Karnataka High Court
Sri Doddaveeraiah @ Rajanna vs Smt Vedavathi on 21 October, 2016
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2016
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
RPFC No.137/2015
C/W
RPFC No.166/2015
IN RPFC No.137/2015
BETWEEN:
SRI. DODDAVEERAIAH @ RAJANNA,
S/O VEERADASAIAH,
AGED ABOUT 46 YEARS,
R/AT NEAR OLD TYRE FACTORY,
KOTHI THOPU,
TUMKUR-572101.
... PETITIONER
(BY SRI K. HANUMANTHARAYAPPA, ADVOCATE)
AND:
1. SMT. VEDAVATHI,
W/O DODDAVEERAIAH @ RAJANNA,
AGED ABOUT 40 YEARS,
RESIDING AT REDDIHALLI,
HOLAVANAHALLI HOBLI,
KORATAGERE TALUK,
TUMKUR DISTRICT-572101.
2. T. D. PRAVEENA,
S/O DODDAVEERAIAH @ RAJANNA,
AGED ABOUT 17 YEARS,
3. T. D. NAYANA,
D/O DODAVEERAIAH @ RAJANNA,
AGED ABOUT 15 YEARS,
2
NO.2 AND 3 ARE SINCE MINORS
REP. BY THEIR MOTHER AND
NATURAL GUARDIAN, THE
RESPONDENT NO.1.
BOTH ARE RESIDENT OF
REDDIHALLI, HOLAVANAHALLI HOBLI,
KORATAGERE TALUK,
TUMKUR DISTRICT-572101.
... RESPONDENTS
(BY SRI K.R. RAMESH, ADVOCATE)
THIS RPFC IS FILED UNDER SECTION 19(4) OF THE
FAMILY COURTS ACT., AGAINST THE ORDER DATED 28.12.2013
PASSED IN C.MISC. NO.391/2013 ON THE FILE OF THE
PRINCIPAL JUDGE, FAMILY COURT, TUMKUR, PARTLY
ALLOWING THE PETITION FILED UNDER SECTION 125 OF
CODE OF CRIMINAL PROCEDURE FOR MAINTENANCE.
IN RPFC NO.166/2015
BETWEEN:
1. SMT. VEDAVATHI,
W/O DODDAVEERAIAH @ RAJANNA,
AGED ABOUT 39 YEARS,
2. MASTER T. D. PRAVEENA,
S/O DODDAVEERAIAH @ RAJANNA,
AGED ABOUT 17 YEARS,
3. KUMARI T. D. NAYANA,
D/O DODAVEERAIAH @ RAJANNA,
AGED ABOUT 16 YEARS,
PETITIONER NO.2 AND 3 ARE MINORS
REP. BY THEIR MOTHER AND GUARDIAN,
SMT. VEDAVATHI,
ALL ARE PRESENTLY RESIDING AT
REDDIHALLI, HOLAVANAHALLI HOBLI,
KORATAGERE TALUK,
TUMKUR DISTRICT-572129.
... PETITIONERS
(BY SRI K.R. RAMESH, ADVOCATE)
3
AND:
SRI. DODDAVEERAIAH @ RAJANNA,
S/O VEERADASAIAH,
AGED ABOUT 46 YEARS,
R/O NEAR OLD TYRE FACTORY,
KOTHI THOPU,
TUMKUR-572101.
... RESPONDENT
(BY SRI K. HANUMANTHARAYAPPA, ADVOCATE)
......
THIS RPFC IS FILED UNDER SEC.19(4) OF THE FAMILY
COURT ACT., AGAINST THE ORDER DATED 28.12.2013 PASSED
IN C.MISC. NO.391/2013 ON THE FILE OF THE PRINCIPAL
JUDGE, FAMILY COURT, TUMKUR, PARTLY ALLOWING THE
PETITION FILED UNDER SECTION 125 OF CODE OF CRIMINAL
PROCEDURE FOR MAINTENANCE.
