAYANASWAMY Vs SMT. M. KUSUMA.

BEFORE

THE HON'BLE MR JUSTICE M.NAGAPRASANNA

DATED:  10TH DAY OF JANUARY, 2023

The petitioner / husband is before this Court calling in

question order dated 31-10-2022 rendered by the 4th Additional

Senior Civil Judge, Bangalore Rural allowing I.A.No.1 filed by

the respondent /wife under Section 24 of the Hindu Marriage

Act (‘the Act’ for short) seeking maintenance and litigation

expenses in M.C.No.78 of 2021.

2. Brief facts that leads the petitioner to this Court in

the subject petition, as borne out from the pleadings are as

follows:-

The petitioner and the respondent are husband and wife

who get married on 06-02-2017. On their relationship turning

sour, it appears that the respondent/wife leaves the

matrimonial house and begins to reside with her parents. Later

the husband institutes a petition under Section 13 (1)((i-a) and

(i-b) of the Act in M.C.No.78 of 2021 seeking a decree of

divorce against the wife. The wife in turn has instituted

proceedings under Section 9 of the Act seeking restitution of

conjugal rights. The issue in the case at hand is not with regard

to merit of claims of the petitioner or the respondent qua their

marriage.

3. Before the concerned Court the respondent/wife

files an application in I.A.No.I on 10-11-2021 in

M.C.No.78/2021, under Section 24 of the Act, seeking grant of

interim maintenance at Rs.25,000/- per month and litigation

expenses at Rs.1,00,000/- from the hands of the husband. The

petitioner/husband objects to the said application contending

that he has no means to survive, but does not stop at that, files

another application to counter the application filed by the wife,

contending that he is in need of interim maintenance from the

hands of the wife, to maintain himself and his parents in

I.A.No.2, seeking monthly maintenance of Rs.2,00,000/- and

litigation expenses at Rs.30,000/- from the wife, till the

disposal of the petition. The concerned Court in terms of its

common order dated 31-10-2022 allows the application in

I.A.No.1 filed by the wife and rejects the application in I.A.No.2

filed by the husband and grants maintenance of Rs.10,000/-

and litigation expenses at Rs.25,000/- to the wife. While so

rejecting the application filed by the petitioner, the Court

imposes costs upon the husband for filing the application

seeking maintenance from the hands of the wife. It is this

common order that drives the petitioner to this Court in the

subject petition.

4. Heard Sri. M.K. Shivaraju, learned counsel appearing

for the petitioner and Sri R.Madhu, learned counsel appearing

for the respondent.

5. The learned counsel appearing for the petitioner/

husband would contend with vehemence, that though he has

challenged the order granting interim maintenance to the wife,

the application filed by the husband ought to have been

considered, as he has no means to maintain himself, let alone

maintaining the wife. He would contend that the concerned

Court has grossly erred in allowing the application filed by the

wife and rejecting the application filed by the husband.


6. On other hand, the learned counsel representing the

respondent/wife would refute the submissions to contend that

the petitioner is working and earning close to Rs.50,000/- to

Rs.60,000/- a month and also seeks to place on record

photographs of the place and nature of work of the petitioner

qua the employment of the petitioner, to contend that the

Court has rightly rejected the application filed by the husband

and allowed the application filed by the wife.

7. I have given my anxious consideration to the

submissions made by the respective learned counsel and

perused the material on record.

8. The afore-narrated facts are not in dispute and

therefore require no reiteration. Though the challenge is to the

award of maintenance to the wife, by the husband, vehement

submissions are made with regard to the husband being unable

to maintain his wife and requiring maintenance himself from

the wife, I deem it appropriate to consider the same noticing

the provision under which maintenance is claimed under the

Act. Section 24 of the Hindu Marriage Act reads as follows:

“24. Maintenance pendente lite and expenses of

proceedings.—Where in any proceedings 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.”

(Emphasis supplied)

Section 24 directs that in any proceeding under the Act if

it appears to the Court that either the wife or the husband, as

the case would be, has no independent and sufficient income to

support themselves, the Court may on an application filed by

the wife or the husband order payment of expenses of the

proceedings and monthly maintenance as the court would deem

reasonable. On a plain reading of Section 24 it depicts that the

provision is gender neutral. Maintenance pending proceedings,

can be claimed either by the wife or the husband. But, whether

it can be granted to the husband is what is to be considered.

