Karnataka High Court
Mr A S Aseef vs Smt Afsan Thabassum on 10 December, 2020
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
R.P.F.C. NO.9 OF 2019
BETWEEN:
MR. A. S. ASEEF
S/O SHAIK HUSSAIN
AGED ABOUT 38 YEARS,
R/AT NO.603/A,
ASARA HOUSE, OLD COURT ROAD,
GUDALUR BAJAR POST
NILGIRI TAMIL NADU-52103
...PETITIONER
(BY SHRI SANGAMESH R.B., ADVOCATE)
AND:
1. SMT AFSAN THABASSUM
W/O S.H.ASEEF
D/O RIYAZ @ REHMAN
AGED ABOUT 32 YEARS,
2. SUMAN FATHIMA
D/O S H ASEEF
AGED ABOUT 7 YEARS,
3. UDA FATHIMA
D/O S H ASEEF
AGED ABOUT 5 YEARS,
RESPONDENT NOS. 2 & 3
ARE MINORS, HENCE REPRESENTED
BY NATURAL GUARDIAN MOTHER
RESPONDENT NO.1.
2
ALL RESIDING AT NO.2928/A,
"ANMOL" 2ND STAGE,
2ND PHASE, RAJIVNAGAR,
MYSURU-571203.
PRESENTLY RESIDING AT
DOOR NO.577, 6TH CROSS,
2ND STAGE, RAJIV NAGAR,
MYSURU-571 203.
...RESPONDENTS
(BY SHRI VASANTHAPPA, ADVOCATE FOR R-1;
R-2 & R-3 ARE MINORS REPRESENTED BY R-1)
THIS R.P.F.C IS FILED UNDER SECTION 19(4) OF THE
FAMILY COURT ACT, CHALLENGING THE ORDER DATED
01.12.2018 PASSED BY THE FAMILY COURT, MYSURU, IN
C.MISC.NO.316/2015.
THIS R.P.F.C COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Sri.Sangamesh R.B, learned counsel for petitioner has appeared through video conferencing. Sri.Vasanthappa, learned counsel for respondent No.1 has appeared in person.
The revision petition is listed for admission after notice to respondents.
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2. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Family Court.
3. The order dated 01.12.2008, passed by the Family Court, Mysuru in C.Misc.No.316/2015 is called in question in this revision petition whereby, learned Judge has directed respondent to pay maintenance of Rs.10,000/- per month to petitioner No.1 and Rs.3,000/- per month each to petitioners 2 and 3 till they get married. It is this order which is called in question on various grounds as set out in the revision petition.
4. Learned counsel Sri.Sangamesh R.B, 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 has failed to appreciate the oral and documentary evidence available on record.
Next, he submitted that learned Judge has failed to consider that respondent has lost his job. Therefore, respondent is unable to pay maintenance as ordered by the Family Court. 4
A further submission was made that the learned Judge has failed to consider the aspect of unemployment and has blindly granted maintenance of Rs.10,000/- to petitioner No.1 and Rs.3,000/- each to petitioners 2 and 3.
It has been contended that learned Judge has been carried away some of the documents which were produced by petitioner. He submitted that the documents pertaining to lodge at Gudalur produced at Exhibit P-14, P-18 and P-20 belong to the father of respondent. It is submitted that the father is residing separately from him. The father of respondent has rented the lodge and he is collecting the rents. Counsel vehemently urged that the petrol bunk belong to his parents but learned Judge has failed to appreciate these facts and has erroneously proceeded to conclude that the complex belongs to respondent.
The documents pertaining to some immovable properties at Ex.P25 and Ex.P26 counsel submitted that his parents were the owners and they have been sold long back. Hence, it is 5 sought to urge that as on today there are no immovable properties standing in the name of respondent.
Lastly, counsel submitted that viewed from any angle, the order of the Family Court is unsustainable in law and therefore, the same is liable to be set aside and submitted that the revision petition may be allowed.
5. Per contra, Sri.Vasanthappa, learned counsel for petitioners justified the order passed by the Family Court. He submitted that the learned Judge has taken into consideration all the material evidence on record and has justified in granting maintenance allowance. Therefore, he submitted that the order passed by the Family Court does not require any interference by this Court. Accordingly, he prayed for dismissal of the revision petition.
6. Heard the contentions urged on behalf of the parties.
7. The sole question involved in this revision petition is whether the order passed by the Family Court requires interference?
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It is not in dispute that both respondent and petitioner No.1 are husband and wife. It is also not in dispute that they are blessed with two children. They lived blissfully for some time. Thereafter, due to some differences of opinion and misunderstanding petitioners were constrained live apart from her husband. Contending that her husband is having sufficient means, neglected and refused to maintain her and children, she initiated proceedings under Section 125 of Cr.P.C.
Learned Judge in extenso referred to the evidence and found that petitioners have established that they have justifiable reasons to stay away from respondent.
Petitioner No.1 contended the she has no source of income and the minor children are pursuing their school education and hence, she requires financial assistance from her husband and that her husband has sufficient means but willfully neglected and refused to maintain his wife and children. To substantiate the claim, petitioner No.1 examined herself as PW-1 and she has deposed that her husband is a software engineer. He also owns 7 petrol bunk and a house in Gundalur and earns Rs.3,50,000/- per month.
On the contrary, the respondent has disputed the petition averments. He has contended that petitioner No.1 has voluntarily left his company and started living separately. He has contended that he is /was always ready and willing to discharge his martial obligations and for the better future of his children he is ready to take petitioners back and look after them.
But learned Judge has concluded that respondent has neglected and refused to maintain his wife and children.
In this Court, respondent adhered to the contention that as on today he does not own any properties and he is not in a position to pay maintenance as ordered by the Family Court.
This Court is not inclined to accept the said contention. As already noted above, learned Judge in extenso referred to the evidence and found that respondent is the proprietor of Woodlands, a Government Licensed A/C Lodge at Gudalur. It is also found that the complex in which he is running the lodge 8 belongs to respondent. Therefore, learned the learned Judge has held that respondent has sufficient means to take care of his wife and children. In my opinion, learned Judge has exercised the discretionary powers judicially and in a right perspective in directing the respondent to pay monthly maintenance to petitioners.
In the last resort, counsel vehemently urged that respondent has lost his job. Therefore, respondent is unable to pay maintenance as ordered by the Family Court. This Court is not inclined to accept the said contention. As already noticed above, petitioners 2 and 3 are pursuing their education and it is the duty of the father to look after his children and provide them good education. He cannot escape from the obligation under the guise of unemployment.
When respondent has got the capacity to survive himself, he has the capacity to take care of his family/children too. Almost all religious scriptures speak about the responsibility of a male member towards protecting his family till his end. 9
I would observe that if a man is healthy and able-bodied, he must be held as `as fit as a fiddle' and have the means to support his wife and children and he cannot be relieved of his obligations. Hence, I find no reason to interfere with the order passed by learned Judge of the Family Court.
8. Accordingly, the revision petition is dismissed at the stage of admission.
Sd/-
JUDGE UN