THESE RPFCs COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
RPFC No.137/2015 is filed by the husband for reduction of maintenance and RPFC No.166/2015 is filed by the wife and children for enhancement of maintenance, against the order dated 28th December 2013 made in C.Misc.No.391/2013 on the file of the Principal Judge, Family Court, Tumakuru, allowing the petition in part filed by the wife and children under 4 Section 125 of the Code of Criminal Procedure, awarding monthly maintenance of `2,500/- to the wife till her life time and `1,500/- to each of the two children till they attain the age of majority, from the date of the order.
2. The parties are referred as per their ranking before the Family Court.
3. The petitioners/wife and minor children filed petition under Section 125 of the Code of Criminal Procedure against the husband claiming monthly maintenance of `8,000/-, contending that the 1st petitioner is the legally wedded wife of the respondent, their marriage was solemnized on 16.06.1997 at Tumakuru and out of the wedlock, petitioners 2 and 3 were born. It was contended that about one year back the respondent at the instigation of his parents, started to ill treat the 1st petitioner to bring dowry and in that respect several panchayaths were held and 5 panchayathdars advised the respondent/ husband to live with the petitioners amicably, which went in vain. Ultimately, the respondent/husband drove the petitioners out of the house and they are residing at Nagavalli village. It was further contended that the 1st petitioner is diabetic patient, petitioners 2 and 3 are school going children and there are no other person to take care of them and are living at the mercy of relatives and sought for monthly maintenance of `8,000/-.
4. The respondent/husband was placed ex-parte as the notice issued to him was 'not claimed'.
5. Based on the aforesaid pleadings, the Family Court framed the following points for consideration:
(i) Whether the petitioners prove that respondent being husband of petitioner No.1 and father of petitioners 2 and 3 has neglected/refused to maintain them?
(ii) Whether the petitioners entitled for maintenance? If so, at what amount?
(iii) What Order?6
6. The petitioner No.1/wife was examined as P.W.1 and got marked the documents Exs.P.1 to P.12.
7. After hearing the learned counsel for the petitioners and considering the entire material on record, the Family Court recorded a finding on the basis of RTC extracts, Exs.P.4 to 12 that the respondent/ husband is capable of maintaining the petitioners and the petitioners have no means to maintain themselves and proceeded to pass the impugned order awarding monthly maintenance of `2,500/- to the wife till her life time and `1,500/- to each of the two children till they attain the age of majority, from the date of the order.
Hence the present petitions are filed by the husband for reduction and wife and children for enhancement of the maintenance amount.
8. This Court, by an order dated 01.10.2015, while granting stay of execution of the impugned order, 7 directed the husband to deposit arrears of maintenance at the rate of `3,500/- per month from 01.01.2014 till 30.09.2015 and continue to pay at the rate of `3,000/- to the respondents.
9. Sri K.Hanumantharayappa, learned counsel for the husband submits that a sum of `30,000/- has been paid to Sri K.R.Ramesh, learned counsel for the wife and children, on 07.10.2016, towards arrears of maintenance, the receipt of which Sri K.R.Ramesh acknowledges.
10. I have heard the learned counsel for the parties to the lis.
11. Learned counsel for the husband submits that the impugned order passed by the Family Court awarding monthly maintenance of `5,500/- to the wife and children is highly exorbitant and the Family Court has proceeded to pass the impugned order without giving an 8 opportunity to the husband to substantiate his case and therefore, the order impugned is without any basis and sought to set-aside the impugned order.
12. Per contra, Sri K.R.Ramesh, learned counsel for the wife and children, while justifying the impugned order, sought for further enhancement of the maintenance amount, on the ground that the husband is owning agricultural lands, as can be seen from the RTC extracts, Exs.P.4 to 12 and is also having areca nut garden and it is bounden duty of the husband to maintain his wife and children and therefore, sought for dismissal of RPFC 137/2015 filed by the husband and to enhance the maintenance by allowing RPFC 166/2015 filed by the wife and children.
