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IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
ON THE 13 T H DAY OF A PRIL 2018
BEFORE
THE HON’BLE MR. JUSTICE K .N . PHA NEENDRA
R.P.F .C.NO.100048/2016
BETWEEN :
MR.HENRY DARSHI
S/O DARSHI SANGEETRAO
AGED ABOUT 35 YEARS,
OCC: SERVICE DELIVERY LEADER,
WIPRO PBO S OLUT ION,
R/O PLOT NO.31, MIDC, PHASE- 2,
RAJIV GANDHI INFOTECH PART ,
HINJEWADI, PUNE.
…PETITIONER
(BY SRI CHETAN T LIMBIKAI, ADVOCATE)
AND:
SMT.HEPZIBA H HENRY DARSHI
@ HEPZIBAH YUMA RTHY
W/O MR.HENRY DA RSH,
AGED ABOUT 31 YEARS, OCC: HOUS EWIFE,
R/O MANTUR ROA D, HUBBA LLI .
…RESPONDENT
(BY SRI G.I .GACHCHINAMATH, ADV OCATE)
THIS RPFC IS FI LED UNDER SECTI ON 19( 4) OF
THE FAMILY COURTS ACT PRAYING TO SET ASIDE T HE
ORDER DATED 03.12.2015 PASSED IN
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CRL.MISC.NO.413/ 2012 BY THE PRINCIPAL J UDGE,
FAMILY COURT A T HUBBA LLI IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS RPF C COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE F OLLOWING:
ORDER
Heard the learned counsel for the petitioner
and the counsel for respondent and perused the
records.
2. The respondent is the wife and the
petitioner herein is the husband. There is no
dispute with regard relationship and that, their
marriage being taken place on 14.01.2006. It is
also not in dispute that, as on the date of filing of
the petition under Section 125 of Cr.P.C., by the
respondent, before the Principal Judge, Family
Court, Hubballi, they were not living together.
3. The wife filed a petition claiming
maintenance of Rs.25,000/- per month before the
Family Court, Hubballi making allegations that, the
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husband and wife led the martial life for a short
period of 4 to 5 months and thereafter due to
some family difference they separated and the
wife has been living separately. There are some
allegations and counter allegations made in the
petition and as well as in objection statement filed
by the husband.
4. Considering the pleadings of the parties,
the trial Court has framed the following points for
consideration.
“1. Whe the r the petitioner pro ves that
respondent has willfully neglecte d or
refuse d to maintain the petitio ner
though he is having sufficient income?
2. Whether the petitio ner is unable to
maintain he rself?
3. Whe ther the petitioner is entitled fo r
mainte nance as claimed in the petition?
4. What order?”
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5. The claimant wife has led the evidence
before the trial Court in support of her petition
and examined as PW.1 and got marked documents
as Exs.P.1 to P.3. The respondent also examined
himself as RW.1 and one more witness as RW.2
and got marked Exs.R.1 to R.37 and 36A. After
appreciation of oral and documentary evidence on
record, the trial Court has come to the conclusion
that the petitioner is entitled for maintenance of
Rs.15,000/- per month from the date of petition
by deducting the interim maintenance, if any,
already paid in that case. The said order is
challenged before this Court.
6. The learned counsel for the petitioner
(husband) strenuously contends before this Court
that, at the time of filing of the petition itself,
there was suppression of material facts as at that
time she was working and she was earning salary
not less than Rs.8,000/- per month. Though she
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resigned the job on 10.02.2015 from Nalanda
P.U.College, Hubballi as non teaching staff, but at
that point of time she was receiving salary and the
petition was filed in the year 2012. Therefore she
suppressed the said material and on that ground
she is not entitled for any maintenance.
7. Secondly, the learned counsel for the
petitioner submitted that, he has produced a
memo along with a document showing that she
recently joined as a Training Coordinator at
Fasken Training and Consultancy Services Limited,
Hubballi and she appears to have been drawing
handsome salary therefore on that ground also she
is not entitled for any maintenance.
8. Per contra, the learned counsel for the
respondent (wife) submitted before this Court
that, though there is some earnings earlier, but
due to the impact of ill-treatment by her husband,
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respondent went to depression and resigned the
job on 10.02.2015 due her ill health. Thereafter
she did not join any companies and it is submitted
that, the document produced before the Court is
created and the same cannot be relied upon by
this Court to establish that, she is presently
working in any of the companies.
