Karnataka High Court
Smt.Geeta W/O Ravindrasa Pawar vs Sri.Ravindrasa S/O Shankarasa Pawar on 15 September, 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 15st DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C. M. POONACHA
R.P.F.C NO. 100059 OF 2019
BETWEEN
1. SMT.GEETA W/O. RAVINDRASA PAWAR,
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
2. SAKSHI D/O RAVINDRA PAWAR,
AGE: 16 YEARS, OCC: STUDENT,
R/O: KURAHATTI PETH BETAGERI,
TQ AND DIST: GADAG,
SINCE MINOR REP.BY HER MOTHER
Digitally signed
by NATURAL GUARDIAN I.E.,
SHIVAKUMAR
SHIVAKUMAR HIREMATH
HIREMATH
PETITIONER NO.1 BY NAME GEETA
Date:
2023.09.22 W/O. RAVINDRASA PAWAR.
11:47:21 +0530
... PETITIONER
(BY SRI. S. M. KALWAD, ADV.)
AND
SRI.RAVINDRASA S/O. SHANKARASA PAWAR,
AGE: 44 YEARS, OCC: BUSINESS,
R/O: 236 TULASI BRUNDAVAN CHOWK,
GURUKRUPA NIVAS MALEGAON-423203,
TQ: MALEGAON, DIST: NASIK,
STATE: MAHARASHTRA.
...RESPONDENT
(BY SMT. C. S. SHETTAR, ADV.)
2
THIS R.P.F.C. IS FILED UNDER SEC. 19 (4) OF THE
FAMILY COURT ACT, 1984, AGAINST THE JUDGMENT AND
ORDER DTD: 03.03.2016, IN CRL.MISC. NO.46/2015, ON THE
FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, GADAG,
PARTLY ALLOWING THE PETITION FILED UNDER SEC.125 OF
CR.P.C.
THIS R.P.F.C HAVING BEEN HEARD AND RESERVED ON
11.08.2023, COMING ON FOR PRONUNCEMENT OF JUDGMENT,
THIS DAY, THIS COURT PRONOUNCED THE FOLLOWING:
ORDER
The present petition is filed under Section 19(4) of the Family Courts Act, 1984 by the wife and daughter challenging the order dated 03.03.2016, passed in Criminal Misc. No.46/2015 by the Principal Judge, Family Court, Gadag (hereinafter referred to as the 'Family Court') seeking for enhancement of maintenance.
2. The necessary facts relevant for consideration of the present petition are that the marriage between Petitioner No.1 and Respondent was solemnized on 25.04.2002 and a daughter-petitioner No.2 was born on 02.12.2003 from the said wedlock. Due to various reasons, the parties have been residing separately. 3
3. The wife and daughter, alleging that the respondent was not maintaining them, filed Criminal Misc. No.46/2015 under Section 125 of Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) seeking for maintenance. The Respondent entered appearance in the said proceedings and filed his objections. Petitioner No.1 examined herself as PW.1 and another witness as PW.2. Exhibits P1 to P4 were marked in evidence. The Respondent examined as himself RW.1 and three witnesses were examined as RWs.2 to 5. Exhibits R1 to R9 were marked in evidence. The Family Court vide its order dated 03.03.2016, allowed the petition filed by the Petitioner and directed the Respondent to pay a sum of Rs.5,000/- per month as maintenance to Petitioner No.1/wife and Rs.3,000/- to Petitioner No.2/daughter. Being aggrieved, the Petitioners have filed the present petition seeking for enhancement of maintenance awarded by the Family Court.
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4. The learned counsel for the Petitioners contended that the maintenance awarded by the Family Court is on the lower side having regard to the fact that the respondent is an industrialist and in his affidavit filed before this Court, it is forthcoming that his income is Rs.5,14,878/- p.a. He further submits that the Petitioners have filed their affidavit dated 7.7.2022 pursuant to the order dated 11.3.2022 passed by this Court in the present petition, wherein the education expenses incurred in respect of the daughter has been detailed out. Hence, he seeks for enhancing the maintenance awarded.
