IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Miscellaneous First Appeal No. __ Of 2019

[APPLICATION FILED UNDER ORDER 43 RULE 1 OF CODE OF CIVIL

PROCEDURE R/W SECTION 19 (1) OF FAMILY COURT’S ACT, 1984]

IN THE MATTER OF:

Prabath …..APPELLANT

VERSUS

Kavya & Another …..RESPONDENT

ON SUBMISSION TO THE HON’BLE HIGH COURT OF KARNATAKA

WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT

TABLE OF CONTENTS

LIST OF ABBREVIATIONS.....................................................................................................3

INDEX OF AUTHORITIES......................................................................................................4

BOOKS:..................................................................................................................................4

CASES:...................................................................................................................................4

WEBSITES:.............................................................................................................................8

STATEMENT OF JURISDICTION...........................................................................................9

STATEMENT OF FACTS........................................................................................................11

ISSUE RAISED.......................................................................................................................13

SUMMARY OF ARGUMENTS..............................................................................................14

WRITTEN SUBMISSIONS....................................................................................................15

PRAYER..................................................................................................................................40

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LIST OF ABBREVATIONS

 ¶ – Paragraph

 AIR – All India Reporter

 ed. – Edition

 p. – Page

 pp. – Pages

 SC – Supreme Court

 SCC – Supreme Court Cases

 SCR – Supreme Court Reporter

 Supp. – Supplement

 Vol. – Volume

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INDEX OF AUTHORITIES

Books Referred

Cases Referred

Website Referred

www.westlaw.com

www.indiankanoon.com

www.manupatra.com

www.supremecourtofindia.nic.in

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STATEMENT OF JURISDICTION

The appellant has approached the Hon’ble High Court under Section 19 (1) of the Family Court’s

Act, 1984 against the order passed by the Hon’ble Principle Judge, Family Court, Bengaluru,

allowing the application filled by the respondents under section 25 of the Hindu Marriage Act.

“Section 19 (1) of the Family Court’s Act, 1984. Appeals from Orders”

19. Appeal.-
(1) Same as provided in sub-section (2) and notwithstanding anything
contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of
Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie
from every judgment or order, not being an interlocutory order, of a Family
Court to the High Court both on facts and on law.

STATEMENT OF FACTS

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 The Appellant and the first Respondent were friends from the collage days while they were
pursuing their Degree in B.E in K.L Engineering college and after the completion of the
course started working together in the same office. They proposed each other and marriage of
the Appellant and the Respondent was solemnized on 12.06.2012 at Bengaluru and a male
child was born out of wed lock.

 The Appellant and Respondent were living a happy life until 01.03.20114, later when father
of the Appellant was deceased, the Appellants mother and sister started living with them. The
Respondent started misbehaving with Appellant and started ill-treating mother-in-law and
started coming late from job and never gave an explanation for the delay. One day
Respondent threatened Appellant infront of his parents and friends and the Respondent left
the matrimonial house and started living separately with her child.

 The Appellant was successful in bringing the Respondent back after some persuasion but the
Respondents behavior remained to be the same and was coming late from the job. After few
days the Respondent left her matrimonial home by taking jewelry, expensive clothes and
articles of dowry and started living separately and due to some reason had left the job.

 The Respondent had filed an application for divorce and maintenance before the family court
and the family court by its order dated 2015, awarded 10,000 rupees maintenance and
divorce was granted.

 On 08.10.2017, the Respondent remarries. Hence, the Appellant stops paying maintenance
after the remarriage of the Respondent. Later on 2018 Respondents second husband was
deceased leaving behind no properties nor any source of income for the Respondent.
Meanwhile the Appellant got promotion and hike in the salary wherein the Respondent filed
another application before the family Court along with her son for enhanced maintenance and
partition. Family Court awarded rupees 30,000 per month as maintenance and decreed the
suit in favour of the Respondents.

 Hence aggrieved by the order passed by the family Court. An order passed without taking
into consideration the changed circumstances which were apparently debarring the

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 Respondents from any claim of maintenance and on a misconception of facts and law without
any application of judicial mind the family court had awarded an order which is not in
accordance with law and violative of Article 14 of the Constitution.