9. The husband institutes proceedings seeking

annulment of marriage and the respondent/wife files

application under Section 24 of the Act seeking interim

maintenance and litigation expenses from the husband. The

husband puts up vehement opposition and later when the

hearing on the application was under progress, comes up with a

novel idea, to file an application under Section 24 of the Act

himself claiming maintenance to counter the application of the

wife.

10. It is the claim of the husband and he has become

unemployed on the onset of Covid-19 and for the last two years

he is not able to find a job and, therefore, no maintenance

should be awarded to the wife, but in turn, should be awarded

to him, from the hands of the wife. This plea is made on the

ground that the parents of the wife are well off and that the

wife has instituted several proceedings against the husband

including registration of a crime, in Crime No.104 of 2022,

against him and his family members alleging offences

punishable under Sections 498A, 323, 504, 506 of IPC and

Section 3 and 4 of the DP Act and he has to meet those

litigation expenses. Therefore, it is he who is in need of

maintenance and not the wife is the contention.

11. The Court considers the respective affidavits filed,

also notices the affidavit filed by the wife which depicts that the

husband is working as a Senior Executive and earning a salary

of Rs.50,000/- per month and gets monthly rent out of the

properties rented out to the tune of Rs.75,000/- per month,

and rejects the application of the husband and allows the

application filed by the wife. The order of the concerned Court

reads as follows:

“16. Both sides have filed assets and liabilities, but

both sides have failed to produce documents to show

that either wife or husband earns so and so rupees

except bald statements and objections.

• Both sides mentioned about fathers’ properties,

which cannot be considered while deciding an

application filed under Section 24 of HM Act.

• The both husband and wife should have mentioned

how much amount is required for food, cloth,

medical expenses and for shelter and even for

unexpected future expenditures.

• Based on bald statements Court cannot accept the

statements of both sides.

17. To decide the interim applications the Court

has to keep in mind the status of parties, reasonable

wants of spouse, independent income and property of

the claimant which are the relevant factors which are to

be taken into consideration.

18. As per both sides statement, the husband and

wife are depending upon their respective parents for

their eke-out.

19. As per pleadings both are having able body

capable to earn independently.

20. It is true Section 24 of HM Act is a beneficial

legislation and gender neutral Act, it empowers either

husband or wife can seek monthly maintenance and also

litigation expenses.

21. The Court holds that husband’s application

amounts to action to re-action because the husband filed

an application number 2 on 18-08-2022 seeking monthly

maintenance of rupees 2,00,000/- and litigation

expenses of rupees 30,000 after lapse of nearly 9

months from when the wife filed an application on 10-

11-2021 seeking interim maintenance of Rs.1,00,000/-

and also litigation expenses of rupees 25,000/-.

22. The IA No.2 filed by husband it’s a kind of

counter blast to interim application number one in the

statement made by husband which says just because

after filing this petition wife slapped criminal cases so in

order to defend those cases he needs an advocate

therefore, he is in dire need of litigation expenses.

23. Regarding maintenance, he says after

pandemic no job was offered to him or he could not get

any job. If really these statements were true along with

the petition husband should have filed IA.No.II. This

petition was filed on 1-01-2021, it means on the date of

petition, though pandemic was in peak he was capable to

earn, there but after filing this became he became

jobless person. It shows an after though application is

being filed. Further, when the husband having able

body, it is presumed that he has the capacity to earn and

looked after his wife.

24. The learned counsel for respondent wife files

the following citations Criminal Appeal No.1693/2022

dated 28-09-2022 (Anju Garg and another v.

Deepak Kumar Garg) M.F.A. No.1797 of 20221

(MC) dated 1.07.2022 (Sri T.Sadanada Pai v/s Mr.

Sujatha S.Pai) The citations speak that when the

husband having able body, it is presumed that he has

the capacity to earn and looked after his wife. The

husband cannot say he does not have any job even by

doing as bonded labour he should maintain his wife.

25. Therefore, Court holds averments made in the

application by husband that he is incapable and jobless

person, hence wife has to maintain him is bizarre

statement and afterthought application has been filed by

misusing Section 24 H.M. Act by him. Hence he should

be hammered with iron rod therefore his application is

rejected with cost of rupees 10,000/-. The cost to be

paid to wife bye next date of hearing, otherwise his

petition will be dismissed for non-payment of above said

amount. Accordingly the point No.1 is answered in

the negative.