5. In support of his submissions he relied on the following judgments:
i) Smt. Vanamala vs Shri H.M. Ranganatha Bhatta.1
ii) Rohtash Singh vs Smt. Ramendri And Ors.2
iii) Dr. Swapan Kumar Banerjee vs The State of West Bengal and Anr.3 1 1995 SCC (5) 299 2 2000 (3) SCC 180 3 2020 (19) SCC 342 5
iv) Shamima Farooqui vs Shahid Khan.4
v) Abhilasha vs Parkash.5
vi) Smt. Pooja Hugar vs Sri. Shankar Hugar.6
vii) Annurita Vohra vs Sandeep Vohra.7
6. Per contra, learned counsel for Respondent justified the order of maintenance and submitted that the Respondent has already transferred a sum of Rs.5,43,000/- to the account of the wife and further submitted that the proceedings in MFA No.103715/2019 are pending between the parties, wherein issues regarding the matrimonial relationship and permanent alimony are being adjudicated, which order will be complied with by the Respondent. He further submits that having regard to the scope of the proceedings being under Section 125 of the Cr.PC., the maintenance awarded by the Family Court is just and proper and if the Petitioners are seeking for 4 2015 (5) SCC 705 5 2021 (13) SCC 99 6 RPFC No. 100059/2017 7 2004 (74) DRJ 99 6 higher amount, they need to initiate appropriate proceedings under the Hindu Adoptions and Maintenance Act. Hence, he seeks for dismissal of the present petition. In support of his contentions, he relied on the following judgments:
i. Ajay Kumar Rathee vs Seema Rathee8
ii. Rajnesh vs Neha and Anr.9
7. I have considered the submissions of both the learned counsels and perused the material on record.
8. The Family Court while awarding the maintenance has noticed that the Petitioner No.1/wife has stated in her evidence that the Respondent is doing power loom business and is having a factory with 100 power looms and 80 persons are working in the power loom factory and he is getting Rs.30 lakhs income. That the maintenance for the daughter including the education expenses is about Rs.45,000/- per month. 8 CA. No. 5141/2011, DD 10.3.2022 9 2021(2) SCC 324 7
9. The Petitioner examined herself as PW.1 and her brother as PW.2 who also stated regarding the business carried on by the Respondent. The Respondent examined himself as RW.1. The Family Court noticing the admissions made in the cross-examination of the Respondent has recorded that he is doing power loom business and he is having 90 power loom machines. Although the Respondent examined RW.2, since RW.2 was not tendered for cross-examination, the Family Court recorded that the evidence of RW.2 cannot be looked into. RW.3 was examined and has admitted in the cross examination that respondent has got 90 to 95 power looms in two factories and Respondent and his brothers are doing the said business. However he pleads ignorance regarding number of employees employed in the said factory. RW.4 in his cross examination has also admitted that the respondent might have got about 90 to 95 power looms and the said business is a joint family power loom business. RW.5 in his evidence has also stated that that 8 the respondent is engaged in the business is a joint family business.
10. The Family Court upon an appreciation of the oral and documentary evidence on record has noticed that the respondent being engaged in the power loom business, which is a joint family business and having 90 power loom machines and 25 labourers, has awarded the maintenance of Rs.5,000/- to the wife and Rs.3,000/- to the daughter.
11. The petitioners have produced Ex.P2 to place on record that the petitioner No.2 was studying at Vinay Chikkatti International School at Gadag and the fee structure for the year 2015-16 was Rs.30,700/- and for the grade VII of the 2nd petitioner-daughter shows the cost as Rs.3,320/-. The estimate/approval with regard to the uniforms of the Petitioner No.2 is produced as Ex.PW.4 which discloses the amount as Rs.4,000/-. The Respondent has produced his medical records as RWs.5 to 8 which disclose that he is suffering from certain health ailments pertaining to his kidney and he has been advanced suitable 9 medication. The affidavit of the respondent dated 05.07.2022 filed discloses that he has gross income of Rs.5,14,878/-. However, the total monthly income is mentioned as Rs.42,905/-. It is relevant to note that the petitioner No.2 - daughter having born in the year 2003 as on date she is aged about 20 years.
