Shivaji Siddappa Malagi vs Smt Sunita W/O Shivaji Malagi, on 12 November, 2008

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Karnataka High Court

Shivaji Siddappa Malagi vs Smt Sunita W/O Shivaji Malagi, on 12 November, 2008

Bench: Ram Mohan Reddy

IN THE HIGH COURT 0? KARNATg§§A' 5; E  .
CIRCUIT BENCH A.'JI"AAlV)bI'~fIAI~2\_?J"15;L;-- :  
DATES THIS THE 12TH DAY QF:}'~ff)Vi§i'1°vjEE§?, f2ij0§ «_ 
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THE HON'BLE MR.JUS'I:f(3f§ R;§MVi~Jic{H,A'i~: 1§§,Dm

WRIT PET:'r1ci§f%«--No.1'%+s(:3L"oi?2008 {GM CPO)

BETWEEN:    *

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sHIvA'Ji ';§;1i):)A1{>PA a2iAi;A;t}i--'"' * 
AG}S£}"3€a1¥EARS3--..QC:C;'PI€--lMARY SHCOOL



 R /0- PANCI"iAYA?~Zf§YAi{}§NAHATTI 'I'O'I'A,

 TAL:IK;';::o_KAK,' «Now 'WORKING AT

PRMARYs1--1C0QL..K§)uJALGI,
   ..   PETITIONER

(F3343;-3; :3I1$I1a:s1}i'1$4 KEJLKARNI AQVOCATE)

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T'  SLFNITA w/0 SHIVAJI MALAGI

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AG§}§§)T:'3 1 YEARS,

,__OCC§'; PRIMARY SCHOOL TEACH ER,
R I AT I-HDKALJALUK; RAIBAG,

" -ﬁcaw WORKING AT KANNADA BOYS

SCHOOL SOUNSIDDI, TQ;

RAIBAG.  RESPONDENT

(By Sri: E.) 13 KAREGAR ABVOCATE ) THIS WRIT PE'I'I'I'§{)N IS FILED UNDER ARTICLES 226 85 22'? OF THE CONSTITUTION OF' §NDIA PRAYING TO QUASH THE ORDER DT. 31.1.2008 PASSED}? iN MC 3' hi No.34/2002 BY THE PRINCIPAL CIVIL .:L:4L%<3E:' '(*:§I%%.ﬁ:5§)--V.' GOKAK, VIBE ANNEKN. AS NULL AND V()m,_ 1f ' - ' THIS PE'I'I'I'ION COMING oi§"F{2R-I'P:§?'£s:{:Vn;11'i\{A1%Y 7 HEARING IN 3 GROUP, THE 1'_C'a'~j1URTM.»\DE"~.._'FHE FOLLOWING: " ~ ;.';>__?l_1_3*;~§...E.» V V The petitiancx. _ Maﬁiznonial Case No.34/2802 before £1:$ 1ciqi1?.Ju&g¢f(s;.9n), Gokalc for resﬁtution of ' ¢cz;jug, g' 'n' --:h'_':L9, respondent-Wife having ¢v3§f.é§é3%--..9 i'.he';: f:xz9 minor daughters, ﬁled LA. No.1 dated 6-.192---2O07Vu§1d§§£'*«§éciion 24 of the Hindu Marriage Act for;i11tc;'im at the rate: of Rs. 1,000} -- per month §f~.j§he déﬁghmm, and Rs.10,G00/- towards legal #316 aﬁdavﬁ accompanying the application, the £i;:po:;cnf:$téztcs that though employed as a Teacher, the AA mozithlﬁr salary is gmssly insuﬁcient to meet the Court 'ttxﬁenscs and maintenance of the two daughters Sushma fand Reshma studying in Schools mquizing Rs.1,{)%/-- per month for education, food, clothing, shelter, e'£;c., The respondent claimed to have taken a loan of Rs.1,50,{}OG/- é%'K from one Society on 20-10-1998 in axiidi1:io:r;'1::'toV ef, Rs.5{),000/- from Teachers sahmx-1 At' e _ which were handed over to the the said amount, ~..the ii*es._po1ide;it~:._:to» Hpaity L' Pxincipal sum togetheif wit1iAV.i1it'erest,L' 'I'iiat.appiieaﬁon was opposed by ﬁling St%1i'.é:ii1cI1t'--'dat€d 10-12-200? AnneXure-«',g»4 ' A « the; i. _ _ contending that both the are monthly Salaried the respondent can very:'-§ve1_l her daughters, without need for the petitioner. In addition, it is thejietitéioxier has an old aged mother to 1001::

it " . salaiiiireceived by him is grossly insufficient for A 'their Court below, having regard to the pleadings of patﬁes, observed that the husband and Wife serve as it school teachers in Government Schools and draw ' ' monthly salary, nevertheless, it is the wife who takes care of the two minor daughters, despite haviﬂg to repay the loan with intezest, as evidence from the receipts had produced receipts for payment of loans to the Teachers bjik petitioner to pay Rs.§,0{)0/-- per maintenance to each of the two daughters by the order impugned. Hence,:'itiiis"1v;ii'; if Article 227 of the Constitution of it

