Karnataka High Court
Mr. M. Yashwanth vs D. A. Divya @ Divyashree on 16 June, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC:20906
RPFC No. 70 of 2021
C/W RPFC No. 114 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REV.PET FAMILY COURT NO. 70 OF 2021
C/W
REV.PET FAMILY COURT NO. 114 OF 2021
IN RPFC NO.70 OF 2021:
BETWEEN:
1. MR. M. YASHWANTH
S/O. MALLESHAPPA,
AGED ABOUT 42 YEARS,
BUSINESSMAN AND LANDLORD,
R/AT "AKSHAYA" B.H.ROAD,
MALAVAGOPPA (P),
SHIVAMOGGA TALUK AND DISTRICT,
PIN-577 201.
...PETITIONER
Digitally signed
by SHARANYA T (BY SRI. SUKUMARAN G, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. D.A. DIVYA @ DIVYASHREE
W/O. M. YASHWANTH,
D/O. ANAND,
AGED ABOUT 32 YEARS,
2. THANAY S/O. M.YASHWANTH,
AGED ABOUT 12 YEARS,
BEING MINOR REPRESENTED
BY HIS NATURAL GUARDIAN
IS RESPONDENT NO.1,
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NC: 2023:KHC:20906
RPFC No. 70 of 2021
C/W RPFC No. 114 of 2021
BOTH ARE R/AT
ARAVINDANAGARA, 2ND CROSS,
BASAVANAHALLI EXTENSION,
CHIKKAMAGALURU TOWN,
CHIKKAMAGALURU-577 101.
...RESPONDENTS
(BY SRI. GIRISH B. BALADARE, ADVOCATE FOR R1 AND R2;
R2-MINOR, REPRESENTED BY R1)
THIS RPFC IS FILED UNDER SECTION 19(4) OF FAMILY
COURTS ACT 1984 AGAINST THE ORDER DATED 21.04.2021
PASSED IN CRL.MISC.No.18/2015 ON THE FILE OF THE C/c
PRINCIPAL JUDGE, FAMILY COURT, CHIKKAMAGALURU, PARTLY
ALLOWING THE PETITION FILED UNDER SECTION 125 OF
Cr.P.C., FOR MAINTENANCE.
IN RPFC NO.114 OF 2021:
BETWEEN:
1. SMT.D.A.DIVYA @ DIVYASHREE
W/O. M.YASHWANTH,
D/O. ANAND,
AGED ABOUT 32 YEARS,
CHIKKAMAGALURU-577 101.
2. MASTER THANAY S/O. M. YASHWANTH,
AGED ABOUT 13 YEARS,
CHIKKAMAGALURU-577 101.
THE PETITIONER NO.2 IS MINOR,
REPRESENTED BY HIS NATURAL
GUARDIAN - MOTHER
SMT.D.A.DIVYA @ DIVYASHREE
BOTH ARE R/AT
ARAVINDANAGARA, 2ND CROSS,
BASAVANAHALLI EXTENSION,
CHIKKAMAGALURU CITY,
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NC: 2023:KHC:20906
RPFC No. 70 of 2021
C/W RPFC No. 114 of 2021
CHIKKAMAGALURU-577 101.
...PETITIONERS
(BY SRI. GIRISH B. BALADARE, ADVOCATE)
AND:
1. MR. M. YASHWANTH
S/O. MALLESHAPPA,
AGED ABOUT 43 YEARS,
BUSINESS MAN AND LAND LORD
R/AT. AKSHAYA, MALAVAGOPPA
B.H.ROAD, SHIVAMOGGA TALUK
SHIVAMOGGA- -577 201.
