Partly allowed

Sri Inguva Phani Kiran v. Smt. Shailaja

Karnataka HC23 Nov 2022WP/3417/2020

Case brief

AI extract

What is this about?

The High Court dismissed a petition challenging an interim maintenance order of Rs. 20,000 under the Hindu Marriage Act, upholding it against evidence of the wife's employment. In a separate domestic violence proceeding, the same order was set aside and remanded due to violation of natural justice as the husband was not heard.

What did the court decide?

W.P. No. 15154/2019 dismissed; W.P. No. 3417/2020 allowed, order under PDV Act set aside and remanded. Arrear payments to be adjusted.

Sri Inguva Phani Kiran Vs Smt. Shailaja — Domestic Violence | Karnataka HC (2022)

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WP No. 3417 of 2020 C/W WP No. 15154 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 3417 OF 2020 (GM-RES)

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C/W

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WRIT PETITION NO. 15154 OF 2019 (GM – FC)

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IN W.P.NO.3417/2020

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BETWEEN:

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SRI. INGUVA PHANI KIRAN, S/O SRI. KRISHNAMURTHY INGUVA, AGED ABOUT 41 YEARS, R/AT NO.403, ARUN APARTMENTS, OPP. TO KPHB, KUKKATAPALLI, HYDERABAD – 500 072.

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…PETITIONER

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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(BY SMT.MONICA PATIL., ADVOCATE)

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AND:

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SMT. SHAILAJA, W/O SRI. PHANI KIRAN INGUVA, AGED ABOUT 42 YEARS, R/AT LAKSHMI NARASIMHA STREET, 7^TH LANE, NEAR HARADA KHADI, BERHAMPUR DISTRICT, GANJAM, ORISSA – 760 005.

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ALSO CURRENTLY R/AT SRI SAI SOUJANYA LADIES PAYING GUEST, MARUTHI NAGAR, MADIWALA, BANGALORE - 560 068.

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…RESPONDENT

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(BY SRI.PRITHVIRAJ B.N., ADVOCATE)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED DECEMBER 10, 2019 PASSED BY THE HON-BLE LIX ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY (CCH-60) IN CRIMINAL APPEAL NO.2040/2019 ANNEXURE – A AND ETC.,

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IN W.P.NO.15154/2019

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BETWEEN:

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SRI. INGUVA PHANI KIRAN, S/O SRI. KRISHNAMURTHY INGUVA, AGED ABOUT 41 YEARS, R/AT NO.28, FLAT NO.403, ARUN APARTMENTS, OPP. TO K.P.H.B., BHAGYANAGAR COLONY, KUKKATAPALLI, THIRUMALAGIRI, HYDERABAD – 600 072, ANDHRA PRADESH.

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…PETITIONER

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(BY SMT.MONICA PATIL., ADVOCATE)

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AND:

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SMT. PULLA BHATLA VENKATA SANTASAILAJA, W/O INGUA PHANI KIRAN,

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D/O PULLA BHATLA VENKATA KRISHNAIAH, AGED ABOUT 38 YEARS, R/AT LAKSHMI NARASINGH STREET, 7^TH LANE, NEAR HARADA KHANDI, BERHAMPUR POST, BADA BAZAAR, GANJAM – 750 006., ALSO CURRENTLY R/AT SRI SAI SOUJANYA LADIES PAYING GUEST, MARUTHI NAGAR, MADIWALA, BANGALORE - 560 068.

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…RESPONDENT

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(BY SRI.PRITHVIRAJ B.N., ADVOCATE)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 2/1/2019 PASSED BY THE LEARNED II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BANGALORE IN M.C.NO.1347/2014 AND FURTHER BE PLEASED TO DISMISS THE INTERIM APPLICATION FILED BY THE RESPONDENT HEREIN BEFORE THE FAMILY COURT UNDER SECTION 24 OF THE HINDU MARRIAGE ACT SEEKING INTERIM MAINTENANCE AND LITIGATION EXPENSES.

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THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY,

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THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner in these cases are husband and wife. Since the parties to the lis are the same and the issue arising out of certain proceedings instituted under the Hindu Marriage Act, 1955 and Protection of Women from Domestic Violence Act, 2005 between the same parties. Therefore, these petitions are taken up together and are considered by this common order.

