Karnataka High Court
Saibanna S/O Shivappa Palla vs Smt.Mahadevi W/O Saibanna Palla & Ors on 4 April, 2018
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
RPFC NO.200032/2017
C/W
RPFC NO.200094/2017
RPFC NO.200032/2017
BETWEEN:
Saibanna S/o. Shivappa Palla
Age: 61 years, Occ: Retd. Teacher,
R/o. Mahagoan, Tq. & Dist. Kalaburagi - 585101.
... Petitioner
(By Sri Jidage Kailash C., Advocate)
AND:
1. Smt. Mahadevi W/o. Saibanna Palla
Age: 51 years, Occ: Household,
2. Gayatri D/o. Saibanna Palla
Age: 30 years, Occ: Student,
3. Shilpa D/o. Saibanna Palla
Age: 28 years, Occ: Student,
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4. Pooja D/o. Saibanna Palla
Age: 26 years, Occ: Student,
All R/o. H.No.11-85/3, Basava Nagar,
Kalaburagi.
5. Block Education Officer, North
Behind Government B.Ed College,
Kalaburagi - 585102.
6. District Treasury Officer
Mini Vidhan Soudha, Kalaburagi - 02.
7. The Accountant General A & E.
P.B. No.5369, Residency Park Road,
Bangalore - 560001.
... Respondents
(By Sri.Sudheer Kulkarni, Advocate for R1 to R4;
Smt.Archana.P.Tiwari, AGA for R5 to R7)
This RPFC is filed under Section 19(4) Family
court Act, praying to set aside the impugned order dated
: 31.08.2016 passed in Crl.Misc.No.31/2014 on the file
of Hon'ble Dist Judge Family Court Kalaburagi by
enhancing monthly maintenance of Rs.500/- to 3,000/-
to the respondent No.1 and Rs.4,000/- to Rs.2,000/- to
the respondent No.2 to 4.
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RPFC.NO.200094/2017
BETWEEN:
1. Smt. Mahadevi W/o. Saibanna Palla
Age: 51 years, Occ: Household,
2. Gayatri D/o. Saibanna Palla
Age: 30 years, Occ: Student,
3. Shilpa D/o. Saibanna Palla
Age: 26 years, Occ: Student,
4. Pooja D/o. Saibanna Palla
Age: 22 years, Occ: Student,
All R/o. H.No.11-85/3, Basava Nagar,
Kalaburagi.
... Petitioners
(By Sri Sudheer Kulkarni, Advocate)
AND:
Saibanna S/o. Shivappa Palla
Aged about 59 years, Occ: Head Master
Govt. Primary School, Dongergaon (Now retired)
Tq. and Dist. Kalaburagi,
R/o. H.No.112, Ram Nagar,
Kapnoor, Gulbarga
... Respondent
(By Sri Jidage Kailash C., Advocate)
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This RPFC is filed under Section 19(4) Family
court Act, praying to call for the records allow this
revision petition and to modify the impugned order
dated : 31.08.2016 passed by the District Judge Family
Court Kalaburagi in Crl.Misc.No.31/2014 and
consequently to enhance the maintenance amount of
the petitioner No.1 from Rs.3,000/- to Rs6,000/- and to
the petitioners No.2 to 4 from Rs.2,000/- to Rs.6,000/-
each and etc.,
These petitions coming on for Admission this day,
the Court made the following:
ORDER
RPFC NO.200032/2017 is filed by the husband and father of the petitioner Nos.2 to 4 for reduction and RPFC No.200094/2017 is filed by the wife and daughters for enhancement against the order dated 31.08.2016 made in Crl.Misc.No.31/2014 on the file of the District Judge, Family Court, Kalaburagi awarding maintenance of Rs.3,000/- per month to the petitioner No.1-wife and Rs.2,000/- each to the petitioners No.2 to 4-daughters exercising the powers under Section 127 of Cr.P.C.
