Mahesh vs Savita and Others

B. Veerappa, J.—1. Sri. M.G. Naganure, learned Counsel, is directed to take notice for the respondent in W.P. No. 105443/2015.

It is an unfortunate case where the husband and the wife are fighting for maintenance depriving the child of the love and affection towards father and mother and also depriving the education of the young daughter Kumari Prerana, aged about 9 years.

W.P. No. 104240/2015 is filed by the husband questioning the ex-parte order dated 12.02.2015, granting maintenance of Rs. 22,500/- to the wife and daughter, whereas W.P. No. 105443/2015 is filed by the wife and the minor daughter against the ex-parte maintenance granted by the Family Court for enhancement of maintenance amount.

The wife and daughter filed Criminal Misc. No. 42/2015 under Section 125 Cr.P.C., against the husband, before the Family Court, Dharwad, seeking maintenance of Rs. 40,000/- and Rs. 20,000/- respectively. It is stated by the petitioners before the Family Court, that the marriage of the 1st petitioner and the respondent was solemnised on 29.04.2002 at Yatri Nivas, Mudhol and out of their wedlock, the 2nd petitioner Kumari Prerana was born. It is further case of the wife - 1st petitioner before the Family Court, that the respondent-husband was transferred to Solapur in Maharashtra State. When she joined him in Solapur, he started ill-treating her. On 21.11.2014, she went to the office of the petitioner at NTPC, Fatatewadi and asked as to why he is not coming to the house since several days, whereupon, she was given life threat and was beaten black and blue by her husband and she was forced to lodge a complaint in Walsang Police station on 22.11.2014 for the offences punishable under Sections 498A, 323, 504, 506 R/w. Section 34 of the IPC, against the respondent-husband and four others. She also contended that the respondent-husband is getting a salary of Rs. 1,50,000/- p.m., but neglected to maintain her. Hence she prayed for maintenance for herself and for her minor daughter.

The petitioners also filed an application under Section 125(1) of Cr.P.C. seeking an interim maintenance of Rs. 35,000/- p.m. and Rs. 15,000/- p.m. to the petitioners 1 and 2 respectively. The Family Court, without giving notice to the husband-respondent therein and without any material on record, only on the basis of the pleadings and documents on behalf of the wife, has proceeded to pass ex-parte order granting interim maintenance of Rs. 15,000/- to the wife and Rs. 7,500/- to the daughter, in total Rs. 22,500/- p.m., and litigation expenses of Rs. 5,000/-. Against the said ex-parte order, the husband has filed writ petition No. 104240/2015 and the wife has filed writ petition No. 105443/2015 for enhancement of interim maintenance from Rs. 22,500/- p.m. to Rs. 50,000/- p.m.

I have heard the learned Counsel for the parties to the lis.

Sri. M.G. Naganuri, learned Counsel for the petitioner-husband, vehemently contended that the impugned order granting the interim maintenance of Rs. 22,500/-, passed by the Family Court without giving notice and without giving any opportunity of hearing to the petitioner-husband, and the same is one sided, perverse and liable to be quashed. He also contended that he has to spend about Rs. 37,000/- to his daughter - 2nd respondent for education and produced the material documents at Annexures-A1 to A8 along with objections to the Interim Application for vacating stay filed by the 1st respondent-wife. Therefore, he sought to set aside the impugned order passed by the Family Court.

Per contra, Sri. J.S. Shetty, learned Counsel appearing for the 1st respondent - wife and for the petitioners in the second case, has contended that the interim maintenance of Rs. 22,500/- p.m. granted by the Family Court is very meager. The petitioner - husband is getting a gross salary of Rs. 1,51,565/- and net salary of about Rs. 97,782/-. Therefore, he sought for enhancement of interim maintenance to Rs. 50,000/- p.m. for maintenance of both the wife and minor daughter.

I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties, and perused the entire material on record.

The marriage between petitioner - husband and the 1st respondent-wife and the relationship between them is not in dispute. The 2nd respondent - Kumari Prerana was born out of their wedlock is also not in dispute. It is also not in dispute that the respondents-wife and daughter filed Criminal Misc. No. 42/2015 seeking maintenance and Family Court proceeded to pass the impugned order ex-parte granting interim maintenance of Rs. 22,500/- p.m. to the wife and daughter. The impugned order clearly depicts that the notice and the opportunity of hearing was not given to the husband to put forth his case. In the absence of any material document, the trial Court proceeded to pass the ex-parte order only on the basis of the pleadings and documents produced by the wife and without giving an opportunity to the petitioner - husband to file objections/to produce documents.

In such circumstances, it is always open for the husband to file an application for modification or recalling of the order, by filing the statement of objections and producing material documents to resist the claim of his wife.

The wife and daughter filed writ petition No. 105443/2015 contending that the husband is getting a salary of Rs. 1,51,565/- and sought for enhancement of maintenance to Rs. 50,000/- p.m. The ex-parte order is passed by the Family Court at the instance of the wife granting Rs. 22,500/- p.m. as interim measure. If the wife is not satisfied with the order passed by the Family court, it is always open for the wife to pursue the application pending between the parties for further enhancement.

After appearance of both the parties, it is for the Family Court to consider both the pleadings and documents produced before it and pass orders in accordance with law. In view of the same, the petitioner - husband and the 1st respondent-wife have not made out any grounds to interfere with the impugned ex-parte order passed by the Family Court.

Accordingly, both the writ petitions are dismissed.

Any observations made by the Family Court while granting interim maintenance, shall not, in any way, influence the Family Court while deciding the application or the main matter on merits. The Family Court shall pass orders independently with reference to the pleadings and documents produced by both the parties and in accordance with law.