Karnataka High Court
Umanatha B vs Smt Padmavathi on 13 July, 2017
Bench: Jayant Patel, S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY 2017
PRESENT
THE HON'BLE MR.JUSTICE JAYANT PATEL
AND
THE HON'BLE MRS.JUSTICE S.SUJATHA
M.F.A.No.469/2016 (FC)
BETWEEN :
UMANATHA B.,
S/O SRINIVAS RAO,
AGED ABOUT 67 YEARS,
R/AT MOOKAMBIKA NILAYA,
JEPPINAMOGARU,
MANGALORE,
D.K.-575 008. ... APPELLANT
(BY SRI KETHAN KUMAR, ADV.)
AND :
SMT.PADMAVATHI
W/O UMANATHA B.,
AGED ABOUT 53 YEARS,
R/AT BABU KARKERA COMPOUND,
NEAR MASJID ROAD,
KODICAL, ASHOK NAGAR,
MANGALORE,
D.K.-575 006. ...RESPONDENT
(BY SRI P.P.HEGDE, ADV.)
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THIS MFA FILED UNDER SECTION 19(1) OF FAMILY
COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED
10.12.2015 PASSED IN M.C.NO.261/2014 ON THE FILE OF THE
PRINCIPAL JUDGE, FAMILY COURT, DAKSHINA KANNADA,
MANGALURU, ALLOWING THE PETITION FILED UNDER
SECTION 13(1)(i-a)(i-b) OF THE HINDU MARRIAGE ACT FOR
DISSOLUTION OF MARRIAGE.
THIS APPEAL HAVING BEEN RESERVED FOR ORDERS ON
06.07.2017, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, S. SUJATHA, J., PASSED THE
FOLLOWING:
ORDER
This appeal is directed against the Judgment and Order passed by the Family Court, Dakshina Kannada, Mangaluru, ('Family Court' for short) in M.C.No.261/2014.
2. Facts in brief are:
The respondent-wife filed a petition under Section 13[1][ia][ib] of the Hindu Marriage Act, 1955 ['Act', for short] against the husband/appellant herein on the ground of cruelty and desertion seeking dissolution of 3 the marriage solemnized between the couple on 16.02.1979 as per Hindu rights and customs at Shri Durgaparameshwari Temple, Kateel, Mangalore Taluk.
The couple have begotten a daughter by name Rajani from the wedlock who is aged about 27 years now. The Appellant was working as a Peon at the Karnataka Bank in Mangalore. Allegations and counter allegations were made between the parties. The respondent alleged that the appellant soon after the marriage, started ill treating the respondent and used to assault her frequently; that the appellant had the first marriage with Mohini @ Jayalakshmi. The appellant refuted the petition. The Family Court, appreciating the evidence on record, allowed the petition filed by the respondent dissolving the marriage between the parties and further directed the appellant herein to pay permanent alimony of Rs.5 lakhs to the respondent within three months from the date of the Judgment. Aggrieved by the same, the husband is in appeal.
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3. Learned Counsel for the Appellant would contend that the Family Court failed to appreciate the pleadings and evidence on record in the right perspective. Mis-appreciation of pleadings and evidence on record and misinterpretation of provisions of law resulted in miscarriage of justice. The Trial Court failed to appreciate that the respondent was admittedly the second wife of the appellant, whose marriage itself was void ab initio. As such, no direction can be issued to the appellant to pay the permanent alimony to the respondent. The Family Court mechanically passed the order impugned herein, observing that the respondent was a legally wedded wife of the appellant. The Family Court ought to have assessed the situation as a whole and ought to have taken a justifiable view on the basis of the evidence available on record. Learned Counsel submitted that the appellant would be satisfied if the 5 permanent alimony of Rs.5 lakhs directed to be paid by the appellant is set aside or reduced.
4. We have heard learned counsel appearing for the appellant and perused the material on record.
5. The relationship of the appellant and the respondent as husband and wife is not in dispute. But, it is the contention of the appellant/husband that the respondent is the second wife, she being married during the subsistence of the first marriage, the second marriage is void ab initio and as such the respondent- second wife is not entitled to any permanent alimony though he contested the petition of the wife seeking dissolution of the marriage. Prima facie, it is apparent that the appellant is not disputing the dissolution of the marriage, but his grievance is regarding the permanent alimony awarded by the family Court directing the appellant to pay the same within three months from the 6 date of the Judgment. Permanent alimony is support given to a wife separated from her husband in order to prevent her from vagrancy, destitution etc. It is the amount awarded to ensure a decent and dignified life to a spouse subsequent to granting of decree of divorce based on the financial ability of the other spouse. In order to determine the permanent alimony, the relevant factors to be kept in mind are the financial capacity, social status, physical condition, culture, area of residence etc. The parties are fighting long legal battle, filing multiple cases before the Courts due to the disharmony in the marriage between them. The appellant has been making payment of maintenance of Rs.2,200/- per month in compliance with the order passed by the Family Court. The appellant was working as Peon in Karnataka Bank and is now a retired person, presently receiving pension of Rs.10,764/-. The appellant in his cross examination has admitted that he owns residential RCC house in Jeppinamogaru in a site 7 measuring 16 cents of land. Though he possessed agricultural lands, by executing registered Deed of Settlement dated 26.05.2009 in favour of his first wife Jayalakshmi, transferred the same. The demeanor of the appellant shows that it is in order to avoid the payment of maintenance or alimony to the respondent herein, he has transferred the lands. Be that as may be, it is the personal obligation of the husband to maintain his estranged wife even after the decree of divorce. Considering the financial status of the appellant, as aforesaid, we are not inclined to interfere with the order of the Family Court quantifying the permanent alimony of Rs.5 lakhs to the respondent. However, in view of the permanent alimony granted under Section 25 of the Act, the respondent shall not be entitled to maintenance amount of Rs.2,200/- per month ordered in Crl. M.C. No.50/2002 confirmed by this Court in RPFC No.25/2013.
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6. Having regard to the facts and circumstances of the case, we direct the appellant- husband to make the payment of permanent alimony of Rs.5 lakhs to the respondent in two installments, Rs.2,50,000/- shall be paid within two months from today and the balance amount of Rs.2,50,000/- shall be paid within two months thereafter. The maintenance amount of Rs.2,200/- payable under Section 125 of Criminal Procedure Code, as directed by the Family Court and confirmed by this Court is deleted.
7. It is needless to mention that the appellant shall continue to pay the said amount of Rs.2,200/- until he makes the payment towards the permanent alimony as quantified herein. Upon the payment of quantified amount of permanent alimony as aforesaid, the liability to pay Rs.2,200/- towards maintenance would cease to operate.
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Subject to the aforesaid observations, the appeal stands disposed of accordingly. In view of disposal of the appeal, IA No.2/2016 does not survive for consideration, hence dismissed.
Sd/-
JUDGE Sd/-
JUDGE AN/-