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2. The petitioners in RPFC No.200094/2017 filed Crl.Misc. No.96/1998 under Section 125 of Cr.P.C. The Family Court by an order dated 30.07.1998 ordered maintenance of Rs.500/- to the petitioner No.1 and Rs.300/- each to the petitioner Nos.2 to 4 - children (daughters). Thereafter, another Crl.Misc.No.69/2002 came to be filed before the Family Court wherein the Family Court by an order dated 8.4.2003 awarded Rs.500/- to the wife and Rs.400/- to the daughters. Thereafter, in the year 2014, the wife and daughters filed petition filed under Section 127 of Cr.P.C. for enhancement claiming maintenance of Rs.6,000/- each to the petitioner Nos.1 to 4 contending that the maintenance granted in Crl.Misc.No.69/2002 is not sufficient and very meager, the prices of commodities are increased and it is not possible for the petitioners to lead life. The education expenses of petitioners No.2 to 4 has increased. Petitioner No.2 is studying in BA-II at Dr. Ambedkar Degree College, Gulbarga by paying fees, 6 petitioner No.3 is also studying in BA-II in the same college. Petitioner No.4 is studying in BBM 5th Semester at Muktambika College, Gulbarga by paying fees of Rs.23,700/-. Therefore, the maintenance awarded by the Family Court is insufficient, requires for further enhancement as prayed for. They further contended that as on the date of petition the respondent is working as Head Master in Government Primary School at Dongergaon and drawing salary of Rs.37,520/- per month and also receiving rent of Rs.5,000/- per month from tenant. Respondent is having sufficient income to pay the maintenance amount. Due to financial scarcity, it is difficult for the petitioner No.1 to provide education to the petitioners No.2 to 4. Inspite of demand, respondent has not paid the amount. The petitioners No.2 to 4 have attained the age of majority, respondent is not heeding to the request of the petitioners to perform marriage of petitioner No.2 for which they 7 require at least Rs.10,00,000/-. Hence, the petition for maintenance as prayed for.
3. The husband-respondent in RPFC No.200032/2017 filed objections before the Family Court and denied the averments made in the petition. He further denied the enhancement sought for, and that he is working as Head Master and drawing salary of Rs.37,520/- and rent of Rs.5,000/- per month. He further contended that he has to maintain his old aged mother who is suffering from old age ailments, he has to spend about Rs.4,000/- per month for treatment of his mother. It is further contended that the respondent is working in Sonth village and requires Rs.1,000/- per month and Rs.3,000/- per month for having comfort. He further contended that he is suffering from blood pressure, diabetic and he require Rs.1,000/- per month towards medical expenses. He further contended that he receives take home salary of Rs,.30,175/- after 8 deduction of Rs.11,645/-. He has obtained loan of Rs.3,50,000/- from Canara Bank, Kamalapur and he is paying monthly installment of Rs.20,000/- out of take home salary of Rs.30,175/-. He further contended that the petitioners are hale and healthy and they all know tailoring work and earning Rs.5,000/- each per month. Petitioner No.2 is not studying, she is working in Chanakya Primary School, Gulbarga and drawing salary of Rs.5,000/- p.m. The respondent has acquired plot No.102 at Ashok Nagar, Gulbarga and the petitioners are residing in that house. They are not entitled for further maintenance. Therefore, sought for dismissal of the claim petition.
4. On the basis of the aforesaid pleadings, the Family Court raised the following point for consideration.
"Whether petitioners are entitled for enhancement of maintenance amount? If so what is the quantum?"9
5. In order to establish the case of the petitioners, petitioner No.1 examined as PW.1, documents Ex.P.1 to P.33 were marked. Respondent examined as DW.1, documents Ex.D.1 to D.8 were marked.
6. The Family Court considering both oral and documentary evidence on record, by impugned order has recorded a finding that the petitioners are entitled for enhancement of maintenance. Accordingly, by the impugned order dated 31.08.2016 awarded maintenance of Rs.3,000/- p.m. to the wife and Rs.2,000/- p.m. each the petitioners No.2 to 4 (daughters) from the date of petition till their marriage. Hence, the husband and father filed RPFC No.200032/2017 for reduction of maintenance and RPFC No.200094/2017 is filed by the wife and daughters for enhancement.
7. I have heard the learned counsels for the parties to the lis.
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8. Sri.Jidage Kailash.C, learned counsel for the husband appearing in RPFC.No.200032/2017 vehemently contended that the impugned order passed by the Family Court awarding maintenance to the wife and daughters are exorbitant and contrary to the material on record. He would further contend that as per Ex.P.26 salary certificate he was getting Rs.37,520/- per month gross salary and home take salary of Rs.25,871/- per month. The family Court has not considered the material on record and proceeded to pass the impugned order, which is unreasonable. He would further contend that during the pendency of the petition before Family Court, the husband retired from his service on 29.02.2016, but unfortunately he has not brought before the Family Court. Thereby the Family Court proceeded to pass impugned judgment awarding maintenance.
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9. He further contended that the Family Court failed to notice that the husband has made arrangement for the residence of the wife and daughters, had constructed a house at Ashok Nagar opposite Community Hall at Kalaburagi and the wife and children are residing in the said house. Therefore, the Family Court ought not to have granted the maintenance, which is highly exorbitant and liable to be set-aside. He would further contend that the respondents No.2 to 4-daughters also filed suit for declaration and injunction against the petitioner in RPFC.No.200032/2017 in Civil Misc.No.2/2016 wherein they have got an interim stay restraining the husband from withdrawing an amount of Rs.9,00,000/- and also retirement benefits. The W.P.No.201241/2017 filed by the husband is pending before this Court. He would further contend that the respondent No.2 is working at Chanukya School at Kalaburagi and getting salary. The respondents No.2 and 3 are studying external 12 education. They are not going to school regularly. Therefore, maintenance granted by the Family Court is erroneous and liable to be set-aside. Therefore, petitioner-husband sought for allow the petition and dismiss the petition filed by the wife and daughters in RPFC.No.200094/2017.
