Karnataka High Court
K Nagarajappa vs V Padmavathi on 14 October, 2020
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
RPFC NO.199/2015
BETWEEN:
K.NAGARAJAPPA,
S/O. KONAPPA,
MECHANIC,
M.S.RAMAIAH COLLEGE OF
ENGINEERING (CIVIL DEPARTMENT),
BANGALORE - 560 054.
... PETITIONER
(BY SRI.K.P.THRIMURTHY, ADVOCATE)
AND:
V.PADMAVATHI,
W/O. K.NAGARAJAPPA,
RESIDING AT: THAYAMMA COMPOUND,
GOWRIPET, KOLAR - 563 122.
AND ALSO, AT:
THIPPENAHALLI VILLAGE POST,
KASABA HOBLI,
CHIKKABALLAPUR TALUK - 562 101.
... RESPONDENT
(VIDE ORDER DATED:29.03.2019,
SERVICE OF NOTICE TO
RESPONDENT IS HELD SUFFICIENT)
2
THIS RPFC IS FILED U/SEC. 19(4) OF FAMILY COURTS
ACT, CHALLENGING THE ORDER DATED: 08.08.2013 PASSED
BY THE PRINCIPAL JUDGE, FAMILY COURT, KOLAR IN CRL.MIS.
(F.C.) 10/2013.
THIS RPFC COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Sri.K.P.Thrimurthy, learned counsel for petitioner has appeared through video conferencing. Respondent served and unrepresented.
Revision petition is posted for admission after service of notice to respondent.
2. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Family Court.
3. The order dated 08.08.2013 passed by the Principal Judge, Family Court, Kolar in Crl.Mis (F.C.)10/2013 is challenged in this petition, whereby, learned Judge has directed the respondent to pay maintenance of Rs.1,800/- per month to petitioner from the date of order till her life time. It is this order 3 which is called in question on various grounds as set out in this petition.
4. Sri.K.P.Thrimurthy, learned counsel submits that the order of the Family Court suffers from serious infirmity and the same is liable to set aside. He submitted that the learned Family Judge has failed to appreciate the oral and documentary evidence available on record.
Counsel submitted that the Family Court erred in coming to the conclusion that petitioner has got justifiable reasons to stay away from respondent. In fact, respondent showed his bonafides to discharge his matrimonial obligations. But, petitioner herself deserted respondent and lived apart from him.
He submitted that respondent was working as Attender in M.S. Ramaiah Institution of Technology, he is retired and getting a pension of Rs.1,772/- per month. It has been contended that the pension is not enough to maintain himself. Therefore, respondent is constrained to depend upon his son for his livelihood. Next, he submitted that the Family Court ought 4 to have considered the age of respondent and his capability of earning at the old age.
A further submission was made that respondent is physically challenged person and he is suffering from various ailments. Therefore, he is not in a position to pay maintenance as ordered by the Family Court. Accordingly, he submitted that the order of maintenance passed by the learned Family Judge, Kolar is liable to be set aside and the revision petition may be allowed.
Lastly, he submitted that respondent has filed an application under Order 41 Rule 27 of CPC seeking permission of the Court to produce additional evidence. Counsel submitted that the same may be taken into consideration while disposing of the matter.
5. Heard and carefully perused the order as well as the application filed under Order 41 Rule 27 of CPC with care.
6. It is not in dispute that both petitioner and respondent are husband and wife and their marriage was 5 solemnized on 15.08.1983 at Marasanapalli Village as per their customary rites and rituals prevailing in the community. It is also not in dispute that they lived blissfully for sometime and thereafter, due to some difference of opinion and misunderstanding between them, petitioner was constrained to take shelter in her parental house. Contending that her husband is having sufficient means, neglected and refused to maintain her, she brought action under Section 125 of Cr.P.C.
Learned Judge held that petitioner has proved that respondent has willfully refused and neglected to maintain his wife.
Before going to the merits of the case, let me consider the application filed under Order 41 Rule 27 of CPC.
