Karnataka High Court
Gopal S/O M.Timmayya vs Meri W/O Gopal on 27 June, 2019
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
RPFC No.200049/2015
C/W
RPFC No.200038/2016
IN RPFC NO.200049/2015
Between:
Gopal S/o M. Timmayya
Age: 38 years
Occ: Granite business
R/o H.No.4-4-118/1, BRB Circle
Timmapurpet, Raichur - 584 101
... Petitioner
(By Sri Basavaraj R. Math, Advocate)
And:
1. Meri W/o Gopal
Age: 30 years, Occ: Household
2. Abhilash S/o Gopal
Age: 9 years, Student
3. Manojkumar S/o Gopal
Age: 8 years, Student
4. Manjunath S/o Gopal
Age: 6 years, Student
2
5. Shruti Kirtana D/o Gopal
Age: 3 years
All are R/o Ashok Nagar
Raichur - 584 101
(respondent Nos.2 to 5 are minors
represented by their mother, respondent No.1)
...Respondents
(Sri J. Augustin, Advocate for R1;
R2 to R5 are minors reptd. by R1)
This RPFC is filed under Section 19(4) of the Family
Courts Act, praying to set aside the order dated 24.06.2015
passed by the Principal Judge, Family Court, Raichur in
Criminal Misc. Case No.34/2015.
IN RPFC NO.200038/2016
Between:
1. Meri W/o Gopal
Aged about 31 years
Occ: Household
2. Abhilash S/o Gopal
Aged about 10 years, Student
3. Manojkumar S/o Gopal
Aged about 09 years, Student
4. Manjunath S/o Gopal
Aged about 7 years, Student
5. Shruti Kirtana D/o Gopal
Aged about 04 years
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The petitioners No.2 to 5
Are minors and represented by
Their Natural Guardian/Mother
The petitioner No.1 herein
All are residing at
Ashok Nagar, Raichur
... Petitioners
(By Sri J. Augustin, Advocate)
And:
Gopal S/o M. Timmayya
Aged about 39 years
Occ: Granite Business
R/at H.No.4-4-118/1, BRB Circle
Timmapurpet, Raichur - 584 101
...Respondent
(By Sri Basavaraj R. Math, Advocate)
This RPFC is filed under Section 19(4) of the Family
Courts Act, praying to modify the order dated 24.06.2015
passed in Crl. Misc. No.34/2015 by the Principal Judge,
Family Court at Raichur by enhancing the maintenance from
Rs.4,000/- to Rs.5,000/- per month to the petitioner No.1
and from Rs.1,500/- to Rs.3,000/- each to the petitioner
Nos.2 to 5 from the date of petition.
These petitions coming on for orders this day, the
Court made the following:
ORDER
These revision petitions arise out of the order dated 24.06.2015 in Criminal Misc. No.34/2015 on the file of the Principal Judge, Family Court at Raichur. 4
2. Ms. Meri and her four children filed the aforesaid criminal Misc. case in No.34/2015 under Section 125 of Cr.P.C. seeking monthly maintenance at the rate of Rs.5,000/- for herself and Rs.3000/- for each of the four children. Ms. Meri contended that her marriage with Mr. Gopal was solemnized on 17.02.2005 and four children are born to them from their wedlock. Later, Mr. Gopal married Smt. Laxmi and started ill-treating her. Mr. Gopal started ill-treating her because she did not consent to Mr. Gopal's marriage to Smt. Laxmi. Ms. Meri adverted to the different proceedings between herself and Mr. Gopal. Ms. Meri examined herself as PW.1 and Mr. Gopal examined himself as RW.1. The Family Court, on appreciation of the evidence on record, concluded that Mr. Gopal was running a business enterprises in selling Granite and as such, he has sufficient income. Mr. Gopal failed to establish that Ms. Meri had her own income, and it was 5 established that Ms. Meri was without any financial assistance. Therefore, the Family Court awarded a sum of Rs.4,000/- per month to Ms. Meri and Rs.1,500/- per month to each of the four children.
3. Mr. Gopal, the petitioner in RPFC No.200049/2015 has called in question the order of the Family Court contending that he was in a live-in relationship with Ms. Meri, but admitting that the children are born to them. He contends that Ms. Meri is wrongly projecting herself as his legally wedded wife. Ms. Meri would be entitled for just maintenance, perhaps enhancement as well, even if she was not married to him. But, Ms. Meri has now married one Waddar Timmappa and she is living with him. Mr. Gopal was not aware of this until he could secure the certificate issued by the concerned Pastor. He could not place this material before the Family Court because he did not have definite evidence in this regard. Further, 6 as regards the liability to pay the monthly maintenance to the four children, who are admittedly his children, Mr. Gopal further contends that Ms. Meri and the children have been provided for. They are residing in the property owned by him. This property comprises of different tenements including the commercial tenements and residences. These tenements have been rented out and Ms. Meri receives a total sum of Rs.12,000/- per month from the persons occupying these tenemetns. As such, the children are also provided for. Mr. Gopal has stated that during the pendency of the proceedings before the Family Court, he met with an accident and suffered immobilization. He had to lead evidence when he was thus constrained, and therefore, he could not produce the necessary documents to establish that the children and Ms. Meri are provided for.
