Karnataka High Court
Anitha Siddartha Satapute vs Siddartha Veerappa Satapute on 3 June, 2022
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 3 R D DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
R.S.A. NO.466/2007 (INJ)
BETWEEN
1 . ANITHA SIDDARTHA SATAPUT E
MAJOR, HOUSEHOLD WORK ,
R/O H.NO.2831/78,
EKTHANAGAR, NEAR TAJANAGAR,
UNAKAL, HUBLI-31.
2 . KUMARI SHRUTI
D/O SIDDARTHA SATAPUTE
AGE: 15 YRS, MINOR REP. BY
HER NATURAL MOT HER AND
GUARDIAN-APPELLANT NO.1,
R/O H.NO.2831/7, 8,
EKATHANAGAR, NEAR TAJANAGAR,
UNAKAL, HUBLI-31.
3 . KUMARI POOJA @ ARUNA
D/O SIDDARTHA SATAPUTE,
AGE: 9 YEARS, REP. BY HER NATURAL
GUARDIAN-APPELLANT NO.1,
R/O NO.2831/7, 8, EKATHANAGAR,
NEAR TAJANAGAR, UNAKAL, HUBLI-31.
...APPELLANTS
(BY SRI.LINGESH V KATTIMANI, ADV.)
AND
SIDDARTHA VEERAPPA SATAPUTE,
AGE: 39 YEARS,
OCC: SERVICE KSRTC CONDUCT OR
(BATCH NO.2085),
2
R/O DIVISIONAL CONTROLLER,
HUBLI DIVISION , NWKRTC,
HOSUR, HUBLI-21.
...RESPONDENT
(BY SRI.KIRAN K UMAR, ADV., FOR
SRI .DINESH M KULKARNI , ADV.,)
THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
JUDGMENT AND DECREE DT.8.11.2006 PASSED IN
R.A.NO.173/2005 ON THE FI LE OF T HE II ADDL. CIVIL JUDGE
(SR.DN), HUBLI , ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DT.24.8.2005 PASSED IN
O.S.NO.12/2001 ON THE FILE OF T HE IV ADDL. CIVI L JUDGE
(JR.DN) HUBLI. TRIAL COURT DECREED THE SUIT FOR
PERMANENT INJUNCTION; APPELLATE COURT ALLOWED THE
APPEAL.
THIS RSA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 08.03.2022 T HIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Challenging judgment and decree dated 08.11.2006 passed by II Additional Civil Judge (Sr.Dn.) Hubli, in R.A.No.173/2005 and judgment and decree dated 24.08.2005 passed by IV Additional Civil Judge (Jr.Dn.) at Hubli, in O.S.No.12/2001, this appeal is filed.
2. Appellants were plaintiffs no.1 to 3 in original suit and respondents no.1 to 3 in first appeal; while respondent herein was defendant in suit and appellant 3 in first appeal. For sake of convenience, parties to this appeal are referred to by their ranks in original suit.
3. Brief facts as stated are that, O.S.No.12/2001 was filed by plaintiffs against defendant seeking for monthly maintenance of Rs.4,000/- and permanent injunction restraining defendant from alienating plots no.7 and 8 without consent of plaintiffs.
4. In plaint, it was stated that plaintiff no.1 was legally wedded wife of defendant and plaintiffs no.2 and 3 were their children. It was stated that marriage was solemnised on 17.05.1990 in Arya Samaj building, Bengaluru, thereafter they were living together in matrimonial home at Hubli. However, trouble began brewing for plaintiff no.1 at matrimonial home as parents, brothers and sisters of defendant were picking up quarrels with plaintiff no.1 on flimsy reasons and abused her in filthy language.
