Karnataka High Court
Smt Deepa C Parvathi vs Sri Raghavendra S on 26 April, 2018
Author: Raghvendra S.Chauhan
Bench: Raghvendra S. Chauhan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF APRIL 2018
BEFORE
THE HON'BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN
WRIT PETITION No.47440/2017 (GM-FC)
C/W
WRIT PETITION No.43029/2017
IN WRIT PETITION No.47440/2017:
BETWEEN :
SMT. DEEPA C. PARVATHI
W/O. RAGHAVENDRA. S.,
AGED ABOUT 34 YEARS,
R/AT NO.59, 1ST FLOOR,
G. D. PARK EXTENSION,
VYALIKAVAL,
BANGALORE-560 003. ... PETITIONER
(BY SRI HEMANTH KUMAR D., ADV.)
AND:
SRI RAGHAVENDRA S
S/O. H. C. SWAMY,
AGED ABOUT 34 YEARS,
R/AT NO.12, 1ST FLOOR, 5TH MAIN,
6TH CROSS, MALLESHPALYA,
BANGALORE-560 075. ... RESPONDENT
(BY SRI AMRUTHESH C., ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO MODIFY THE
ORDER DATED 18.8.2017 PASSED ON I.A. FILED UNDER
SECTION 24 OF HINDU MARRIAGE ACT IN M.C.NO.833/2016 ON
THE FILE OF THE VI ADDL. PRINCIPAL JUDGE FAMILY COURT
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AT BANGALORE VIDE ANNEXURE-E, BY ALLOWING THE
APPLICATION AS PRAYED AND ETC.
IN WRIT PETITION No.43029/2017:
BETWEEN :
SRI RAGHAVENDRA S
S/O. H. C. SWAMY,
AGED ABOUT 34 YEARS,
R/AT NO.12, 1ST FLOOR, 5TH MAIN,
6TH CROSS, MALLESHPALYA,
BENGALURU-560 075. ... PETITIONER
(BY SRI AMRUTHESH C., ADV.)
AND:
SMT. DEEPA C. PARVATHI
D/O. C. P. CHIKKANNA,
AGED ABOUT 34 YEARS,
R/AT NO.59, 1ST FLOOR,
G. D. PARK EXTENSION,
VYALIKAVAL,
BENGALURU-560 003. ... RESPONDENT
(BY SRI HEMANTH KUMAR D., ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET-ASIDE THE
ORDER DATED 18.08.2017 PASSED ON I.A. U/S. 24 OF THE
HINDU MARRIAGE ACT IN M.C.NO.833/2016 ON THE FILE OF VI
ADDL. PRINCIPAL FAMILY JUDGE, BENGALURU, VIDE
ANNEXURE-G AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING :
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ORDER
Both these writ petitions are filed challenging the order dated 18.08.2017, passed by the VI Additional Principal Judge, Family Court, Bengaluru, whereby, the learned Family Court has granted a monthly interim maintenance of Rs.8,000/- per month, to the respondent-wife, and has also granted one time litigation expenses of Rs.10,000/- to her. Therefore, they are being decided by this common order. The facts are being taken from W.P.No.43029/2017. W.P.No.43029/2017
2. Briefly the facts of the case are that the petitioner and respondent were married, on 19.08.2013, in accordance with the Hindu rites and customs. However, subsequently, as differences arose between the parties, they left each other's company. The respondent filed a divorce petition against the petitioner on the ground of alleged cruelty. The petitioner submitted his objections and denied the averments made in the plaint. During the pendency of divorce proceedings, the respondent filed an application 4 under Section 24 of the Hindu Marriage Act ("the Act", for short), for seeking interim maintenance and the litigation expenses. The petitioner filed objections to the said application. However, by the impugned order, dated 18.08.2017, the learned Family Court has granted the interim maintenance, and one time litigation expenses, as mentioned hereinabove. Hence, this petition before this Court.
3. Mr. Amrutesh .C, the learned counsel for the petitioner, has raised the following contentions before this Court:-
Firstly, relying on the case of Manish Jain v. Akanksha Jain [AIR 2017 SC 1640], the learned counsel has pleaded that the Court must take into consideration the status of the parties in the capacity of the spouse to pay the maintenance, and whether the applicant has any independent income sufficient for him/her. Thus, the maintenance is always dependant on the factual situation. Thus, the Court is required to mould the relief of 5 maintenance, and while determining the quantum, various factors have to be kept in mind.