12. The judgments relied on by the learned Counsel for the Petitioners are considered as under:
a) In the case of Smt. Vanamala1 the Hon'ble Supreme Court has held that the expression wife under Section 125(4) of the CPC does not include a woman who has been divorced.
b) In the case of Rohtash Singh2 the Hon'ble Supreme Court has held as under:
"11. Learned counsel for the petitioner then submitted that once a decree for divorce was passed against the respondent and marital relations between the petitioner and the respondent came to an end, the mutual rights, duties and obligations should also come to an end. He pleaded that in this situation, the obligation of the petitioner to maintain a woman with whom all relations came to an end 10 should also be treated to have come to an end. This plea, as we have already indicated above, cannot be accepted as a woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her."
(emphasis supplied)
c) In the case of Dr.Swapan Kumar3 the Hon'ble Supreme Court has held as under:
"7. No doubt, as urged by Mr Debal Banerjee, Explanation II to Section 125 CrPC by deeming fiction includes a divorced woman to be a wife and, therefore, a woman who has been divorced by her husband can still claim maintenance under Section 125 CrPC. The question is how we should read the provisions of sub-section (4) in this regard, especially when we deal with those women, against whom a decree for divorce has been obtained on the ground that they have deserted their husband. Once the relationship of marriage comes to an end, the woman obviously is not under any obligation to live with her former husband. The deeming fiction of the divorced wife being treated as a wife can only be read for the limited purpose for grant of maintenance and the deeming fiction cannot be stretched to the illogical extent that the divorced wife is under a compulsion to live with the ex-husband. The husband cannot urge that he can divorce his wife on the ground 11 that she has deserted him and then deny maintenance which should otherwise be payable to her on the ground that even after divorce she is not willing to live with him. Therefore, we find no merit in the contention of Mr Debal Banerjee."
(emphasis supplied)
d) In the case of Shamima Farooqui4 the Hon'ble Supreme Court has held as under:
"14. ...... It can never be forgotten that the inherent and fundamental principle behind Section 125 CrPC is for amelioration of the 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 statute commands that there have to be some acceptable arrangements so that she can sustain herself. The principle 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 woman, 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 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 12 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, 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."
(emphasis supplied)
e) In the case of Abhilasha5 a 3 Judge Bench of the Hon'ble Supreme Court has held as follows:
"32. The provision of Section 20 of the 1956 Act casts clear statutory obligation on a Hindu to maintain his unmarried daughter who is unable to maintain herself. The right of unmarried daughter under Section 20 to claim maintenance from her father when she is unable to maintain herself is absolute and the right given to unmarried daughter under Section 20 is rightly granted under Personal law, which can very well be enforced by her against her father. The judgment of this Court in Jagdish Jugtawat [Jagdish Jugtawat v. Manju Lata, (2002) 5 SCC 422 : 2002 SCC (Cri) 1147] laid down that Section 20(3) of the 1956 Act recognised the right of a minor girl to claim maintenance after she attains majority till her marriage from her father. Unmarried daughter is clearly entitled for maintenance from her father till she is married even though she has become major, which is a statutory right recognised by Section 20(3) and can be enforced by unmarried daughter in accordance with law.13
33. After enactment of the Family Courts Act, 1984, a Family Court shall also have the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX CrPC relating to order for maintenance of wife, children and parents. Family Courts shall have the jurisdiction only with respect to city or town whose population exceeds one million, where there is no Family Court, proceedings under Section 125CrPC shall have to be before the Magistrate of the First Class. In an area where the Family Court is not established, a suit or proceedings for maintenance including the proceedings under Section 20 of the 1956 Act shall only be before the District Court or any subordinate civil court.
34. There may be a case where the Family Court has jurisdiction to decide a case under Section 125 CrPC as well as the suit under Section 20 of the 1956 Act, in such eventuality, the Family Court can exercise jurisdiction under both the Acts and in an appropriate case can grant maintenance to unmarried daughter even though she has become major enforcing her right under Section 20 of the 1956 Act so as to avoid multiplicity of proceedings as observed by this Court in Jagdish Jugtawat [Jagdish Jugtawat v. Manju Lata, (2002) 5 SCC 422 : 2002 SCC (Cri) 1147] . However the Magistrate in exercise of powers under Section 125 CrPC cannot pass such order."
(emphasis supplied)
f) A Co-ordinate Bench of this Court in the case of Smt Pooja Hugar6 has held that 1/3rd of the income of the husband is to be awarded as maintenance by the husband to the wife. 14
g) In the case of Annurita Vohra7 a Co-
ordinate Bench of the Delhi High Court has held that the "amount of maintenance" fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case.
