Karnataka High Court
Mallamma And Anr vs Suryaprakash on 4 April, 2018
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
RPFC NO.200096/2017
C/W
RPFC NO.200100/2017
RPFC NO.200096/2017
BETWEEN:
Suryaprakash S/o G.Siddanagouda
Age: 49 years, Occ: Agriculture & Business
R/o. H.No.5, Shop No.39, Rajendra Gunj
Raichur, Dist: Raichur-584101
... Petitioner
(By Sri Ashok S. Kinagi and
Sri Ajaykumar A.K., Advocates)
AND:
1. Mallamma W/o Suryaprakash
Age: 46 years, Occ: Household
R/o. Ghawhar, Tq: Jewargi
Kalaburagi, Now at Vasavinagar
Raichur, Dist: Raichur-584101
2. Bhagyalaxmi D/o Suryaprakash
Age: 21 years, Occ: Student
R/o. Ghawhar, Tq: Jewargi
Kalaburagi, Now at Vasavinagar
2
Raichur, Dist: Raichaur-584101
... Respondents
(By Sri Shivanand Patil, Advocate)
This RPFC is filed under Section 19(4) of the Family
Court Act praying to set aside the impugned order dated
28.07.2017 passed by the Prl. Judge, Family Court, Raichur
in Crl.Misc.No.61/2017 by allowing this petition.
RPFC NO.200100/2017
BETWEEN:
1. Mallamma W/o Suryaprakash
Age: 46 years, Occ: Household
Now at Vasavinagar
Raichur, Dist: Raichur
R/o. Ghawhar, Tq: Jewargi
Kalaburagi
2. Bhagyalaxmi D/o Suryaprakash
Age: 21 years, Occ: Student
Now at Vasavinagar
Raichur, Dist: Raichur
R/o. Ghawhar, Tq: Jewargi
Kalaburagi
... Petitioners
(By Sri Shivanand Patil , Advocate)
AND:
Suryaprakash S/o Siddanagouda
Age: 49 years, Occ: Agriculture
& Business, R/o. H.No.5, Shop No.39,
Rajendra Gunj
Raichur, Dist: Raichur
... Respondent
(By Sri Ashok S. Kinagi, Advocate)
3
This RPFC is filed under Section 19(4) of the Family
Court Act praying to allow the petition and enhance the
maintenance amount to Rs.20,000/- per month to each of
the petitioners by modifying the order dated 28.07.2017
passed by the Prl. Judge, Family Court, Raichur in
Crl.Misc.No.61/2017.
These petitions are coming on for Admission this day,
the Court made the following:
ORDER
RPFC No.200096/2017 is filed by the husband for reduction of maintenance amount and RPFC No.200100/2017 is filed by the wife and daughter for further enhancement of maintenance amount against the order dated 28.07.2017 made in Crl.Misc.No.61/2017 on the file of the Principal Judge, Family Court, Raichur awarding maintenance of Rs.12,000/- per month to petitioner No.1/wife from the date of petition till her life time and Rs.12,000/- per month to petitioner No.2/daughter from the date of petition till she gets married along with excluding 4 education expenses by exercising the powers under Section 127 of Cr.P.C.
The Parties are referred to as per their ranking before the Family Court.
2. Petitioner No.1 is the wife and petitioner No.2 is the daughter of the respondent filed Crl.Misc.61/2017 against the respondent under Section 127 of Cr.P.C. for enhancement of maintenance contending that they are the wife and daughter of the respondent. The relationship is not disputed. Earlier, the petitioners have filed the petition in Crl.Misc.No.22/2013 under Section 125 of Cr.P.C. before the Family Court. The said petition came to be allowed in part by awarding maintenance of Rs.4,500/- per month each to the petitioners by an order darted 29.01.2008., which was the subject of RPFC. No.616/2013 before this Court. This Court after hearing both the parties, by an order dated: 29-08-2013 5 modified the enhanced amount of Rs.8,000/- each per month and awarded the petitioner by reducing to Rs.7,500/- each per month. Thereafter the matter was remanded back, subject to the condition that, the respondent /husband has to deposit the entire arrears of maintenance within four weeks failing which the respondent has to pay amount of Rs.8,000/- each per month.