Secondly, in the objections filed by the petitioner, although the petitioner had admitted that the he is working for Dallas Technologies, but in the written arguments, submitted by the petitioner, to the application filed by the respondent, he had clearly stated that he is not a regular employee of Dallas Technologies. He is working on freelance basis on the Projects required by Dallas Technologies. Thus, he is not receiving monthly salary. Moreover, he is not on the Rolls of employees of Dallas Technologies. Despite the said statement made by the petitioner, the learned Family court has observed that "the respondent has admitted that he is working for the Dallas Technologies". Therefore, the learned Family Court has misread the statement made by the petitioner.
Thirdly, after passing of the impugned order, the petitioner has discovered that the respondent wife has sufficient means to support herself, and the respondent 6 No.2. Thus, the respondent has not approached the Family Court with clean hands. Therefore, the impugned order deserves to be set aside by this court.
4. On the other hand, Mr. Hemanth Kumar, the learned counsel for the respondent-wife, submits that although the petitioner may have pleaded that he is not on the rolls of Dallas Technologies, although he may have pleaded that he is working as a free lance employee in the said company, but he has not submitted any documentary evidence to support his pleas. Moreover, neither in his objections, nor in his written statement, he has revealed the income earned by him. According to the learned counsel, this point has been duly noted by the learned Family Court. Therefore, the learned Family Court was justified in ignoring these pleas raised by the petitioner as there was lack of documentary evidence to buttress the same. Hence, according to the learned counsel, the learned Family court was justified in concluding that the petitioner was earning about Rs.1 Lakh per month.
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Secondly, since the respondent-wife is aggrieved by the grant of merely Rs.8,000/- per month, she has already filed a writ petition for seeking enhancement of the interim maintenance amount.
Thirdly, this court has to consider the legality, or illegality of the impugned order as on the date on which the order was pronounced. Since no plea was raised, and no evidence was submitted that respondent had sufficient means, the said plea cannot be accepted by this court, as it is a new plea based on facts.
5. Heard the learned counsel for the parties, and perused the impugned order, and examined the record submitted before this court.
6. A bare perusal of the written statement field by the petitioner clearly reveals that the petitioner had admitted the fact that "he is working for Dallas Technologies". Thus, at the time of filing the written statement, the petitioner had not clarified as to the nature of his employment, whether he was a regular employee, or a free lance employee, as claimed 8 by him subsequently. Although in his written arguments, the petitioner subsequently claims that he is not on the regular rolls of Dallas Technologies, but he is merely working with Dallas Technologies on free lance basis. But, even the said plea has not been supported by any documentary evidence.
7. It is, indeed, trite to state that a plea has to be supported by documentary evidence as the statement made by the litigants cannot be taken as gospel truth.
8. According to Section 106 of the Evidence Act, if a peculiar fact is known to a party, it is for the party to reveal the said fact. Obviously as to what was the income earned by the petitioner would be a fact well-known to him, it was for him to reveal this fact in his written statement. But he has failed to do so. Thus, it is a material fact that petitioner is intentionally hiding from the Family Court. Therefore, the learned Family Court could have only made a good judgment assessment of the income that the petitioner may be earning from Dallas Technologies. Considering the fact that the 9 petitioner is working in a Software Company, considering the fact that those who are employed by the Software Companies are well paid, the assessment made by the learned Family Court that the petitioner must be earning Rs.1 Lakh per month cannot be said to be misplaced.
9. It is the duty of the Appellate Court to see whether the impugned order is legal, or illegal one, on the basis of pleas and evidence produced by the parties before the Court prior to passing the impugned order. Prior to passing of the impugned order, the petitioner did not plead that the respondent-wife had sufficient means to support herself. Moreover, he did not submit any evidence to establish the said fact. Therefore, a new plea cannot be raise by the learned counsel for the petitioner for the first time before the Appellate Court.
10. For the reasons stated above, this court does not find any illegality in the impugned order. Therefore, W.P.No.43029/2017 is hereby dismissed. No order as to costs.
10W.P.No.47440/2017:
The respondent-wife, as the petitioner, has challenged the impugned order, and has sought for enhancement of the maintenance amount.