5. It was stated that this led plaintiff no.1 to attempt suicide, but was admitted to KMC Hospital and 4 rescued. Thereafter, on assurance of defendant's parents to take good care, she went back to matrimonial home by refraining from filing police complaint. About three years prior to filing of suit, defendant began going to Sabarimalai every year. During pilgrimage, plaintiff no.1 was sent to her maternal home. Defendant borrowed Rs.30,000/- from parents of plaintiff no.1, assuring that he would construct a separate house for her in Ektanagar and constructed a house, began living there with plaintiff no.1. But, he soon began neglecting her by not providing food and other basic necessities. Whenever, prompted, he insisted her to bring money from her parents. During this time, plaintiff no.1 gave birth to plaintiffs no.2 & 3. Birth of plaintiff no.3 on day of solar eclipse led to increased harassment by her in- laws. She also came to know that defendant had fallen in love with another girl by name Banu and intended to marry her with support from his parents. When plaintiff no.1 opposed, she was threatened at knife point stating 5 that he would elope with Banu. He then began residing away from plaintiffs.
6. Since then they were living separately. Sending paltry amount of Rs.1,000/- per month by money order, defendant neglected to maintain plaintiffs despite having sufficient means, as he was working as a conductor in KSRTC and earning handsome salary. When it was learnt that defendant was making hectic efforts to sell plots nos.7 and 8 situated in Ektanagar, Hubballi, suit was filed.
7. In said suit, defendant filed written statement admitting plaintiff no.1 as wife and plaintiffs no.2 and 3 as their children, but denied all other plaint averments. He specifically denied that he was owner of two plots as pleaded and contended that plaintiffs were residing in house belonging to his parents. He also asserted that plaintiffs were getting maintenance as ordered in Crl.Misc.Case and therefore, there was no cause of action for filing suit. It was stated that he had never 6 refused to maintain plaintiffs and suit was filed only to harass him. Further as only bread earner of his family, he was required to maintain his parents, brothers and sisters, in addition to plaintiffs and that his take home salary was Rs.2,000/- only. He, therefore contended that there was no merit in suit and sought for its dismissal.
8. Based on pleadings, trial Court framed following issues:
1. Whether plaintiff proves that she has suffered ill treatment by family members of defendant during her stay at her in-
laws house?
2. Whether plaintiff proves that defendant had willfully deserted and neglected to maintain her along with her children, inspite of having sufficient means to maintain them?
3. Whether plaintiff are entitled for maintenance amount a sought for? If so, to what extent?
4. Whether plaintiff is entitled for relief of permanent injunction?
5. What order or decree?
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9. To substantiate their case, plaintiff no.1 was examined as PW.1 and another witness as PW.2. Exhibits P.1 to P.13 were marked. While defendant examined himself as DW.1 and another witness as DW.2. Exhibits D.1 to D.18 were marked.
10. On consideration, trial Court answered issues no.1 to 4 in affirmative and issue no.5 by decreeing suit awarding monthly maintenance of Rs.2,500/- to plaintiffs. Trial Court also restrained defendant from alienating plot no.7 and 8 without consent of plaintiff.
11. Assailing said judgment and decree, defendant filed R.A.No.173/2005 on several grounds. It was contended that it was contrary to facts and law, presumptions drawn were erroneous. It was contended that proper issues were not framed and there was improper appreciation of pleadings and evidence.
12. Considering grounds urged, first appellate Court framed following points for consideration: 8
1. Whether the judgment and decree dated 24.08.2005 is not based on pleadings and evidence and hence it needs interference by this Court?
2. What order?
13. After answering point no.1 in affirmative, first appellate Court answered point no.2 by allowing appeal and setting aside judgment and decree passed by trial Court. Aggrieved thereby, this second appeal is filed.
14. Sri S.G.Kadadakatti, learned counsel for plaintiffs submitted that impugned judgment and decree passed by first appellate Court was contrary to law, facts of case and on improper appreciation of evidence. It erred in holding that plaintiffs refused to live with defendant and hence not entitled for maintenance, contrary to admission by defendant that he was residing away from plaintiffs. It was submitted that living separately and failing to provide maintenance amounted to 'cruelty'. He also submitted that there was non- 9 appreciation and improper appreciation of facts and circumstances of case, which led to impugned order.