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Heard Smt. Monica Patil, learned counsel appearing

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for the petitioner and Sri. Prithvi Raj B.N., learned counsel appearing for the respondent.

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Brief facts that leads the petitioner to this Court in these petitions, as borne out from the pleadings are as follows:

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The petitioner and the respondent get married on 15.12.2013. It transpires that owing to physical and mental torture, the respondent-wife moves away from the matrimonial house. The petitioner-husband files a matrimonial case in M.C.No.1347/2014 seeking annulment of marriage before the concerned Court.

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During the pendency of these proceedings in M.C.No.1347/2014, another proceeding is instituted by the wife

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in Crl.Misc.No.150/2014 invoking Section 12 of the Protection of Women from Domestic Violence Act before the concerned Court after the husband had filed a case for divorce in M.C.No.1347/2014. On 02.01.2019, the Family Court considering the application filed by the wife under Section 24 of the Hindu Marriage Act in M.C.No.1347/2014 grants interim maintenance of Rs.20,000/- per month and one time litigation expenses at Rs.25,000/-. This is called in question by the husband in W.P.No.15154/2019.

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The proceeding filed by the wife in

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Crl.Misc.No.150/2014 was called in question before this Court in W.P.No.29229/2015 seeking quashment of the entire proceedings. This Court by its order dated 12.08.2015 granted an interim order of stay of the proceedings. Finally, by an order dated 12.03.2019, the petitioner-husband was permitted to withdraw the petition with liberty to seek discharge before the concerned Court. After the withdrawal of the writ petition on 12.03.2019, the concerned Court hearing the petition under the Protection of Women from Domestic Violence Act passes an order granting maintenance under Section 23(2) of the

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Protection of Women from Domestic Violence Act. This forms the challenge in W.P.No.3417/2020. Therefore, both the petitions are preferred by the husband; one challenging the order of granting maintenance of Rs.20,000/- under Section 24 of the Hindu Marriage Act in W.P.No.15154/2019 and the other grant of maintenance under the Protection of Women from Domestic Violence Act at Rs.20,000/- in W.P.No.3417/2020.

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Learned counsel appearing for the petitioner would contend with vehemence that the Court without there being any material to demonstrate that the petitioner was earning several lakhs to grant maintenance of Rs.20,000/- per month, grants the same and ignores the fact that the respondent was also working and earning and therefore, no maintenance ought to have been granted under Section 24 of the Hindu Marriage Act.

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Insofar as the grant of maintenance under the Protection of Women from Domestic Violence Act is concerned, learned counsel appearing for the petitioner would submit that after the withdrawal of the petition, the case under the Protection of Women from Domestic Violence Act was restored

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and without hearing the petitioner - husband, the order of Rs.20,000/- is passed and the petitioner prefers an appeal before the learned Sessions Judge, which is also pending consideration. Since the learned Sessions Judge did not consider the interim order as was sought for the petitioner has knocked the doors of this Court in the subject petition.

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On the other hand, the learned counsel appearing for the respondent - wife would vehemently refute the submissions to contend that it is admitted and on record that the husband earns Rs.18,90,000/- per annum being an employee in Tata Consultancy Services and further to that also earns about 43,077 pounds per annum as and when he is deputed to United Kingdom on official duties and would submit that the petitioner has till now paid Rs.14,52,000/- and is still in arrears of maintenance to be paid in terms of the order passed by the concerned Court and under the Hindu Marriage Act.

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He would submit insofar as the Protection of Women from Domestic Violence Act is concerned, the petitioner ought to have been diligent in watching the proceedings before

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the concerned Court for the folly of him being absent, this Court should not construe the order is wrong and would seek dismissal of both these petitions.

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I have given my anxious consideration to the respective submissions made by the learned counsel and have perused the material on record.