10. Per contra Sri.Sudheer Kulkarni, counsel for the wife and daughters in RPFC.No.200094/2017 for enhancement vehemently contended that gross salary of respondent as on the date of petition was Rs.44,762/- per month. In fact the same was admitted by husband in his evidence on oath that RW.1. He would further contend that Ex.P.26 salary certificate shows that the husband was getting gross salary of Rs.37,520/- per month and he was getting net salary of Rs.25,871/- per month in the year 2013. As on the date of order passed by the Family Court there was gross salary of Rs.44,762/- per month. and respondent used to get 13 Rs.35,000/- per month. Therefore, maintenance awarded by the Family Court is inadequate and required further enhancement. He would further contend that respondent No.2-Gayatri is studying in BA-II at Dr.Ambedkar Degree College Gulbagra. The respondent No.3-Shilpa is studying in BA-II in the same College. The respondent No.4-Pooja is studying in BBM 5th semester at Muktambika College Gulbarga. They have to pay their fees. The Family Court ought to have granted more maintenance. The same has not been done. Therefore, he submits that the impugned judgment passed by the Family Court is to be modified by enhancing further maintenance as prayed for by allowing revision petition No.200094/2017 filed by wife and daughters and dismissing the revision petition No.200032/2017 filed by the respondent.
11. Having heard the learned counsel for the parties, the relationship between the parties is not in 14 dispute as husband-wife and daughters. It is also not in dispute that, earlier occasions the petitioners have filed petition under Section 125 of Cr.P.C. in Crl.Misc. No.96/1998. The Family Court had ordered for maintenance amount of Rs.500/- per month to the petitioner No.1 and Rs.300/- per month each to petitioners No.2 to 4 on 30.07.1998. It is also not in dispute that subsequently in second Crl.Mis. No.69/2002 filed by wife and daughters, the Family Court enhanced the maintenance amount at the rate of Rs.500/- per month to wife and Rs.400/- per month each to the daughters.
12. It is specific case of the wife and daughters that the maintenance granted by the Family Court is very meager, the prices of essential commodities are increased and it is not possible to lead day to day life. They have to spend education expenses for the daughters for their Colleges fees. The maintenance 15 granted was insufficient. It is specific case of the petitioners-wife and daughters that respondent is working as Head Master in Government Primary School at Dongergaon and drawing salary of Rs.37,520/- per month. He was received rent of Rs.5,000/- per month from tenant. The same is disputed by the respondent. The fact that respondent is being government servant is not in dispute. According to the respondent he has receiving take home salary of Rs.30,175/- per month after deduction of Rs.11,645/-. He has obtained loan of Rs.3,50,000/- from Canara Bank, Kamalapur. He has paying monthly installment of Rs.20,000/- out of take home salary.
13. The Family Court considering the salary slip as per Ex.P.26 of the respondent recorded a finding that the take home salary of the respondent is at Rs.25,871/- and gross salary is at Rs.37,520/- in the year 2013 and proceeded to award maintenance. 16 Though the petitioners-wife and daughters have alleged that apart from salary the respondent has receiving rent amount, but no documents were produced before the Court. It is also not in dispute that the petitioners No.2 to 4-daughters were pursuing B.A.II Degrees and BBM and they required some more amounts for their educational expenses and day to day livelihood. It is also not in dispute that in the earlier occasion maintenance granted at the rate of Rs.500/- per month and Rs.400/- per month were in pursuance of order dated 08.04.2003. The petition filed under Section 127 Cr.P.C. in the year 2014 and we are now in the year 2018. Taking into consideration the hike prices of essential commodities and taking into consideration that the petitioners No.2 to 4 are studying their education in degree, they are required further enhancement. Though Sri.Jidage Kailash.C., learned counsel for the petitioner in RPFC.No.200032/2017 submits that the respondent was retired from service on 17 29.02.2016 and pension is not settled because interim order obtained by the wife and daughters before the Family Court. Therefore he is not able to pay maintenance cannot be accepted. The fact remains that he has not paid arrears as awarded by the Family Court. It is the obligation on the part of the respondent to maintain his wife and daughters who have no source of income for their day to day livelihood as contemplated under Section 125 (1) (a) (b) of Cr.P.C.
14. The Hon'ble Supreme Court, while considering the provisions of Section 125 of the Code of Criminal Procedure in the case of Bhuwan Mohan Singh vs. Meena and Ors. reported in AIR 2014 SC 2875 at paragraph No.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 18 reasons provided in the provision so that some suitable arrangements can 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 19 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 entitled to get maintenance from the husband on any legally permissible grounds."
