IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL 2018
BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN
WRIT PETITION NO. 13363 OF 2018 (GM-FC)
SRI R RAVINDRA
AGED ABOUT 41 YEARS,
S/O SRI RAMANJANA REDDY,
R/AT NO.1777, IST FLOOR,
18TH A MAIN ROAD, 4TH CROSS,
J P NAGAR, II PHASE,
BENGALURU-560078. … PETITIONER
(BY SRI. RAGHU PRASAD B. S., ADV)
1. SMT N ANITHA
W/O R RAVINDRA,
AGED ABOUT 30 YEARS,
2. MASTER KASCHITH REDDY
S/O R RAVINDRA, AGED ABOUT 6 YEARS,
SINCE MINOR REP BY HIS MOTHER AND NATURAL
BOTH ARE R/AT NO.36, 1ST CROSS,
LALBAHADURNAGAR, BEHIND KASTURI NAGAR,
BANASWADI, BENGALURU-560043. … RESPONDENTS
(BY SRI. CHANDRASHEKARA REDDY M. V., ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTED 12.2.2018 PASSED BY THE 3RD ADDL.PRINCIPAL JUDGE, FAMILY COURT, BANGALORE PASSED IN CR. MIS. 61/2016 IN IA. IV VIDE ANNEX-F; DIRECT THE RESPONDENTS TO PAY COSTS OF THE PETITION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
Mr. R. Ravindra, the petitioner, is aggrieved by the order, dated 12.02.2018, passed by the III Addl. Principal Judge, Family Court, Bengaluru, whereby the learned Family Court has allowed an application filed by Mrs. N. Anitha, an application also filed on behalf of the minor child, Master Kaschith Reddy, under Section 125 of Cr.P.C., and has directed the petitioner to pay a sum of Rs.6,000/- per month to the respondent No.1, and Rs.4,000/- per month to the respondent No.2, and also to bear 75% of the educational expenses of respondent No.2.
2. Briefly the facts of the case are that on 24.04.2011, the petitioner and the respondent No.1 were married in accordance with the Hindu rites and customs. On 17.07.2012, they were blessed with a son, Master Kaschith Reddy. According to the petitioner, on 06.11.2014, without any rhyme or reason, the respondent No.1 left the matrimonial home, and took the child with her. Subsequently, unable to maintain herself, and her child, the respondent No.1 filed an application under Section 125 of Cr.P.C. After hearing both the parties, by the impugned order, the learned Family Court has granted the maintenance, as aforementioned. Hence this petition before this Court.
3. The learned counsel for the petitioner, Mr. Raghu Prasad B. S., has vehemently raised the following contentions: firstly, the respondent No.1 happens to be a M.Com. graduate who was working, both prior to and subsequent to the marriage. Thus, she is capable of earning a living by herself.
Secondly, Section 125 of Cr.P.C. clearly stipulates that if any person has sufficient means, but neglects or refuses to maintain “his wife, unable to maintain herself”, then the wife is entitled to receive a maintenance from her husband. According to the learned counsel, the words “unable to maintain herself” should be interpreted to mean “incapable of earning, or destitute, or physically so disabled as to be unable to earn a living.” According to the learned counsel, since the respondent No.1 happens to be a M.Com. graduate, since she has already worked, both prior and subsequent to her marriage, she is certainly “capable of maintaining” herself. Therefore, she is disentitled from claiming any maintenance from the petitioner. In order to buttress this plea, the learned counsel has relied on the case of DR. E. SHANTHI v. DR. H. K. VASUDEV (ILR 2005 KAR 4981).
Lastly, if both the parents are employed, the responsibility of having to maintain, and to look after the child, should equally be borne by both the parents. Therefore, the petitioner cannot be saddled with the responsibility of having to pay a maintenance of Rs.4,000/- per month to the child, and to pay his educational expenses. In order to buttress this plea, the learned counsel has relied on the case of PADMJA SHARMA -v- RATAN LAL SHARMA (AIR 2000 SC 1398). Therefore, the impugned order deserves to be set aside by this Court.
4. On the other hand, Mr. M. V. Chandrashekara Reddy, the learned counsel for the respondents, submits that incapacity, or inability to maintain herself, can be caused by various factors. Merely because a person may be educated, does not necessarily imply that the person has “the capacity to be employed.”
Secondly, according to the petitioner himself, the respondent No.1 had undertaken M.Com. degree through distance education with the Karnataka State Open University (‘KSOU’ for short), in the year 2011. Till today, she has not been able to complete her M.Com. degree. Therefore, even at best, she is merely a B.Com. degree holder. Therefore, the contention raised by the learned counsel that the respondent No.1 happens to be an M.Com. graduate, is factually incorrect.
Thirdly, the case of Dr. E. Shanthi (supra) is distinguishable on the factual matrix of the case itself. Therefore, the said case does not buttress the petitioner’s case.
Lastly, in the present case both the parents are not employed. As stated by the respondent No.1, she continues to be unemployed. Therefore, she was justified in seeking maintenance for the child. Moreover, the learned Family Court has not imposed the total responsibility of paying the educational expenses upon the petitioner, as he has been directed to pay merely 75% of the educational expenses. Thus, according to the learned counsel, naturally 25% of the educational expenses have to be borne by the respondent No.1. Therefore, the case of Padmja Sharma (supra), does not apply to the present case. Thus the learned counsel has supported the impugned order.