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The afore-narrated facts of the marriage between the parties or consummation is not the issue in the lis . Before the concerned Court in M.C.No.1347/2014, the wife files an application under Section 24 of the Hindu Marriage Act seeking interim maintenance from the hands of the husband. The Court answers the said application by granting maintenance at Rs.20,000/-. The reasons recorded and the order of the concerned Court reads as follows:

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"8. The marriage is not in dispute. The petitioner has specifically contended that the respondent is well educated, working with Dexler Information Solutions Pvt. Ltd., and having sufficient income to maintain herself. He has filed his verifying affidavit in support of his claim coupled with one document i.e., Xerox copy of Dexler company profile. The respondent/wife has stated that the petitioner is having sufficient income to pay interim maintenance to her as he is working as SAP PP Consultant in TATA Consultancy Services, India. At the time of marriage he represented that he is

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drawing a salary of Rs.2 lakhs per month. He has a own flat in KPHB, Kukatpally, Hyderabad. Father of the petitioner is CEO in Lotus Educational Systems, Hyderabad, Mother is a retired Accounts Officer and getting handsome amount as a pension. There are no dependents on petitioner except this respondent. The petitioner denied the averments made in the application. The respondent has not produced any documents to show that the petitioner is earning Rs.2,00,000/p.m. The petitioner has produced Dexler company profile, but he has not produced any documents to the effect that the respondent is gainfully employed such as her ID card, salary particulars etc., The respondent contended that she left the company to join the petitioner in US on dependent visa. It is the moral and legal duty of the husband to maintain his wife. However, there is no documentary evidence at this stage in respect of the income pertaining to the petitioner as well as respondent. Looking to the facts and circumstances of this case and status of the parties to the petition, I am of the opinion that, it is just and proper to award Rs.20,000/- towards litigation expenses to meet the ends of justice. Accordingly, I answer Point No.1 "Partly in the affirmative".

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9. Point No.2: In view of my findings on point No.1, I proceed to pass the following:

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ORDER

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IA No.10 filed by the respondent U/s 24 of the Hindu Marriage Act, is hereby allowed in part.

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The petitioner is hereby directed to pay a sum of Rs.20,000/- p.m. (Rupees twenty thousand only) to the respondent towards her interim maintenance from the date of this application till pending disposal of the petition.

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Three months time is given to the petitioner to pay arrears of interim maintenance and he shall pay future interim maintenance on or before 10th of every succeeding month.

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Further, the petitioner is hereby directed to pay a sum of Rs.25,000/- (Rupees twenty five thousand only) to the respondent as one time litigation expenses.

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No order as to costs."

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(emphasis supplied)

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The Court notices the fact that the husband was an employee of the TATA Consultancy Services and is earning more than Rs.2.00 lakhs a month, grants maintenance at Rs.20,000/-. The submission of the learned counsel appearing for the petitioner-husband that the wife could not have been granted any maintenance at all, in the light of the fact that she was also earning and working at that point in time is unacceptable. It becomes apposite to refer to the judgment rendered by the Apex Court in the case of ANJU GARG AND ANOTHER V. DEEPAK KUMAR GARG¹ , wherein at paragraphs

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10 to 14 has held as follows:

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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

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1 2022 SCC OnLine SC 1314

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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 able-bodied, and could not avoid his obligation, except on the legally permissible grounds mentioned in the statute. In Chaturbhuj v. Sita Bai2, 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.

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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

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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 appellant-wife.

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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.

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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.

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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.

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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."

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In the light of the afore-extracted judgment of the Apex Court supra, it has clearly held that even if the husband is unemployed, it is his duty to take care of the wife except in circumstances where he is not able-bodied.

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The fact remains that the husband earns about Rs.18,90,000/- per annum along with certain pounds whenever he is on deputation to the United Kingdom. Therefore, the amount awarded at Rs.20,000/- can neither be construed to be exorbitant or without any verification of the documents, I do not find any merit to interfere with the order passed by the concerned Court answering an application under Section 24 of the Hindu Marriage Act and the petition which challenges the said order in W.P.No.15154/2019 stands dismissed.

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W.P.No.3417/2020 arises out of a proceeding instituted

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by the wife invoking Section 12 of the Protection of Women from Domestic Violence Act. An interim order of stay was granted by this Court, which was in operation for close to 4 years. The petitioner-husband withdrew the said writ petition seeking liberty to seek a discharge before the concerned Court. In the said proceeding, an application is filed by the wife under Section 23(2) of the Protection of Women from Domestic Violence Act. Answering the said application, the concerned Court passes the following order:

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"ORDER ON APPLICATION U/SEC.23(2) OF THE P.W.D.V.ACT.