9. Both the learned counsel have no
grievances with regard to the avocation of the
petitioner (husband) that he is an Engineer and he
is drawing salary of more than Rs.1,15,000/- per
month and his father was also a pensioner and he
got a separate house. Therefore, the affluency of
the petitioner is not under dispute. The petitioner
husband has also stated before the trial Court in
his statement that, though he has pleaded in the
petition that he has been ready and willing to lead
marital life with his wife, but ultimately he said
that, he never want to live with her in any manner
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as husband and wife. Therefore that also clears off
the doubt that, there is no chances of
reconciliation between the husband and wife, they
have taken a decision to live apart with each
other. This circumstances also fortified by the
submission made by the learned counsel that, the
husband has also filed a divorce petition and the
same was dismissed by the Family Court and the
husband has preferred an appeal against the said
order and the same is pending. It clearly goes to
show that, the differences between the husband
and wife and they don’t want to live together
particularly the husband wants divorce from the
wife. It is also evident from the judgment of the
trial Court that, the depression of wife had taken
place, because the husband has demanded for an
agreement to be executed by the wife to live with
him. It is quite astonishing to say here that the
sanctity of the marriage has to be tested with
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regard to the love and affection between the
husband and wife and it cannot be carried on the
basis of the agreement between the parties
otherwise there is no difference between an
employer and employee who can enter into an
agreement for the purpose of their conduct of the
business. The marriage institution cannot be a
business, it is purely based on trust and as well as
love and affection between the husband and wife.
When no tinge of love and affection is in existence
between the husband and wife, there is no reason
to say they can still live on the basis of any
agreement. Therefore the trial Court has rightly
come to the conclusion that the wife is residing
separately on valid grounds and thereby husband
had neglected her and not made any arrangements
for her maintenance.
10. Now come to the quantum of
maintenance which is the main ground urged
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before this Court. Of course, the petitioner has not
stated in his petition that, the respondent was
working earlier in an institution and drawing some
salary. This made the respondent to takeout
certain documents and he has produced various
documents which are marked at Exs.R.22 to R.37
the salary registers, copies of salary slips which
clearly disclose that she had drawn an amount of
Rs.8,325/- to Rs.9,522/- up to December, 2015. It
is also not in dispute or it is established that, she
left the job on 10.02.2015. Whatever the amount
she has drawn perhaps she already spent that for
the purpose of maintaining herself. The amount
which was drawn by her, considering the present
day circumstances, in my opinion when she was
working, it would not have been sufficient for her
to maintain herself. But presently the document
also shows that, no salary was drawn by her from
10.02.2015 as per Ex.R.7, that has been mainly
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relied upon by the trial Court, to come to the
conclusion that she is still entitled for
maintenance of Rs.15,000/- per month as already
ordered by the Trial Court.
11. The learned counsel for the petitioner
strenuously contends that even after she resigned
from said job she again joined some other
company and she has been drawing handsome
salary. But the document which is produced before
the Court, it appears to be downloaded from the
internet which shows that she is working as the
Training Coordinator at Fasken Training and
Consultancy Services Limited. But in my opinion
this document itself is not sufficient to draw any
inference as to what is the salary she is drawing,
whether she is in fact given with an appointment
order, whether she continued to serve the said
institution even as on today. Therefore, the said
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document is very hazy to be taken into
consideration at this stage.
12. However, the petitioner is at liberty to
move the trial Court itself under Section 127 for
consideration or modification of the maintenance
order, if at all he is able to prove that, the
respondent wife has joined the services thereafter
the passing of the order by the trial Court and she
is earning handsome salary. But for the present in
my opinion, whatever the order passed by the
Trial Court holds good, till it is modified or set
aside by the trial Court itself.
13. As I have already noted and also
considered and an inference has been drawn by
the trial Court that, the petitioner husband is
affluent and drawing salary more than
Rs.1,15,000/- per month he has got an
independent house and his father is a pensioner
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and no other responsibility so far as the petitioner
husband is concerned. Therefore, it would not be
any burden to him, to pay an amount of
Rs.15,000/- as ordered by the trial Court. Under
the facts and circumstances of the case, I don’t
find any strong reasons to interfere with the
orders passed by the trial Court. Hence, giving
such liberty as noted above, the petition deserves
to be dismissed. Accordingly the following order is
passed.
ORDER
1. Petition is dismissed.
2. However the petitioner is at liberty
to approach the competent Court for
either for cancellation or
modification of the order passed by
the trial Court on the basis of any
changed circumstances.
SD/-
JUDGE
E M/ –