...RESPONDENT
(BY SRI. SUKUMARAN G, ADVOCATE)
THIS RPFC IS FILED UNDER SEC.19 OF THE FAMILY
COURT ACT, AGAINST THE ORDER DATED 21.04.2021 PASSED
IN CRL.MIS.NO.18/2015 ON THE FILE OF THE C/C PRINCIPAL
JUDGE, FAMILY COURT, CHIKKAMAGALURU, ALLOWING THE
PETITION FILED UNDER SEC.125 OF CR.P.C. FOR
MAINTENANCE.
THESE PETITIONS COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
These matters are listed for admission. Heard the learned counsel appearing for both the parties in both the petitions.
2. These two petitions are filed being aggrieved by the order dated 21.04.2021 passed in Crl.Misc.No.18/2015 -4- NC: 2023:KHC:20906 RPFC No. 70 of 2021 C/W RPFC No. 114 of 2021 by the Principal Judge, Family Court, Chikkamagaluru, granting maintenance of Rs.4,000/- each to the wife and a son and the wife also filed a petition for enhancement, respectively.
3. The factual matrix of the case is that the first petitioner in Crl.Misc.No.18/2015 married the respondent on 28.02.2007. In the said wedlock, she gave birth to a second petitioner, who is aged about 7 years at the time of filing the petition in the year 2015 under the care and custody of the first petitioner. In the petition, the allegations are made against the husband, he started ill- treating the wife both mentally and physically and also demanding to bring the money. The case of the wife is that as per the demand, the parents of petitioner No.1 had paid the cash of Rs.1 Lakh and gold ornaments worth about Rs.6,00,000/- as dowry at the time of marriage. The respondent was coming home late night inebriated and used to assault the first petitioner mercilessly, which leads to file a petition in Crl.Misc.No.239/2009 under Section 12 -5- NC: 2023:KHC:20906 RPFC No. 70 of 2021 C/W RPFC No. 114 of 2021 of the Domestic Violence Act, 2005, seeking maintenance and not to commit any further act of domestic violence. The said petition was partly allowed granting monthly maintenance of Rs.4,000/- to the petitioners. The respondent has challenged the same in Crl.A.No.107/2012 before the Fast Tract Court, Chikkamagaluru, the same was dismissed. In the meanwhile, the first petitioner preferred an appeal in Crl.A.No.134/2011 for enhancement of maintenance before the Fast Tract Court, Chikkamagaluru, the same was also dismissed. But the respondent has failed to pay the maintenance amount of Rs.4,000/- to the petitioner and he also filed a petition seeking divorce in M.C.No.134/2013, the same came to be dismissed on 30.06.2014. He also filed G & WC No.21/2013 seeking custody of petitioner No.2, the same was also dismissed on 30.06.2014. It is contended that both of them are unable to lead their life in the paltry amount of Rs.4,000/- and also contend that the second petitioner is studying in III Standard at Sai Angels School, -6- NC: 2023:KHC:20906 RPFC No. 70 of 2021 C/W RPFC No. 114 of 2021 Chikkamagaluru and the yearly expenses would be Rs.60,000/-.
4. It is also contended that the respondent is doing share business having good income and also got income of more than Rs.70 lakhs per year from agricultural properties. He owns a site worth of Rs.25 Lakhs at Shivamogga City and he is capable of maintaining the petitioners. But the respondent is not maintaining the petitioners. The petitioners are facing extreme difficulties to maintain themselves. The first petitioner is unemployed and she has no income to lead day-to-day life. Hence, sought for maintenance of Rs.40,000/- per month. Earlier the said petition was dismissed on 25.01.2016 by placing the respondent exparte. Subsequently, as per order in RPFC No.63/2016 dated 02.11.2020 the said order dated 25.01.2016 was set aside and the matter was remanded back to the Court for fresh disposal.
5. The respondent appeared and filed the statement of objections, admitted the marriage, but he -7- NC: 2023:KHC:20906 RPFC No. 70 of 2021 C/W RPFC No. 114 of 2021 has denied all other averments made with regard to payment of cash as dowry and gold ornaments worth of Rs.6 Lakhs and reiterated with regard to the earlier proceedings before the respective Courts. It is also contended that the second petitioner is also filed a suit in O.S.No.101/2015 for partition and separate possession of the second petitioner. The said petition was partly decreed granting 11 guntas of land. It is also contended as per the earlier order in Crl.Misc.No.239/2009, the respondent has paid up to date maintenance amount.