Hence, the present appeal.

ISSUE RAISED

1. Whether the judgment passed by the Hon’ble Principal Judge, Family Court is in
accordance with law and reasonable?

 Whether a remarried wife is entitled for maintenance.

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  Whether a woman highly qualified remain idle and be a parasite on the income of
the ex-husband.

 Whether the quantum of maintenance is reasonable.

2. Whether the appeal for enhancement of maintenance is maintainable?

ARGUMENTS ADVACNED

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  Whether the judgment passed by the Hon’ble Principal Judge, Family Court
is in accordance with law and reasonable?

1. The Counsel for the Appellant humbly submit that, the present Appeal is filed challenging

the order passed by the Hon’ble Principal Judge, Family Court in MC Petition under

section 25 of the Hindu Marriage Act. The Family Court is on erroneous presumption and

misconception of law and each and every finding recorded is not sustainable and is

opposed to law and facts of the case, which has caused substantial injustice and injury to

the Appellant which warrants interference of this Hon’ble Court. Thus, the appellant is

approaching this Hon’ble Court invoking the jurisdiction of this Hon’ble Court under

Order 43 Rule 1 of C.P.C. R/w Section 19 (1) of the Family Court’s Act,1984

2. The Counsel further submit, that the award passed by the Hon’ble Principal Judge is un-

just and are not as per the demands of justice. The Hon’ble judge has committed an

erroneous mistake which is apparent on the face. The Hon’ble Principal Judge has failed

to apply judicial mind and failed to appreciate the changed circumstances and failed to

acknowledge the remarriage of the Respondent which clearly debars the Respondent

from any further claim of maintenance from the Appellant.

 Whether a remarried wife is entitled for maintenance.

3. The counsel for the Appellant most humbly submit that, the Appellant if made liable to

pay maintenance even after the remarriage of the Respondent it would be the highest

violation of the fundamental right of Equality enshrined under Article 14 of the

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Constitution of India. The utmost object sought by the legislature in enacting and

amending section 25 of the Hindu Marriage Act is to provide a fair and reasonable socio-

economic security to the deprived classes of person who are deserted or divorced by the

Husband and to those who are not in a position to maintain and earn their basic livelihood

to secure their basic necessities but not to enrich them in the name of maintenance.

Whereas in the instant case the Appellant is made liable to pay maintenance to the

Respondent even after the remarriage of the Respondent, which clearly violates the entire

object sought for by the legislatures under section 25 and violates Equality Clause.

Section 25 of the Hindu Marriage Act reads as follows: -

Section 25 in The Hindu Marriage Act, 1955

25 Permanent alimony and maintenance: -

(1) Any court exercising jurisdiction under this Act may, at the time
of passing any decree or at any time subsequent thereto, on
application made to it for the purpose by either the wife or the
husband, as the case may be, order that the respondent shall pay
to the applicant for her or his maintenance and support such gross
sum or such monthly or periodical sum for a term not exceeding the
life of the applicant as, having regard to the respondent's own
income and other property, if any, the income and other property of
the applicant, the conduct of the parties and other circumstances of
the case, it may seem to the court to be just, and any such payment
may be secured, if necessary, by a charge on the immovable
property of the respondent.

(2) If the court is satisfied that there is a change in the

circumstances of either party at any time after it has made an order
under sub-section (1), it may at the instance of either party, vary,
modify or rescind any such order in such manner as the court may
deem just.

(3) If the court is satisfied that the party in whose favour an order
has been made under this section has re-married or, if such party is
the wife, that she has not remained chaste, or, if such party is the

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 husband, that he has had sexual intercourse with any woman
outside wedlock, it may at the instance of the other party vary,
modify or rescind any such order in such manner as the court may
deem just.

4. The Counsel for the Appellant submit that, by reading the above provision it is

abundantly clear that the object sought for under (1) of section 25 is to provide socio-

economic security to the socio-economic deprived person of the conjugal relationship but

not to falsely enrich the deprived by overburdening the other.

