Karnataka High Court
Balesab S/O Allisab Pendari vs Smt.Dunalabi @ Kulanbi W/O Balesab ... on 3 February, 2023
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
R.P.F.C. NO.100049 OF 2019
BETWEEN:
BALESAB
S/O ALLISAB PENDARI
AGED ABOUT 75 YEARS
OCC: NIL
R/O: ADAVISOMAPUR
TALUK AND DISTRICT
GADAG - 582 101.
...PETITIONER
(BY SRI. MAQBOOL AHAMED., ADVOCATE FOR
SRI.K.L.PATIL., ADVOCATE)
AND:
SMT.DUNALABAI @ KULANBI
W/O BALESAB PENDARI,
AGED ABOUT 60 YEARS,
OCC: HOUSEHOLD
R/O: ADAVISOMAPUR
TALUK AND DISTRICT
GADAG - 582 101. ...RESPONDENT
(BY SRI.GANESH RAIBAGI., ADVOCATE)
THIS RPFC IS FILED UNDER SECTION 19(4) OF THE FAMILY
COURTS ACT, TO SET ASIDE THE ORDER DATED 20.04.2019 PASSED
BY ADDITIONAL PRINCIPAL FAMILY COURT, GADAG IN CRIMINAL
MISCELLANEOUS No.202/2018.
2
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 27.01.2023 AND COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, SITTING AT PRINCIPAL BENCH, BENGALURU, THIS
COURT MADE THE FOLLOWING:
ORDER
Sri.Maqbool Ahmed., learned counsel on behalf of Sri.K.L.Patil., for the petitioner and Sri.Ganesh Raibagi., learned counsel for the respondent have appeared through video conferencing.
2. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Family Court.
The order dated the 20th day of April 2019, passed by the Addl. Principal Family Court, Gadag in Criminal Misc. No.202/2018 is called into question in this revision petition whereby, the learned Judge allowed the petition in part filed under Section 125 of the Criminal Procedure Code and directed the respondent to pay monthly maintenance of Rs.5,000/- (Rupees Five Thousand only) to the petitioner - wife. This order 3 is called in question on various grounds as set out in the Memorandum of Revision Petition.
3. Learned counsel Sri.Maqbool Ahamed., submits that the order of the Family Court suffers from serious infirmities and the same is liable to be set aside. He submitted that the Family Court failed to appreciate the oral and documentary evidence on record.
Next, he submits that the Family Court erred in awarding monthly maintenance.
A further submission is made that the Family Court has failed to appreciate the material evidence on record in a right perspective.
Learned counsel submits that the sons have an obligation to maintain the parents.
Learned counsel vehemently contended that the respondent - husband is staying in a house allotted in the Janata Scheme and he does not own any fertile agricultural lands. It has 4 been specifically contended that the respondent-husband is aged 78 years and he is suffering from paralysis and he requires an amount of Rs.5,000/- (Rupees Five Thousand only) to Rs.6,000/- (Rupees Six Thousand only) per month for his treatment. Hence, he is unable to pay maintenance as ordered by the Family Court.
Lastly, he submitted that viewed from any angle, the order of the Family Court is liable to be set aside. Accordingly, he prayed that the Revision Petition may be allowed.
4. Sri.Ganesh Raibagi., learned counsel justified the order passed by the Family Court.
Next, he submitted that the petitioner - wife is entirely dependent upon her husband and she needs financial assistance from her husband.
A further submission is made that there are landed properties standing in the name of husband. The learned Judge has referred to the material on record and has rightly concluded that the husband has sufficient means and accordingly directed the husband to pay the maintenance.
5
Lastly, he submitted that the order passed by the Family Court does not require any interference by this Court and prayed for the dismissal of the Revision Petition.
5. Heard the contentions urged on behalf of the respective parties and perused the order and the records with care.
6. The simple question which requires consideration is:
Whether the learned Judge is justified in directing the respondent - husband to pay a monthly allowance to the petitioner - wife and whether the order of the Family Court requires any interference? It is not in dispute that the petitioner and respondents are husband and wife. They are blessed with three children. It is also not in dispute that they lived blissfully for some time. Due to differences of opinion and misunderstanding, the petitioner was constrained to live apart from the respondent. Contending that her husband is having sufficient means, willfully neglected, and 6 refused to maintain her, the petitioner sought the aid of the Court seeking maintenance.
To substantiate their claim, the petitioner was examined as PW1. She stated that she was inflicted with domestic violence. Hence, she was constrained to live separately. She has stated that she is a household lady and has no source of income of her own. She is unable to meet even the basic requirements of food, shelter, clothing and medical requirements, etc., she has further deposed that her husband owns landed properties; he gets an income of from the said landed properties.
The main contention of the respondent - husband is that he is aged about 78 years and is suffering from paralysis. It is also contended by him that he is dependent on his children. He had filed a maintenance case in Crl.Misc.No.202/2018.
Suffice it to note that the petitioner - wife in her cross examination admits that her husband suffers from paralysis. She also admits that her son owns autos and is earning sufficiently. 7
I have perused the order passed by the learned Judge. The learned Judge concludes that the respondent - husband is aged 78 years and is not earning but directs him to pay the monthly maintenance which is untenable.
Sri.Ganesh Raibagi., learned counsel in presenting his argument urged that it is the duty of the husband to support his wife. I have considered the said submission. No doubt it is the obligation of the husband to look after his wife, provided he is healthy and able-bodied. But in the instant case, the respondent
- husband is suffering from paralysis and is aged about 78 years. The relevant factor to be taken note of is his age. It is pivotal to note that the respondent - husband is also dependent and he had filed a maintenance case against his children.
The learned Judge has failed to notice that a son is bound to take care of his aged parents. A son is under a personal obligation to maintain his aged parents. It is a legal obligation not dependent on his possession of the property but arising out of the mere relationship between the parties. In the present 8 case, the sons have also legal obligation to maintain their father and mother.
I may venture to say that the Trial Court has failed to have regard to relevant considerations and disregarded relevant matters. In my considered opinion, the order passed by the Trial Court is unsustainable in law.
In the present case, the petitioner has satisfied the onus of showing that the discretion of the Judge has been wrongly exercised. A Judge's order granting maintenance is a typical exercise of purely discretionary powers and would be interfered with by the High Court only in exceptional cases. This is one such case.
In the circumstances, the order dated 20.04.2019 passed by the court of the Addl. Principal Family Court, Gadag in Crl.Misc.No.202/2018 is set aside.
Resultantly, the petition is allowed.
Sd/-
JUDGE TKN