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The petitioner has filed application U/Sec.23(2) of the Domestic Violence Act, with a prayer to direct the respondent No.1 to pay sum of Rs.50,000/- per month as Interim Maintenance to the petitioner.

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2. The application is supported with an separate Affidavit sworn to by the petitioner wherein she has states that respondent No.1 is not taking care of herself and her children and he has not paying any maintenance to her. Further petitioner states that she has been severe acts of domestic violence by way of physical, emotional, verbal, financial abuse. Hence, petitioner prayed to allow the application.

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3. After issuance of notice to the respondent has not appeared before the Court. Petitioner addressed argument on this application.

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4. Perused the material on record. It is primafacie found from the record that the respondent No.1 has

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neglected to maintain the petitioner. The respondent being husband of the petitioner it is the moral and social obligation of the respondent No.1 to maintain his wife. The petitioner has produced salary details of the respondent No.1. This Court has come to the conclusion that it is just and proper to award interim Maintenance of Rs.20,000/- per month to the petitioner from the date of presentation of this petition till pending disposal of the petition. Hence, I proceed to pass the following:

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ORDER

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The application filed by the petitioner U/Sec.23(2) of the Protection of Women from Domestic Violence Act, 2005 is hereby allowed in part.

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The 1st Respondent is directed to pay Rs.20,000/(Rupees Twenty Thousand Only) per month to the petitioner towards maintenance from the date of presentation of this petition till pending disposal of the petition.

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For petitioner's Evidence. Call on 01.08.2019."

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The husband was not heard in the matter. The

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grant of maintenance at Rs.20,000/- without hearing the husband would be contrary to law and in blatant violation of principles of natural justice.

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The submission of the learned counsel appearing for

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the wife that the petitioner ought to have been diligent in watching the proceedings and appearing before the Court is unacceptable, as it is the Court that had to hear the parties to the lis and then pass appropriate orders in accordance with law.

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In the light of the fact that the order is passed in

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violation of principles of natural justice, the pendency of the appeal or otherwise would not detain this Court to consider the petition on its merit. Therefore, the order passed by the Court under Section 23(2) of the Protection of Women from Domestic Violence Act is set aside and the matter is remitted back to the hands of the concerned Court to hear the parties on the application filed under Section 23(2) of the Protection of Women from Domestic Violence Act and pass appropriate orders in accordance with law.

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The issue now remains with regard to maintenance that is to be paid, its arrears or otherwise.

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Both the learned counsel for the petitioner and the respondent have, in unison, filed a memo for calculation, though it is signed by the petitioner, the amounts paid are accepted by the respondent-wife and the memo reads as follows:

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"MEMO FOR CALCULATION

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The total amount paid by the Petitioner as on today is Rs.13,72,000/- (Rupees Thirteen Lakhs Seventy-Two Thousand Only).

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1. An amount of Rs.5,92,000/- (Rupees Five Lakhs Ninety-Two Thousand Only) was paid on February 18, 2020.

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2. An amount of Rs.20,000/(Rupees Twenty Thousand Only) was paid as monthly rentals from February 13, 2020 amounting to Rs.6,80,000/- (Rupees Six Lakhs Eighty Thousand Only).

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3. An amount of Rs.1,00,000/- (Rupees One Lakhs Only) was paid by the Petitioner to the Respondent before the Trial Court."

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In terms of the Memo, an amount of Rs.5,92,000/- is paid on 18.02.2020 and again Rs.6,80,000/- on 13.02.2020 and an amount of Rs.1,00,000/- before the trial Court. A total amount of Rs.30,72,000/- is already paid by the husband. The learned counsel for the petitioner would submit that these amounts are paid in the proceedings instituted under the Protection of Women from Domestic Violence Act. In view of the peculiar circumstances, since the wife is already paid the above maintenance, be it under the Protection of Women from Domestic Violence Act or under the proceedings before the concerned Court in M.C.No.1347/2014, the amount paid under the Protection of Women from Domestic Violence Act shall be set off against the amount to be paid under the proceedings in M.C.No.1347/2014, as there cannot be dual payment, in the

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