Karnataka High Court
Mrs Rashmi Sequeira vs Mr Eustace Cutinha on 30 November, 2012
Author: C.R.Kumaraswamy
Bench: C.R. Kumaraswamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE C.R. KUMARASWAMY
RPFC No. 3 OF 2012
BETWEEN:-
1. MRS. RASHMI SEQUEIRA
AGED 34 YEARS
W/O MR. EUSTACE CUTINHA
D/O ROBERT SEQUEIRA
PRESENTLY RESIDING AT HILL
VIEW, MERCARA HILL ROAD
MANGALORE-575 002
2. BABY ANGEL RISHAN
AGED 6 YEARS
MINOR-REPRESENTED BY
NATURAL GUARDIAN THE
PETITIONER NO.1 SMT. RASHMI
SEQQEIRA AND RESIDING WITH HER.
...PETITIONERS
(BY SRI. P.P. HEGDE, ADVOCATE)
AND:-
MR. EUSTACE CUTINHA
AGED 37 YEARS
SON OF STANISLAUS CUTINHA
RESIDING AT B-001, WILSON MANOR
13TH CROSS, WILSON GARDEN
BANGALORE-560 027
...RESPONDENT
(BY SRI. M.V.V. RAMANA, ADVOCATE)
2
THIS R.P.F.C. IS FILED UNDER SECTION 19(4) OF
THE FAMILY COURTS ACT, AGAINST THE JUDGMENT AND
ORDER DATED:16.11.2011 PASSED IN CRL.MISC. NO.
21/2011 (OLD M.C.NO.267/2005) ON THE FILE OF THE
JUDGE, FAMILY COURT, MANGALORE, D.K., PARTLY
ALLOWING THE PETITION FILED UNDER SECTION 125 OF
CR.P.C. FOR MAINTENANCE.
THIS R.P.F.C. COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
This RPFC is filed under Section 19(4) of the Family Courts Act against the judgment and order dated 16.11.2011 passed in Crl.Misc.No.21/2011 (Old M.C.No.267/2005) on the file of the Judge, Family Court, Mangalore, Dakshina Kannada, partly allowing the petition filed under Section 125 of Cr.P.C.
2. Heard the learned counsel for the revision petitioners and learned counsel for the revision respondent.
3. The contention of the petitioners in the trial Court is as under:
Marriage between the petitioner No.1 and respondent was solemnized on 25.01.2004 at 3 St.Patrick's Church, Bangalore as per Christian customs. The respondent was working as Software Engineer at Symphony Services Company. The petitioner No.1 gave birth to a female child on 11.02.2005.
4. The contention of the respondent is that, the petitioner No.1 is B.Pharma graduate. The respondent filed divorce petition in M.C. No.1214/2005 before the Family Court, Bangalore.
5. It is evident that, respondent has obtained a divorce and it appears that petitioner No.1 had not appeared before the Family Court and decree of divorce has been passed in the year 2007. Now, respondent has remarried and he has also got another child. Therefore, the question of petitioners now going and residing with him and respondent taking her is not possible and it is also not feasible. So, it is evident from the evidence of petitioner No.1 that, respondent has neglected and refused to maintain his wife and children 4 and with that temporary work of the wife, she is unable to maintain petitioner No.2 and herself.
6. The trial Court has also observed that, it is evident from the evidence of RW2 that petitioner No.1 was working at Government Wenlock Hospital, Mangalore in the year 2007 and getting Rs.7,500/- as a salary and it is evident that Nehru Yuva Kendra has out sourced her.
