Karnataka High Court
Smt. Renuka And Anr vs Sri. Ningappa on 23 November, 2021
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
RPFC.No.200004/2019
BETWEEN:
1. SMT. RENUKA W/O NINGAPPA DANYAL
AGED ABOUT 40 YEARS
OCC: HOUSEHOLD WORK
2. VIKAS S/O NINGAPPA DANYAL
AGED ABOUT 17 YEARS
OCC: STUDENT
SINCE PETITIONER NO.2 IS MINOR
DULY REPRESENTED BY HIS NATURAL
GUARDIAN MOTHER - PETITIONER NO.1
BOTH ARE R/AT KASTURI COLONY
VIJAYAPURA.
...PETITIONERS
(BY SRI. UMESH V. MAMADAPUR, ADVOCATE)
AND:
SRI NINGAPPA S/O VITHAL DANYAL
AGE: 49 YEARS OCC: MECHANIC
R/O: DIVATAGERI GALLI
NEAR SANGLIKAR CHAWAL
VIJAYAPURA - 586 101
... RESPONDENT
(BY SRI. R. S. LAGALI, ADVOCATE)
2
THIS RPFC IS FILED UNDER SECTION 19 (4) OF THE
FAMILY COURTS ACT PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 14.12.2018 PASSED BY THE
PRL.JUDGE FAMILY COURT, VIJAPURA IN
C.MISC.NO.29/2018, IN SO FAR AS DISMISSING THE
PETITION FILED BY THE PETITIONER NO.1 SEEKING
MAINTENANCE OF RS.15,000/- PER MONTH FROM THE
RESPONDENT AND TO ENHANCE THE MAINTENANCE
AMOUNT FROM RS.5,000/- TO RS.10,000/- AWARDED TO
PETITIONER NO.2.
THIS PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Present petition is filed under Section 19 (4) of the Family Court Act by the petitioners, the wife and sons of the respondent against the order dated 14/12/2018 passed in C.Mis.No.29/2018 on the file of Principal Judge, Family Court, Vijayapura.
2. The petitioners herein had filed the petition under Section 125 of Cr.P.C. seeking direction against the respondent herein to pay maintenance of Rs.15,000/- p.m., to the petitioner No.1 and Rs.10,000/- per month each to the two sons of the petitioner No.1. 3
3. The case of the petitioner No.1 was that she was married to the respondent on 2/7/1997 in Gulab Bhavan at Vijayapura as per the customs prevailing in the Hindu community. Out of their marriage, two sons by name, Vikas and Vinod were born. The respondent, his mother and his sister were demanding the petitioner No.1 to bring cash and gold from her parental house. That petitioner No.1 was subjected to physical and mental cruelty. She tolerated these ill-treatments with the hope that respondent would change his behaviour in course of time. That about 2 years prior to filing of the petition for maintenance respondent assaulted the petitioner No.1 and threw her out of the house and ever since then she has been residing along with her sons in her parental house at Kasturi colony, Vijayapura. That respondent had issued notice on 15.12.2017, which was suitably replied by her. The respondent is owning his garage and getting income of Rs.1 Lakh per month. That petitioner No.1 having become very weak on account of ill-treatment by the respondent is unable to maintain herself. Because of the ill-treatment 4 she is not able live with respondent. Hence, sought for grant of maintenance for herself and her two sons who were petitioner Nos.2 and 3.
4. Upon service of notice, respondent appeared through his counsel and filed statement of objections. Admitted the relationship. It is contended that the respondent led marital life with the petitioner No.1 for a period of 18 years and that there was no complaint of dowry harassment during such a long period. The allegations of ill-treatment are denied. It is contended that respondent was looking after the petitioners very well. However, petitioner No.1 had taken the children without informing respondent. It is further contended that petitioner No.1 is none other than the daughter of his own elder sister. That the father of petitioner No.1 died about 30 years back and since petitioner No.1 was too young at that time, it was difficult for her mother to look after all the children as there was no source of livelihood for them. Therefore, respondent brought his sister and her children 5 including petitioner No.1 to his house and looked after them well, provided them with education. He got married petitioner No.1 and at the same time performed the marriage of one of the younger sister of petitioner No.1. That he has been working from his childhood in various garages and with his hard work and earned money. In the meanwhile, petitioner No.1 was in the habit of giving money to her younger brother-Umesh and purchasing properties in their name without the knowledge of the respondent. She was taking away the money and kept at home without informing the respondent. Any amount of advise by the respondent and the elder members of the family did not yield any result on the petitioner No.1. Respondent had entrusted the affairs of garage business to his brother-in-law-Umesh and had completely authorized him to look after the garage and its income and expenditure. By misusing the said trust, Umesh misappropriated funds and acquired the properties in his name at his native place. Due to these respondent suffered mental cruelty and financial loss and his health 6 became deteriorated as the petitioner No.1 and her brother started doing black magic on him. Upon the advise from the elders the petitioner No.1 became angry and she stopped preparing food and started quarrelling with respondent for each and every silly matters and left home while leaving home petitioner No.1 had taken 10. lakhs cash kept in their house and 5 tolas of gold. Finding no other alternate respondent caused issue of notice calling upon the petitioner N.1 to join him. However, petitioner No.1 has not responded to the said notice. On the other hand, she gave false reply. Hence, sought for dismissal of the petition with cost.