4. Before proceeding to consider ttze xnexiits the case, it is useful to voi"'a'»Iea.med Single Judge of this Coint in__3H!'VA_ Tn; Bmt. PUSI-IPA REKHA1, "ti1e---ghirisdiction to pass an order"'11n:{eij;' Act arises as soon as pmceeding the Act while the condition for exerciseiiiiofaitiie iuzisriiction is that the applicant should not indelcendentvincome suiﬁcient for his or her support ' er, expenses of the proceedings and accordingly, it '-- of monthly maintenance as may be found reéesonnble. In addition, it is held that the giant of relief, is V " dependant either on the merits of the peﬁﬁon or on the decision of any particular issue or upon the ultimate success or failuze of the petition, the reason being Section 24 of the Act provides for payment of pendente lite maintenance Whexe 2 E veg '- 2902 (5)1-{LI 393 kiwi:

the marriage is admitted and a duty of the to maintain the indigent person. The order" pendente lite and costs of 'is jviae i made even in a proceedingfor msiitiition of.(x)f§1}iigaI': and the amplest discretion"'ie:VV:"vestedV"i1# undef Section 24 of the Aaifi even before consideﬁng by the party consenting fprgé éngumd spouse.

JASBIR mm SEHGAL vs. AND OTHERS9, held a maintenance fructiﬁes on the date of "fhei petition for divorce under the Act and ' has the discretion in the matter as to from . ijmeintenance under Section 24 of the Act should bet" a which would depend upon multiple " .. to be kept in view. This judgment was "g§§11§§wed by a learned Single Jutige of this Court in zmcsnm " " 'smuum vs. Si-IR! muxue szu.1m1¢3. am 1993 mg 539 ~:

3 ILR wee KAR 4503

6. Having regard to the observations of Sing}: -Judge of this Court and the Law laid Court in Jasbir Kaufs case supra and the facts of this case, it is needless i cf jurisdiction by the Court .be1ot§' cannot Aithough learned counsel for 'thc;'i},'cftiﬁci1er'A'coi1tci1;is that the Trial Court was justiiieﬁ iifviayment of Rs.1,000/- per monthVtc'i'cacih_'c:fV i__-ﬂaughtcrs towards maintenance,' 3;; iiotx: it. I say so because, tIic'i11Vcctuc ofth; petitioner as a teacher, cannot be said .bc so as to justify incapacity to p gvidc foi" ~his"t§voi£:1a1.ightexs. Having regard to the status of Rs.1,800/-- per month tcwaxtis each of his daughters, school going :1eeds~a--p1c11ty, cannot be said to be on the A higlicrrsidc. It is no doubt true that the respondent ~-- wife =tcc}' is employed as a teacher and is paid monthly salary.

But, it will not bs out of context to mention that she is net oxily saddled with the responsibility to maintaining herself and her chiidrcn but also Itpay loan. with interest and in that View of the matter, it cannot be said that the dixeetjon to the petitioner to pay Rs.1,000/- per month téztte daughters is on the higher side.

7. Then: is considerable force in ﬁie te::1b;1iiss'i(i:1*:___0:€ ﬁne learned counsel for the petiticnzter the ; not seek interim maintenance 17;11-;u2€}t)4,VVfbut it was only the petitioner fer' on the said date by ﬁiing app}Ais:ati_on..t__VTjt1e for the two chnei§ﬁt'wa§'.V_so1$gh: on:_t5V-'ﬁt?-200? when I.A.No.I was filed vxbeforet The Court below has the diSgcI16ti0It""'1;.{) ._ﬁ;*:{ date from which the interim ie" payable by the petitioner immediately after V of the petition for eonjugai rights under the 't Act, nevertheless the Court below, while exexteising such discretion, is Iequired to take a " itzéizxpzehensive View of all the facts and cixeuinstances. A11 Vtgexaminaticrn of the orcier impugned does not animate H reasons and findings for ﬁxing I7-31-2004 as the date from which the interim maintenance is payable by the petﬁéoner. Be that as it may, the fact remains that the 5 'ti /

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Karnataka High Court