Karnataka High Court
Smt Hanumakka H vs Sri R Kumaraswamy on 3 April, 2017
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
RPFC NO.42/2014
BETWEEN:
1. SMT. HANUMAKKA H.,
W/O. R.KUMARASWAMY
AGED ABOUT 35 YEARS
OCC:TYPIST, ZILLA PANCHAYATH OFFICE
DAVANAGERE DISTRICT - 577 001.
2. CHI. K. LIKHITH KUMAR
S/O. KUMARASWAMY
AGED ABOUT 3½ YEARS
PETITIONER NO.2 BEING A MINOR
REPRESENTED BY HIS NATURAL GUARDIAN
AND MOTHER SMT. HANUMAKKA H.
BOTH ARE R/O. C/O. SHIVAPPA
D.NO.3121, GOURI NILAYA,
14TH CROSS, NEW OLD RTO OFFICE
SIDDAVEERAPPA BADAVANE
DAVANAGERE - 577 001.
... PETITIONERS
(BY SRI B.S. MURALI, ADV.)
AND:
SRI R. KUMARASWAMY
S/O. RAJAPPA
AGED ABOUT 36 YEARS
2
OCC:ENGINEER
M/s. TELE WORLD UNITED PVT. LTD.,
NO.18a/19, DODDANEKUNDI INDUSTRIAL AREA
MAHADEVAPURA POST
BANGALORE - 560 046.
... RESPONDENT
(BY SRI D.S. SHIVANANDA, ADV.)
THIS PETITION IS FILED UNDER S.19(4) OF FAMILY
COURTS ACT, AGAINST THE ORDER DATED 12.12.2013 PASSED
IN CRL.MISC.NO.32/2011 ON THE FILE OF JUDGE, FAMILY
COURT, DAVANAGERE, DISMISSING THE PETITION FILED
UNDER S.125 OF Cr.P.C.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Marriage of the first petitioner and the respondent was solemnized on 11.03.2008. Out of the said wedlock, petitioner No.2 was born on 06.10.2009. On account of the differences between the spouses, they are living separately from September/October 2010.
2. First petitioner instituted Crl.Misc.No.32/2011 in the Family Court at Davanagere, by invoking Section 125 Cr.P.C. for passing an order against the respondent to pay maintenance to herself and also petitioner No.2. The 3 respondent remained absent and petition was allowed on 08.04.2011. Said order was assailed in RPFC No.55/2012 and the petition was disposed of with the liberty to seek remedy in the Trial Court. Miscellaneous petition filed was allowed.
3. Subsequently, the case was taken on board and both parties adduced evidence. The petition having been dismissed by an order dated 12.12.2013, this petition was filed.
4. The Trial Judge having noticed that the petitioner No.1 is employed and earning income sufficient for her maintenance has passed the order of dismissal. It is to be pointed out at this stage itself, that the liability of the respondent to provide maintenance to the petitioner No.2 was not lawfully considered and thus, there is miscarriage of justice.
5. Heard learned advocates and perused the record. Point for consideration is, whether the impugned 4 order to the extent of non-awarding of maintenance to the petitioner No.2 - minor son is perverse?
6. There is no dispute that petitioner No.2 is born out of the wedlock between petitioner No.1 and the respondent. The respondent is employed in United Telecoms Limited, Bengaluru and earned more than `23,000/- p.m. during February 2011, which became evident from the salary certificate produced by Sri D.S. Shivananda, learned advocate. Indisputably, petitioner No.2 is under the care and custody of petitioner No.1 and his education and other expenditure is required to be met. Petitioner No.1 cannot be directed to meet the entire expenditure and also take care of petitioner No.2, as it was not shown that the income earned by her is more than the income earned by the respondent - husband.
7. It is in the said background Sri D.S. Shivananda, learned advocate submitted that `2,000/- p.m. having been paid till November 2013 towards the maintenance of Likhith Kumar, the respondent would pay 5 the same amount of maintenance till 31.12.2016 and at the rate of `3,000/- p.m. from 01.01.2017 onwards.
8. As the respondent is drawing salary of `23,000/- p.m. and has other obligations to discharge, the submission made by Sri D.S. Shivananda, with regard to payment of maintenance amount to petitioner No.2 at the rate of `2,000/- p.m. upto 31.12.2013 and thereafter at `3,000/-, for the present is reasonable.
For the foregoing, the petition is allowed and the impugned order set aside. Crl.Misc.No.32/2011 on the file of the Family Court at Davanagere stands allowed in part. Respondent shall pay to petitioner No.2 the maintenance amount at the rate of `2,000/- p.m. upto 31.12.2016 i.e., with effect from 01.12.2013 and at the rate of `3,000/- p.m. from 01.01.2017. The accumulated arrears of `83,000/- upto 31.03.2017 shall be paid in 4 equal monthly installments commencing from 30th April 2017. 6
In case of enhancement in the income of the respondent or increase in the expenditure etc., of petitioner No.2 or inability of petitioner No.1 to earn income sufficient for her maintenance and maintain the standard of life commensurate with that of the standard of living of the respondent, it is open to the petitioners to maintain a petition under Section 125 r/w Section 127 Cr.P.C. and seek orders in accordance with law.
In view of the above, I.A.No.1/2014 does not survive for consideration.
Sd/-
JUDGE ca