Karnataka High Court
Smt.Sumaiyya Banu vs Mr.Syed Mujeeb on 23 April, 2018
Equivalent citations: AIRONLINE 2018 KAR 1504
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF APRIL, 2018
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
R.P.F.C.NO.5/2016
C/W
R.P.F.C.NO.144/2015
IN RPFC 5/2016
BETWEEN:
1. SMT. SUMAIYYA BANU
W/O SYED MUJEEB,
AGED ABOUT 33 YEARS,
HOUSEHOLD WORK.
2. HAJIRA SUHANA
D/O SYED MUJEEB,
AGED ABOUT 15 YEARS,
STUDENT.
3. HAFSA SABIRA
D/O SYED MUJEEB,
AGED ABOUT 14 YEARS,
STUDENT.
4. MASIRA ANJUM
D/O SYED MUJEEB,
AGED ABOUT 10 YEARS,
STUDENT.
5. AFISA ANJUM
D/O SYED MUJEEB,
AGED ABOUT 10 YEARS,
RPFC No. 5/2016 C/W RPFC No. 144/2015
2
STUDENT.
THE PETITONER NO.2 TO 5 ARE
MINORS, REPRESENTED BY THEIR
NATURAL GUARDIAN,
MOTHER SUMAIYYA BANU
PETITIONER NO.1.
ALL ARE R/O 1ST CROSS, TIPPUNAGAR,
LEFT SIDE, SHIVAMOGGA-577 201.
...PETITIONERS
(BY SRI. JAVEED S. ADV. FOR P1;
P2 TO P5 ARE MINORS REPRESENTED BY P1)
AND:
MR. SYED MUJEEB
S/O. SYED KAREEM SAB,
AGED ABOUT 45 YEARS,
AGRICULTURIST AND DRIVER,
R/O. MAVINKAKERE POST,
BHADRAVATHI TALUK,
SHIVAMOGGA DISTRICT-577 201. ...RESPONDENT
(BY SRI. MOHAMMED FAROOQ, ADV.)
IN RPFC 144/2015
BETWEEN:
SYED MUJEEB
S/O SYED KAREEM SAB,
AGED ABOUT 47 YEARS,
AGRICULTURIST,
R/O. MAVINAKERE POST,
BHADRAVATHI TALUK,
SHIVAMOGGA DIST. ...PETITIONER
(BY SRI. MOHAMMED FAROOQ, ADV.)
RPFC No. 5/2016 C/W RPFC No. 144/2015
3
AND:
1. SMT. SUMAIYYA BANU
W/O SYED MUJEEB,
AGED ABOUT 32 YEARS.
2. HAJIRA SUHANA
D/O SYED MUJEEB,
AGED ABOUT 14 YEARS.
3. HAFSA SABIRA
D/O SYED MUJEEB
AGED ABOUT 13 YEARS.
4. MASIRA ANJUM
D/O SYED MUJEEB
AGED ABOUT 9 YEARS.
5. AFISA ANJUM
D/O SYED MUJEEB
AGED ABOUT 9 YEARS
ALL ARE RESIDING AT 1ST CROSS,
TIPPUNAGAR LEFT SIDE,
SHIVAMOGGA. ...RESPONDENTS
(BY SRI. JAVEED S, ADV. FOR R-1;
R-2 TO R-5 ARE MINORS REPRESENTED BY R-1)
THESE PETITIONS ARE FILED UNDER SECTION 19(4)
OF THE FAMILY COURT ACT 1984, AGAINST THE ORDER
DATED: 29.06.2015 PASSED IN C.MIS.NO.42/2013 ON THE
FILE OF THE JUDGE C/c FAMILY COURT AT SHIVAMOGGA,
PARTLY ALLOWING THE PETITION FILED U/S. 125 OF Cr.P.C.
RPFC No. 5/2016 C/W RPFC No. 144/2015
4
THESE PETITIONS COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
R.P.F.C.No.144/2015 is filed by the husband against his wife and children, similarly, the said wife and children have filed R.P.F.C.No.5/2016 against the husband of the first petitioner herein, who is the father of the remaining petitioners. While, the husband has filed this petition seeking setting-aside of the order dated 29.06.2015 passed by the Family Court, at Shimoga, (henceforth for brevity referred to as "The Family Court") in C.Mis.No.42/2013, wherein the husband is ordered to pay maintenance at `2,000/- per month to his children, the other petition filed by the wife and children are for fixation of maintenance at the rate of `5,000/- per month, including the maintenance to be ordered in favour of the wife.
RPFC No. 5/2016 C/W RPFC No. 144/2015 5
2. Though this matter was listed in the admission list, at the consent from both side, both these petitions are taken up for its final disposal.
3. For convenience, the petitioner in RPFC No.144/2015 would be referred to as the husband and the first respondent therein as the wife and the remaining respondents as children.
4. The wife and children had instituted a petition in the Family Court against the husband for maintenance seeking maintenance of `25,000/- per month. The husband contested the said petition. After recording the evidence led in by the parties and hearing both side, the Family Court was pleased to allow the petition filed under Section 125 of Criminal Procedure Code, 1973 in part, directing the husband (respondent therein) to pay maintenance at `2,000/- each per month to the children RPFC No. 5/2016 C/W RPFC No. 144/2015 6 who were the petitioner Nos.2 to 5 in the Family Court. Petition of the wife (petitioner No.1) in the Family Court was resisted.