15. Learned counsel further submitted that plaintiffs had earlier filed an application under Section 125 of Cr.P.C. for maintenance, which was opposed on similar grounds. On consideration, trial Court concluded that defendant failed and neglected to maintain his wife and children (plaintiffs herein) inspite of having sufficient means. He also submitted that RPFC No.100010/2016 was filed by plaintiffs herein seeking enhancement of maintenance to Rs.5,000/- each, which was allowed on 23.09.2021 enhancing monthly maintenance to Rs.3,000/- each. Learned counsel submitted that as defendant had not challenged said order, it attained finality. Therefore, finding therein about failure and neglect to maintain plaintiffs had attained finality, which would bind him in these proceedings also. While passing impugned judgment and decree, first appellate Court failed to consider said factor. He further drew attention to fact that this Court 10 had taken note of current net salary of defendant at Rs.23,288/- and rise in cost of living, therefore, impugned judgment would virtually nullify said order.
16. Insofar as decree of injunction, it was submitted that admittedly, plaintiffs were in possession of house property in plot nos.7 & 8, which was constructed with money borrowed from parents of plaintiff no.1. Apart from under provisions of Hindu Adoption Maintenance Act, 1956 ('HAM Act' for short), defendant was required to maintain plaintiffs under provisions of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for short) and also the Protection of Women from Domestic Violence Act, 2005 (for short 'D.V.Act'). Provisions of Section 17 of D.V. Act entitled wife to reside in property belonging to her husband. On proper consideration, trial Court had granted decree of injunction also. However, first appellate Court set aside same without much justification.
11
17. Learned counsel further submitted that appeal was admitted on 10.11.2008, to consider following substantial questions of law:
a. Whether first appellate Court is right in reversing findings, which is based on evidence, without reasoning?
b. Whether first appellate Court is
justified in substantiating its
operation without any material
evidence and disbelieving the
statement made by appellant on
oath without any proper reasoning?
c. Whether first appellate Court is
justified in dismissing suit both on
fact and law, under circumstances of
case?
d. Whether first appellate Court is
justified in set-asiding findings of trial Court, without any evidence?
18. On other hand, Sri. Kiran Kumar, Advocate appearing for Sri. Dinesh M. Kulkarni, learned counsel for defendant opposed appeal. He contended that consideration of claim for maintenance under Section 125 of Cr.P.C. and suit for maintenance under Section 18 of HAM Act were not same. In a suit for 12 maintenance, plaintiff was required to establish either of following:
• that husband was guilty of desertion without reasonable cause and without consent of wife or against her wish or willfully neglected her;
• he treated her with such cruelty as to cause reasonable apprehension in her mind that it would be harmful or injurious for her to live with him;
• he was suffering from virulent form of leprosy;
• he had any other wife living;
• he had kept a concubine in same house with his wife or habitually resides with concubine elsewhere;
• he ceased to be Hindu by conversion • any other justifiable cause for living separately.
19. He further submitted that only circumstance which would disentitle wife from claiming maintenance 13 would be, if she were unchaste or ceased to be Hindu by conversion, either of which defendant failed to plead and establish. Therefore, on proper appreciation of suit claim in light of purpose of HAM Act, trial Court decreed suit. He further submitted that plaintiffs were also occupying house belonging to defendant's parents. It was lastly submitted that defendant was paying maintenance as ordered in proceedings under Section 125 of Cr.P.C. and impugned decree would cast additional burden as he was also required to take care of his aged parents.
20. Heard learned counsel for appellants. Perused impugned judgment and decree and record.
21. From above submission, it is not in dispute that defendant was husband of plaintiff no.1 and father of plaintiffs no.2 and 3. It is also not in dispute that after marriage, plaintiff no.1 and defendant lived together for some time, but thereafter residing separately. While plaintiffs contend that when plaintiff 14 no.1 went to defendant's house after marriage, his parents and family members ill-treated her and when she opposed his intention to marry another girl, he deserted plaintiffs and started residing separately.
22. On other hand, it is defendant's case that he never ill-treated or refused/neglected to maintain plaintiffs. He was ready and willing to take them back and in fact, it was plaintiff no.1, who was not willing to maintain marital relationship with him, without any justifiable cause and therefore, not entitled for maintenance.