4. The learned counsel for Mr. Gopal argued in support of this revision petition reiterating these 7 assertions in the petition and relying upon documents that are filed as additional documents. The learned counsel submitted that in the facts and circumstances of this case, the impugned order may be set aside and the matter be remanded back to the Family Court for fresh adjudication. Further, the learned counsel for Mr. Gopal submitted that during the pendency of this proceedings, because of initiation of enforcement proceedings, Mr. Gopal has indisputably deposited a sum of Rs.85,000/. Mr. Gopal will deposit a further sum of Rs.50,000/- within a period of two months towards the possible education expenses of the minor children. The learned counsel submits that this is a gesture by Mr. Gopal in consonance with his concern to provide for children's maintenance and upkeep.
5. Ms. Meri and her children have filed the other revision petition in RPFC No.200038/2016 seeking enhancement of the monthly maintenance 8 awarded by the Family Court. She has contended that one of the sons has an urological disorder and she is incurring expenses to meet the costs of medical treatment. Mr. Gopal has income in excess of Rs.1,00,000/- per month from his Granite business, and this is in addition to the different immovable properties that he owns and which yield income. The grant of maintenance under Section 125 of Cr.P.C. will have to be as per the status of the parties. The Family Court has not awarded appropriate maintenance and therefore, there has to be an enhancement. Insofar as the case pleaded by Mr. Gopal, Ms. Meri has filed objections contesting every assertion. She disputes that she and Gopal were only in a live-in relationship and that she has married somebody else now. Ms. Meri has also denied that Mr. Gopal has made any arrangement for the maintenance of the children or herself or for their shelter.
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6. The learned counsel for Ms. Meri and her children argued in support of her case reiterating her contentions. Further, the learned counsel argued that the effort to produce certain documents as additional documents is an effort to fill up lacuna in the case. This Court cannot permit such effort in a revision petition. Even if Mr. Gopal wants variance or modification of the impugned order, he has his remedy under Section 127 of Cr.P.C., and a petition under Section 19(4) of the Family Courts Act cannot be maintained. The learned counsel for Ms. Meri is emphatic that the certificate relied upon by Mr. Gopal is spurious and concocted, and he also disputes seriously the photographs and the other documents relied upon by the learned counsel for Mr. Gopal.
7. It is obvious from the respective submissions/contentions that the parties are at loggerheads on certain facts that would have to be 10 examined subject to cross-examination for complete adjudication in the matter. There cannot be any dispute that if it is established that Ms. Meri has indeed married somebody else during the pendency of the proceedings, that is an aspect that will have to be considered in granting maintenance to her. This Court can neither accept nor reject the certificate relied upon by Mr. Gopal to substantiate his case that Ms. Meri has remarried. The certificate relied upon by Mr. Gopal will have to stand the test of cross-examination. It is contended that Ms. Meri and her children have been served at the address in the property, which according to the learned counsel for Mr. Gopal stands in his name. This property has many tenements and these tenements have been rented out and Ms. Meri is receiving rent. The rental amount would be sufficient for maintenance of the children. The learned counsel for Mr. Gopal relies upon the sale deed dated 30.12.2004 in support of his contention. This is also 11 not considered thus for. If indeed such arrangement is already made and is available to Ms. Meri, that is another circumstance that will have to be considered in deciding what would be the appropriate monthly maintenance payable to the children and Ms. Meri.
8. The overwhelming object of any judicial proceeding is to ensure that there is complete adjudication. But, in the present case, the material facts were not before the family Court. The reason offered by Mr. Gopal that he met with an accident and was immobilised when he tendered evidence before the family Court does not look contrived. In the light of the above, this Court is of the considered view that the impugned order requires to be set aside and the Crl. Misc. No.34/2015 be remanded back to the Family Court for fresh consideration.
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9. As regards the arrangement that will have to be made during the pendency of the proceedings before the Family Court pursuant to the remand that is now been made, this Court is of the considered view that it would be just and reasonable to record the submission made by the learned counsel for Mr. Gopal that a sum of Rs.50,000/- would be deposited with the Family Court within a period of two months to enable the children to defray education and other expenses. Of course, it will have to be observed that the Family Court should decide the petitions without being influenced either by its own finding in the impugned order or the order of this Court, or the gesture now made to pay a sum of Rs.50,000/-. As such, the following:
ORDER
i) Both the revision petitions in RPFC Nos.200049/2015 and 200038/2016 are being disposed of setting aside the impugned order dated 24.06.2015 in Criminal Misc. 13
Case No.34/2015 on the file of the Principal Judge, Family Court at Raichur, restoring this petition for fresh adjudication with the observations as made above;
ii) The parties shall appear before the Principal Judge, Family Court, Raichur on 11.07.2019 without further notice of the first date of hearing and the Family Court shall dispose of the case as expeditiously as possible, but within an outer limit of four months from 11.07.2019;
iii) The amount in deposit in any of these petitions is directed to be released in favour of Ms. Meri, petitioner No.1 in RPFC No.200038/2016;
iv) The office is directed to remit the Lower Court Records to the Principal Judge, Family 14 Court, Raichur at the earliest. The office is further directed to return the additional documents produced by both Mr. Gopal and Ms. Meri.
v) No costs.
In view of disposal of the main petitions,
I.A.2/2019 filed in RPFC No.200049/2015 does not survive for consideration and stands dismissed.
Sd/-
JUDGE LG