Karnataka High Court
Smt Mehar Taj vs Abdul Sattar on 20 January, 2021
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
R.P.F.C. No.7 OF 2017
BETWEEN:
Smt. Mehar Taj
W/o. Abdul Sattar,
D/o. Syed Basheer,
Aged about 56 years,
Presently R/at, C/o. Sanaulla
Wheel Puncure Shop,
Old check post, Bengaluru Main Road,
Dabaspet, Nelamangala Taluk,
Bengaluru Rural Dist.
..Petitioner
(By Sri.Vijayakumara, Advocate)
AND:
Abdul Sattar
S/o. late Majeed Sab,
Aged about 79 years,
Retired KEB line man,
3rd Cross, Maraluru Dinne,
Tumkur. 572101.
.. Respondent
(By Smt. B.A. Vani, Advocate)
****
This RPFC is filed under Section 19(4) of the Family Courts
Act, 1984, praying to set aside the impugned judgment and
order dated 24-10-2016 passed by the Principal Judge, Family
Court at Tumkuru in C.Misc.No.60/2015, by allowing the above
revision petition, in the interest of justice and equity.
RPFC No.7/2017
2
This RPFC coming on for Final Hearing through Physical
Hearing/Video Conferencing Hearing this day, the Court
made the following:
ORDER
The petition filed by the present petitioner under Section 125 of the Code of Criminal procedure, 1973 (hereinafter for brevity referred to as the "Cr.P.C.") in the Court of the learned Principal Judge, Family Court at Tumakuru (hereinafter for brevity referred to as the "Trial Court") seeking a maintenance at the rate of `22,000/- per month from the present respondent, came to be dismissed by the Trial Court by its judgment dated 24-10-2016. It is against the said judgment, the petitioner in the Trial Court has preferred this revision petition.
2. The respondent herein was the respondent in the Trial Court. Both parties are being represented by their respective counsels.
3. Heard the arguments from both side. Perused the materials placed before this Court.
4. After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is:
RPFC No.7/20173
Whether the judgment under revision is
perverse, illegal and erroneous warranting
interference at the hands of this Court?
5. Learned counsel for the respondent herein
submitted that she is not disputing the marital relationship between the parties herein and admits that the present respondent is the husband of the present petitioner. However, she further submits that the said marriage has now ended in divorce, under the order on 24-10-2016, passed in O.S.No.13/2015, by the learned Principal Judge, Family Court at Tumakuru. She further submits that challenging the said judgment of divorce, the present petitioner has preferred a Miscellaneous First Appeal in M.F.A.No.287/2017 before this Court and the same has been admitted and pending for its final hearing.
The said submission regarding earlier marital relationship of the parties and the present petitioner challenging the alleged divorce obtained by the present respondent and the same being challenged by the present petitioner in the said M.F.A.No.287/2017 before a co-ordinate bench of this Court is admitted by the learned counsel for the respondent also. As RPFC No.7/2017 4 such, the fact remains that as on date, the alleged divorce has not reached its finality and is pending final hearing in this Court in M.F.A.No.287/2017.
6. Learned counsel for the petitioner in his argument submitted that the petitioner is an aged lady of 53 years and she was driven away from the house of the respondent due to his cruelty meted to her. Therefore, when she is residing separately for valid reasons and when she is unable to maintain herself, it is the duty of her husband to maintain her. This aspect was not considered by the Trial Court.
7. Learned counsel for the respondent in her very brief argument addressed only on the point of the financial condition of the respondent, stating that, since the respondent himself is aged more than 80 years and is a pensioner, he cannot maintain his wife and on that ground alone, the present petition be dismissed.
8. The admitted fact remains that prior to their marriage, the petitioner herein was a divorcee and the respondent was a widower. Therefore, though there was much age difference between them, still, they got married to each other. According RPFC No.7/2017 5 to the oral submissions made by the learned counsels from both side today, the said marriage between the parties has been dissolved by an order of the Court passed in O.S.No.13/2015, which order has been challenged by the petitioner herein by preferring a Miscellaneous First Appeal in M.F.A.No.287/2017, before this High Court, as such, the order of divorce also has not reached its finality. Therefore, nothing bars this Court to proceed on the notion that, the petitioner is entitled for maintenance provided, it is convinced to the Court that she is unable to maintain herself.
9. It is the shortest argument addressed by the learned counsel for the respondent where she has pleaded the economic constraint on the part of the respondent and also contended that petitioner is self-sufficient to maintain herself since she owns a house. In this regard, she draws the attention of this Court to paragraph 18 of the impugned judgment.