23. While considering issue of ill-treatment of plaintiffs and desertion by defendant, trial Court referred to plaint averments and deposition of plaintiff no.1 as PW-1, wherein she stated that her marriage with defendant was love marriage. During her stay with defendant in matrimonial home, he treated her rashly and not with love and care. Harassment suffered at hands of his family forced her to attempt suicide. 15 Evidence of PW.2 - brother of plaintiff no.1, corroborating her deposition was also referred. Taking note of fact that nothing material was elicited from plaintiffs' witnesses and admission of defendant that he was residing separately, held that plaintiffs' allegation of having suffered cruelty at the hands of defendant stood established. Even documentary evidence was referred to. Ex.P.2 - copy of FIR, Ex.P.3 - letter of Legal Aid Board and production of letters of plaintiff no.1, to conclude that plaintiffs suffered both physically and mentally. It also referred to order passed in Crl.Misc.no.131/2001, wherein, finding regarding ill- treatment recorded had attained finality. Insofar as quantum, it took note of salary as per Ex.P.18 at Rs.6,000/- per month and granted decree directing defendant to pay Rs.2,500/- per month as maintenance to plaintiffs.
24. Insofar as relief of injunction, trial Court referred to admission of defendant that plaintiffs were in possession of house in plot nos.7 and 8, so also 16 referred to averments about his attempt to evict plaintiffs. It concluded that above evidence established plaintiffs' possession and interference with same by defendant. It held that transfer of ownership of house in plot nos.7 and 8 to his father by defendant also substantiate interference. On said findings, it proceeded to grant decree of injunction.
25. While reversing judgment and decree passed by trial Court, first appellate Court referred to contention of defendant that he had never refused to maintain plaintiffs and was ready and willing to look- after them. It also referred to suggestion of defendant during cross-examination of PW.1 that defendant was ready to forget past and live with plaintiffs, which was answered by her stating that she is ready to reside with him only in house at Ektanagar.
26. First appellate Court also held that plaintiff no.1 admitted that she was staying away from defendant. It held that provisions of HAM Act required 17 to establish circumstances beyond her control and because of attitude of defendant i.e., willful neglect and cruelty of such nature causing reasonable apprehension in her mind that it would be harmful or injurious to live with him. It observed that despite claiming that due to harassment meted out by defendant's parents, brothers and sisters, plaintiff no.1 attempted to commit suicide, and on their assurance to take care of her, she had not given police complaint, but she had not examined any other witness, such as neighbours to substantiate same.
27. It observed that plaintiff had attempted to improve upon pleadings by mentioning various other instances of cruelty or harassment, during her deposition before Court. It concluded that her allegation about defendant attempting to contract second marriage as not established. It held that filing of various cases against defendant and his family members by plaintiff no.1, as attempts to cover up her intention not to reside with defendant. On said conclusion, it held that 18 plaintiffs failed to substantiate ill-treatment and neglect by defendant to maintain them.
28. First appellate Court also referred to admission of plaintiff no.1 that she had passed Diploma in Electronics and completed one year training at KEONICS and that she was earning income from tuition and tailoring at home. On above evidence, it held that plaintiff no.1 failed to establish that defendant willfully neglected plaintiffs. It held that trial Court had not appreciated grounds on which a party living separately could claim maintenance.
29. Even prior to enactment of HAM Act, a Hindu wife was entitled to be maintained by her husband as per uncodified Hindu Law. High Court of Orissa in case of Jagat Krishna Das Vs. Ajit Kumar Das reported in AIR 1964 Ori. 75, held that Section 18(1) of HAM Act entitled Hindu wife to be maintained by her husband during her life time and in case of claim for maintenance, onus was on defendant to plead and prove 19 that plaintiffs are not entitled for maintenance. In this case, reason assigned by first appellate Court for reversing finding of trial Court was that though defendant had unequivocally offered to take plaintiffs back and maintain them, but plaintiffs had failed to lead evidence to establish that defendant had deserted them. During course of cross-examination defendant had admitted that he was residing separately from plaintiffs. Indeed, only evidence led by plaintiffs to support her allegations of ill-treatment by her husband and family members, neglect to provide maintenance was her own deposition and that of her brother. However, plaintiffs have asserted about ill-treatment and harassment by narrating specific instances. Though defendant contended that false complaints/prosecution was meted out by plaintiffs against him and his family members, he has without any explanation offered to take them back and maintain them. Dual stand of husband in alleging abuse of process of Court by his wife, while not resorting to any remedies either for dissolution of 20 marriage or judicial separation etc., would render his stand suspect. In an unreported decision, Madurai Bench of High Court of Madras in R. Sundaravalli Vs. R. Ramasamy in S.A.(MD)No.870 of 2014, disposed of on 08.04.2021 has held that Courts cannot look for corroboration for what happened within four walls of a home. An unemployed wife seeking small amount as maintenance would not justify casting of unreasonable burden on her to reverse well considered decision of trial Court. On said reasoning, substantial questions of law were answered in favour of wife and judgment and decree of trial Court was restored. Ration of said decision would apply on all fours to instant case. First appellate Court was not justified in casting burden upon plaintiffs to establish their entitlement for maintenance and ill-treatment/harassment and neglect by husband.
