Karnataka High Court
Shri. Mahadev Vishnu Ghorpade vs Smt.Priya on 23 November, 2015
Bench: S.Abdul Nazeer, R.B Budihal
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF NOVEMBER, 2015
PRESENT
THE HON'BLE MR.JUSTICE S. ABDUL NAZEER
AND
THE HON'BLE MR.JUSTICE BUDIHAL.R.B
M.F.A. NO.22411 OF 2009 (FC)
BETWEEN:
SHRI MAHADEV VISHNU GHORPADE,
AGE 48 YEARS, OCC: TAILOR,
R/O H. NO.39/3, KAKATIVES,
BELGAUM DISTRICT, BELGAUM. ... APPELLANT
(BY SRI HANUMANTHAREDDY SAHUKAR, ADV.)
AND:
1 SMT. PRIYA, W/O MAHADEV GHORPADE
AGE: 35 YEARS, OCC:WORKING IN
BEAUTY PARLOUR, R/O C/O SHRI
L.S.PATIL, H.NO.12, 1ST CROSS,
VEERBHADRA NAGAR,
BELGAUM.
2 KUMARI PRANALI,
D/O MAHADEV GHORPADE,
AGE 11 YEARS, OCC:STUDENT,
2
REPRESENTED BY HER MINOR
GUARDIAN RESPONDENT No.1. ... RESPONDENTS
(BY SRI T.M.NADAF, ADV.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF THE FAMILY COURT ACT, AGAINST
THEJUDGMENT AND AWARD DATED 20.06.2009 PASSED IN
O.S.NO.32/2002, ON THE FILE OF THE JUDGE, FAMILY
COURT, BELGAUM AT BELGAUM, PARTLY DECREEING THE
SUIT FILED U/O 7 RULE 1 OF CPC R/W SEC. 18 OF HINDU
ADOPTION AND MAINTENANCE ACT.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, BUDIHAL.R.B, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The judgment and decree passed by the Family Court, Belgaum, dated 20.06.2009 in O.S.No.32/2002 decreeing the suit of the respondents/plaintiffs has been challenged in this appeal by the appellant, who is the husband of respondent No.1 and father of respondent No.2.
2. Brief facts of the case of the parties before the Trial Court;
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The respondents herein filed the suit for seeking maintenance of Rs.5,000/- per month to the respondent No.1 and Rs.3,000/- per month to the respondent No.2, who are the wife and daughter of the present appellant herein. The marriage of the appellant and respondent No.1 was solemnized on 24.4.1992 at Belgaum. Till 1998 they have led happy married life and in the said wedlock respondent No.1 gave birth to one son and one daughter-respondent No.2 herein. Thereafterwards, the present appellant herein started to quarrel with the respondent No.1 insisting her to bring Rs.5.00 lakhs from her parents and when the respondent No.1 pleaded her inability, the appellant started to give mental torture to respondent No.1 and her parents and abused respondent No.1 with filthy language and used to assault her by taking drink and she was not provided with proper food and was also confined in a room. 4 Lastly, in the month of April, 2000 during night the appellant took respondent No.1 to her parent's house and quarreled with her parents demanding money and abused them and assaulted the father of the respondent No.1 and gave threat to the life of the father of the respondent No.1 and took back respondent No.1 with him and continued his ill- treatment saying that unless her parents give him Rs.5.00 lakhs and a plot at Belgaum, he will not stop ill treatment to respondent No.1. The father of the respondent No.1 and elderly persons requested the appellant not to ill-treat respondent No.1, but the appellant did not heed their advice. On 31.12.2001 the appellant assaulted respondent No.1 mercilessly and drove her out of the house by keeping son with him saying that unless she brings Rs.5.00 lakhs and one plot, she will not be taken back. The respondent No.1 is ready and willing to join the appellant to lead 5 married life, but the appellant is not ready to accept her. The appellant sent a legal notice making false allegations calling upon respondent No.1 to give her consent for divorce. The respondent No.1 replied to the said notice and even at that time, she requested her husband to take her back but the appellant flatly refused saying that he has decided to go for a second marriage and he has filed a petition for dissolution of his marriage with respondent No.1. Hence the respondents have approached the Court by filing the aforesaid suit.