7. The trial Court taking into consideration the petitioner No.1 is getting income and also keeping in mind that the respondent has to maintain his family and now he has married another woman after obtaining divorce and he has also got a child. So the Court has to keep that aspect also in mind. Now he has to maintain his parents and his second wife and children and he has to pay maintenance to the first wife also. Of course petitioner No.1 has chosen to remain absent before the Family Court, for the reasons best known to her. She could have contested the case and asked for some 5 permanent alimony in the said case, but she kept quiet and the respondent after obtaining divorce has married another woman. So taking into consideration of all these aspects and also the purpose for which the provisions under Section 125 is made, in my considered view the petitioner No.1 is entitled for maintenance of Rs.5,000/- per month and petitioner No.2 is entitled for maintenance of Rs.2,500/- per month.
8. Feeling aggrieved by the same, the wife and minor child has preferred this revision petition. It is the contention of the learned counsel for the revision petitioners that the quantum of maintenance granted by the lower Court is unreasonably low. The respondent- husband was drawing salary to the tune of Rs.76,097/- as on 30.06.2008 and after deduction he used to get Rs.65,052/- per month. Petitioner No.1 was obtained employment on contract basis in District Wenlock Hospital, Mangalore as Pharmacist with effect from 02.10.2007 and she is entitled to draw only Rs.7,500/- 6 per month. Therefore, learned counsel for the petitioners seeks for modification of the order.
9. The learned counsel for the petitioners relied on the judgment reported in JT 2000 (10) SC 344 in the matter of Shivani Chattopadhyaya vs. Siddarth Chattopadhyaya, wherein the Supreme Court has observed as under:
"Maintenance-High Court fixing at
Rs.3,500-Respondent, a DIG-Claim of
Rs.10,000 make-Dispute as regard income. Held that interim maintenance is fixed at Rs.6,000 from 1.7.2000. Final amount to be fixed by High Court after looking into all aspects."
He also relied on another judgment reported in 2004 (3) KCCR SN 303 in the matter of Dundappa Fakirappa Talwar vs. Laxmibai and another wherein it is held as under:
"A. Code of Criminal Procedure, 1973- Section 125-Grant of enhanced maintenance- Date for-should be granted from the date of 7 application for maintenance and not from the date of application for enhancement of maintenance."
10. Learned counsel for the respondent submits as under:
The trial Court has awarded maintenance of Rs.5,000/- to the wife and Rs.2,500/- to the child and besides, she is earning Rs.7,500/- per month by working as Pharmacist at Government Wenlock Hospital, Mangalore. She is getting salary of Rs.7,500/- per month. In all, there is income of Rs.15,000/- to the wife and child. The respondent is married and he has got wife and child, besides he has to support his aged parents and he is residing in Bangalore. It is very costly city. No doubt, he may get Rs.65,052/- per month after deducting income tax and paying Rs.7,500/- maintenance, hardly any amount is left to live in a city like Bangalore.
11. Object-Sections 125 to 128 of the Code constitute one family. These have been grouped 8 together in Chapter IX of the Code under the caption, 'ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS'. These provisions are intended to fulfil a social purpose. There object is to compel a man to perform the moral obligations, which he owes to the society in respect of his wife, children and parents. By providing a simple and speedy but limited relief, these provisions seek to ensure that the neglected wife and children are not left beggared and destitute on the scrapheap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. The inability of the wife, child and father or mother to maintain themselves could lead to social problems and therefore, it became the concern of the State not to allow such inability to grow into social problems of great magnitude. Unless the consequences of such inability were checked by providing appropriate measures, large scale vagrancy could be the probable off-shoot therefrom. Therefore, the Parliament in its desire to 9 find a solution to this problem evolved a summary procedure which has found expression in Chapter IX.
12. Taking into consideration the object of the Act and also its speedy limited relief provided to the neglected wife and children, the trial Court has ordered maintenance of Rs.5,000/- to petitioner No.1 and Rs.2,500/- to petitioner No.2. She is also employed and she is earning Rs.7,500/-. Taking into consideration all these aspects, in my view there is no ground to increase the quantum of maintenance to petitioner No.1 or to the petitioner No.2 at this stage.
In the result, I pass the following:
ORDER This revision petition is dismissed.
SD/-
JUDGE PMR