7. In this Court, respondent has filed an application under Order 41 Rule 27 of CPC seeking production of additional evidence viz., Pension slip, Letter dated 05.03.2015, Disability Certificate, Patta and Receipt Book and OPD Book. 6
Let me first consider whether respondent is entitled to produce additional evidence or not? I have carefully perused the application, and the cause shown in the affidavit and the additional documents.
The pension slip which is sought to be produced by respondent as additional evidence is dated 08.08.2011 which discloses that he is in receipt of monthly pension of Rs.1,772/-. It is relevant to note that petitioner brought action seeking maintenance in the year 2013. The respondent chose not to divulge his income from pension though the same was very much available during the course of proceedings before the Family Court.
Insofar as other additional evidences i.e., Letter dated 05.03.2015, Disability Certificate, Patta and Receipt Book and OPD Book are concerned, respondent has not fulfilled the conditions and limitations as are prescribed under Order 41 Rule 27 of CPC.
7
I would observe that under Rule 27 of Order 41 of CPC, production of additional evidence, whether oral or documentary, is permitted only under three circumstances which are: 1) the trial Court had refused to admit the evidence though it ought to have been admitted; 2) the evidence was not available to the party despite exercise of due diligence; and 3) the Appellate Court required the additional evidence so as to enable it to pronounce better judgment or for any other substantial cause of like nature.
The true test is whether the Appellate Court is able to pass orders on the materials before it without taking into consideration of the additional evidence sought to be adduced. When the Appellate Court finds itself unable to pass orders owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence.
But we have to remember that the proceedings are one under Section 125 of Cr.P.C. Therefore, this Court could pass orders without taking into consideration the additional evidence sought to be adduced.
8I propose to say that the production and leading evidence in Appellate Court, oral or documentary, is not a matter of right, or ipso facto. I would observe that the parties can produce evidence only when the conditions laid down in Rule 27 of Order 41 of CPC are satisfied. In the present case, respondent has not satisfied the conditions as laid down in Rule 27 of Order 41 of CPC. I find no reason to admit the additional evidence and accordingly, the application filed by respondent under Order 41 Rule 27 of CPC is hereby rejected.
8. Insofar as the claim of maintenance is concerned, petitioner has contended that respondent is working at M.S.Ramaiah Institute of Technology and drawing a salary of Rs.10,000/- per month and she had sought for monthly maintenance of Rs.4,000/- per month from the respondent.
The fact that respondent has not provided anything for her maintenance is admitted.
Respondent was examined as RW-1 and he has deposed that petitioner is working in Medical College Hospital at Kolar 9 and drawing a salary of Rs.2,000/- per month. Therefore, respondent sought to urge that petitioner is capable of maintaining herself. Learned Judge has refused to accept the said contention.
In this Court, respondent adhered to the contention that petitioner gainfully employed and therefore, she is not financially dependant on her husband. I find no records to substantiate the said contention. Therefore, there is no merit in the said contention.
While arguing the case, counsel vehemently urged that respondent is drawing a very meager pension. He also submitted that respondent is physically challenged person and at present, he is without avocation. Learned Judge in extenso considered the matter and found that respondent is having sufficient means but has refused and neglected to pay the maintenance. I find no reason to interfere with Judges' order.
It is perhaps well to observe that the power to make an order under Section 125 of Cr.P.C is discretionary. I find it 10 necessary to say only this much that High Court in exercising its revisional powers should not interfere with the discretion of a Judge acting within his jurisdiction unless the Court is clearly satisfied that he was wrong.
Accordingly, the revision petition is dismissed. Sri.K.P.Thrimurthy, learned counsel submits that respondent has deposited litigation expenses of Rs.3,000/- before this Court. He submitted that the amount may be transferred to the Family Court if the is not withdrawn by the opposite party. Taken note of the submission. Registry to verify the same and take appropriate action in this regard.
In view of dismissal of the main petition, I.A.Nos.2 and 3 of 2015 do not survive for consideration. Hence, they are dismissed.
Sd/-
JUDGE VM