3. Thereafter the petitioners filed the petition for alteration of maintenance under section 127 of Code of Criminal Procedure for enhancement of maintenance of Rs.25,000/- per month to each of the petitioners contending that the respondent has got sufficient means of income from agriculture and from business. The said fact is evident from the records in the suit filed by the petitioners in O.S.No.151/2008 for partition and separate possession. The said suit came to be decreed allotting shares to the petitioner No.2 as per the Judgment and decree dated: 26-11-2012. But the 6 respondent has preferred Appeal in R.A. No.8/2013 before the Ist Addl. District Judge, Raichur. The amount awarded in Criminal Miscellaneous No.22/2013 is modified by this Court in RPFC No.616/2013 holding that the amount is very meager and not sufficient to lead minimum life in these costliest days. They are unable to meet their essential needs and education expenses of second petitioner, due to hike in the prices of essential commodities and all other utensils in the market, petitioners are facing hardship, inconvenience and difficulties. They are depending the maintenance amount granted in Criminal Miscellaneous No.22/2013 and the same is not sufficient. They have further contended that, respondent being an agriculturist and businessman, owning huge properties and has got income of Rs.75,000/- per month and has also got income of Rs.5,00,000/- from other sources and he has got capacity to pay the maintenance. Therefore, they 7 have filed petition for further enhancement under section 127 of Code of Criminal Procedure.
4. The respondent/husband who is the petitioner in RPFC No.200096/2017 filed objections before the Family Court, contending that, he is not having any business, except petrol bunk. He is dealer in Indian Oil Corporation and having annual income of Rs.2,98,000/-. Rest of the properties except agricultural properties is self acquired properties of his mother and father. Respondent and other members are also having share in the agricultural properties. Since two years there is drought condition and due to that, there is no income from the agricultural lands. He has performed the marriage of 1st daughter by name Sumanjali in the year 2013 by spending huge amount and availed loan for the same. He is providing education to his another daughter by name Soumya and he has to pay Rs.2,00,000/- towards her education. Respondent 8 is having aged parents who are presently aged 89 and 84 years and suffering from old age ailments. Respondent /husband is not in a position to pay the present maintenance amount of Rs.7,500/- per month to the petitioners.
5. He has further denied the averments made in para Nos. 4 to 6 of the claim petition filed under section 127 of Code of Criminal Procedure and contended that, he is having only annual income of Rs.2,98,000/- from the petrol bunk and he has availed loan of Rs.15,00,000/- from the Indian Bank Raichur for running the said business. He has got obligation to discharge said loan. Due to drought condition, he has no income from the agricultural lands. He is unable to comply the order of the court in Criminal Misc. No.22/2013 due to meager income. He has to look after his another daughter Soumya and her education expenses alongwith his old aged parents. Therefore, he 9 sought for dismissal of the petition filed by the petitioners for enhancement.
6. Based on the pleadings of the parties, the Family Court framed the following points:
1. Whether the petitioners have made out grounds for enhancing the maintenance amount awarded in Criminal Miscellaneous NO.22/2013 as prayed?
2. What Order?
7. In order to establish the case of the petitioners, for further enhancement, petitioner No.1 examined herself as PW-1 and got marked the documents Exs.P-1 & P-8. The respondent-husband has examined as RW.1 and got marked the documents Ex.R.1 to Ex.R.12.
8. The Family Court considering the pleadings of both the parties, the petition is filed under section 127 10 of Code of Criminal Procedure and considering the material on record, answered issue No.1 partly in the affirmative holding that the petitioners/wife and daughter are entitled for further enhanced maintenance. Accordingly by the impugned order dated:
28-07-2017 allowed the petition in part and directed the respondent/husband to pay monthly maintenance of Rs.12,000/- to the wife /first petitioner till her life time and Rs.12,000/- to the daughter/second petitioner from the date of petition till she gets married alongwith excluding education expenses. Hence, the present revision petitions are filed by the husband/respondent for reduction of maintenance and the petitioners wife and daughter for enhancement of maintenance.
9. I have heard the learned counsel for the parties to the lis.
10. Sri. Ashok S.Kinagi, learned counsel for husband in RPFC No.200096/2017 vehemently 11 contended that impugned order passed by the Family Court awarding maintenance of Rs.12,000/- per month each to the petitioners/wife and daughter is exorbitant, and without any basis. He further contended that, the Family Court has not at all taken into consideration the income of the respondent/husband before passing the enhanced order. He would further contend that, the husband has availed loan and he has to maintain his old aged parents and he is also spending more than 2,00,000/- to his another daughter towards her education. All these material facts have not been considered by the Family Court. He would further contend that, RW.1 in his evidence has specifically stated that, he is not getting any income from agriculture except the income from the petrol bunk. He has no other source of income. Therefore, it is not possible for the husband/respondent to pay Rs.12,000/- i.e. in total Rs.24,000/- per month to the petitioners, which is highly excessive, exorbitant and 12 without any basis. Therefore, he sought to allow the revision petition by modifying the impugned order passed by the Family Court by reducing the maintenance.
