LANDMARK JUDGMENT ON GROUNDS ON WHICH HUSBAND CAN CLAIM MAINTENANCE FROM WIFE WITH COURT ORDER

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.
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 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 Trib (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 pendent 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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