IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.479 of 2014 (RES) C/w REGULAR SECOND APPEAL No.1008 of 2013 (RES) IN RSA No.479 of 2014 BETWEEN SMT. A.C. SANDHYA RANI, W/o. D. SATHISHCHANDRA, AGED ABOUT 52 YEARS, R/AT. MEGALAPETE ARAKERE, ARAKERE POST, SRIRANGAPATNA TALUK, MANDYA DISTRICT.
(BY SRI P. MAHESHA, ADVOCATE) AND D. SATHISHCHANDRA, S/O. LATE A.S. DODDEGOWDA, AGED ABOUT 61 YEARS, WORKING AT TUMKUR MILK DAIRY, MALLASANDRA, TUMKUR – 572 101.
(BY SRI VIVEK B.N., ADVOCATE for SRI ABHINAV R., ADVOCATE) ...APPELLANT … RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 31.01.2013 PASSED IN R.A.No.12 of 2012 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, SRIRANGAPATNA, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 15.11.2011 PASSED IN O.S.No.59 of 2007 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN) & JMFC., SRIRANGAPATNA.
IN RSA No.1008 of 2013 BETWEEN D. SATHISHCHANDRA, S/O. LATE A.S. DODDEGOWDA, AGED ABOUT 60 YEARS, FORMERLY WORKING AT TUMKUR MILK DAIRY, MALLASANDRA, TUMKUR – 572 101.
(BY SRI VIVEK B.N., ADVOCATE for SRI ABHINAV R., ADVOCATE) AND SMT. A.C. SANDHYA RANI, W/o. D. SATHISHCHANDRA, AGED ABOUT 51 YEARS, R/AT. MEGALAPETE ARAKERE, ARAKERE POST, SRIRANGAPATNA TALUK, MANDYA DISTRICT – 571 426.
(BY SRI P. MAHESHA AND SRI S.N. GIREESHA, ADVOCATES) ...APPELLANT … RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 31.01.2013 PASSED IN R.A.No.12 of 2012 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, SRIRANGAPATNA, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 15.11.2011 PASSED IN O.S.No.59 of 2007 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN) & JMFC., SRIRANGAPATNA.
THESE REGULAR SECOND APPEALs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT RSA No.479/2014 is filed by the wife and RSA No.1008/2013 is filed by the husband. Both the appeals are directed against the judgment and decree dated 31.01.2013 passed in R.A.No.12/2014 by the District Judge, Fast Court at Srirangapatna (hereinafter referred as First Appellate Court). Since both the appeal arise out of the same judgment passed by the First Appellate Court, they are taken up together and disposed of by this common judgment.
2. Heard the argument of learned counsel for the appellants in both the appeals.
3. The status of the parties before the Court below is retained for the purpose convenience.
4. The plaintiff being the wife of the defendant filed the suit in OS No.59/2007 for grant of maintenance of Rs.15,000/- per month contending that she is the legally wedded wife of the defendant and their marriage was solemnized on 04.09.1991 according to the Hindu customs at Srirangapatna. At the time of marriage, the defendant is said to have demanded cash of Rs.1,00,000/- and 100 grams gold, a two wheeler and a site at Mysuru as dowry. Though the parents of the plaintiff were not in a position to fulfill all the demand, however, they gave Rs.50,000/- in cash and 50 grams of gold as dowry and performed their marriage by spending huge amount. After the marriage was solemnized, the plaintiff lived in her matrimonial home. Out of their wedlock, the plaintiff gave birth to a male child and named him as B.S.Chiranthan. Since the illegal demands of the defendant were not fulfilled by the family of the plaintiff the defendant started ill-treating her physically and mentally. After the death of the parents of the defendant, the defendant left the plaintiff in her parents house stating that he will come and take her back after making necessary arrangement at Tumkur as the defendant was working at Tumkur as Technical Officer in the Co-operative Milk Federation. But even after lapse of two to three months, the defendant did not take her back and on several occasions, the plaintiff questioned the action of the defendant, but he went on dodging the same and failed to take her back. The plaintiff waited for several years, but the defendant failed to take her back and he got issued the legal notice to her on 06.10.2006 and she has suitably replied to the legal notice. In spite of the same, the defendant did not make any arrangements for their living together. The further case of the plaintiff is that the defendant is working as a Technical officer and getting the salary of Rs.20,000/- per month. In addition, he is getting Rs.5,000/- as rent from the suit schedule house, but he has not paid even a penny to her towards her maintenance. He has willfully deserted and neglected the plaintiff and her son. Hence, the suit came to be filed.