5. The Appellant further submit that, (3) read with (1) of section 25 of the above Act clearly

depicts the duration to what extent a person shall be made liable to pay and explains the

overt acts which shall be a ground for the discharge of liability imposed under (1) of

section 25. The Appellant further submit, before the amendment of section 25 (3) in 1976,

the law clearly intended to discharge the liability imposed by (1) of Section 25 on

completion of any acts under (3) of section 25 but after the 1976 Amendment the

legislature gave the discretionary to the courts to discharge the liability under clause (1) if

any act so mentioned under (3) takes place, but at the instance of each case as it deems

just to the Court, which is a clear violation of Article 14 of the Constitution of India.

6. The Counsel for the Appellant to the substantiate the above contention hereby refer to

Section 125 of Cr.P.C. which is a special provision under the General act specially

enacted to provide maintenance for wife, children, parents irrespective of the religion.

relevant portion of Section 125 Cr.P.C reads as follows: -

Section 125. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to

maintain-

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 (a) his wife, unable to maintain herself, or

Defenition Clause for this chapter

(b) " wife" includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not remarried.

The plain reading of the above provision also clearly envisages the liability to maintain

the deprived spouse by the other but if Section 125 (1) (a) if read along with (b) of

definition clause it clearly earmarks the duration and envisages that remarriage of the

spouse after divorce will disables the other spouse from claiming maintenance and also

fix the yardstick to make a person discharge from liability after completion of certain

acts.

7. Hence, when section 125 of Cr.P.C. is read with Section 25 of the Hindu Marriage act

clearly establishes the object sought for by the Legislature i.e. to provide a fair and

reasonable socio-economic security to the deprived spouse but not to enrich or

overwhelm one spouse by overburdening the other is not sought for. Hence, even in the

Special provision for maintenance under the General Law the legislature has clearly

given the yardstick for the duration of maintenance. (i.e. Once a wife remarries she

ceases to be a wife hence she cannot claim maintenance from the other spouse)

8. The Hon’ble High Court of Punjab and Haryana in the case of Malkiat Singh case

reported in 2003 DMC 572 held that “ Once a decree of divorce has been passed on the

application of the wife on 3.6.1996 and the decree has been acted upon in as much as the

wife has remarried, the relationship of husband and wife does not subsist any longer.

According to Section 41 of the Indian Evidence Act, 1872 a final judgment or decree of a

competent Court in the exercise of matrimonial jurisdiction which takes away from any

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 person any legal character are judgment in rem. Therefore, the status of the parties cannot

be said to be of husband and wife. A perusal of Sections 24 and 26 of the Act would show

that the provision with regard to maintenance pendente lite and for payment of litigation

expenses are applicable only if the parties are husband and wife. Moreover, the

respondent-wife has herself pleaded in paragraph 4 of the application dated 14.9.2000

that she has remarried. Once the respondent-wife has remarried and is living with her

husband grant of the application of the wife for maintenance would mean that she is

married to two persons which is impossible proposition to accept”.

9. The Counsel humbly submit that, the Hon’ble High Court of in the case of Shantaram vs.

Dagoo Devi held hat, “The right of maintenance conferred upon a woman, whose

marriage is void or is declared to be void by Section 25 of the Hindu Marriage Act, 1955

can be enforced by her not only during the life-time of her husband but also after his

death against the property of her husband. Of course, this right of maintenance is

available only during her life-time and ceases if she remarries.

10. Thereby the Counsel for the Appellant submit that based on the above contention put-

forth the discretion granted under section 25 (3) of the Hindu Marriage Act clearly

violates the equality clause enshrined under Article 14 of the Constitution of India and

also defeats and goes contrary to the object sought for by the Legislature. Hence, the

order of the Hon’ble Principle Judge, Family Court awarding maintenance to the

remarried woman is against the equality clause and also runs contrary to the object sought

for by the legislature.

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  Whether a woman highly qualified remain idle and be a parasite on the
income of the ex-husband.