5. The marital relationship of the husband and wife and that the children were born to them out of the marriage, is not in dispute. It is also not in dispute that the wife and the children are residing separately in Shivamogga, whereas the husband is residing in a place called Mavinakere in Shivamogga, which is not a place far away from Shivamogga. According to the wife, the husband left her at Shivamogga and returned to Mavinakere and that she has to maintain her children, eaking her livelihood, as such, she seeks maintenance.
6. Contention of the husband in the Court below was that he has never deserted his wife and children, but, they refused to join him in RPFC No. 5/2016 C/W RPFC No. 144/2015 7 Mavinakere village. The petitioner / wife who examined herself as PW1, except stating that her husband is not giving any maintenance to her and children, has not given reason as to for what reason she is residing separately at Shivamogga than joining her husband in the marital home, even after assuming that her husband might have joined the children to school at Shivamogga. But, the very same person has called her back to his place, for which, the wife was not willing. Even according to the said wife, who has stated in her cross examination as PW1 that, as a wife, it is her custom to join her husband in the matrimonial home, still, admittedly, she has not joined her husband. She has not shown any specific reason as to what compelled her to stay away from her husband. The husband is an agriculturist, owning the land at Mavinakere village. Therefore, the Court below has rightly come to a RPFC No. 5/2016 C/W RPFC No. 144/2015 8 conclusion that the wife is living separately from her husband though he was ready and willing to take her back. PW1 herself has stated in her cross-examination that her husband, who according to Personal Law, can undergo second or subsequent marriage has not undergone any marriage. This shows that the husband is being waiting for her to join him, as such, the finding of the Court below that the wife is residing away from the husband with no justifiable reason, as such, awarding any maintenance does not warrant.
7. According to the husband, all his four children who are daughters are school going children and still minors. Admittedly, they are attending their school at Shivamogga. As already observed, PW1 has specifically stated in her evidence that it is the husband who has joined her children to school at Shivamogga. It is now the contention of the husband that children should come RPFC No. 5/2016 C/W RPFC No. 144/2015 9 back to Bhadravathi and he would join them to the school at Bhadravathi.
8. The argument of the learned counsel for the wife is that, the mother of the children is residing at Shivamogga who has not joined or may not be willing to join her husband at the matrimonial home. If the children are made to live in the home of their father, the children would be deprived of proper care of their mother. Admittedly, the husband, who is the father of the children is also not the resident of Bhadravathi, but he is a native of the place called Mavinakere, as such, mother's care to those children is required and they have to be stayed where their mother is at present. As such, the observation of the Family Court that even though the husband and the wife are living separately for no valid reason, the children cannot be denied or RPFC No. 5/2016 C/W RPFC No. 144/2015 10 deprived of their schooling education, food and shelter. Undisputedly, it is their father who is the husband of petitioner No.1 in the Court below is required to meet those basic requirements of the children, as such, the Family Court has rightly awarded maintenance in favour of those children.
9. The Family Court has awarded a maintenance at the rate of `2,000/- per month in favour of those two children who were petitioner Nos.2 to 4 before it. According to the wife, her husband owns an agricultural land of more than 20 acres and running a poultry farm and is also owning a tractor, in which, he ploughs the land of other villagers also, as such, his income is more than `50,000/- per month. However, the husband has categorically denied the same, except agreeing that he owns a land of 2 acres and 20 guntas and he has no other source of income.
RPFC No. 5/2016 C/W RPFC No. 144/2015 11
10. Learned counsel for the husband in his argument today submitted that the husband has sold even the said 2 acres 20 guntas of land also in the year 2000 and is eaking his livelihood by working in the others land, which submission by the learned counsel for the respondent, is strongly opposed by the other side. Whatever, may be the responsibility of the husband, being the father of his children, to maintain them cannot be ignored. Admittedly, the children are school going children at Shivamogga and they are growing in their age, as such, their requirement towards food, clothing, as well, the educational expenses would be escalating every year.
11. Considering all these aspects, maintenance awarded by the Family Court at the rate of `2,000/- per month per child appears to be marginally on the lower side and the same requires to be enahnced. At the same time, I do not find any ground either to award any RPFC No. 5/2016 C/W RPFC No. 144/2015 12 maintenance in favour of the wife or to set-aside the judgment under appeal.
12. The petition filed by the wife and children in RPFC No.5/2006 deserves to be partly allowed, by enhancing the quantum of maintenance. Considering the avocation and requirement of children for schooling and other expenses, I am of the view that the quantum of maintenance awarded to each child at the rate of `2,000/- per month deserves to be enhanced by `1,000/- per child per month. Accordingly, I proceed to pass the following;
ORDER
(i) RPFC No.144/2015 is dismissed.
(ii) RPFC No.5/2016 is allowed in part.
(iii) The order dated 29.06.2015 passed by the Family Court at Shivamogga in RPFC No. 5/2016 C/W RPFC No. 144/2015 13 C.Mis.No.42/2013 is modified to the extent that the quantum of maintenance awarded at the rate of `2,000/- per month per child ie., petitioner Nos.2 to 5 before the Family Court, is enhanced and fixed at `3,000/- per month per child ie., petitioner Nos.2 to 5. However, the said increase in the quantum of maintenance would be from the date of institution of RPFC No.5/2016.
Sd/-
JUDGE GH