13. In view of the rival contentions urged by the learned counsel for the parties, the points that arise for consideration is:
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(i) Whether the Family Court is justified in passing the impugned order granting maintenance to the wife and children without providing an opportunity to the husband to put forth his case?
(ii) Whether the Family Court is justified in granting maintenance of `5,500/- to the wife and children when they have claimed `8,000/- per month, in the facts and circumstances of the case?
14. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.
15. It is undisputed fact that the marriage between the 1st petitioner/wife and respondent/husband was solemnized on 16.06.1997 and out of the wedlock, petitioners 2 and 3 were born. It is also not in dispute that the there were allegations and counter allegations. Ultimately, the husband neglected the wife and children 10 by not providing food and cloth and drove them out of the house. The petitioners are residing in their native place at Nagavalli. It is the specific case of the petitioners before the Family Court that the husband is not maintaining them, he owns agricultural lands as is evident from Exs.P.4 to 12 having sufficient means to maintain the petitioners. It is also stated that the respondent owns areca nut and coconut garden and is getting monthly income of more than `10,000/- from agriculture. The said assertion was not denied by the respondent/husband by filing objections, inspite of service of notice, and therefore, was placed ex-parte. It is the specific case of the husband before this Court that the postal shara indicates that the notice was not claimed and service was not effected in accordance with law.
16. In view of the assertions made by the husband and denied by wife and children, an opportunity should 11 be given to the husband to putforth his case. In the meantime, the wife and children have to survive. No material has been produced by the husband before this Court to prove that the wife and children have sufficient means to maintain themselves. In the absence of any material produced by the husband before this Court, it is his obligation to maintain his wife and children as contemplated under Section 125(a) and (b) of the Code of Criminal Procedure.
17. The Supreme Court, while considering the provisions of Section 125 of the Code of Criminal Procedure in the case of Bhuwan Mohan Singh v. Meena and Ors. reported in AIR 2014 SC 2875 at para 3 held as under:-
"3. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short "the code") was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can 12 be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a begger. A situation is not to be maladroitly created where under she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not 13 entitled to get maintenance from the husband on any legally permissible grounds."
18. This Court, by an order dated 01.10.2015, granted stay of execution of the impugned order, directing the husband to deposit arrears of maintenance at the rate of `3,500/- per month from 01.01.2014 till 30.09.2015 and continue to pay at the rate of `3,000/- to the respondents. The said order is still intact. It is stated by the learned counsel for the wife and children that the husband has paid arrears of maintenance upto August 2016. In order to provide an opportunity to the husband, it is suffice to continue the interim order passed by this Court, directing the Family Court to decide the case afresh, after giving opportunity to both the parties to putforth their case, in accordance with law.
19. It is made clear that the husband has to pay `3,500/- per month from the date of petition till 14 realization and `3,500/- from today till the disposal of the petition before the Family court. For the reasons stated above, the point No.1 raised in these petitions has to be answered in the negative holding that the Family Court is not justified in awarding maintenance without hearing the husband, placing him ex-parte, as the postal shara indicated that the cover is 'not claimed'. The point No.2 is answered in the affirmative holding that the matter requires reconsideration by the Family court for further enhancement of the maintenance.
20. For the reasons stated above the RPFC's are disposed of. The impugned order dated 28th December 2013 made in C.Mis.No.391/2013 on the file of the Principal Judge, Family Court, Tumakuru, is set-aside. The matter is remanded to the Family court for fresh adjudication between the parties, after giving opportunity to the parties to the lis. Till the disposal of 15 the case before the Family court, the husband is directed to pay `3,500/- per month to the wife and children. The Family Court is directed to take into consideration the paramount interest of the children who are studying in Colleges and decide the matter as expeditiously as possible, within an outer limit of six months from the date of receipt of certified copy of this order. The parties are directed to appear before the Family Court on 10.11.2016. The husband shall pay arrears of maintenance from the date of petition at the rate of `3,500/- per month on or before 16th December 2016.
Ordered accordingly.
Sd/-
JUDGE kcm