11. Per contra, Sri.Shivanand Patil learned counsel appearing for petitioners in RPFC No.200100/2017 contended that the impugned order passed by the Family Court awarding maintenance of Rs.12,000/- each per month to wife and daughter is very meager and not sufficient to lead their day to day life. In fact second petitioner is preparing for KAS examination she has to spent some amount and in view of the hike in the price of essential commodities, the amount now awarded by the Family Court a sum of Rs.12,000/- is unreasonable and it has to be enhanced. He would further contend that, RW.1 in the cross- examination has admitted that, he is providing education to his second daughter Soumaya by spending 13 Rs.2,00,000/- per year for her educational expenses, there cannot be any discrimination between the two daughters. He would further contend that, he has performed the marriage of his first daughter Somanjali in the year 2013 by spending Rs.8,00,000/- to Rs.10,00,000/-, the respondent is having capacity to maintain himself and the petitioners. He would further contend that, the respondent/husband in O.S. No.161/2007 in a suit for partition filed by the second petitioner has admitted that, he is doing granite business and he is having 48 acres of land. Therefore he sought to allow the revision petition filed by the petitioners/wife and daughter by enhancing the maintenance by dismissing the petition filed by the husband/respondent.
12. I have given my anxious consideration to the rival contentions urged by both the parties and perused the records made available carefully. 14
13. Having heard the learned counsel appearing for the parties, the relationship between the parties is not disputed. It is also not in dispute that, earlier the very petitioners namely wife and daughter have filed Criminal Miscellaneous No.66/2007 for maintenance and the Family Court by an order dated: 29-01-2008 awarded maintenance of Rs.4,500/- each per month to the petitioners. Subsequently on the second petition filed in Criminal Miscellaneous No.22/2012 under section 125 of Code of Criminal Procedure, the Family Court by an order dated: 17-08-2013 enhanced the maintenance from Rs.4,500/- per month to Rs.8,000/- per month to each of the petitioners. It is also not in dispute that, the said order passed by the Family Court awarding Rs.8,000/- per month to each other petitioners was subject matter of RPFC No.616/2013 filed by the husband/respondent before this Court. This Court after hearing both the parties on 29-08-2013 15 modified and reduced the maintenance from Rs.8,000/- to Rs.7,500/- per month each to the petitioners subject to the condition that, the respondent-husband shall deposit the entire arrears of maintenance within four weeks from 29-10-2013 failing which the respondent/husband has to pay Rs.8,000/- per month to each of the petitioners. The said order passed by this Court has reached finality.
14. After four years of the orders passed by this Court, the petitioners filed petition under section 127 of Code of Criminal Procedure for further enhancement of maintenance mainly on the ground that, the amount awarded in Criminal Miscellaneous No.22/2013 was very meager, not sufficient to lead life due to hike in the prices of essential commodities, they are facing hardship, inconvenience and difficulties, and also contended that they require enhanced maintenance for educational expenses of second petitioner. Therefore, 16 they sought for further enhancement contending that the husband/respondent has got sufficient means to pay the enhanced maintenance.
15. The same was disputed by the respondent/husband by filing the objections contending that, except the petrol bunk, he is not getting any income from the agricultural lands, apart from the same he has availed loan from the Banks about Rs.15,00,000/- and he has to repay the same. He has also contended that, apart from availing loan he has to maintain his second daughter Soumaya who is also studying and he has to spent Rs.2,00,000/- for her educational purpose per year and he has to take care of his old-aged parents. Therefore, he submits that, the amount already awarded by the Family Court was exorbitant and he is not in a position to pay the said amount also.
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16. The material facts clearly depicts that, when the relationship is not in dispute, it is also not in dispute that, the wife/first petitioner and daughter/second petitioner have no means to lead their day to day life. It is not the case of the husband/respondent that they are capable to maintain themselves without the help or maintenance from the husband/respondent. In the absence of any material produced before the court, that the wife and daughter can maintain themselves. It is the duty of the husband who is having sufficient means neglects of refuses to maintain under the provisions of Section 125 (i) (a) & (b) of Code of Criminal Procedure. It is also not in dispute that, as per the evidence of RW.1 he has to educate his second daughter Soumaya and he has produced Ex.R.2 to Ex.R.4 to show that she was doing MCA at Bangalore and he has to pay fees up to Rs.2,00,000/- per year for her education who is with him. If he is spending an amount of Rs.2,00,000/- per year for her educational 18 expenses, he has to spent another some amount for her boarding and lodging that is also not in dispute. He has also contended that, he has to look after his age-old parents. He has also stated on oath in his evidence that, he has performed the marriage of his first daughter in the year 2013 and he has to perform the marriage of his second daughter Soumaya by spending an amount of Rs.8,00,000/- to Rs.9,00,000/-.