26. Point No.ii: In view of point No.i is answered

in the negative and even wife failed to produce any

documents to show the income of her husband to claim

interim maintenance of Rs.1,00,000/- and also litigation

expenses of rupees 25,000/-. But being a husband his


bounded and duty to look after his wife as long as he

alive and maintains hale and healthy body and as long as

wife id incapable to maintain herself.

27. As per cause title of the petition, the husband

is aged about to 28 years and wife is aged about 25

years by considering the present year, it means both are

young couple and even on perusing the petition and

counterclaim averments for small issue both failed to

come to right conclusion. Even before taking up this

matter, the matter was referred to mediation and even

in open court may times this court as well as learned

counsel for both parties made attempt to reunion

them. Though wife was eager to join husband, but

husband refused, therefore, the medication was

failed.

28. Moreover there is no disability factors

from husband’s side and even failed to produce

any materials to show that wife is capable to earn

herself. At this stage, court holds there are no

grounds to desert his wife when wife eager to join

him and just because without his permission she

attended his sister’s child’s birthday cannot be

ground for desert. It becomes child’s play.

29. As stated above it is the bounden duty of

husband to look after his estranged wife. It is not

his case that he assisted his wife financially.

Further due to non-producing of documents to

show the income of wife, at least, the minimum

supporting amount is to be paid by husband till he

gets the relief what he has sought. To claim

Rs.1,00,000 as monthly maintenance, the wife

failed to give details therefore if rupees 10,000 is

ordered for food, cloth, medicine and shelter to

wife, the justice will be done by considering the

present living cost and also by considering the

economic status of husband, because even by

considering minimum rupees 1000 per day.

30. Regarding litigation expenses what the wife

seeks proper and correct by considering the present

litigation expenses, she is entitled to rupees 25,000/-

because she has to defend and contest petition as well

as counterclaim. Any observation made in this order

shall not be taken granted especially wife. Accordingly

point number two is answered in party affirmative

and I proceed to pass the following:”

(Emphasis supplied)

The Court rejects the application filed by the husband

imposing costs of Rs.10,000/- and allows the application filed

by the wife by awarding interim maintenance at Rs.10,000/-

and litigation expenses at Rs.25,000/- from December, 2021 till

the disposal of the petition. The contention that the petitioner

has no job and has no means to maintain himself and,

therefore, is not in a position to maintain the wife and in turn

wants maintenance from the wife, is unacceptable as it is

fundamentally flawed.

12. It is not in dispute that the petitioner is an able

bodied man and does not suffer from any disability or infirmity.

That being the case, if maintenance is awarded to the husband

as is claimed from the hands of the wife, merely because

Section 24 of the Act is gender neutral for grant of

maintenance, it would be promoting idleness notwithstanding

the fact that the husband has no impediment or handicap to

earn. Merely because he has lost his job on the onset of Covid-

19, it cannot be held that he is incapable of earning.

Therefore, it can be irrefutably concluded that the husband by

his own conduct has decided to lead a leisurely life by seeking

maintenance from the hands of the wife. In the considered

view of this Court, such an application cannot be granted, as

the husband cannot afford to incapacitate himself and sustain

an application under Section 24 of the Act to claim maintenance

from the hands of the husband. This would be an anathema to

the spirit of Section 24 of the Act. Therefore, the husband

cannot seek any maintenance unless he would demonstrate

such disability either physical or mental which incapacitates him

from earning money by finding a job for himself. It is in fact

the duty of an able bodied husband to maintain himself, the

wife and the child, if any.

13. The aforesaid view of mine, in this regard, is fortified

by the judgment rendered by the Apex Court in the case of

ANJU GARG AND ANOTHER v. DEEPAK KUMAR GARG –

2022 SCC OnLine SC 1314, wherein it is held as follows:

“10. This Court had made the above

observations as the Court felt that the Family Court

in the said case had conducted the proceedings

without being alive to the objects and reasons, and

the spirit of the provisions under Section 125 of

the Code. Such an impression has also been

gathered by this Court in the case on hand. The

Family Court had disregarded the basic canon of

law that it is the sacrosanct duty of the husband to

provide financial support to the wife and to the

minor children. The husband is required to earn

money even by physical labour, if he is an ablebodied,

and could not avoid his obligation, except

on the legally permissible grounds mentioned in

the statute. In Chaturbhuj v. Sita Bai, it has been

held that the object of maintenance proceedings is

not to punish a person for his past neglect, but to

prevent vagrancy and destitution of a deserted

wife, by providing her food, clothing, and shelter

by a speedy remedy. As settled by this Court,

Section 125 Cr.P.C. is a measure of social justice

and is specially enacted to protect women and

children. It also falls within the Constitutional

sweep of Article 15(3), reinforced by Article 39 of

the Constitution of India.