30. In view of aforesaid, onus lies on defendant to establish that plaintiffs were not entitled for maintenance. Provisions of Section 18 (2) HAM Act, which clearly provide right of wife to claim maintenance 21 would not be forfeited merely on account of her residing separately would also support above conclusion.
31. Observation of first appellate Court that plaintiffs failed to lead any evidence to establish attempted suicide on account of ill-treatment by defendant would be in ignorance of evidence of defendant, where he produced letters written by plaintiff no.1 (Exs.D6 & 7) to contend that his wife attempted to commit suicide for her own reasons. This contention would be admission of attempt to commit suicide.
32. Apart from above, it has come on record that maintenance was sought under different enactments in separate proceedings. In this regard, observations of Hon'ble Supreme Court in case of Rajnesh Vs. Neha reported in (2021) 2 SCC 324 would have to be taken into account:
"60. I t is well settled that a wife can make a claim for maintenance under different statutes. For instance , there is no bar to seek maintenance both under the DV Act and Section 125 CrPC, or under HMA. It would, 22 however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance , which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/Family Court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.
61. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adj ustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the court concerned in the previous proceeding."
33. It is not in dispute that defendant has suffered order of maintenance in proceedings under Section 125 of Cr.P.C. This Court in RPFC 23 No.100010/2016 disposed of on 23.09.2021 has enhanced monthly maintenance to each of plaintiffs at Rs.3,000/- taking into account current monthly salary of defendant at Rs.23,288/-. Even subsequent development of marriage of plaintiff no.2 was noted for ordering discontinuation maintenance to plaintiff no.2 from date of her marriage. As submitted at bar, said judgment has attained finality. Therefore, maintenance awarded b trial Court at Rs.2,500/- per month to each of plaintiffs has to be modified in terms of judgment dated 23.09.2021 passed in RPFC No.100010/2016.
34. Insofar as decree of permanent injunction restraining defendant from alienating plots no.7 & 8, trial Court referred to admission of defendant that plaintiffs were in possession of house in plots no.7 and
8. It also referred to plaintiffs' assertion about attempts by defendant to dispossess plaintiffs and concluded that there was interference by defendant. It also held that transfer of ownership of house to his father by 24 defendant also substantiated interference. On said finding, it granted decree of permanent injunction.
35. First appellate Court has not assigned any reasons while reversing said decree, which calls for interference in second appeal.
36. In view of above discussion, findings of first appellate Court would be perverse and contrary to evidence on record. Hence, substantial questions of law are answered in favour of plaintiffs. Hence, I pass following:
ORDER Appeal is allowed in part. Judgment and decree dated 08.11.2006 passed by II Additional Civil Judge (Sr.Dn.) Hubli, in R.A.No.173/2005 is set aside.
Judgment and decree dated 24.08.2005 passed by IV Additional Civil Judge (Jr.Dn.) at Hubli, in O.S.No.12/2001 is restored except insofar as amount of maintenance, which is modified to Rs.3,000/- per month in respect of plaintiffs no.1 and 3. Insofar as plaintiff 25 no.2, it shall be at rate of Rs.3,000/- till date of her marriage.
No order as to costs.
Sd/-
JUDGE BVK