Karnataka High Court
K Chandrappa vs M Vimala on 12 February, 2016
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF FEBRUARY 2016
PRESENT
THE HON'BLE MR. JUSTICE H.BILLAPPA
AND
THE HON'BLE MR.JUSTICE P.S.DINESH KUMAR
MFA NO.100013/2015 (FC)
BETWEEN
SHRI K.CHANDRAPPA
S/O LATE K.NAGAPPA,
AGE: 43 YEARS,
OCC: AGRICULTURAL COOLIE,
R/O: KAKARLATHOTA,
BANGALORE ROAD, BALLARI.
... APPELLANT
(BY SRI.SHIVARAJA HIREMATH, ADVOCATE)
AND
SMT.M.VIMALA
W/O M. RAMA KRISHNA,
AGE: 39 YEARS, HOUSE MAKER,
R/O: NEAR THARANATH HOSPITAL,
ANANTHAPUR ROAD, BALLARI.
... RESPONDENT
(BY SRI.R.H.ANGADI, ADVOCATE)
THIS MFA IS FILED UNDER SECTIION 19(1) OF THE FAMILY
COURTS ACT, 1984, AGAINST THE JUDGMENT AND DECREE
DATED 10.11.2014, PASSED IN CIVIL MISC.NO.01/2014 ON THE
FILE OF THE PRL. JUDGE, FAMILY COURT, BELLARY, PARTLY
ALLOWING THE PETITION FILED UNDER SECTION 25 OF THE
HINDU MARRIAGE ACT.
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THIS APPEAL COMING ON FOR ADMISSION THIS DAY
H.BILLAPPA, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the appellant - husband is directed against the order dated 10.11.2014 passed by the Prl. Judge, Family Court, Ballari, in Civil Misc.No.01/2014.
2. By the impugned order, the family Court has awarded maintenance at the rate of Rs.3,000/- per month from the date of the order.
3. Aggrieved by that, the appellant - husband has filed this appeal.
4. Briefly stated the facts are; The respondent is the wife of the appellant. Their marriage was solemnized on 01.04.1993. The appellant deserted the respondent. He filed Mat.C.No.131/2013 for divorce. It was allowed on 05.08.2013. The respondent is staying with her mother and brother. She has no means to maintain herself. Therefore, she filed petition under Section 25 of Hindu Marriage Act claiming maintenance.
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5. The appellant has resisted the petition contending that he has no source of income. The respondent is working in a school situated at Ananthpur road, Ballari and getting handsome salary. The respondent had illicit relationship and she has undergone abortion in the year 1998. The respondent is not entitled for any maintenance.
6. The family Court considering the material on record has held that the appellant is an able bodied person and he is capable of earning at least Rs.250/- to Rs.300/- per day. Therefore, taking the income of the appellant between Rs.7,500/- and Rs.9,000/- per month, the Family Court has awarded monthly maintenance at the rate of Rs.3,000/- per month. Aggrieved by that, the appellant has filed this appeal.
7. The learned counsel for the appellant contended that the maintenance awarded by the Family Court is exorbitant and without any basis. The respondent is not entitled for any maintenance. Further, he submitted :4: that the appellant does not own any property. He is an agricultural coolie and he has no source of income. Therefore, the Family Court was not justified in awarding monthly maintenance at the rate of Rs.3,000/- per month taking the income of the appellant between Rs.7,500/- and Rs.9,000/- per month. Therefore, the impugned order cannot be sustained in law.
8. As against this, the learned counsel for the respondent submitted that the appellant owns land, but, it stands in the name of appellant's mother. The appellant has sufficient income to maintain the respondent. Therefore, the Family Court was justified in awarding monthly maintenance at the rate of Rs.3,000/- per month. Therefore, the impugned order does not call for interference.
9. We have carefully considered the submissions made by the learned counsel for the parties.
10. It is relevant to note, the respondent is the wife of the appellant and their marriage was solemnized on :5: 01.04.1993 and it is dissolved by a decree of divorce is not in dispute. The Family Court has held that the appellant has failed to prove that the respondent is unchaste or she is living in adultery. The respondent has claimed maintenance at the rate of Rs.10,000/- per month. But, the respondent has not produced any acceptable evidence regarding the income of the appellant. In the absence of acceptable evidence, the Family Court taking into consideration that the appellant is an able bodied person and capable of earning Rs.250/- to Rs.300/- per day has taken the income of the appellant between Rs.7,500/- and Rs.9,000/- per month. There is no material on record regarding the income of the appellant. Therefore, we consider it proper to take the income of the appellant at Rs.7,500/- per month. One third of it could be awarded as monthly maintenance to the respondent, which comes to Rs.2,500/- per month.
11. Accordingly, the appeal is allowed and the impugned order passed by the family Court in Civil Misc.No.1/2014 is modified by awarding monthly :6: maintenance at the rate of Rs.2,500/- per month instead of Rs.3,000/- per month from the date of the family Court's order.
Sd/-
JUDGE Sd/-
JUDGE Vnp*