11. The Family Court, in the instant case had not

only over-looked and disregarded the aforesaid settled

legal position, but had proceeded with the proceedings in

absolutely pervert manner. The very fact that the right

of the respondent to cross-examine the witnesses of the

appellant-original applicant was closed, as he had failed

to appear before the Family Court despite the issuance

of warrants, clearly established that he had no regards

for his own family nor had any regards for the Court or

for the law. The allegations made by the appellant-wife

in her evidence before the Court had remained

unchallenged and, therefore, there was no reason for the

Family Court to disbelieve her version, and to believe the


oral submissions made by the learned counsel appearing

for the respondent which had no basis. In absence of any

evidence on record adduced by the respondent disputing

the evidence adduced by the appellant, the Family Court

could not have passed the order believing the oral

submissions of the learned counsel for the respondent.

She had clearly stated as to how she was harassed and

subjected to cruelty by the respondent, which had

constrained her to leave the matrimonial home along

with her children, and as to how the respondent had

failed and neglected to maintain her and her children.

She had also proved by producing the documentary

evidence that her father had paid money to the

respondent from time to time to help the respondent for

his business. Even if the allegations of demand of dowry

by the respondent were not believed, there was enough

evidence to believe that money was being paid to the

respondent by the father of the appellant-wife, which

substantiated her allegation that the respondent was

demanding money from her father and was subjecting

her to harassment. The errant respondent had also gone

to the extent of questioning her chastity alleging that

Rachit was not his biological son. There was nothing on

record to substantiate his such baseless allegations. His

application for DNA test was also rejected by the Family

Court. Of course, the Family Court granted the

Maintenance petition so far as the appellant no. 2-son

was concerned, nonetheless had thoroughly mis-directed

itself by not granting the maintenance to the appellantwife.

12. Such an erroneous and perverse order of

Family Court was unfortunately confirmed by the

High Court by passing a very perfunctory

impugned order. The High Court, without assigning

any reasons, passed the impugned order in a very

casual manner. This Court would have remanded

the matter back to the High Court for considering it

afresh, however considering the fact that the

matter has been pending before this Court since

the last four years, and remanding it back would

further delay the proceedings, this Court deemed it

proper to pass this order.


13. Though it was sought to be submitted by the

learned counsel for the respondent, and by the

respondent himself that he has no source of income as

his party business has now been closed, the Court is

neither impressed by nor is ready to accept such

submissions. The respondent being an able-bodied,

he is obliged to earn by legitimate means and

maintain his wife and the minor child. Having

regard to the evidence of the appellant-wife before

the Family Court, and having regard to the other

evidence on record, the Court has no hesitation in

holding that though the respondent had sufficient

source of income and was able-bodied, had failed

and neglected to maintain the appellants.

Considering the totality of facts and circumstances,

we deem it proper to grant maintenance allowance

of Rs. 10,000/- per month to the appellant-wife,

over and above the maintenance allowance of Rs.

6,000/- granted by the Family Court to the

appellant no. 2-son.

14. It is accordingly directed that the

respondent shall pay maintenance amount of Rs.

10,000/- per month to the appellant-wife from the

date of filing of her Maintenance Petition before

the Family Court. The entire amount of arrears shall be

deposited by the respondent in the Family Court within

eight weeks from today, after adjusting the amount, if

any, already paid or deposited by him.”

(Emphasis supplied)

The Apex Court holds that, if the husband is an able

bodied man, he cannot project the plea that, he has no means

to pay. It is necessary for any husband to earn by legitimate

means and maintain the wife and, the children, if any.


14. Therefore, I do not find any warrant of interference

with the order passed by the concerned Court directing

maintenance to be paid by the husband to the wife and

rejection of the claim of the petitioner/husband that he is in

need of maintenance from the hands of the wife. The

petitioner/husband must remember that ‘it is better to wear

out; than rust out’.

15. In the result, the petition lacking in merit, stands

dismissed.

SD/-

JUDGE

JY

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