17. Sri.Ashok S.Kinagi, learned counsel appearing for respondent vehemently contended that, I.T records has not been considered and the repayment of loan is also not considered by the Family Court, the said contention cannot be considered at this stage, because it is not the case of the husband that, even he is not in a position to maintain his age-old parents and he cannot maintain or educate his another daughter Soumaya. If he is capable of educating another daughter by spending Rs.2,00,000/- per year only for 19 educational expenses apart from boarding and lodging and maintaining his own parents, it is his duty to maintain his wife and daughter who have no means for their day to day livelihood. The contention of the petitioner that the Family Court has not considered the records maintained in file cannot be accepted as I.T returns Ex.P.6 and Ex.P.7 the letter from the Bank has been considered by the Family Court at para No.12 and taking into consideration that he is having 48 acres of land, the income from the petrol bunk as per Ex.P.6. The family court was of the considered opinion that, the maintenance has to be enhanced accordingly Rs.12,000/- per month to each of the petitioners has been enhanced.
18. In view of the admitted facts, the respondent/husband is educating another daughter Soumaya who is doing MCA at Bangalore and he has to pay fee upto Rs.2,00,000/- per year as per Ex.R.2 to 20 Ex.R.4 fee receipts, it is not in dispute that he has spent some amount towards boarding and lodging, minimum amount of Rs.1,00,000/- in a capital city at Bangalore for entire year. If the husband/respondent is in a position to maintain another daughter Soumaya by spending Rs.2,00,000/- per towards her education apart from lodging and boarding, there cannot be any discrimination between the two daughters i.e., Soumaya and second petitioner Bhagyalaxmi, when there is no dispute that, Bhagyalaxmi is the daughter out of the wedding of the first petitioner and husband/respondent.
19. Insofar as the contention of the learned counsel appearing for husband that, maintenance of Rs.12,000/- to the wife/first petitioner is exorbitant and has to be reduced cannot be accepted for the simple reason that, in the cause title of the petition filed under section 127 of Code of Criminal Procedure it is mentioned that now first petitioner is residing at 21 Vasavinagar Raichur she has to maintain herself and to provide education to second daughter and in the pleadings it is pleaded that, second petitioner is taking KAS coaching and first petitioner has produced the receipts as per Ex.P.6 to Ex.P.8 and also Ex.P.4 VI Semster BA degree certificate, she has to spent some amount and has to pay rental charges to the house, clothing and shelter etc. Therefore the amount awarded by the Family Court to the first petitioner/wife is not exorbitant. Therefore, the contention of the learned counsel appearing for respondent/husband that the Family Court awarding Rs.12,000/- per month to each of the petitioner is exorbitant cannot be accepted in view of the admitted fact that, specially when there is hike in the price of essential commodities.
20. Insofar as the contention of the learned counsel for the petitioners/wife and daughter that the amount awarded by the Family Court is unreasonable 22 and it requires further enhancement also cannot be considered in view of the fact that, though the petitioners have stated that, the husband is having 48 acres of land and he is getting income of Rs.4,00,000/- to Rs.5,00,000/- per annum from agriculture and he is capable of getting income of Rs.75,000/- per month, except the allegations the petitioners have not produced any material document to show that the respondent/husband is getting income of Rs.4,00,000/- to Rs.5,00,000/- per annum from other sources and he is doing agricultural business owning huge property, no material document is produced before the court.
21. The Family Court considering the contentions raised by the parties, has recorded a finding that, even though RW.1 in his statement in O.S.No.161/2017 as per Ex.P.5 has admitted that he was doing granite business. On perusal of the said evidence it is clear that, said evidence was given by respondent on 13-09- 23 2012. But when the respondent is stating that he is not doing granite business and when there is no document to prove that, he is doing granite business, the court cannot come to the conclusion that, he is doing granite business. There is no evidence before the court to show that, respondent is having income from the agricultural lands during these days of drought. Therefore it is clear that, the respondent is depending on the sole income of the petrol bunk. The petitioners have not produced any document before the court to prove that apart from the income from petrol bunk, he is getting any income from agriculture as stated in the claim petition for enhancement. The Family Court considering the income from the petrol bunk and the respondent/husband has capacity of giving education expenses to another daughter Soumaya was of the considered opinion that, the petitioners/wife and daughter are entitled for enhancement of maintenance from Rs.8,000/- per month to Rs.12,000/- per month to 24 each of the petitioners and enhanced Rs.4,000/- per month each which would be just and reasonable in the facts and circumstances of the present case.