11. The Counsel for the Appellant humbly submit that, the Respondent is an B.E. graduate

and is equally educated and were working in the same office i.e. both were similarly

situated in the profession and the Respondent was working since the time of graduation

till she applied for divorce. The Respondent has the required qualification and experience

to work and earn for her livelihood but the Respondent for the reason not known

voluntarily quits the job and decides to completely depend upon the income received

through alimony as maintenance which clearly shows the lethargieness.

12. The Hon’ble High Court of Madhya Pradesh In Smt.Mamta Jaiswal vs. Rajesh Jaiswal,

a case reported in 2000(3) MPLJ 100, while dealing with identical situation observed

that well qualified spouses desirous of remaining idle, not making efforts for the

purpose of finding out a source of livelihood, have to be discouraged, if the society

wants to progress. For better appreciation, relevant paragraphs of the said decision

are reproduced hereunder:-

"In view of this, the question arises, as to in what way Section 24 of

the Act has to be interpreted. Whether a spouse who has capacity of
earning but chooses to remain idle, should be permitted to saddle
other spouse with his or her expenditure? Whether such spouse
should be permitted to get pendent lite alimony at higher rate from
other spouse in such condition?

A spouse who is well qualified to get the service immediately with

less efforts is not expected to remain idle to squeeze out, to milk out
the other spouse by relieving him of his or her own purse by a cut
in the nature of pendent lite alimony. The law does not expect the
increasing number of such idle persons who by remaining in the

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 arena of legal battles, try to squeeze out the adversary by
implementing the provisions of law suitable to their purpose.

A lady who is fighting matrimonial petition filed for divorce, cannot

be permitted to sit idle and to put her burden on the husband for
demanding pendente lite alimony from him during pendency of
such matrimonial petition. Section 24 is not meant for creating an
army of such idle persons who would be sitting idle waiting for a
„dole‟ to be awarded by her husband who has got a grievance
against her and who has gone to the Court for seeking a relief
against her. The case may be vice versa also. If a husband well
qualified, sufficient enough to earn, sit idle and puts his burden on
the wife and waits for a ‟dole‟ to be awarded by remaining
entangled in litigation. That is also not permissible. The law does
not help indolents as well idles so also does not want an army of self
made lazy idles. Everyone has to earn for the purpose of
maintenance of himself or herself, at least, has to make sincere
efforts in that direction. If this criteria is not applied, if this attitude
is not adopted, there would be atendency growing amongst such
litigants to prolong such litigation and to milk out the adversary
who happens to be a spouse, once dear but far away after an
emerging of litigation. If such army is permitted to remain in
existence, there would be no sincere efforts of amicable settlements
because the lazy spouse would be very happy to fight and frustrate
the efforts of amicable settlement because he would be reaping the
money in the nature of pendent lite alimony, and would prefer to be
happy in remaining idle and not bothering himself or herself for any
activity to support and maintain himself or herself. That cannot be
treated to be aim, goal of Section 24. It is indirectly against
healthiness of the society. It has enacted for needy persons who in
spite of sincere efforts and sufficient effort are unable to support
and maintain themselves and are required to fight out the litigation
jeopardizing their hard earned income by toiling working hours.

13. The Hon’ble High Court of Delhi In March, refused to increase the monthly interim

maintenance awarded to a woman in a domestic violence case, saying she was "not

supposed to sit idle at home" and "be a parasite" on the husband's earnings. "The

appellant herself is a well-educated lady having a post-graduation degree: MA, B.Ed and

LLB, and is reported to be more qualified than the respondent (husband). She can earn

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 herself. She is not supposed to sit idle at home and be a parasite on the earnings of the

respondent,". in the instant case the Respondent is equally educated as that of Appellant

and was working in the same office for an long period.

14. The Appellant further submit, the In June 2015, a Mumbai family court in MC Petition

No. 1456/ 2014 rejected an estranged wife's application for maintenance saying she was

highly qualified. The woman had argued that she was forced to leave her job in 2013, and

had no source of income. "If the spouse is well qualified, she is not expected to remain

idle... The law does not expect an increasing number of such idle persons who by

remaining in the arena of legal battles, try to squeeze out the adversary by implementing

the provisions of law suitable to their purpose," the court said.