5. In pursuance of the notice, the defendant appeared and admitted their relationship and birth of the child. Further, he denied other allegations regarding cruelty and demand of dowry as alleged by the plaintiff. He contended that the plaintiff left the matrimonial home when the child was ten months old. Thereafter, she never turned back and she was living in her parents house. Through the elders and well-wishers, he made attempts to get the custody of the child, but it went in vain. The plaintiff never showed her inclination to join or return to the matrimonial home since 1993 and further contended that he is getting Rs.15,000/- only and his take-home salary is only Rs.7,500/- per month. He has to maintain in parents and during their lifetime, he had raised loan for their treatment to the tune of Rs.5,00,000/- and he has spent all his money towards the basic necessities of his parents and there was no other person to look after their daily needs. The suit property item No.1 is the property belonging to the Housing Co-operative Society at Nandini Layout and he had received allotment letter, but not paid the installments. The society will not transfer the property to the defendant unless he makes the entire payment. There is no property as such mentioned in item Nos.2 and 3 of the plaint schedule belonging to him. He further contended that the plaintiff is having share in her parents’ house property and in the 2 acres of wet land. She is a BA graduate and working as a Clerk in a private company situated at Srirangapatna and earning Rs.3,000/- to Rs.4,000/- per month and there is no necessity for the plaintiff to claim any maintenance from the defendant. She filed the suit only to harass the defendant. He further contended that the plaintiff had left the defendant about 30 years back alleging that the defendant is old and not looking good and got the defendant in second marriage. She was torturing the defendant within 1½ years of their marriage life. He had tolerated the cruelty committed by her. She herself deserted him for the last 13 years. There is no cause of action and the suit is barred by time. Hence, prayed for dismissal of the suit.
6. On the rival pleadings, the Trial Court framed the following issues:
“1. Whether the plaintiff proves that she is the legally wedded wife of defendant?
2. Whether plaintiff prove that though having sufficient means defendant has refused and neglected to maintain the plaintiff?
3. Whether the plaintiff is entitled for award of maintenance? If so at what rate?
4. What order or decree?”
7. To prove the case, the plaintiff got examined herself as PW.1 and also examined one more witness as PW.2 apart from marking 9 documents as per Exs.P.1 to P.9 and on behalf of defendant, he got himself examined as DW.1, but no documents were marked. After considering the evidence on record, the Trial Court answered issue Nos.1 and 2 in the affirmative and issue Nos.3 and 4 partly in the affirmative and granted maintenance of Rs.10,000/- per month from the date of the suit and also created charge over the suit schedule property towards recovery of the maintenance amount. Assailing the judgment and decree passed by the Trial Court, the defendant filed appeal in RA No.12/2012 before the Sessions Court, Fast Track Court at Srirangapatna. The First Appellate Court after considering the documents and re-appreciating the evidence, allowed the appeal of the husband in-part and reduced the maintenance to Rs.5,000/- from Rs.10,000/- by judgment dated 31.01.2013.
Assailing the reduction of maintenance amount, the wife preferred RSA No.479/2014, whereas the husband filed RSA No.1008/2013 to exonerate him from paying the maintenance.
8. Learned counsel for the appellant-wife strenuously contended that the Trial Court awarded maintenance of Rs.10,000/- per month by considering the evidence on record as the defendant was earning Rs.40,000/- per month as per the salary slip. The same was not denied by the defendant and no rebuttal evidence was let in. The First Appellate Court committed error in reducing the amount of maintenance from Rs.10,000/- to Rs.5,000/- only on the ground that the amendment prayed by the plaintiff in the suit has not been carried out. Though the amendment was carried out in the body of the plaint, but the prayer column was left out as it is. The First Appellate Court has come to a wrong conclusion that the plaintiff has not amended the pleadings, when the plaintiff has amended the plaint as well as the prayer. Therefore, the substantial question law is involved in this appeal.
Whereas, learned counsel for the appellant-husband in RSA No.1008/2013 has contended that the plaintiff is a BA graduate and was working as a Clerk in a private institution and the child is also grown-up and is aged more than 15 years, as on the date of filing of the suit. The plaintiff has not chosen to file any suit on behalf of the child and he is major. Though the First Appellate Court rightly considered the contentions of the defendant, but awarding maintenance of Rs.5,000/- per month is also exorbitant, since the plaintiff herself deserted the defendant and refused to join the defendant. Such being the case, the question of granting Rs.5,000/- per month as maintenance is not correct. Therefore, there is substantial question of law involved. Hence, prayed for allowing the appeal of the husband and dismiss the appeal of the wife.
