Karnataka High Court
Sri Yuvaraj vs Smt Vandana on 2 July, 2014
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
W.P.No.33825/13
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 2nd DAY OF JULY, 2014
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WRIT PETITION NO.33825/2013 (GM-FC)
BETWEEN:
SRI YUVARAJ,
S/O SADASHIV,
AGED 34 YEARS
R/AT No.264/1, 1-A,
BILIJAJI ROAD, HESARAGHATTA,
BANGALORE - 560 088
... PETITIONER
(BY SRI M.V. VEDACHALA, ADV.)
AND:
SMT.VANDANA,
W/O YUVARAJ,
AGED 24 YEARS,
R/AT No.556, 3RD MAIN ROAD,
BEML LAYOUT, V STAGE,
RAJARAJESHWARINAGAR,
BANGALORE - 560 098.
... RESPONDENT
(BY SMT. A. LALITHA, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DT. 9.7.2013 PASSED BY THE LEARNED PRINCIPAL
JUDGE, FAMILY COURT, BANGALORE, IN M.C. No.3387/2011
VIDE ANN-A.
THIS WRIT PETITION COMING ON FOR PRL.HEARING IN
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
2
W.P.No.33825/13
ORDER
Respondent wife instituted MC No.3387/2011 on 30.9.2011 invoking section 9 of the Hindu Marriage Act, 1955 [for short 'Act'] for restitution of conjugal rights arraigning the petitioner husband as respondent. That petition was opposed by filing statement of objections on 5.10.2012, whereafterwards, respondent was examined as PW.1 and marked two documents Ex.P1 and P2 and though tendered for cross examination on 30.11.2012, 4.12.2012, 10.12.2012, 28.1.2013, was not cross examined. It is at that stage that the respondent wife on 28.1.2013 filed IA No.6 under section 24 of the Act for grant of interim maintenance, which was opposed by filing statement of objections enclosing a list and five documents.
2. Learned Counsel for the parties, when heard on IA No.6, the Principal Judge, Family Court, Bangalore, by the order impugned, allowed IA No.6, and 3 W.P.No.33825/13 directed interim maintenance of `10,000/- per month and `20,000/- towards litigation expenses.
3. Heard learned Counsel for the parties, perused the pleadings and examined the order impugned.
4. The admitted facts are that respondent was given in marriage to the petitioner in accordance with Hindu Rights, solemnized on 6.2.2009 at Ganjam Mantapa, Bull Temple Road, Basavanagudi, Bangalore, and the couple have no issues from out of the wedlock. Respondent wife lost her father before marriage and mother after marriage and is presently maintained by her brother and his family.
5. The disputed facts are over allegations of dowry harassment and that petitioner husband carries on business of Ice Cream Parlour in the name of 'Just Bake' at Seshadripuram, Bashyam Circle and 4 W.P.No.33825/13 Banashankari and earning substantial amount of profit of `1,50,000/- per annum and has several business concerns, hence capable of maintaining wife. It is the contention of the petitioner husband that he is a practicing Advocate and neither a businessman nor has properties moveable or immoveable.
6. In IA No.6, it is asserted that after the wife was unceremoniously removed from the matrimonial home is presently residing with her Uncle and a burden on him and though ready and willing to join her husband, at her matrimonial home, petitioner husband is not willing to do so. Respondent states that she is educated upto 8th Standard and has no source of livelihood, unable to maintain herself and cannot continue to stay with her Uncle at his residence.
7. In the statement of objections to IA No.6, it is stated that petitioner/husband was enrolled as an Advocate in the Bar Council during the year 2007 and is 5 W.P.No.33825/13 practicing with various Advocates like Sri. Shanthi Bhushan, Sri. Ravi K.V., Gandhinagar, Bangalore and that he has no other business but is dependent upon monetary gains through advocacy and earnings of `4,000/- as salary. On 3.4.2013, a memo was filed by respondent wife producing certain documents.
8. The Family Court framed a point for consideration and keeping in mind the fact that the parties are of very young age while respondent/wife is aged 23, petitioner/husband is aged 33 years and there being no children from out of the wedlock, in the admitted fact that the respondent wife has taken residence separately and not in the matrimonial home and keeping in mind the moral and legal obligation/duty on the part of the petitioner/husband to maintain his wife, observed that Document No.1 to the memo dated 3.4.2013 is a letter obtained under the Right to Information Act, 2005, disclosing that the 6 W.P.No.33825/13 petitioner husband is a partner of Srivari Motors at Rajajinagar, Bangalore, a registered dealer under the Karnataka Value Added Tax Act, 2003 and under the Central Sales Tax Act, 1956, authorized to purchase motor vehicle accessories and spare parts. While Document No.2 is partnership deed dated 16.11.2007 where under clause - 6 records that the capital of the firm is `15 lakhs contributed equally by the petitioner husband and the other partner and that petitioner is entitled to 30% profit.