6. The Trial Court allowed both parties to lead their evidence and the wife examined herself as P.W.1 and got marked the documents as Exs.P1 to P68. On the other hand, the husband examined himself as R.W.1 and he has also relied upon the documents as Exs.R1 to R15.
7. The Trial Court having considered both oral and documentary evidence while assessing the maintenance discussed the judgment of the Apex Court in the case of Rajnesh v. Neha reported in 2020 SCC OnLine SC 903, -8- NC: 2023:KHC:20906 RPFC No. 70 of 2021 C/W RPFC No. 114 of 2021 and also the judgments of this Court. Having considered both oral and documentary evidence in paragraph No.29, taken note of the earlier order directing to pay an amount of Rs.4,000/- under the Domestic Violence Act in Crl.Misc.No.239/2009 and also in paragraph No.30 taken note of the judgment of this Court passed in Crl.R.P.No.1265/2015 (Smt. Sumy Sreekumar and another v. Mr. Rijesh Ram P. and another) and having considered the material on record awarded an amount of Rs.4,000/- each.
8. The very contention of the husband in RPFC No.70/2021 is that both the Courts failed to consider that the petitioner is not having any definite income to pay the maintenance and the Trial Court committed an error in not relying upon the documents Exs.R1 to R15 and on the contrary to Exs.P1 to P68, does not give any indication for allowing the petition. The order impugned is very illegal and unsustainable and contrary to the evidence, when he is unable to pay maintenance since he was not having any -9- NC: 2023:KHC:20906 RPFC No. 70 of 2021 C/W RPFC No. 114 of 2021 definite income, granting of maintenance of Rs.4,000/- each is erroneous.
9. Per contra, the learned counsel appearing for the respondents in RPFC No.70/2021, the petitioners in RPFC No.114/2021 contends that both the Courts failed to take note of the material on record. The husband is having the source of income through his agricultural land though the partition took place between the respondent and his father only small share is allotted to the respondent only to deprive the petitioner from claiming the property through her husband. Apart from that, Exs.R9 to R14 clearly indicates that the father of the respondent owns several luxury vehicles and having several acres of agricultural lands. The documents - Exs.P22 to P28 clearly discloses that those Cars are in the name of the husband earlier and after commencement of the proceeding only those vehicles are sold that too in favour of his father and the same was also taken note of by the Trial Court but the Trial Court failed to award the reasonable maintenance.
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NC: 2023:KHC:20906 RPFC No. 70 of 2021 C/W RPFC No. 114 of 2021
10. Having heard the respective learned counsel and also on perusal of the material available on record, the points that would arise for consideration of this Court are:
(i) Whether the Trial Court has committed an error in granting maintenance of Rs.4,000/-
each?
(ii) Whether the Trial Court has committed an error in granting meager maintenance of Rs.4,000/- each?
(iii) What order?