9. Upon considering the argument of learned counsel for both the appellant, the substantial question of law involved in RSA No.479/2014 is as under:
“ Whether the First Appellate Court is justified in reducing the maintenance from Rs.10,000/- to Rs.5,000/- per month by modifying the judgment and decree of the Trial Court on the ground that the plaintiff has not amended the plaint even though she filed the amended plaint?”
And, the substantial question of law involved in RSA No.1008/2013 is as under:
“ Whether the First Appellate Court committed error in reducing the maintenance from Rs.10,000/- to Rs.5,000/- and not allowing the entire appeal even though the plaintiff herself voluntarily deserted the defendant for about 13 years prior to the filing of the suit and she was also earning?”
10. Upon hearing the argument of learned counsel for the parties and on perusal of the record, it is not in dispute that the marriage of the plaintiff and the defendant was solemnized on 04.09.1991 and both of them lead their married life. It is also not in dispute that the defendant was working in Milk Federation Co-operative Society at Tumkur. A child Chiranthan was born out of their wedlock and it is also not in dispute that the defendant and plaintiff were residing separately since 1993. The contention of the plaintiff is that after the death of the parents of the defendant, the defendant left the plaintiff in her parents house stating that he will come and take her back after making suitable arrangements for their stay at Tumkur as he was working at Tumkur, but, thereafter, he never took her back. She waited for several years, but the defendant sent a legal notice to the plaintiff on 06.10.2006 calling her for giving consent for a decree of divorce. The plaintiff, in support of her case, got examined herself as PW.1 and one Nagendra as PW.2 apart from marking 9 documents. Exs.P.1 and 2 are the katha extracts of the house property, Ex.P.3 is the allotment letter of the site at Mysore, Ex.P.4 is the sale deed, Ex.P.5 is the legal notice issued by the defendant to the plaintiff. Exs.P.6 and 7 are the reply notice and Exs.P.8 and P.9-salary certificates. As per Exs.P.8 and P.9, the defendant was working as Assistant Manager in the Milk Federation and earning Rs.41,259/- per month as gross salary and the deduction was Rs.7,749/-, out of which, Rs.200/- towards PT, Rs.2,300/- towards Income Tax and Rs.10/- towards Employees Union Fee. The defendant also contributed Rs.4,651/- towards Employees Provident Fund and Rs.288/- towards Group Insurance which are all investment, but not expenditure. These two documents got marked by the plaintiff through the defendant during cross-examination are admitted documents. The defendant also not rebutted the evidence of plaintiff and not produced any document to show that he is earning only Rs.15,000/- per month and is re-paying loan and getting net salary only Rs.7,500/-. Whereas, Ex.P.8 and P.9 clearly go to show that he was getting the salary of more than Rs.41,000/- per month and his take home salary is almost more than Rs.36,000/-. On the other hand, the defendant’s contention is that the plaintiff deserted him and she left the matrimonial home, whereas the plaintiff contended that he himself gave undertaking to take her back to Tumkur after making suitable house. The fact remains that both were residing separately. The defendant also filed a matrimonial case in M.C. No.104/2011 for a decree of divorce before the, Additional Civil Judge (Sr.Dn.) Tumkur, and Ex.P.5-legal notice issued by the defendant to the plaintiff, which clearly goes to show that he never called upon the plaintiff to come and join and lead matrimonial life, on the other hand he demanded consent of the plaintiff for divorce or else he will file a case for getting divorce on the ground of cruelty. It is also submitted by learned counsel for the appellant-wife that the matrimonial case for divorce filed by the defendant was transferred to the Court of Srirangapatna and later, it was dismissed for non-prosecution. Be that as it may. The fact remains that the plaintiff is residing at her parents house and defendant was residing at Tumkur while he was in service and now it is submitted that he has already retired from the service. The Trial Court has granted Rs.10,000/- per month as maintenance. Though the defendant has taken the contention that the plaintiff is a BA Graduate and was working as a Clerk in a private institution but has not proved his contention by adducing any evidence. However, it is borne out from the record that during the pendency of the suit, the defendant was paying Rs.1,000/- per month till the filing of the suit and during the pendency of the appeal before the First Appellate Court, the defendant was paying Rs.6,000/- per month as interim maintenance as awarded by the First Appellate Court and a memo is also filed in this regard by the defendant’s counsel wherein, it is mentioned that the arrears of maintenance of Rs.3,96,000/- has been paid from the date of suit till 21.08.2012 for a period of five years.
