Husband With 75% Disability Can't Be Directed To Pay Maintenance To Estranged Wife: Karnataka High Court

The Karnataka High Court has refused to direct a husband with 75% disability to pay maintenance to his estranged wife and also set aside an order of the execution court which, acting on the plea filed by the wife, had issued an arrest warrant or fine levy warrant against the husband.

A single judge bench of Justice M Nagaprasanna said, “The husband walks with the help of crutches. Therefore, in the considered view of the Court, no direction can be issued to the husband to pay maintenance to the wife/respondent as he is no longer an able bodied man to search for employment and pay maintenance to maintain the wife and the child.”

On the floundering of the marital relationship between petitioner and the respondent, the husband preferred a petition seeking annulment of marriage. The allegation of the husband was that the wife had left the matrimonial house on her own volition.

In the said petition, the wife filed an application seeking interim maintenance under Section 24 of the Hindu Marriage Act, 1955. The concerned Court, after hearing the parties, granted the wife interim maintenance of Rs.15,000/- per month in terms of its order dated December 30, 2012. The wife then filed a memo of calculation before the concerned Court in July 2013 claiming arrears to be paid by the husband towards the maintenance so awarded. The concerned Court rejected the memo. This was challenged before the High Court.

During the pendency of the said petition, the husband/petitioner sufferred a stroke resulting in 75% disability, due to which, he resigned from his work. However, on the ground that the husband has not paid maintenance, to recover arrears of maintenance, the wife/respondent initiated execution petition seeking execution of the order of maintenance. The concerned Court then directed the father of the husband to pay arrears of maintenance. When that was not adhered to, a fine levy warrant and arrest warrant are issued against the husband. The same was challenged in another petition before the high court.

The husband contended that he is unable to pay maintenance given his 75% disability, which does not get him any job.

On going through the records the bench noted that wife is qualified and earning. Then referring to the disability certificate issued to the husband, it said. “If the husband is incapable of earning due to disability, it is highly ununderstandable as to why and how the wife is insisting on payment of maintenance looking at the admitted disability of the husband.”

Court observed,

“It is trite that while considering grant of maintenance all the factors will have to be taken note of. Maintenance cannot spring in thin air. The primary factor is whether the husband is an able bodied man to maintain the wife or the child. In the teeth of the disability of the petitioner who also suffers from cognitive dysfunction, the trial Court ought to have allowed the application seeking recall of the order of maintenance and restricted the recall up to the date on which the husband became disabled.”

It added “As the disability happens in the month of December, 2013, by then there was already arrears to be paid by the husband. The Court ought to have taken at least that date into consideration. Today the husband/petitioner is wanting maintenance to himself and not in a position to pay maintenance to the wife/respondent.”

Noting that the memo filed by the wife depicts that as on today, the maintenance that is to be paid by the husband is a whooping sum of Rs.19,04,000 and the duration of maintenance covers the period of disability of the husband right from its beginning till today, except for a few months prior to the husband getting disabled, the court said “If this would be directed to be paid, at the behest of the wife, it would undoubtedly leave the husband/petitioner bleeding, apart from the agony that he is living with of suffering 75% disability.”

Further it said,

“By no means he can be depicted to be an able bodied man to direct that he should search for such avocation that would enable him to maintain the wife and the child. The wife is earning, even if not earning is completely qualified and is capable of earning. Therefore, the orders that are now sought to be passed by the wife cannot even be considered to be passed.”

Rejecting the contention of the wife that the father of the husband/petitioner has several properties and is able to pay the wife and the child maintenance, the court said “This submission cannot be accepted at this juncture. As the wife is said to be earning and maintaining herself to-day and 24 for the last 10 years there is no maintenance paid; obviously the wife who is qualified is working and earning.”

However, it said “I deem it appropriate to observe that the father of the husband/petitioner should take care of the grandchild's necessities including her education and other necessities of her career and all walks of life of the grandchild. This is the only relief that the wife/respondent is entitled to, in the case at hand. The claim of the wife for enhancement of maintenance to 70% is, on the face of it, untenable and is rejected.”

It also directed that arrears of maintenance till the date of disability of husband, shall be fulfilled by the father of the husband/petitioner.

Appearance: Advocate Radhika M for Appellant.

Advocate B.V.Krishna for Respondent.

Citation No: 2024 LiveLaw (Kar) 172

Case Title: Priyanka Singh AND Pankaj Singh Sengar

Case No: WRIT PETITION No.48615 OF 2013 (GM - FC) C/W WRIT PETITION No.41607 OF 2017 (GM - FC) WRIT PETITION No.41608 OF 2017

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