5. Heard the learned counsel for the parties, and perused the impugned order.
6. The learned counsel for the petitioner has strenuously emphasized the fact that the respondent No.1 happens to be an M.Com. graduate. However, the petitioner has not led any evidence to establish this plea. The receipt issued by the KSOU is dated 18.10.2011. However, there is nothing to establish that the respondent No.1 did complete her M.Com. degree. Moreover, the learned counsel has emphasized the fact that the respondent No.1 was employed prior to her marriage, and subsequent thereto. The fact that she was employed prior to her marriage, would be an irrelevant fact. For, what the Court is required to consider is, whether the respondent No.1 was employed at the time when she has filed the application under Section 125 of Cr.P.C. or not? Although the petitioner has produced sufficient evidence to show that subsequent to her marriage the respondent No.1 was working with Verma & Verma, Chartered Accountants, Banaswadi, Bengaluru, but the learned Family Court has noticed the fact that the respondent No.1 was working merely as a trainee, and not as an employee. Between the period 26.09.2016 to 30.09.2016, she was paid a stipend of Rs.12,000/-, and between the period 01.10.2017 to 14.11.2017, she was paid a stipend of Rs.13,000/-. However, after 15.11.2017, she is not employed either with Verma & Verma, or with any other employer. Thus, on the date of filing of the application by her under Section 125 of Cr.P.C., she was an unemployed young lady.
7. The learned counsel has sought the interpretation of the words “unable to maintain herself”, as contained in Section 125 of Cr.P.C. Suffice it to say that merely because a person is educated, does not guarantee a job, considering the large number of unemployed educated youth in this country. Moreover, there is no presumption in law that merely because a person is educated, therefore, the person is employed. Even education does not lead to the inference that a person would be capable of earning. Moreover, there may be other factors which will make a person incapable of earning, such as, a young mother saddled with the responsibility of having to look after a young child. To expect a young mother to rush from home to an office, is to needlessly burden her, especially considering the fact that a separated woman, as a single parent, her social position has become rather ambivalent in the society. It cannot be expected, and it should not be expected, that a young woman saddled with the responsibility of having to look after a young child, would be able to have a full-time job. Therefore, the circumstance that she happens to be a single parent itself may incapacitate her from having a full-time job. Thus, she will be unable to maintain herself. While interpreting the words “unable to maintain herself”, the Court has to be aware of the harsh reality of this country and especially to the social position of the women within our society. It is an utopian ideal to expect that every single educated woman would be capable of entering the job market, would be able to earn sufficient amount of income for herself, and her child. Therefore, the words “unable to maintain herself”, cannot be interpreted to mean that the person has to be “a destitute, or physically so disabled as to be able to earn a living, or incapable of earning.” The capacity of a person to earn would depend on the facts and circumstances of each case.
8. In the present case, admittedly, the respondent No.1 is educated to a certain extent, at worst, a B.Com. degree holder, and at best, an M.Com. degree holder. Undoubtedly, she is saddled with the responsibility of having to look after her young son. Admittedly, she is not living with her parents. Thus, to expect her to work, and to do the household chores, is to expect too much. It is her circumstance which has forced her to be unable to maintain herself, and her child. Therefore, she squarely falls within the category of a wife, “unable to maintain” herself. Hence, the interpretation given by the learned counsel for the petitioner is clearly unacceptable.
9. The case of Dr. E. Shanthi (supra) is clearly distinguishable from the present case. For, in the said case, the wife was not only a doctor, but she was living with a brother, who was equally a medical doctor, and who was running a medical clinic. Considering these peculiar facts of the case, this Court was of the opinion that “the wife would have the capacity to earn, if she were to work in the medical clinic run by her brother.” However, the relevant facts of the present case are quite different, as the respondent No.1 does not have a brother in whose office she can work. Thus, the opinion expressed by this Court in the case of Dr. E. Shanthi (supra), cannot be applied to the present case. Needless to say, a citation is not to be read as a provision of a statute, but has to be read in the peculiar facts and circumstances of the case. If the facts are different, the opinion of the Court cannot be imposed, or imported into the present case.
10. Even the case of Padmja Sharma (supra) does not rush to the rescue of the petitioner. For, admittedly in the said case both the parents were well employed. Therefore, the Hon’ble Supreme Court was of the opinion that both the parents are obliged to pay maintenance for the child. Thus, it is not the sole duty of the father to look after the child. In the present case, as mentioned above, the respondent No.1 is unemployed. Hence, the said case is distinguishable on factual matrix.
11. Moreover, considering the fact that the respondent No.1 may have some capacity to earn, the learned Family Court has not imposed the complete, and sole responsibility of having to pay the educational expenses of the child, on the petitioner’s shoulders. In its wisdom, the learned Family Court has directed the petitioner to pay merely 75% of the educational expenses, thereby indicating that 25% of the educational expenses have to be borne by the respondent No.1.
12. Lastly, considering the fact that the respondent No.1 is unemployed, considering the fact that it is the moral, and the legal duty of the petitioner to look after the child, the petitioner possibly cannot be aggrieved by the fact that he has been directed to pay merely Rs.4,000/- per month for the maintenance of the child.
13. For the reasons stated above, this Court does not find any merit in the present writ petition. It is, hereby, dismissed. No order as to cost.