Karnataka High Court
Neelawwa @ Sarojini vs Shankreppa Kallappa Murgod on 30 July, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:10714
RSA No. 5884 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 5884 OF 2010
BETWEEN:
SMT. NEELAWWA @ SAROJINI
W/O SHANKREPPA MURGOD,
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
R/O PARISHWAD, TQ: KHANAPUR,
DIST: BELGAUM-590001.
...APPELLANT
(BY SMT. SURABHI KULKARNI, ADVOCATE FOR
SRI CHETAN MUNNOLI AND LOKESH HEGDE, ADVOCATES)
AND:
SRI SHANKREPPA KALLAPPA MURGOD
AGE: 50 YEARS, OCC: TEACHER,
R/O YARADAL, TQ: BAILHONGAL-590001.
DIST: BELGAUM.
Digitally signed ...RESPONDENT
by SAROJA (BY SRI BALAGOUDA A. PATIL AND
HANGARAKI SRI M.R.MELAVANKI, ADVOCATE (NOC OBTAINED)
Location: HIGH SRI PRAKASH B. ANGADI, ADVOCATE)
COURT OF
KARNATAKA THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO SET
DHARWAD
BENCH ASIDE THE JUDGMENT AND DECREE DATED 12.07.2010 IN
DHARWAD
R.A.NO.11/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
ASST. SESSIONS JUDGE, BAILHONGAL, REVERSING THE JUDGMENT
AND DECREE DATED 21.04.2007 IN O.S.NO.39/2001 ON THE FILE
OF THE ADDITIONAL CIVIL JUDGE (JR.DN.), BAILHONGAL.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:10714
RSA No. 5884 of 2010
ORAL JUDGMENT
1. Present appeal is filed by the plaintiff, challenging the judgment and decree passed in R.A.No.11/2007 dated 12.07.2010 on the file of the Senior Civil Judge and Asst. Sessions Judge, Bailhongal (for short, 'the first appellate Court'), which reversed the judgment and decree passed in O.S.No.39/2001 dated 21.04.2007 on the file of the Addl. Civil Judge (Jr.Dn.), Bailhongal (for short, 'the trial Court').
2. For the purpose of convenience, ranking of the parties is referred to as per their status before the trial Court.
3. The plaintiff has filed suit for maintenance against the defendant claiming that defendant is her husband and has deserted the plaintiff, therefore, she has filed suit for maintenance.
4. It is stated that the defendant has obtained decree of divorce and though awarded monthly -3- NC: 2024:KHC-D:10714 RSA No. 5884 of 2010 maintenance of Rs.2000/- per month, it is not sufficient, therefore, filed suit for maintenance, claiming amount of Rs.3000/- per month. The trial Court decreed the suit in part by granting maintenance of Rs.2000/- per month.
5. Defendant has filed statement of objection and has admitted the plaintiff as his wife and there was desertion. It is justified that since in MFA No.6485/2002, confirming the decree of divorce, an amount of Rs.1500/- per month is granted and therefore partly allowed the appeal.
6. The trial Court has granted maintenance of Rs.2000/- per month, on the reason that plaintiff is his wife, being deserted by the defendant, therefore, entitled maintenance of Rs.2000/- per month.
7. Being aggrieved by the same, the defendant was before the first appellate Court reversing the judgment and decree passed by the trial Court and set aside the same, on the reason that in MFA No.6485/2002 on which decree of divorce is granted, the plaintiff was awarded Rs.1500/- per month, which is sufficient. -4-
NC: 2024:KHC-D:10714 RSA No. 5884 of 2010 Therefore, set aside the judgment and decree passed by the trial Court. Against which, the plaintiff has filed the present appeal.
8. This Court, while admitting the appeal on 31.07.2012, has framed the following substantial questions of law:
"1. Whether the Lower Appellate Court has erred in law in holding that when the plaintiff is receiving maintenance in terms of the order in M.C.No.1/1999 the suit filed for maintenance is not maintainable?
2. Whether the Lower Appellate Court has erred in law in adjusting the maintenance paid in terms of the impugned judgment and decree towards the maintenance payable as per order passed in MFA No.6485/2002?"
9. It is submitted by the counsel for the plaintiff/appellant that relationship between the plaintiff and the defendant is admitted and plaintiff is deserted by defendant and the defendant has filed petition for decree of divorce and is granted. When the said decree is -5- NC: 2024:KHC-D:10714 RSA No. 5884 of 2010 challenged by the plaintiff in MFA No.6485/2002, this Court has awarded monthly maintenance of Rs.1500/- per month, but it is insufficient. Therefore, prays to affirm the judgment and decree passed by the trial Court.