9. The Family Court further noticed that from the documents produced by the petitioner/husband is a reconstitution deed dated 16.11.2009 of M/s. Srivari Motors disclosing that respondent retired from the partnership firm, while Document No.4 is a certificate issued by an Advocate by name K.V. Ravi stating that petitioner is practicing in his office as Junior Advocate and is paid honorarium of `4,000/- from May 2011. 7 W.P.No.33825/13 The Family Court further observed that Document No.5 bank statement issued by the Karnataka Bank Limited, City Civil Court Branch, for the period 21.7.2011 to 1.3.2013 shows the balance as on 1.3.2013 in the name of the petitioner husband and monthly deposit of `4,000/-. The income tax returns for the assessment year 2007-08 submitted by the petitioner husband discloses income of `1,42,640/-; `1,67,240/- for the year 2008-09; `2,38,404/- for the year 2009-10; `1,66,357/- for the year 2010-11 and for the year 2011-12 `1,61,320/-, to arrive at the average monthly income of `13,000/-. However, for the year 2012-13 petitioner husband showed income of `48,155/-. The Income Tax Returns, according to the family Court, indicated that the petitioner is a businessman and his father is also dealing in business of liquor and therefore declined to believe a fact that petitioner husband earned `4,000/- per month and nothing more.
8W.P.No.33825/13
10. Regard being had to the reported opinions of the Court, the Family Court, in the facts, circumstances and material on record, inferred that the annual income of the petitioner was around `3 lakhs, and keeping in mind the social status of the parties, directed payment of interim maintenance of `10,000/- per month and `20,000/- as litigation expenses.
11. Although Sri. M.V. Vedachala, learned Counsel for the petitioner submits that `10,000/- is a hefty sum of money which the petitioner is unable to pay to his wife, as maintenance, and that the Family Court was not justified in making a guess work of `3 lakhs per annum, I am not impressed by that submission.
12. The Family Court exhaustively considered the documents placed by the parties, before it, more appropriately, the income tax returns which discloses that the petitioner husband, in the least, earned, `1.60 9 W.P.No.33825/13 lakhs per year. While it is an admitted fact that the respondent/wife is unemployed, has no independent source of income, is presently taking refuge under her Uncle. Petitioner appears to have forgotten his moral and legal obligation to maintain his wife, more so, in the predicament in which she is placed today. If regard is had to the age of the parties, their social standing and the income of the petitioner, it is needless to state that the Family Court was fully justified in directing payment of `10,000/- as interim maintenance and `20,000/- towards litigation expenses. It is no doubt true that the family court inferred that petitioner's annual income could be reckoned as `3 lakhs nevertheless stumbled upon the right decision.
13. The faint effort by learned Counsel for the petitioner to submit that the differences between husband and wife having arisen on account of criminal complaint lodged by the respondent wife not only 10 W.P.No.33825/13 against the petitioner but also against his parents for offences punishable under section 498-A IPC and section 3 & 4 of Dowry Prohibition Act, had resulted in the parents being put behind bars over a night, has no bearing on the question of maintenance pendente lite and expenses of proceeding. The observations of Hon'ble H.L. Dattu, J., as his Lordship then was, in 'SHIVA KUMAR T.A. v. SMT. PUSHPA REKHA''1 in the circumstances, is apposite.
"14. Section 24 of the Act provides for temporary alimony. An application under section 24 of the Act could be filed by either of the spouses for grant of interim maintenance at any stage of the proceedings under the Act. Any proceedings under the Act appearing in section 24 of the Act will also cover proceedings under Section 12[1][a] and Section 25 of the Act also. Section 25 of the Act contemplates that an order for permanent alimony can be made at the time of passing of any decree under the Act or at 1 2002 [5] KLJ 393 11 W.P.No.33825/13 any time thereafter. The jurisdiction to pass an order under Section 24 of the Act arises as soon as any proceedings are instituted under the Act. The condition for the exercise of jurisdiction under this section is that the applicant should not have any independent income sufficient for her or his support or necessary expenses of the proceedings. If the said condition is satisfied, the Court has jurisdiction and power to order the opposite party to pay expenses of the proceedings and also monthly maintenance of such sum as may be found reasonable. The grant of relief under this section is not dependent either on the merits of the petition or on the decision of any particular issue or upon the ultimate success or failure of the petition. The reason behind the rule in Section 24 of the Act for payment of pendente lite maintenance is that, where marriage is admitted, it is the duty of the affluent spouse to maintain the indigent person. The proceedings under this provision neither provides nor authorizes the Court to enquire into allegations and counter allegations made by the parties in their 12 W.P.No.33825/13 pleadings relating to the merits of the claim regarding the decree sought for in the petition filed before the Court. An order for maintenance pendente lite and costs of the proceedings can, as the initial words of the section clearly states be made in any proceedings under the Act, which would include proceedings for restitution of conjugal rights, decree for judicial separation, decree for divorce or nullity of void and voidable marriages. The amplest discretion is vested in the Court under section 24 of the Act to grant interim maintenance even before considering any admission made by the party for consenting for a decree sought for by the injured spouse. Even if the party is not entitled to claim permanent alimony, she is certainly entitled to claim interim maintenance, till the completion of the proceedings.
Therefore, in my opinion, the learned Family Court Judge has properly exercised his discretion vested in him in allowing the application filed by the wife, in spite of so- called admission made by the petitioner- 13 W.P.No.33825/13
husband in his written statement filed before the Court."
14. In the result, this petition devoid of merit, is rejected.
Sd/-
JUDGE AN/-