Karnataka High Court
Sri.Mohammad Rafiq S/O Janab ... vs Smt.Shabana W/O Mohammad Rafiq ... on 5 September, 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
RPFC NO.200071/2016
A/W
RPFC No. 200011/2017
RPFC No.200071/2016
BETWEEN:
Sri. Mohammad Rafiq
S/o Janab Mehabubsab Badesab Havargi,
Age: 35 years, Occ: Asst. Librarian (Bengaluru),
College of Commerce, Jain University,
Jayanagar, Bengaluru.
... Petitioner
(By Sri Arun Choudapurkar, Advocate)
AND:
Smt. Shabana W/o Mohammad Rafiq Havaragi,
Age: 25 years, Occ: Household,
R/o Zeenath Manzil, Patel Garden,
Near Aisha Madarasa, Bagayat Galli,
J.M.Road, Vijayapura-586104.
... Respondent
(By Sri. R.S. Lagali, Advocate)
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This RPFC is filed under Section 19(4) of the
Family Courts Act praying to allow this revision petition
and set aside the impugned order dated: 20.10.2016
passed by the Judge, Family Court, Vijayapura, in
Crl.Misc. No. 103/2015.
RPFC NO.200011/2017
BETWEEN:
Smt. Shabana W/o Mohammad Rafiq Havaragi,
Age: 26 years, Occ: Household,
R/o Zeenath Manzil, Patel Garden,
Near Aisha Madarasa, Bagayat Galli,
J.M.Road, Vijayapura-586104.
... Petitioner
(By Sri. R.S. Lagali, Advocate)
AND:
Mohammad Rafiq
S/o Janab Mehabubsab Badesab Havaragi,
Age: 36 years, Occ: Asst. Librarian (Bengaluru),
College of Commerce, Jain University,
Jayanagar, Bengaluru-560070.
... Respondent
(By Sri. Arun Choudapurkar, Advocate)
This RPFC is filed under Section 19(4) of the
Family Courts Act praying to allow the revision petition
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and thereby modify the Judgment & order Dt.
20.10.2016 in Crl.Misc. No. 103/2015 passed by the
Judge, Family Court, Vijayapura and grant
maintenance as claimed in the maintenance petition.
These petitions coming on for Admission this day,
the Court made the following:
ORDER
These matters are posted for admission, with the consent of both the learned counsel are taken up for final disposal.
2. These are the two petitions directed against the order passed by the learned Judge, Family Court, Vijayapura on 20.10.2016 in Crl.Misc. No.103/2015.
3. In order to avoid confusion and overlapping, the parties are referred in accordance with their status with reference to relationship.
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4. Wife Smt. Shabana presented petition under Section 125 of Cr.P.C. seeking maintenance from her husband Mohammad Rafiq S/o Janab Mehabubsab Badesab Havaragi on the file of the Judge, Family Court, Vijayapura. The marriage between the parties took place on 24.11.2013 at Shree Banashankari Kalyan Mantap situated near Kanti circle of Ilkal town in Hunagund taluka of Bagalkot district.
5. Further, the wife claims that 20 grams of gold and cash of Rs.1,00,000/- were given as dowry to the respondent-husband. it is further stated that there was a demand for balance dowry of Rs.50,000/-. Rest of the matter is in so many words. She claims that despite legal duty to maintain her on the part of her husband she was neglected.
6. Her claim is, she is unable to maintain herself and not guilty of any lapses or violation of duties 5 towards her husband who is having sufficient means may be directed to maintain her.
7. The husband is stated to be Librarian in the College of Commerce, Jain University, Jayanagar, Bengaluru. The learned counsel for the husband has made available a copy of the salary slip of the husband for the month of February 2014. It is stated that he is drawing gross salary of Rs.18,600/-.
8. It is submitted by the learned counsel for the petitioner-husband in RPFC No.200071/2016 that the learned trial Judge ordered an amount of Rs.10,000/- per month payable by the revision petition in RPFC No.200011/2017 to the revision petitioner-wife in RPFC No.200011/2017 as per the order dated 20.10.2016 together with costs of Rs.2,000/-. Against the said order, the petitioner-husband has come in revision. 6
9. Per contra, the wife has filed RPFC No.200011/2017 seeking enhancement of maintenance claiming that the amount of maintenance what was ordered is very much on the lower side and she is facing inconvenience and difficult situation to counter the expenditure for necessaries.
10. Learned counsel for the wife would submit that she does not have any other source of income to maintain herself and she fully deserves for an order under Section 125 of Cr.P.C. for her maintenance.
11. Per contra, learned counsel for the husband would submit that the petitioner-husband is put to serious hardship because of the order of maintenance, which is more than 50% of his monthly income.
12. In the overall circumstances of the case, the petition filed by the wife in Crl.Misc. No.103/2015 before the Family Court is one for maintenance 7 simplicitor claiming that she was willfully neglected to be maintained by her husband who has sufficient means to maintain her.
13. In the context, facts of the case and the circumstance points that may be highlighted are; marital relationship between the parties is not disputed; there are no allegations touching morality or character by either of the parties. It appears that they are driven by the circumstances and have come before the Court. Insofar as the wife is concerned, she claims maintenance and maintenance of Rs.10,000/- per month granted by the trial Court is insufficient. No doubt, in terms of qualification the petitioner-husband is stated to be B.Com. graduate in Commerce and post graduate in Library Science and working as such in College of Commerce, Jain University, Jayanagar, Bengaluru. Even in cases where the parties may be compelled to have their own stand, the legal duty to 8 maintain and the legal right to be maintained cannot be brushed aside. In this connection, the relevant angle for reckoning the right of maintenance or the liability to pay would be capacity to work and not actual earnings.
14. In the context and circumstances, the petitioner-husband was drawing net salary of Rs.18,400/- as per the salary slip of February, 2014. In this connection, no doubt that the salary would not be same figures right on today. Regard being had to the fact that he is still working in the same college. I find that the facts, circumstances, rights and duties of maintenance and to be maintained with reference to status of the parties would suggest that Rs.10,000/- appears to be just and fair maintenance and I hold that the judgment and order passed by the learned Judge, Family Court, Vijayapur is free from lacuna, nor it is perverse or irregular. It deserves to be confirmed. Accordingly, confirmed.
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15. Insofar as the arrears of maintenance is concerned, three months period is granted to the revision petitioner-husband to settle the arrears of maintenance which is the difference between interim maintenance and maintenance amount of Rs.10,000/- per month.
16. In view of the above, both the revision petitions in RPFC Nos.200071/2016 and 200011/2017 are rejected.
Sd/-
JUDGE nsp