10. On the other, learned counsel for the defendant/respondent justifying the judgment and decree passed by the first appellate Court submitted that whatever maintenance granted in MFA No.6485/2002 is sufficient, therefore, prays to dismiss the appeal, by confirming the judgment and decree passed by the first appellate Court.
11. The trial Court has granted maintenance of Rs.2000/- per month and the first appellate Court has reversed the judgment and decree passed by the trial Court on the reason that in the decree of divorce in MFA No.6485/2002, the plaintiff was awarded Rs.1500/- and that is sufficient, accordingly adjusted the said amount payable as maintenance amount. When the respondent filed petition for seeking divorce, it is duty cast on the husband/defendant to pay maintenance and that is what -6- NC: 2024:KHC-D:10714 RSA No. 5884 of 2010 this Court has ordered granting maintenance amount to the plaintiff in MFA No.6485/2002, but just because in proceedings of decree of divorce, the maintenance amount is granted, that cannot be a bar for claiming maintenance amount by filing suit.
12. In the proceedings of decree of divorce in MFA No.6485/2002, the maintenance granted was only for Rs.1500/- p.m. and is insufficient to make out life in the society. The defendant is a government school teacher and being a government servant, has sufficient income to maintain his wife.
13. It is submitted that now the defendant has retired from his service, however, he is receiving pension amount of Rs.22000/- p.m., therefore, considering income being earned by the defendant, plaintiff is entitled for sufficient amount of maintenance to sustain in the society for her livelihood. Therefore, whatever amount is granted in the proceedings of decree of divorce is insufficient, therefore, the suit filed by the plaintiff is maintainable and in this regard, the first appellate Court has committed -7- NC: 2024:KHC-D:10714 RSA No. 5884 of 2010 error observing that whatever maintenance is granted in MFA No.6485/2002 is sufficient. The first appellate Court while considering the case has not taken judicial notice of fact that whether by mere amount of Rs.1500/- p.m. a person cannot make out a life in the society. If this question is being posed by the first appellate Court itself, then, rendering unjustifiable order in the appeal would have been avoided. Therefore, what the trial Court has decreed the suit in part by granting Rs.2000/- p.m. is though less is to be affirmed. Therefore, in this regard, the trial Court has committed error in declining grant of maintenance amount therefore the first appellate Court is not justified in declining maintenance amount to the plaintiff and observed that the suit is not maintainable is not correct. Therefore, both the substantial questions of law are answered in the affirmative.
14. The plaintiff has claimed monthly maintenance of Rs.3000/- per month. The trial Court has ordered maintenance of Rs.2000/- per month. Now-a-days, every price of commodity is rising. Therefore, it is not possible to -8- NC: 2024:KHC-D:10714 RSA No. 5884 of 2010 make out life just with Rs.1500/- per month granted in matrimonial case proceedings and even further Rs.2000/- per month maintenance granted in this case also would be insufficient. Therefore, in addition, the monthly maintenance amount granted in MFA No.6485/2002 considering the present market price of commodity, the same is needed for meeting out basic necessity in life, this Court is of the opinion to grant maintenance of Rs.3000/- per month, what the plaintiff has claimed in the suit. Therefore, the suit filed by the plaintiff is decreed granting monthly maintenance of Rs.3000/- p.m. from the date of suit till life time of the plaintiff.
15. The above said amount granted as maintenance, is in addition to maintenance granted in MFA No.6485/2002.
16. Therefore, the judgment and decree passed by the first appellate Court is set aside, thereby the judgment and decree passed by the trial Court is affirmed.
17. Accordingly appeal is liable to be allowed. Hence, I proceed to pass the following:
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NC: 2024:KHC-D:10714 RSA No. 5884 of 2010 ORDER i. Regular Second Appeal is allowed.
ii. The judgment and decree passed in R.A.No.11/2007 dated 12.07.2010 on the file of the Senior Civil Judge and Asst.Sessions Judge, Bailhongal is set aside, confirming and modifying the judgment and decree passed in O.S.No.39/2001 dated 21.04.2007 on the file of the Addl.Civil Judge (Jr.Dn.), Bailhongal, that the plaintiff is awarded maintenance of Rs.3000/- per month from the date of the suit till lifetime of plaintiff.
iii. No order as to costs.
iv. Draw decree accordingly.
Sd/-
(HANCHATE SANJEEVKUMAR) JUDGE KGK CT:GSM / List No.: 2 Sl No.: 35