10. A perusal of the impugned judgment would go to show that the Trial Court has denied the maintenance to the present petitioner on the ground that, it was stated that she owns a house. In that relation, the learned Trial Court relied upon the evidence of DW-3 in another suit i.e. in O.S.No.13/2015 where RPFC No.7/2017 6 the said witness who is stated to be the own brother of the present petitioner is shown to have stated that, their father had given one house to the present petitioner, which in turn, she has given to her sister's daughter (niece). The Trial Court, observing that the evidence discloses that the petitioner owns a house, as such, she has got means for her maintenance, denied maintenance to her.
11. The said finding of the Trial Court is not acceptable for two reasons. Firstly, nowhere, the Trial Court has mentioned that the said alleged deposition of DW-3 in O.S.No.13/2015 was confronted to PW-1 before it, that too, admittedly, when petitioner was not a party in the said O.S.No.13/2015. As such, the petitioner in the Trial Court had no occasion to cross- examine DW-3 on his alleged statement.
Secondly, even according to the Trial Court, the house said to have been given to PW-1 by her father has in turn been given by her to her niece (sister's daughter), as such, it can be inferred that the petitioner is neither in possession nor in control of the said house. The Trial Court nowhere has stated as to what that "giving house by father to PW-1" and PW-1 in turn "giving the RPFC No.7/2017 7 house to her niece". There are no materials even before the Trial Court to ascertain as to whether even before giving the house to her sister's daughter, she was holding any control over that house or any right or at least was getting any income from the said house before the act of the alleged giving of the said house to her niece. Therefore, merely because a house is said to have been given to the petitioner which itself is not sufficient to take the statement on its face value, has made the Trial Court to jump to a conclusion that the petitioner was capable of maintaining herself, when there were no materials placed before it to show that the petitioner had no source of income so that she could maintain herself. Merely because a house has passed to petitioner's niece through her which house was originally belonging to her father, could not be construed as a property giving some periodical income to the petitioner for her maintenance.
12. On the other hand, admittedly, the present respondent is a retired employee from Karnataka Electricity Board and it is contended that he is getting monthly pension at the rate of `22,000/- which is also taken into note by the Trial Court. According to PW-1, the respondent is also getting an income RPFC No.7/2017 8 from his house property at Maraluru Dinne, at `3,000/- per month as on the date of the evidence. The said source of quantum of income of the respondent in the Trial Court has not been shaken or dismantled from the respondent's side. No where the Trial Court has held that the alleged income of the respondent could not be proved.
Thus, from the records placed before me, it is clear that the respondent, as on the date of the evidence recorded by the Trial Court, was getting a monthly income of `25,000/-. There is all the possibility of the said income increasing at a later date, as he is a pensioner getting a monthly pension which increases periodically depending upon the rate of Dearness Allowance and other factors covering the salary in question under the pension scheme. In such a situation, the petitioner, as a wife, who has challenged her divorce with the present respondent, is entitled for maintenance since the said divorce proceedings is still pending adjudication before the competent Court.
However, the Trial Court without noticing these aspects jumped to a conclusion that merely because PW-1 is shown to have been given a house by her father she has got means for her maintenance and able to maintain herself.
RPFC No.7/20179
13. Since the said finding is now proved to be an erroneous one, the impugned judgment deserves interference at the hands of this Court.
Considering the materials placed before this court, regarding the financial capacity of the present respondent, I am of the view that the respondent requires to be directed to pay a reasonable maintenance to his wife during her life time or till any order regarding maintenance is passed in M.F.A.No.287/2017 or the disposal of the said M.F.A.No.287/2017 with order on maintenance.
Accordingly, considering the facts and circumstances of the case, as analysed above, I proceed to pass the following:
ORDER [i] The petition of the petitioner is allowed in part;
[ii] The impugned judgment dated 24-10-2016 passed by the Principal Judge, Family Court at Tumakuru in C.Misc.No.60/2015, is set aside;
[iii] The petition of the petitioner filed under Section 125 of the Code of Criminal Procedure, 1973 RPFC No.7/2017 10 in the Court of the Principal Judge, Family Court at Tumakuru in C.Misc.No.60/2015, is allowed in part;
[iv] The respondent - Abdul Sattar is directed to pay monthly maintenance at the rate of `5,000/- per month to petitioner - Smt. Mehar Taj from the date of petition and continue to pay during her life time or till she re-marries any other person or till the adjudication of M.F.A.No.287/2017 regarding divorce petition alleged to have been pending, with orders on maintenance.
Needless to say that in case the petitioner herein succeeds in her M.F.A.No.287/2017, she would continue to get the maintenance from the respondent.
In view of disposal of the revision petition, I.A.No.1/2017 does not survive for consideration.
Sd/-
JUDGE BMV*