Nazir Ahmed vs Fameeda

K.N. Phaneendra, J.—Heard learned counsel for the petitioner and the respondent and perused the records. It is an undisputed fact that the marriage between the petitioner and me respondent was held on 21/08/2005. They were blessed with a child, they lived happily for seven years. Due to some differences between the husband and wife, it appears, the wife started living separately along with her parents alleging that her husband and his mother have abused and ill-treated her. Therefore, she claims that about three months prior to filing of the petition for maintenance before the trial Court in Criminal Miscellaneous 25/2013, she was ousted from her matrimonial home.

The parties have contested the proceedings before the trial Court. The trial Court has held that the respondent-husband neglected and refused to maintain the petitioner-wife as well as the child and further there was no arrangement made for maintenance of the wife. Thereafter, after considering the evidence led by the parties and also the material available on record, the trial Court has awarded a sum of Rs. 5,000/- as maintenance to the respondent-wife and Rs. 3,000/- to the child. The said order is called in question before this Court.

Learned counsel for the petitioner-husband strenuously contends two important aspects. Firstly, that the child has been in the care and custody of the husband i.e. the petitioner herein and therefore the trial Court was not right in awarding maintenance so far as the child is concerned. Secondly, that awarding of maintenance of Rs. 5,000/- in favour of the respondent-wife is exorbitant under the facts and circumstances of the case as the petitioner is an ordinary tailor and is earning Rs. 100/- to 150/- per day. Therefore, the said amount requires to be reduced.

The records also disclose that after the disposal of the case by the trial Court, the wife has also sued out the execution in Crl. Misc. No. 100/2015 on the file of the Family Court, Bellary, and the order sheet produced before this Court shows that the respondent husband in the said case has been making payment towards maintenance. According to the learned counsel for the respondent, still an amount of Rs. 29,000/- is due as on date but the learned counsel for the petitioner submits that he is due to a sum of Rs. 12,000/- only.

Be that as it may, if any amount is due, as the execution is already pending, the wife is at liberty to recover me said amount by taking appropriate steps.

So far as the first point is concerned, the learned counsel for the respondent-wife herein submits before the Court with all responsibility and fairness that since her daughter is in the custody of the husband, the order passed by the trial Court granting maintenance of Rs. 3,000/- in favour of me child may be modified and an amount of Rs. 5,000/- awarded in favour of the wife, may be confirmed. He further contends that the petitioner husband is affluent and having income of Rs. 20,000/- to Rs. 25,000/- per month as he has entered into several agreement of sales and that he is also running a garment shop, the amount awarded by the trial Court towards maintenance cannot be said to be exorbitant.

On looking to the orders of the trial Court, so far as this particular aspect is concerned, the trial Court has relied on Ex. P-4, the visiting card which shows that the respondent is running a garment shop. The trial Court considering the fact that the respondent-husband has admitted his phone number on the said visiting card and also the fact that he is doing tailoring work, has awarded Rs. 5,000/- to the wife as maintenance. Even admitting for a moment the arguments of the learned counsel for the petitioner that he is a tailor stitching jeans pants, he has not produced any material to show what exactly is his earnings before the trial Court by means of cogent and convincing evidence. In a vague manner, he has stated that he is earning Rs. 100/- to Rs. 150/- per day. In my opinion, when it is categorically admitted that he is a tailor, it is his duty to furnish sufficient materials to show what exactly is his income so as to award the maintenance reasonably in favour of the wife. Further added to that, irrespective of the income of the husband, the Court should also see what is the reasonable amount i.e., required for a person to meets the two ends of the month. Admittedly, no arrangements have been made for maintenance right from the date of the wife living separately from the petitioner-husband. Rs. 5,000/- awarded is not only for the purpose of mere maintenance but also towards clothing, shelter, medication etc. Therefore, in my opinion, the said amount at any stretch of imagination cannot be said as an exorbitant amount. Further, the petitioner -husband has not produced any material to show his exact income. He is at liberty, in future, to make necessary application if advised for reduction of the said amount on the basis of any changed circumstances. At this stage for the present, I'' am of the opinion that the Trial Court has not committed any error in awarding maintenance of Rs. 5,000/- to the respondent-wife is concerned. Hence, the petition deserves to be allowed partially. With these observations, the following order is passed:

"1. The petition is partly allowed.

The order of the trial Court dated 25th August 2014, passed in Crl. Misc. No. 25/2013 awarding maintenance of Rs. 3,000/- in favour of the daughter of the respondent is hereby set aside. The order so far as it relates to awarding maintenance of Rs. 5,000/- to the wife is concerned, the same is hereby confirmed."

In view of disposal of the case on merits, I.A. 2/14 for stay does not survive for consideration and me same is dismissed.