KERALA HIGH COURT
A.M. Shaffique and K. Ramakrishnan, JJ.
Nivya V.M. —Petitioner
versus
Shivaprasad N.K. —Respondent
OP (FC) No.26 of 2015
Decided on 14.2.2017
(b) Hindu Marriage Act 1955 – Sections 13 (ia), Section 9, Section 24 – After the dismissal of Marriage nullity proceedings, the husband preferred divorce proceedings under the Act for mental cruelty etc,., wife filed restitution of conjugal rights proceedings under the Act –Husband also filed interim maintenance petition under Section 24 seeking from his wife, who she employed in Government service drawing Rs.50,000 p.m. as salary – The Trial Court ordered the wife to pay Rs.6000 p.m. – Aggrieved upon the interim order of maintenance, the wife preferred revision – wherein the revisional Court observed and upheld the decisions of Bombay High Court and Madhya Pradesh High Court in Smt. Kanchan W/o. Kamalendra Sawarkar and in Yashpal Singh Thakur –VS Smt.Anjana Rajpu, the courts observed that, “Since the wife is in employment, the husband cannot make himself wholly depend on her income through a devise under Section 24 of the Act. In the absence of any handicap or impediment to earn, to grand maintenance to such able bodied person equipped with skill would promote idleness, which opposed to sprit of Section 24 of the Act”, “It is true that, Section 24 of the Act entitles either party to move an application for maintenance. But it does not mean that the husband who is otherwise capable of earning his living should stop earning the living and start depending on the earning of the wife. In that case, the husband has incapacitated himself by stopping they running the auto rickshaw on hire. It is well establish maxim of Anglo Saxion Jurisprudence that no person can be allowed to incapacitate himself. That maxim is applicable to the case of earning husband. A person who voluntarily incapacitate himself from earning is not entitled to claim maintenance from the other spouse”. – Not making any attempt to earn money through capable of getting private job cannot claim maintenance from the wife who was in Government service – Dictum mentioned above– Court also observed that, if such an attitude of courts, then idleness of the husbands will be promoted and they will be tempted not to do any work and depend on wife for their livelihood, and such thing is not expected to be promoted in the society and that was not the intention of Section 24 of the Act – Intention of Section 24 explained. - Para 15, 16, 17 & 18
(c) Civil Procedure Code 1908 – Section 151:- The inherent powers of court should be utilized by the courts either for preventing abuses of process of court or to prevent injustice to parties.
Maxim:- Anglo Saxion Jurisprudence – “That no person can be allowed to incapacitate himself”.
K. Ramakrishnan, J.—The respondent in IA.No.329/2014 in OP.No.200/2014 has filed this petition challenging Ext.P5 order passed by the Court below under Article 227 of the Constitution of India.
2. The marriage between the petitioner and the respondent was solemnized on 31.1.2011 and it was registered before the Marriage Registrar, Enmakaje. After some time, the relationship between them strained. The petitioner herein earlier filed O.P.No.234/2011 before the Family Court, Kasaragod for a declaration that the marriage between the petitioner and the respondent was null and void and the respondent herein filed OP.No.172/2011 for restitution of conjugal rights and both these cases were disposed of by Ext.R8 common judgment dated 18.3.2014 dismissing OP.No.234/2011 and allowing OP.No.172/2011. Thereafter the petitioner herein filed OP.No.200/2014 for dissolution of marriage under Section 13(ia) of the Hindu Marriage Act (hereinafter referred to as ‘the Act’ for short) on the ground of cruelty on the part of the respondent. The respondent herein entered appearance and filed counter denying the allegations and praying for dismissal of the application. He has also filed IA.No.329/2014 under Section 24 of the Act and Section 151 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’ for short) seeking pendente lite maintenance and litigation expenses from the petitioner herein. It is alleged in that petition that at the time of marriage, the respondent was working in a financial institution under the name and style Thulunad Chits, Kasaragod and on account of a false news published in Malayala Manorama daily dated 4.6.2011 alleging that the respondent herein had abducted the petitioner and took her to different places and committed rape on her, he was asked to resign from the post and accordingly he was compelled to resign. The respondent herein filed OP.No.234/2011 for annulment of the marriage and the same was dismissed on 18.3.2014. He had incurred heavy expenses for conducting the litigation in OP.No.234/2011. She has now filed the present petition stating the same reasons mentioned in OP.No.234/2011. The petitioner also filed CMP.No.4320/2011 against the respondent before the Judicial First Class Magistrate Court, Kasaragod alleging commission of the offences under Sections 341, 365, 366, 376, and 506 of the Indian Penal Code, which was forwarded to the Kasaragod police for investigation who registered Crime No.509/2011 of Kasaragod police Station. The Kasaragod police also registered Crime No.1086/2011 against the petitioner herein for the offence punishable under Section 500 of the Indian Penal Code under Section 3(2)(ii) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the SC/ST’ Act for short). In that the petitioner herein moved B.A.No.9598/2012 before this Court for anticipatory bail and this Court had observed that this is a fight between the wife and the husband who claimed to have been in love and got married. The thing as it appears that the wife does not want to continue her relationship with the husband for the reasons only known to her, resorting to such methods are highly objectionable and which would spoil his career. The respondent had to incur huge expenses by way of paying legal fees to the extent of Rs. One lakh to the senior counsel and Rs.25,000/- to the junior counsel. The minimum expenses for conducting the cases will come to Rs.3 lakhs. The respondent is without any employment now. He is suffering from several illness. The petitioner herein is working as Assistant Professor in Biology drawing a monthly income of Rs.50,000/-per month. She requires only one third for her expenses. She is capable of providing Rs.15,000/- per month to her husband who has no independent source of income sufficient to support his necessary expenses. So he prayed for a direction to the petitioner herein to pay Rs.15,000/- per month as pendente lite main
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