11. Having heard the respective learned counsel and also on perusal of the material available on record, there is no dispute with regard to the fact that the marriage was solemnized on 28.02.2007 and also no dispute with regard to the dispute was arisen between the parties immediately after the marriage and the same leads to file a petition in Crl.Misc.No.239/2009 under the Domestic Violence Act and also no dispute regarding the maintenance of Rs.4,000/- was awarded in that petition,
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NC: 2023:KHC:20906 RPFC No. 70 of 2021 C/W RPFC No. 114 of 2021 the same is also challenged before the Court by both the sides and both the petitions are dismissed. The present petition is filed in the year 2015 seeking maintenance and no dispute with regard to the fact that in terms of the earlier order passed in Crl.Misc.No.239/2009, the husband is making the payment of Rs.4,000/-. Now, apart from the said amount, the Trial Court passed an order directing to pay an amount of Rs.4,000/- each and the total amount would be Rs.12,000/- for the wife and the son. Having perused the material at the time of filing the petition in 2015, the son is aged about 7 years. Now, he would be aged about 14 years and also not in dispute that the second petitioner has pursuing the education and earlier it was stated that he was pursuing III Standard at Sai Angels School, Chikkamagaluru. The wife claims that the fee would be Rs.60,000/- per year. In order to prove the said fact, the wife produced the School fee bills of the second petitioner i.e., Exs.P10-P21. The wife relied upon the documents - Exs.P22 to P28, B Register extracts, which discloses that the husband was having those
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NC: 2023:KHC:20906 RPFC No. 70 of 2021 C/W RPFC No. 114 of 2021 vehicles and the same was transferred subsequent to the dispute between the wife and the husband and the same is also observed by the Trial Court while considering and appreciating the material on record. The said vehicles are transferred to the father in terms of the documents Exs.R9 to R14 - B Register extracts. It is also the case of the wife that the husband is also doing share business.
12. Learned counsel appearing for the wife brought to the notice of this Court that the Partition Deed effected between the father and the son and also the other daughter of his father, wherein, the husband has received an amount of Rs.10 Lakhs and also 21 guntas of land. It is also not in dispute that the suit is also filed for the relief of partition by the son, wherein, 11 guntas of land was given to the second petitioner. The learned counsel submits that an appeal is pending before this Court in R.F.A. This Court cannot look into the material with regard to the partition is concerned, the same has to be adjudicated in this Court separately. Only the Court has to
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NC: 2023:KHC:20906 RPFC No. 70 of 2021 C/W RPFC No. 114 of 2021 take note of the present cost and standard of living and cost of education and also no doubt that the father has got major share in the said partition and the same cannot be considered but only the Court has to look into the status of the parties and conduct.
13. Having taken note of already getting Rs.4,000/- in view of the order passed in Crl.Misc.No.239/2009 and the present order in Crl.Misc.No.18/2015, the second petitioner-son is also pursuing his education in Chikkamagaluru, having taken note of the school fee and also the same is borne by the wife herself out of Rs.12,000/- and it is very difficult to maintain herself and also to maintain the child, who is pursuing the education and aged about 13 years and to meet the school fee expenses, it is appropriate to modify the order of the Trial Court enhancing the maintenance to the son as Rs.8,000/- instead of Rs.4,000/- and also taking note of the fact that an amount of Rs.4,000/- which the mother is already getting in Crl.Misc.No.239/2009, there is no need to
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NC: 2023:KHC:20906 RPFC No. 70 of 2021 C/W RPFC No. 114 of 2021 enhance the maintenance to the wife. For the child, it is enhanced to Rs.8,000/- in Crl.Misc.No.18/2015, since the wife has to meet the educational expenses. In all, the maintenance payable is Rs.16,000/-, inclusive of order passed in Domestic Violence Petition to the wife and the son. Hence, I answer the points accordingly.
14. In view of the discussions made above, I pass the following:
ORDER
(i) The petition filed by the wife-RPFC No.114/2021 is allowed by granting the additional maintenance of Rs.4,000/- per month to the second petitioner i.e., the son from the date of petition apart from the amount already ordered by the Trial Court in Crl.Misc.No.239/2009 as well as Crl.Misc.No.18/2015 and in all, Rs.16,000/- instead of Rs.12,000/-
(ii) The petition filed by the husband-RPFC No.70/2021, is dismissed.
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NC: 2023:KHC:20906 RPFC No. 70 of 2021 C/W RPFC No. 114 of 2021 In view of disposal of the petitions, IAs., if any, does not survive for consideration in both the petitions, the same stands disposed of.
Sd/-
JUDGE CP List No.: 1 Sl No.: 40