13. The judgments relied on by the learned Counsel for the Respondent are considered as under:
a) In the case of Ajay Kumar Rathee9, the Hon'ble Supreme Court considering the facts of the said case held that since the daughter in the said case did not want to maintain any relationship with the father it was held that the daughter is not entitled to any amount towards her education. However, the said case will not aid the case of the husband since there was no proposition of law that was laid down in 15 the said case and the said order was passed by the Hon'ble Supreme Court consequent to a mediation report that was received by it and in proceedings where the status of marriage of the parties was under
consideration. It is also relevant to note that education expenses of the daughter was kept in abeyance while determining the permanent alimony that was paid to the wife.
b) In the case of Rajnesh10, the Hon'ble Supreme Court considering the aspect regarding overlapping of jurisdiction while awarding maintenance after noticing various other judgments on the said aspect issued the following directions:
"60. It 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, 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 16 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 adjustment 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."
14. Having regard to the settled proposition of law as laid down by the Hon'ble Supreme Court, as noticed above, the maintenance that is required to be paid by the husband to the wife and children is required to be adjudicated.
15. With regard to the maintenance to be awarded to the Petitioners, it is noticed that this Court vide order dated 11.3.2022 had directed both the 17 parties to file their respective affidavits disclosing their assets and liabilities, which has been complied with by both the parties.
16. In the affidavit dated 7.7.2022 filed by the Petitioner No.1 she has stated that there are no movable or immovable properties standing in her name as also in name of her daughter and they have been living in a rented house paying a sum of Rs.10,000/- pm., for the last several years. She further stated that she has availed a gold loan for a sum of Rs.5,97,000/- by pledging the gold ornaments belonging to her mother and sister and the loan was sanctioned in the month of September 2021 by the Canara Bank, Gadag Branch, which has been taken to meet the family necessities and education expenses of the daughter. She has also stated that she availed huge hand loans of Rs.5,00,000/- from her well wishers and relatives.
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17. With regard to the education expenses of the daughter, the relevant portion of the said affidavit i.e., paras 4 and 5 are extracted hereunder for ready reference:
"4. I state that the Petitioner No.2 has studied her PUC education during the year 2019-20 and 2020-21 in Swamy Vivekananda PU Science college at Hulakoti and spent sum of Rs.95,000/- towards college fees to complete her PUC education other than the miscellaneous expenses. I am producing herewith the expenditure certificate issued by the PU College for the kind perusal of this Hon'ble Court.
5. I state that my daughter i.e., Petitioner No.2 is studying in B.E Computer Science in KLE Institute of Technology, Hubballi and paid sum of Rs.1,10,000/- as part payment out of Total fees Rs.2,30,100/- towards admission fees for I year and remaining balance amount of Rs.1,20,100/- has to be paid to the college. In this regard, total expenditure certificate to be incurred for the Engineering course would be Rs.9,35,400/- and already paid a sum of Rs.2,00,000/- towards donation to get admission to the college. I submit that as per college expenditure certificate, the petitioners are to be incurred sum of Rs.9,35,400/- to complete her B.E engineering course. I state that Petitioner No.2 has been staying in Poorna PG Hostel to continue her B.E. studies by paying PG rent of Rs.7,500/- p.m. and so far as boarding is concerned, she is spending a sum of Rs.3,700/- pm. and food receipt voucher is also furnished for kind perusal of this Hon'ble Court. Hence, I state that a sum of Rs.15,000/- pm. is required for the education purpose including the books, stationery, uniform etc. The petitioner has already paid in 19 advance a sum of Rs.10,000/- towards boarding expenses on 30/01/2022. I am herewith producing the expenditure certificate and also receipts for having paid the college fees are furnished for the kind perusal of this Hon'ble Court."
(emphasis supplied)
18. Along with the affidavit Petitioner No.1 has produced a copy of the Expenditure Certificate dated 16.6.2022 issued by Swami Vivekananda PU Science and Commerce College, Hulkoti, which discloses that the daughter was a student of the said college who has completed her education during the years 2019-20 and 2020-21 and the total expenditure for the said two years is Rs.95,000/-.