15. Hence, the Appellant most humbly submit that, based on the opinion of the decision of

the other High Court and the Hon’ble Apex Court it is clear that a person equally

qualified and capable of maintaining herself shall not be entertained to be completely

depend upon the Appellant, clearly this smells of oblique intention of putting extra

financial burden on the husband/Appellant. Such attempts are to be discouraged.

 Whether the quantum of maintenance is reasonable.

16. The counsel for the Appellant humbly submit that, the word or in section 20 (2) of the

Hindu adoption and Maintenance act has to be read and in a case where both the parents

are capable to maintain the child, the liability can be fixed on both as held by the Hon’ble

High Court of Punjab and Haryana in a case reported in AIR 2007 P&H 49. Hence in the

instant case the Appellant alone shall not me made liable for the maintenance of the child

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 as the Respondent is also equally liable for the maintenance as the Respondent is equally

qualified and competent to earn, hence the Award passed by the Family Court is violates

the principle of equality.

17. The Counsel for the Appellant further submit that, the Family Court while awarding the

30,000/- maintenance has taken into consideration the maintenance for the Respondent

i.e. the remarried wife which is contrary to section 25 (3) of Hindu Marriage Act ad 125

of Cr.p.c. and violates the equality principles enshrined under Article 14 of the

Constitution of India.

18. The counsel further submit that, while calculating the award the Family Court has not

taken into account the liabilities of the Appellant and have failed to appreciate that the

Appellant has an duty to maintain his elderly Mother and also the responsibility of the

Appellant as a brother who his duty bound to get his sister married. Hence the Hon’ble

Principal Judge without any application of Judicial mind.

19. The Appellant further submit that, the award is exorbitant and excessive where the

Hon’ble Principal Magistrate without appreciating the fact that the Respondent is capable

of earning her own livelihood and without considering the fact that the Appellant would

be put in great hardship has exorbitantly

20. Hence, the Appellant humbly prays that, the award passed by the

Hon’ble Principal Magistrate is clearly in violation of Section 25 (3) of the

Hindu Marriage Act and against the principles of section 125 of Cr.P.C.

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 hence the award is in violation of the equality clause enshrined under

Article 14 of the Constitution of India.

 Whether the appeal for enhancement of maintenance is maintainable?

21. The Counsel for the Appellant most humbly submit that, the appeal filed

by the Respondent asking for the enhancement of maintenance is not

maintainable in the instant case the Hon’ble Principal Magistrate has

awarded an monthly maintenance of rupees 30,000/- per month which

is exorbitant and excessivee.

22. The Counsel for the Appellant submit, that the Hon’ble Apex Court in

catena of judgments have clearly held that the Court while granting an

award of maintenance has to be reasonable and has to take into

consideration the basic amenities required for the living and to consider

the standard of living before the divorce and on the facts with

consideration with the liabilities of the Appellant has to be an paramount

consideration and an award as to be made.

23. Hence, in the instant case the Hon’ble family Court without the

appreciation of the factual background has arbitrarily using the

discretion powers without the application of judicial mind The Family Court

is on erroneous presumption and misconception of law, which has caused substantial

injustice and injury to the Appellant. Hence, the appeal filled by the Respondent

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seeking for the enhancement of the Maintenance is not maintainable and

shall be dismissed at limine.

PRAYER

Wherefore, in the light of facts stated and arguments advanced, the

counsel for the Appellants most humbly pray that this Hon’ble Court

may be pleased to:

a) Set-aside the judgment passed by the Hon’ble Principle

Magistrate, Family Court, Bengaluru.

b) Dismiss the appeal filled by the Respondent seeking

enhancement of Maintenance.

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 Pass any other order as this Hon’ble Court deems fit in the

interest of justice and equity.

Date: …………………… Sd /-

Place ………………… (Counsel for Appellant)

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