High Court rejected husband's writ petition challenging maintenance award. Court held Article 227 supervisory jurisdiction precludes interference. Petitioner's unemployment did not exempt him from maintenance duty given his earning potential and failure to pay previously.
Petition dismissed; petitioner liable to pay Rs.25,000 costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.52183 OF 2017 (GM-FC)
BETWEEN:
S R AROKIARAJ, S/O SAGAYARAJ J S, AGED ABOUT 34 YEARS, R/AT NO.17/1, PEACE COTTAGE, OPP MOTHERMARY/S SCHOOL, O.M.B.R. LAYOUT, BANASWADI, BANGALORE – 560 036. … PETITIONER (BY SRI. MITHY NARASIMHA MURTHY, ADVOCATE)
AND:
MRS. ANTHONY RITA, W/O S R AROKIARAJ, AGED ABOUT 32 YEARS, R/AT NO.244, 2ND FLOOR, 4TH CROSS, KANAKADASA LAYOUT, LINGARAJAPURAM OIL MILL ROAD, BANGALORE – 560 084. … RESPONDENT (BY SRI. CYRIL PRASAD PAIS, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 03.08.2017 PASSED ON I.A.NO.III FILED BY THE RESPONDENT UNDER SEC.36 OF THE INDIAN DIVORCE ACT, 1955, PASSED BY THE II ADDL. PRINCIPAL FAMILY JUDGE, AT BANGALORE IN M.C.NO.4980/2013, AS PER ANNX-A AND CONSEQUENTLY DISMISS THE I.A.NO.III.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
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ORDER
This petition by the husband seeks to lay a challenge to the Order dated 02.08.2017 made by the learned II Additional Principal Family Judge, at Bangalore, on respondent-wife’s application in IA No.3 under Section 36 of the Indian Divorce Act, 1869; by the said order, learned judge of the Court below has awarded a monthly maintenance of Rs.5,000/- to the first respondent – wife and Rs.2,500/- to the two minor children, each.
parties and having perused the petition papers, this Court
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declines to grant indulgence in the matter for the following reasons:
a) Though the writ petition purports to have been filed under Articles 226 & 227 of the Constitution of India, the same is in substance instituted under Article 227 only and therefore, the same being a restrictive supervisory jurisdiction, the scope of indulgence of this Court is limited vide SADHANA LODH Vs. NATIONAL
INSURANCE CO. LTD., (2003) 3 SCC 524; consequently, the vehement submission of learned counsel for the petitioner that there are some errors apparent on the face of record would not much come to his aid, when the impugned order has brought about a fair & just result in the given fact matrix.
b) Petitioner and the respondent are a Christian couple, their marriage ceremony having been performed on 19.11.2009 in the Church namely Shrine Basillica, is not in dispute; two minor children then respectively aged 7 & 4 years are admittedly begotten from their wedlock; petitioner is educationally well qualified; earlier, he was working as a Lecturer and later, he came to be promoted as Principal of St. Joseph’s Evening College, Bengaluru; all this he has admitted in paragraphs 2 & 3 of his divorce
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petition in M.C.No.4980/2013; that being the position, he is bound to maintain the spouse & children, going by law, reason & religion.
c) The vehement argument of counsel for the
petitioner that the respondent also being qualified has been gainfully employed, is bit difficult to agree with when no material worth mentioning is placed on record; may be that the respondent was working earlier and that after the children are begotten, she had to stay home for bringing them up single-handedly; the submission that the petitioner is ready & willing to pay maintenance to the children is only a self-serving statement to gain sympathy from the Court inasmuch as, all these years admittedly he has not paid one single rupee for their education or sustenance.
d) The repeated & vociferous submission of the petitioner’s counsel that petitioner’s case relating to removal from job is likely to be over within a short while and that should he emerge victorious in the said case he would make payment of maintenance to the children is unconscionable to say the least; the duty of a person to maintain his spouse & children cannot be much linked to
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his actual earning when he has apparently the earning potential otherwise; the counsel is answerless when he is asked as to how the children should hold their body & soul together till his client’s case is decided.
e) The Court below after adverting to evidentiary material on record, including the admission of the petitioner contained in his own divorce petition has recorded a finding as to his higher education & earning potential; a person who is richly qualified in terms of education cannot be heard to say that he has been out of the job and therefore, he cannot pay anything for the maintenance of the spouse & children.
f) Lastly, there is yet another reason for declining interference in the matter: learned counsel for the petitioner submits that if the respondent entrusts the custody of children to his client, there would be no difficulty for paying maintenance for the children although he will not pay one single rupee to the spouse; he also submits that his parents are at home and they would take care off the children; if the petitioner had no means of paying the maintenance, such a submission would not have been advanced at all.
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In the above circumstances, the petition being
devoid of merits, is liable to be dismissed and accordingly
it is.
Petitioner is liable to pay a cost of Rs.25,000/- to the respondent – wife within one month failing which, he shall pay a sum of Rs.250/- for the delay of each day.
Sd/JUDGE
Bsv
2 issues framed by the court
Whether High Court should interfere with family court order granting maintenance under Section 36 of the Indian Divorce Act.
Whether petitioner's unemployment excuses his liability to pay maintenance to spouse and minor children.
Colour shows how this judgement treated each authority
Sadhana Lodh vs National Insurance Co. Ltd.Followed¶20
SADHANA LODH Vs. NATIONAL INSURANCE CO. LTD., (2003) 3 SCC 524 · Who else cites this
3 provisions across 3 enactments
S R AROKIARAJ
MRS. ANTHONY RITA
KRISHNA S.DIXIT
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