11. Learned counsel for the appellant-wife contended that the plaintiff while filing the suit has claimed Rs.5,000/- per month and subsequently filed an application for amendment and got amended the prayer a well as the amount of Rs.15,000/- per month. The copy of the amended plaintiff was also filed before the trial Court, but the First Appellate Court while considering the appeal on merit has wrongly held that the prayer column has not been amended by the plaintiff. Learned counsel also showed the certified copy of the amended plaint, which was produced before the Trial Court. The First Appellate Court at paragraph 33 of its judgment has given a finding that the amendment was carried at para-4 in line 3 and 8 as Rs.15,000/-, but there is no amendment carried out in the prayer column No.(a) in place of Rs.5,000/- as Rs.15,000/-; though the amendment was allowed, it was not carried out by the party. Therefore, the amendment was barred by limitation. On the said ground the First Appellate Court reduced the maintenance of Rs.10,000/- to Rs.5,000/- as the plaintiff originally claimed only Rs.5,000/- per month, which is not correct. The plaintiff after carrying out the amendment has filed the amended plaint as on 22.09.2011. The prayer column (a) clearly depicts that she had claimed Rs.15,000/- per month and she has clearly mentioned at the time of filing of the suit that the defendant was earning Rs.20,000/-. Later, she got amended that the defendant was getting more than Rs.40,000/- per month. The First Appellate Court without reading the entire plaint and amended plaint filed by the plaintiff and reading only the non-amended plaint has come to the conclusion that the prayer of the plaintiff was only for Rs.5,000/- per month towards maintenance, but not Rs.15,000/- per month, which is erroneous and requires to be set aside, since by looking to the evidence on record, the defendant was earning more than Rs.41,000/- per month and his expenditure was only Rs.2,500/- and his take home salary was more than Rs.36,000/- per month. Such being the case, reducing the maintenance from Rs.10,000/- to Rs.5,000/- per month is not correct. Therefore, the contention of learned counsel for the appellant-wife is acceptable that the First Appellate Court has committed error in mis-reading the plaint. Accordingly, point No.1 is answered in favour of the plaintiff and against the defendant.
12. As regards, the substantial question of law No.2, the defendant contended that the plaintiff was earning Rs.3,000/- to Rs.4,000/- per month and she deserted him and committed cruelty. Except his oral evidence, there is no document produced by him. Ex.P.5, the legal notice issued by the defendant to the plaintiff clearly goes to show that he has called upon the plaintiff to give consent divorce but not called her for leading matrimonial life. The plaintiff replied the notice suitably that she is ready to join the defendant, but the defendant was not ready to take her back. The defendant also not filed the a petition for restitution of conjugal right under Section 9 of the Hindu Marriage Act, on the other hand, he has filed petition for decree of divorce under Section 13 of the Hindu Marriage Act, on the ground of cruelty and desertion, which came to be dismissed by the Court, when the defendant was earning more than Rs.40,000/- per month and he has failed to prove his contentions that the plaintiff is earning; she herself deserted and neglected the defendant and left the matrimonial home cannot be accepted. On the other hand, the defendant was having permanent source of income, but failed to maintain the wife and son. There is no illegality committed by the Trial Court while granting Rs.10,000/- per month as maintenance, but the First Appellate Court committed error in reducing the maintenance from Rs.10,000/- to Rs.5,000/-.
13. Even otherwise the maintenance of Rs.10,000/- per month for the son and the mother is not sufficient during the period of Rs.2007-2012. However, based upon the salary of the defendant, the Trial Court has granted Rs.10,000/- per month, which is only 1/4th of the income of the defendant, which cannot be exorbitant. Hence the judgment of the First Appellate Court requires to be set aside. Hence, I answer the second substantial question of Law in favour of the plaintiff and against the defendant.
14. Accordingly, the appeal by the wife in RSA No.479/2014 is allowed and the appeal filed by the husband in RSA No.1008/2013 dismissed. The judgment of the First Appellate Court reducing the maintenance from Rs.10,000/- to Rs.5,000/- per month is set aside and the maintenance of Rs.10,000/- awarded by the Trial Court in O.S.No.59/2007 is confirmed. However, it is clarified that the defendant is entitled for reduction of the amount already paid to the plaintiff during the pendency of the appeal before the First Appellate Court to the tune of Rs.3,90,000/- as per the memo dated 31.08.2012 and any other amount paid.
In view of dismissal of RSA No.1008/2013, IA No.2/2013 does not survive for consideration and the same is dismissed.
SD/- JUDGE mv