Karnataka High Court Attaches Husband's Property For Failing To Pay Maintenance To Wife & Differently-Abled Child

The Karnataka High Court recently directed attaching the property of a man by creating a charge over his property to secure payment of maintenance to his estranged wife and differently-abled son.

A division bench of Justice Anu Sivaraman and Justice Anant Ramanath Hegde allowed the application filed by the wife and child for attaching the property of the husband. It said “Charge is created over the said property to secure payment of maintenance to the plaintiffs. The property standing in the name of the 1st defendant described in the schedule given below, and any other property in the name of the 1st defendant, if the property details are furnished by the plaintiff, shall carry the charge of maintenance ordered by this Court.”

It added “The jurisdictional Sub-registrar shall make an entry in the Encumbrance Certificate relating to the charge of maintenance as ordered by this Court in the schedule described below. The Bruhat Bengaluru Mahanagara Palike shall make necessary entries in the property records of the property described.”

The appellants had approached the court seeking enhancement of maintenance earlier granted of Rs 2,000 and Rs 1,000 to Rs 5,000. However, the court partly allowed the suit by granting Rs 3,000 to each appellant.

It was contended that the judgment and decree passed by the Family Court disallowing the claim of the plaintiffs to the extent of Rs.2,000, per month towards the maintenance of each of the plaintiffs are unsustainable.

Further, it was stated that the son is differently abled and incapable of earning and both the plaintiffs do not have any source of income other than the decree for maintenance granted. The husband failed to abide by the decree passed in an earlier suit and he is in arrears of maintenance. The appellants also filed an application under Section 151 of the Code of Civil Procedure to attach the property standing in the name of the 1st defendant.

The bench noted that an earlier suit filed by the plaintiffs was decreed in part awarding Rs.2,000/- per month as maintenance to 1st plaintiff and Rs.1,000/- per month as maintenance to plaintiff No.2. It is also forthcoming from the records that defendant No.1 against whom the said decree was passed is not regular in making the payment of the amount ordered in the said suit. It is also forthcoming that the plaintiffs had to file execution petitions for recovery of the arrears of the amount.

Then it said “The decree in the earlier suit was passed in the year 2006. This Court can certainly take cognizance of the fact that the cost of living has gone up since then.”

Further, it held “Though plaintiff No.2 (son) has attained the age of majority, he is differently abled and is under the care and custody of plaintiff No.1 - his mother. Nothing is placed on record to hold that his ailment is cured. We have seen plaintiff No.2 who was present in Court and are convinced of his disability, as claimed.”

It added “The finding that plaintiffs have not produced materials to show that the 1st defendant has the property though is a correct finding, based on said finding Family Court could not have declined the plaintiffs' claim in part. Since it is established that plaintiff No.2 is differently abled, the Family Court ought to have decreed the suit as prayed for as the maintenance claimed is Rs.5,000 for each of the plaintiffs as the said of Rs.5000 per month is an extremely modest sum.”

It also clarified that the wife and the differently abled son's right to claim maintenance has nothing to do with the divorce petition filed by the wife. Thus, this Court does not find any justification in the decree which says 1st defendant is liable to pay maintenance only from the date of disposal of the petition seeking divorce and denying the maintenance from the date of the suit. Therefore, each of the plaintiffs is entitled to monthly maintenance of Rs.5,000, per month from the date of the suit.

Allowing the application of the appellants for attaching the property in part the court held “Under Section 39 of the Transfer of Property Act, of 1882, the arrears of maintenance can be a charge on the property. Since the 1st defendant is not diligent in discharging his liability under the decree, this Court is of the view that a charge must be created over the property of the 1st defendant to secure the payment of maintenance to the plaintiffs. The charge created over the property shall have to be recorded in all the property records standing in the name of the 1st defendant.”

Appearance: Advocate Sameer S N for Appellants.

Citation No: 2024 LiveLaw (Kar) 225

Case Title: Uma & ANR AND Banshankar & Others

Case No: MISCELLANEOUS FIRST APPEAL NO. 9908 OF 2018

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