22. The Hon'ble Apex Court, while considering the provisions of Section 125 of the Code of Criminal Procedure in the case of Bhuwan Mohan Singh vs. Meena and others reported in AIR 2014 SC 2875 at paragraph No.3 held as under:-
"3. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short "the code") was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the 25 similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a begger. A situation is not to be maladroitly created where under she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds."26
23. The Hon'ble Supreme Court, while considering the provisions of Section 125 of the Code of Criminal Procedure in the case of Shamima Farooqui vs Shahid Khan reported in AIR 2015 5 SCC 705 in paragraph Nos.14, 20 and 21 held as under:-
"Para No.14 :- Coming to the reduction of quantum by the High Court, it is noticed that the High Court has shown immense sympathy to the husband by reducing the amount after his retirement. It has come on record that the husband was getting a monthly salary of Rs.17,654. The High Court, without indicating any reason, has reduced the monthly maintenance allowance to Rs.2,000/-. In today's world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs.2,000/- per month. It can never be forgotten that the inherent and fundamental principle behind Section125 CrPC is for amelioration of financial state of affairs as well as mental agony and anguish that a woman suffers when she is compelled to 27 leave her matrimonial home. The statue commands that there have to be some acceptable arrangements so that she can sustain herself. The principal of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A women, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Cr{C, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 28 125 CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and nod, in fact, they have no acceptability in law. If the husband is healthy, able-bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right".
20 :- In the instant case, as is seen, the High Court has reduced the amount of maintenance from Rs. 4000 to Rs. 2000. As is manifest, the High Court has become oblivious of the fact that she has to stay on her own. Needless to say, the order of the learned Family Judge is not manifestly perverse. There is nothing perceptible which would show that order is sanctuary of errors. In fact, when the order is based on proper 29 appreciation of evidence on record, no Revisional Court should have interfered with the reason on the base that it would have arrived at a different or another conclusion. When substantial justice has been done, there was no reason to interfere. There may be a shelter over her head in the parental house, but other real expenses cannot be ignored. Solely because the husband had retired, there was no justification to reduce the maintenance by 50%. It is not a huge fortune that was showered on the wife that it deserved reduction. It only reflects the non- application of mind and, therefore, we are unable to sustain the said order".
21 :- Having stated the principle, we would have proceeded to record our consequential conclusion. But, a significant one, we cannot be oblivious of the asseverations made by the appellant. It has been asserted that the respondent had taken voluntary retirement after the judgement dated 17-2-2012 with the purpose of escaping the liability to pay the maintenance amount 30 as directed to the petitioner; that the last- drawn salary of the respondent taken into account by the learned Family Judge was Rs 17,564 as per salary slip of May 2009 and after deduction of AFPP Fund and AGI, the salary of the respondent was Rs 12,564 and hence, even on the basis of the last basic pay (i.e. Rs 9830) of the respondent the total pension would come to Rs 14,611 and if 40% of commutation is taken into account then the pension of the respondent amounts to Rs 11,353; and the respondent, in addition to his pension, had received encashment of commutation to the extent of 40% i.e. Rs 3,84,500 and other retiral dues i.e. AFPP, AFGI, gratuity and leave encashment to the tune of Rs 16,01,455. The aforesaid aspects have gone uncontroverted as the respondent husband has not appeared and contested the matter. Therefore, we are disposed to accept the assertions. This exposition of facts further impels us to set aside the order of the High Court".
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24. In view of the aforesaid reasons, the impugned order passed by the Family Court awarding maintenance of Rs.12,000/- per month to each petitioners is in accordance with law. The RPFC No.200096/2017 filed by the respondent /husband and RPFC No.200100/2017 filed by the petitioners/wife and daughter have not made out any ground to interfere with reasonable order passed by the Family Court dated: 28-07-2017 made in Criminal Miscellaneous No.61/2017 exercising the revisional powers of this court under the provisions of section 19(4) of the Family Court Act. Accordingly both the petitions are dismissed.
Sd/-
JUDGE Srt/MWS CT/VK