Karnataka High Court
Smt Latha vs N C Thippeswamy on 13 January, 2023
Bench: Alok Aradhe, S Vishwajith Shetty
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY 2023
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
M.F.A. NO.8201/2015 (MC)
BETWEEN:
SMT. LATHA
W/O N.C. THIPPESWAMY
AGED ABOUT 38 YEARS
HOUSEHOLD
C/O J.V. BASAVARAJ
DAVANAGERE ROAD
JAGALUR, DAVANAGERE
DISTRICT - 572 101. ...APPELLANT
(BY SRI YADUNANDAN N., ADV.)
AND:
N.C. THIPPESWAMY
S/O N. CHANNABASAPPA
AGED ABOUT 46 YEARS
AGRICULTURIST
R/O BETTADA NAGENAHALLI
CHITRADURGA DISTRICT. ...RESPONDENT
(BY SRI AKARSH KUMAR, ADV., FOR
SRI NARENDRA D.V. GOWDA, ADV.,)
THIS M.F.A. IS FILED UNDER SECTION 28(1) OF THE
KARNATAKA HIGH COURT ACT, PRAYING AGAINST THE
JUDGMENT AND DECREE DATED:19.08.2015 PASSED IN
M.C.NO.20/2010 ON THE FILE OF 1ST ADDITIONAL SENIRO
CIVIL JUDGE, DAVANGER, ALLOWING THE PETITION FILED
U/SEC 13(1)(ia) AND (i-b) OF HINDU MARRIAGE ACT.
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THIS APPEAL COMING ON FOR HEARING THIS DAY,
VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:
JUDGMENT
This Miscellaneous First Appeal is filed under Section 28(1) of the Family Courts Act, 1984 assailing the judgment and decree dated 19.08.2015 passed in M.C.No.20/2010 wherein the petition filed by respondent
- husband under Section 13(1)(i-a)& (i-b) of the Hindu Marriage Act, 1955 (hereinafter referred to as the "Act of 1955" for short) was allowed and the marriage between the parties that was solemnized on 28.02.1994 dissolved by a decree of divorce.
2. Heard the learned counsel for the parties and also perused the material available on record.
3. Brief facts of the case leading to filing of this appeal are, the marriage of the appellant with the respondent was solemnized on 28.02.1994 in Gurubhavana of Jagaluru Town, Davanagere District. From the said wedlock, the couple have two daughters namely Sneha and Neha, who are now aged about 26 and 22 years respectively. The couple lived together as 3 husband and wife for about 9 years and thereafter, they started quarreling with each other and their relationship got strained. Ultimately, on 18.01.2005, the appellant along with her minor children left the company of the respondent and started residing in her parents house. She had filed petition under Section 125 of Cr.P.C., claiming maintenance from the respondent and in the said proceedings, the appellant was awarded maintenance of Rs.4,500/- per month for herself and her two children. Since the appellant had refused to join the company of the respondent, he had filed M.C.No.20/2010 before I Additional Senior Civil Judge, Davanagere (hereinafter referred to as the "Trial Court") under Section 13(1)(i-a)(i-b) of the Act of 1955 for dissolution of marriage with the appellant. Before the Trial Court, the appellant had entered appearance and filed her statement of objections denying the allegations made against her. The learned Judge vide the impugned judgment and decree had allowed the petition and dissolved the marriage between the parties. Being aggrieved by the same, the appellant-wife is before this Court.
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4. Learned counsel for the appellant submits that since the parties are residing separately for the last about 17 years, it would not be possible for them to live a normal married life in future and therefore, the appeal may be considered for grant of permanent alimony to the appellant taking into consideration that she has been taking care of her daughters who are now of marriageable age. She submits that the respondent is a land owner and has got good income from his agricultural property in which he has been growing areca nut crop. She submits that though there is an order for payment of maintenance, the respondent has been irregular in payment of the same. Therefore, the appellant was constrained to initiate execution proceedings against him.
5. Per contra, learned counsel for the respondent submits that the daughters have filed suit for partition and separate possession in joint family property, which has now been decreed. He also submits that the elder daughter who has completed her Engineering degree is now working and therefore they have source of 5 income whereas the respondent is depending only on agricultural income which is not definite.
6. It is the case of the appellant that the respondent owns certain agricultural land and his source of income is only from the said agricultural land. The parties have placed before this Court the judgment and decree passed in O.S.No.52/2017, which was filed by the daughters of the parties seeking partition and separate possession of the joint family property of the respondent. The suit schedule properties in the said suit totally measures about 20 acres of the agricultural land. In the said suit, the respondent and his daughters, together have been allotted 1/7th share in the suit schedule properties and therefore approximately they would together get 3 acres of land. Therefore, the income of the respondent is required to be taken into consideration only from the said 3 acres of land which has been allotted to his share along with his daughters. Though a decree has been passed in favour of the daughters, till date the respondent himself has been in possession and cultivation of the land that has been allotted to their joint 6 share. Taking into consideration the present market price of arecanut it can be safely held that the respondent may be having an income of Rs.3 lakhs per year and in the said income he may have to spend a substantial amount for the purpose of maintenance of arecanut plants and after excluding the said expenses that he may incur, he may be saving approximately Rs.1 lakh per year.
7. It is not in dispute that the elder daughter of the couple has now completed his Engineering degree and she is employed and therefore she has got a definite source of income and she would be in a position to help her mother. However, the fact remains that the younger daughter is not employed and the mother may require substantial amount for the purpose of performing the marriage of the two daughters. The respondent has not contributed for the upbringing of his daughters who are now of marriageable age. Under the circumstances, we are of the considered view that, if the respondent is directed to pay permanent alimony of Rs.5 laksh to the appellant that would meet the ends of justice. Accordingly, the following :-
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::ORDER::
The Miscellaneous First
appeal is disposed of. The
respondent is directed to pay a sum
of Rs.5,00,000/- (Five Lakhs) to the
appellant as a permanent alimony
within a period of six months from
the date of receipt of certified copy
of this order.
Sd/-
JUDGE
Sd/-
JUDGE
NMS