19. A copy of the Expenditure Certificate dated 1.4.2022 issued by the KLE Institute of Technology, Hubballi, is produced, which discloses that Petitioner No.2 is admitted to I year B.E. Computer Science and Engineering Programming for the academic year 2021-22 and her provisional expenditure for the said course from 1st to 4th year i.e., 8 semesters is Rs.9,35,400/-. 20
20. Copies of the receipts issued by the Poorna Ladies Hostel and PG dated 30.1.2022 for Rs.200/- and Rs.10,000/- respectively are also produced. The Petitioners have also produced copy of the Rent Receipt voucher dated 12.2.2022 which discloses that the rent has been received for the month February 2022 to March 2022 in a sum of Rs.7,500/- from Petitioner No.2. Copies of the Food Receipts produced also discloses receipt of Rs.3,750/- for the month of February 2022. Copies of the receipt for having paid an amount of Rs.1,10,000/- on 13.1.2022 to KLE Institute of College are also produced.
21. Copy of the application for loan requesting for a loan of Rs.5,97,000/- is also produced and details of gold articles pledged is also produced along with the affidavit.
22. It is forthcoming from the aforementioned that Petitioner No.2 is pursuing her education and the expenses being incurred for the same are required to be borne by the Respondent/husband. Further, Petitioner No.1 - wife 21 is also required to be paid a higher amount of maintenance.
23. In view of the aforementioned, it is just and proper that the order of Family Court is modified directing the Respondent to pay a maintenance of Rs.10,000/- pm., to Petitioner No.1 and Rs.7,500/- pm., to Petitioner No.2, which amount shall be paid from the date of the petition in Cri.Misc.No.46/2015 till date.
24. Having regard to the fact that due to passage of time the expenditure that the wife may require would have increased and having regard to the fact that petitioner No.2 - daughter is pursuing her engineering course having furnished details along with affidavit of the Petitioners, it is just and proper that the Respondent be directed to pay Petitioner No.1 a monthly maintenance of Rs.20,000/- from the date of this order till her re-marriage and pay a monthly maintenance of Rs.15,000/- to Petitioner No.2 till date of her marriage. In addition to the aforementioned, the Respondent is directed to pay 22 Petitioner No.1 the actual amounts of education expenses incurred i.e., remittance of tuition and other fees paid to the respective educational institutions as well as the boarding and lodging charges incurred by Petitioner No.2 when she is pursuing her education which amount Petitioner No.1 shall be entitled to recover from the Respondent by initiating appropriate proceedings in implementation of this order.
25. It is relevant to note that the wife had preferred MC No.22/2017 against the husband for a decree of divorce, which was granted by the Family Court vide its judgment and decree dated 7.6.2018 and the husband was directed to pay a permanent alimony of Rs.10.00 lakhs to the wife. The wife has preferred MFA No.103715/2019, wherein the order of the Family Court has been challenged and she has sought enhancement of the permanent alimony awarded by the Family Court.
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26. It shall be open to the Respondent to place the maintenance that is awarded in the present proceedings in other proceedings pending between the parties.
27. It shall also be open to the husband to seek for deduction of education expenses in actual of the daughter
- Petitioner No.2 if the same has been incurred by the husband.
28. In view of the aforementioned, I pass the following:
ORDER i. The above petition is allowed in part;
ii. The judgment dated 3.3.2016 passed in Cri.Misc.46/2015 by the Principal Judge Family Court, Gadag, is modified as follows:
a. Petitioner No.1 is entitled to a monthly maintenance of Rs.10,000/- pm., and Petitioner No.2 is entitled to a monthly maintenance of Rs.7,500/-, from the date of 24 petition in Cri.Misc.46/2015 till the date of this order;
b. Petitioner No.1 is entitled to a monthly maintenance of Rs.20,000/- from the date of this order till her re-marriage;
c. Petitioner No.2 is entitled to a monthly maintenance of Rs.15,000/- from the date of this order till date of her marriage. d. Respondent is directed to pay Petitioner No.1 the actual amount of education expenses incurred towards the education of Petitioner No.2.
iii. The Respondent is also liable to pay Petitioner No.1 a sum of Rs.20,000/- as costs of this petition.
(Sd/-) JUDGE BS/nd