15. The same view is reiterated by the Hon'ble Supreme Court, while considering the provisions of Section 125 of the Code of Criminal Procedure in the case of Shamima Farooqui vs Shahid Khan reported in AIR 2015 5 SCC 705 at Paras No.14, 20 and 21 held as under:-
"Para No.14 :- Coming to the reduction of quantum by the High Court, it is noticed that the High Court has shown immense sympathy to the husband by reducing the amount after his retirement. It has come on record that the husband was getting a monthly salary of Rs.17,654. The High Court, without indicating any reason, has reduced 20 the monthly maintenance allowance to Rs.2,000/-. In today's world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs.2,000/- per month. It can never be forgotten that the inherent and fundamental principle behind Section125 CrPC is for amelioration of financial state of affairs as well as mental agony and anguish that a woman suffers when she is compelled to leave her matrimonial home. The statue commands that there have to be some acceptable arrangements so that she can sustain herself. The principal of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A women, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the 21 husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125 CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and nod, in fact, they have no acceptability in law. If the husband is healthy, able-bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right".22
"Para No.20 :- In the instant case, as is seen, the High Court has reduced the amount of maintenance from Rs. 4000 to Rs. 2000. As is manifest, the High Court has become oblivious of the fact that she has to stay on her own. Needless to say, the order of the learned Family Judge is not manifestly perverse. There is nothing perceptible which would show that order is sanctuary of errors. In fact, when the order is based on proper appreciation of evidence on record, no Revisional Court should have interfered with the reason on the base that it would have arrived at a different or another conclusion. When substantial justice has been done, there was no reason to interfere. There may be a shelter over her head in the parental house, but other real expenses cannot be ignored. Solely because the husband had retired, there was no justification to reduce the maintenance by 50%. It is not a huge fortune that was showered on the wife that it deserved reduction. It only reflects the non- application of mind and, therefore, we are unable to sustain the said order".23
"Para No.21 :- Having stated the principle, we would have proceeded to record our consequential conclusion. But, a significant one, we cannot be oblivious of the asseverations made by the appellant. It has been asserted that the respondent had taken voluntary retirement after the judgement dated 17-2-2012 with the purpose of escaping the liability to pay the maintenance amount as directed to the petitioner; that the last- drawn salary of the respondent taken into account by the learned Family Judge was Rs 17,564 as per salary slip of May 2009 and after deduction of AFPP Fund and AGI, the salary of the respondent was Rs 12,564 and hence, even on the basis of the last basic pay (i.e. Rs 9830) of the respondent the total pension would come to Rs 14,611 and if 40% of commutation is taken into account then the pension of the respondent amounts to Rs 11,353; and the respondent, in addition to his pension, had received encashment of commutation to the extent of 40% i.e. Rs 3,84,500 and other retiral dues i.e. AFPP, 24 AFGI, gratuity and leave encashment to the tune of Rs 16,01,455. The aforesaid aspects have gone uncontroverted as the respondent husband has not appeared and contested the matter. Therefore, we are disposed to accept the assertions. This exposition of facts further impels us to set aside the order of the High Court".
16. In view of the aforesaid reasons, in view of the provisions under Section 125 (1) (a) (b) of Cr.P.C. and in view of dictums of the Hon'ble Supreme Court as stated supra it is the bounden duty of the husband/ father to maintain the wife and daughters. It is well settled principle of law that wife and children have to live equal status of husband-father in the society and they cannot be treated as chattels. Therefore, taking into consideration the entire surrounding circumstances, this Court is of the considered opinion that wife and daughters are entitled for further enhancement of maintenance.
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17. It is also not in dispute that, according to respondent that he had retired from his service on 29.02.2016 and pension is also not yet settled in view of pending of W.P.No.201241/2017. It is for the petitioner to take appropriate steps before the Writ Petition Court in accordance with law.
18. For the aforesaid reasons, the revision petition filed by the petitioner-husband in RPFC.No.200032/2017 is dismissed.
19. The revision petition filed by the petitioners- wife and daughters in RPFC.No.200094/2017 is allowed in part. The impugned judgment passed by the District Judge Family Court, Kalaburagi in Crl.Misc.No.31/2014 dated 31.08.2016 awarding maintenance of Rs.3,000/- per month to the wife and Rs.400/- per month each to the daughters, is modified holding that the petitioner No.1-wife is entitled to maintenance of Rs.3,500/- per 26 month and petitioners No.2 to 4-daughters are entitled to maintenance of Rs.3,000/- per month each against the respondent-father from today.
Ordered accordingly.
Sd/-
JUDGE NSP/KJJ Ct: VK