5. Based on the above pleading, the Family Judge framed the following points for consideration:
1) Whether the petitioners prove that they are unable to maintain themselves?
2) Whether the petitioners further prove that respondent is having sufficient means to maintain them, but neglected or refused to maintain them?7
3) Whether the petitioner No.1 is entitled for separate maintenance from the respondent? Whether petitioner No.2 and 3 are entitled for maintenance? If so, at what rate?
4) What order?
6. It is noticed from the impugned order that the Family Court while adjudicating the aforesaid petition for maintenance filed by the petitioners has taken upon itself the issue with regard to the reasons for petitioner No.1 staying separately from the respondent. In this regard at para-12 of its order, the Family Judge has noted the case of the petitioner No.1, which is extracted hereunder.
"12. According to petitioner No.1, respondent was assaulting her, demanding more and more dowry from her parental house and for that reason, he thrown her out from his house about 2 years prior to filing of the petition"
7. Though the Family Court has taken into consideration the allegations made by the respondent against the petitioner No.1 and her younger brother- Umesh allegedly taking away the money and gold kept at home without the consent of the respondent and also has taken into consideration the allegation of the petitioner 8 No.1 taking away Rs.10. lakhs and giving it to her brother Umesh for purchase of property. Further, at para-17 of the order of the Family Court has given the following reasons and same is extracted hereunder.
"17. There should be some strong reasons for petitioner No.1 for leaving the respondent and come out from his house after such long marital relationship. It is an admitted fact that petitioner No.1 is none other than the daughter of his own sister. The respondent himself spent money and got married her. The relationship between the parties was very cordial for a long period. Hence to leave the company of respondent, petitioner No.1 should have strong reason. Her only say is that hearing the words of Santosh-nephew of respondent, she was thrown out from his house. However, to substantiate it, petitioner No.1 has not examined any witness.
Furthermore, respondent denied such suggestion. It appears that the reasons for petitioner No.1 coming out from the husband's house as deposed by respondent is more probable that the reason deposed by her. Hence, this court holds that petitioner No.1 is not entitled for separate maintenance from respondent".
8. Having extracted reasons as above, the Family Court holds that the petitioner No.1 not having established the allegations against the respondent by producing 9 evidence and had no justifiable reason to stay away from the marital relationship, as such Family Court declined to grant the maintenance as sought for by the petitioners. The aforesaid approach of the Family Court appears to be incorrect and improper. It may be that the petitioner who has alleged dowry harassment and demand for dowry might not have taken action against the respondent. At the same time, serious allegations made by the respondent also cannot be ignored. The respondent has made serious allegation against the petitioner No.1 of stealing the money kept at home. It is also further case of the respondent that about 10 months prior to filing of the objection statement, petitioner No.1 took Rs.10 Lakhs cash and 5 tola gold kept in the house and went out from the house. Thus, there are allegations and counter allegations made by the parties. Looking at these allegations made by the respondent himself would establish that there is serious discord between respondent and petitioner No.1. Looking at the allegations made by the respondent it cannot be presumed that petitioner No.1 could live with 10 respondent/husband. The Family Court has not appreciated this aspect of the matter.
9. The respondent admits that he is carrying on the garage business on his own, he does not have an issue of income. The fact that the petitioner No.1 is residing in her parental house and she has no source of income of her own is not disputed. In the circumstances, it can be concluded that the petitioner No.1 has no source of income to maintain herself and her children. Considering the fact that the respondent and petitioner No.1 have lived together for 18 years and out of their wedlock, two sons were born and presently is residing in her parental house for she not being able to live with the respondent for the aforesaid reasons, and also that the fact the respondent has admittedly not being providing any maintenance to her, it is just and proper that respondent be directed to pay the maintenance amount to the petitioners. 11
10. It is brought to the notice of this Court that out of two sons, Vinod is presently residing with the respondent. Vikash who met with an accident is residing with the petitioner No.1. In the circumstances, the following.
ORDER
i) The petition is partly allowed.
ii) Respondent is directed to pay a sum of Rs.10,000/- per month towards maintenance of the petitioner No.1 from the date of petition.
iii) The maintenance awarded by the Family Judge to the petitioner No.2 at Rs.5,000/- is maintained.
Sd/-
JUDGE mkm