3. The appellant herein filed his written statement denying all the allegations made in the plaint. He has contended that he never demanded Rs.5.00 lakhs and one plot from the respondent No.1 wife. He further contend that respondent No.1 herself was not ready to lead married life with him in spite of his request to come and lead married life. Prior to 6 filing of the suit, all the efforts made by the appellant to take respondent No.1 were failed. Therefore, the appellant filed suit for dissolution of his marriage in M.C.No.81/2002 and thereafter the respondents have filed present suit with ulterior motive. He has also denied that he is trying to go for second marriage and that he is getting income of Rs.25,000/- to Rs.30,000/- per month and also denied owning of shopping complex and getting rent of Rs.70,000/- to Rs.80,000/- and sought dismissal of the said suit.
4. The Trial Court after considering the materials placed on record both oral and documentary evidence decreed the suit awarding maintenance of Rs.5,000/- per month to respondent No.1 and Rs.2,000/- to respondent No.2. The appellant herein challenged the said judgment and decree in this appeal.
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5. We have heard the arguments of the learned counsel appearing for the appellant/husband and also the learned counsel appearing for the respondents/wife and daughter.
6. Learned counsel appearing for the appellant submits that the trial court has not properly appreciated the pleadings and also the oral and documentary evidence produced in the case. He also made submission that the maintenance amount awarded by the Trial Court is on the higher side and without ascertaining the capacity of the present appellant to pay the said quantum of maintenance amount to the respondents. In this connection, he made the submission that even the respondent No.1 wife is running beauty parlour and she is getting much income from the parlour, but the trial court has completely ignored the income of the respondent No.1 and proceeded to pass illegal order. He further made 8 submission that the shopping complex is not the property standing in his name, it is the property belonging to his brother. The Trial Court has not properly appreciated all these aspects. He submitted that matter requires consideration in this appeal and submitted to admit the appeal.
7. Per contra, learned counsel appearing for the respondents made his submission that earlier when the interim maintenance was awarded by the trial court, the appellant herein challenged the said order by filing an appeal before this Court and this Court remanded the matter directing the appellant herein to go on making payment of the maintenance amount regularly. But instead of such direction, he has not at all regularly paid interim maintenance amount and even in this proceedings his defence was struck off because of the default in making payment of maintenance amount. He also made submission that 9 the respondent No.1 is not running beauty parlour nor getting any sufficient income from the said business but she has taken training in the said beauty parlour. Hence, trial court has taken into consideration all these aspects of the matter and even ascertained the financial capacity of the appellant herein to pay the maintenance amount. He submitted that no illegality has been committed by the trial court nor there is any perversity. Hence, he submitted to dismiss the appeal.
8. We have perused the pleadings submitted by the parties before the trial court and also oral and documentary evidence. Regarding the allegations made in the plaint that she was meted with cruel treatment with the present appellant who was insisting the respondent No.1 to bring Rs.5.00 lakhs and one plot and for that reason he took her to her parental place and even there, he quarreled with the father of the respondent No.1, the respondent No.1 led her 10 evidence and even in her oral evidence she consistently deposed the same. Looking to the cross- examination also there was nothing elicited to disbelieve her contention what has been observed by the trial court in its judgment. The witnesses were also examined on the side of the wife and they were also stated the above ill treatment and the demand made by the appellant herein insisting her to bring Rs.5.00 lakhs and one plot from her parental place. With regard to the capacity of the present appellant for payment of the maintenance amount is concerned, the trial court at paragraph No.15 of its judgment elaborated that he is doing the business of tailoring and earning Rs.25,000/- to Rs.30,000/-. Though the appellant has denied about the income of Rs.25,000/- to Rs.30,000/-, during the cross-examination he has admitted that he is running tailoring shop and even his visiting card was produced before the trial court to 11 prove the said fact. Regarding the shopping complex is concerned, the property extract card was also produced before the trial court. Though it is contended by the appellant herein that the property belongs to his brother and he is not owner of the said property, the property register card clearly goes to show that it is standing in the name of the present appellant. All these aspects were taken into consideration by the trial court and after properly appreciating the financial capacity to pay the maintenance amount, the trial court comes to the conclusion that he is capable to pay maintenance amount of Rs.5,000/- to respondent No.1 and Rs.3,000/- to respondent No.2. Looking to the quantum of maintenance amount, we are of the clear opinion that it is not on the higher side and looking the cost of living in these days the amount awarded is just and reasonable. Perusing the entire materials on record, we are of the opinion that trial court has not 12 committed any illegality in decreeing the suit, so as to interfere with the judgment and decree passed by the trial Court. Even regarding the contention of the appellant herein that the respondent No.1 wife is having income of her own during the course of the trial before the trial court, no materials were placed to support the said contention. Hence, the trial court has rightly took the decision to negative the contention of the appellant herein. There is no merit in this appeal. The appeal is dismissed accordingly.
Sd/-
JUDGE Sd/-
JUDGE KLY/