Sri. Shivakumar Shetgar vs Smt. Usha Shivakumar

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 25.06.2011 passed in Crl. Mis. No. 289/2009. By the said order, the Court below while disposing of IA. No. II seeking interim maintenance has ordered the petitioner to pay the interim maintenance of Rs. 1,500/- per month to the respondent-wife, pending consideration of the main petition. The petitioner who is the husband of respondent is assailing the said order. The learned counsel for the petitioner would contend that the Court below was not justified in granting the interim maintenance as has been done in the present case, inasmuch as the respondent herself is employed and is earning more than what the petitioner is earning. Furthermore, it is also contended that the respondent is misusing the provision of law and in fact has also initiated proceedings against the petitioner u/s 498(A) of the Indian Penal Code. It is his submission that, in the instant case when there are materials available on record to indicate that the respondent is employed and when the petitioner has put forth his contention has put forth his before Court below that he is unemployed and is unable to maintain himself, the question of grant of interim maintenance does not arise. Further, she herself is not residing with the petitioner and as such she cannot claim maintenance. The learned counsel would place reliance on the decision of this Court in the case of Smt. Haunsabai v. Balkrishna Krishna Badigar reported in 1981 Crl. L.J. 110 and in the case of Dr. E. Shanthi Vs. Dr. H.K. Vasudev, It is therefore contended that the order impugned is liable to be set aside.

The learned counsel for the respondent on the other hand would seek to sustain the order passed by the Court below. It is contented that except put for thing such contention, there is no valid documents available before the Court-below to indicate that the respondent is working. Even if that be so, these are matters which requires to be established and at this juncture, all that the Court below has done is to grant interim maintenance. It is contended that it is necessary for the husband to establish before the Court below that the wife is able to maintain herself or he has been maintaining her. The learned counsel would also place reliance on the; judgment of the Hon''ble Supreme Court in the case of Rajathi Vs. C. Ganesan,

In the light of the rival contentions, the fact that the petitioner is the husband of the respondent is not in dispute. The fact that their marriage was solemnized on 20.06.2005 at Dharmasthala is the common case of the parties. The only issue for consideration at this juncture is as to whether the Court below is justified in granting the interim maintenance as has been done presently. In that regard, at the outset, it is necessary to refer to the decisions which have been cited before this Court. In the case of Smt. Haunsabai v. Balkrishna Krishna Badigar, this Court was of the view that any grant of maintenance would be available only if the wife has pleaded that she is unable to maintain herself and thereafter establishes the same. In the case of Dr. E. Shanthi v. Dr. H.K. Vasudev, this Court has taken note of the fact that the petitioner therein was employed as a doctor and even though at that juncture she has contended that she was unemployed, the Court has taken note of the fact that she is a professional and she would be able to earn from the same when the husband was also a doctor. In the case of Rajathi v. C. Ganesan relied upon by the learned counsel for the petitioner, the Hon''ble Supreme Court has held that it is necessary for the husband to establish the fact that the wife is maintaining herself or the husband is maintaining to the extent of the means that was available for maintenance.

In the light of the above position being clear, first and foremost it is to be noticed that in the present facts, the respondent in fact has pleaded in her petition that she is presently with her parents who are aged and she has no source of income and in that view, she is enable to maintain herself. The petitioner no doubt has contended that she has been employed and therefore the maintenance not to be granted. The said issue is a disputed fact which ultimately would have to be established before the Court below. Therefore, the said aspects would arise for consideration when the matter is taken up for consideration on its merits. Further, the fact that there were other proceedings relating to cruelty etc., would show that there are circumstance for her to stay away which are all matters for further examination by the Court below.

At this juncture, the Court below in fact has granted the minimum monthly maintenance of Rs. 1,500/- per month as against the maintenance which has been sought. When the marriage is not in dispute and it is also seen that there are several proceedings pending between the parties including the proceedings u/s 498(A) which is said to have been instituted by the respondent and furthermore the situation as put forth would indicate that for the present the respondent is indicating that she is unable to reside with the petitioner and when these aspects of the matter requires evidence to be tendered, until such time, the Court below in any event was justified in granting the meager monthly maintenance of Rs. 1,500/- until the issue between the husband and wife is decided with regard to income and other aspects.

Hence, at this juncture, I see no reason to interfere with the interim order. However, considering the fact that the main petition has been pending for a long time, it would also be in the interest of the parties to direct the Court below to decide upon the main contentions urged therein itself one way or the other in accordance with law as expeditiously as possible, but not later than six months from the date on which a certified copy of this order is produced before the Court below. In terms of the above, the petition stands disposed of. No costs