11. Mr. Hemanth Kumar, the learned counsel for the petitioner, submits that even according to the learned Family Court, the respondent is presumed to be earning Rupees One Lakh per month, as he was working for Dallas Technologies, a Software Company. Yet, despite taking the income as Rs.1 Lakh per month, the learned Family court has granted an interim maintenance of merely Rs.8,000/- per month.
Secondly, admittedly, the petitioner-wife has no source of income, as she is unemployed. Due to her financial constraints, she is living with her aged parents. Thus, she continues to be a financial burden upon her parents.
Thirdly, considering the high cost of living expenditure in Bengaluru, the payment of Rs.8,000/- per month is 11 insufficient for a woman, to survive for the entire month. Therefore the interim maintenance should be enhanced by this Court.
12. On the other hand, Mr. Amrutesh .C, the learned counsel for the respondent-husband has vehemently contended that the petitioner's father has large number of properties from where the petitioner's father is deriving substantial rental income. According to the decree passed by the learned Civil Judge in O.S.No.5009/1992, the petitioner is a co-joint owner of some of the schedule properties. Thus, she has sufficient means to survive on the rental income received by her father. Thus, the interim maintenance of Rs.8,000/- is more than sufficient for the petitioner to live in.
Secondly, the respondent does not have a regular job, as according to the respondent, he is working on free lance basis for Dallas Technologies, a Software Company. Therefore, it is extremely difficult for him to bear the financial burden of having to pay an interim maintenance of 12 Rs.8,000/- per month to the petitioner. Thus, the impugned order should not be set aside by this court. Hence, the learned counsel has supported the impugned order.
13. According to the petitioner, she is unemployed and due to her financial constraints, she is forced to live with her aged parents. Although the learned counsel for the respondent has claimed that the petitioner does have a share in the properties belonging to the family, but there is no documentary evidence to establish the fact that the petitioner is receiving any share of the rental amount received by her parents. According to the statement made by the respondent in the objection filed by him, the properties mentioned, belong to the petitioner's father and it is the petitioner's father who is receiving the rental amount from the property. In the absence of any documentary proof that petitioner is, indeed, receiving the rental amount, the plea raised by the learned counsel for respondent cannot be accepted that petitioner has sufficient means to support herself.
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14. A bare perusal of the impugned order clearly reveals that the respondent had admitted that he is working in Dallas Technologies, in the written statement. Although, subsequently, he has tried to plead that he is not on the regular rolls of Dallas Technologies, but such a plea is not supported by any documentary evidence so far. He has not produced any document at the time when the impugned order was passed. Therefore, the contention raised by the learned counsel for respondent that the respondent is not on the regular rolls of Dallas Technologies cannot be accepted by this court.
15. Repeatedly, the Hon'ble Supreme Court has opined that a husband is legally and morally bound to maintain the wife, and poverty is not a defence in a maintenance case. Even those who are poor continue to maintain their wife. Therefore, the plea that the petitioner is unemployed, and, thus, unable to support the wife is a plea that needs to be uttered only to be rejected by this court.
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16. On the basis of the admission made by the respondent that he is, indeed, working at Dallas Technologies, the learned Family Court was justified in presuming that he may be earning Rs.1 Lakh per month. While the Family Court has drawn such conclusion, the Family Court has ignored the fact that Bengaluru, happens to be one of the costliest cities in the country. Moreover, it has given only a small fraction of the income earned by the respondent i.e., merely Rs.8,000/- per month to the petitioner. Considering the fact that after the 7th Pay commission has been introduced, even a Group -'D' employee earns more than Rs.8,000/- per month. Yet, the petitioner is not even paid the minimum salary of a Group-'D' employee, in order to maintain her body and soul. Therefore, obviously, the interim maintenance paid to her is on the lower side.
17. For the reasons stated above W.P.No.47440/2017 is hereby allowed. The impugned order is modified to the extent that the respondent is directed to pay maintenance o Rs.15,000/- per month to the petitioner.
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18. The learned counsel for the respondent submits that in compliance of the order dated 18.08.2017, the respondent has been paying Rs.5,000/- to the petitioner, during the pendency of the present writ petition. Therefore, the respondent is directed to pay the balance amount of Rs.10,000/- per month to the petitioner from the date of passing the interim order till the present.
19. It is hereby clarified that any observation made by this court are only prima-facie in nature. The said observation shall not influence, one way or the other, and are not binding on the Family Court. This court hopes that the Family Court would assess the evidence objectively and pass its order strictly in accordance with law.
Sd/-
JUDGE Np/-