IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.28065 OF 2018 (GM-FC) BETWEEN:
SMT. JYOTHIKA KAMATH W/O PRAKASH KAMATH AGED ABOUT 45 YEARS R/AT NO.444 9TH MAIN 2ND CROSS INDIRANAGAR BANGALORE – 560 008 (BY MR. G L VISHWANATH, ADV.) AND:
PRAKASH KAMATH S/O A MOHAN KAMATH AGED ABOUT 47 YEARS R/AT NO 114 “BAANDALA” 3RD MAIN 2ND STAGE DOMLUR BANGALORE – 560 071 (BY MR. N S SANJAY GOWDA, ADV. FOR MR. J A RAFEEQ, ADV. FOR C/R) … PETITIONER … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 2.4.2018 PASSED BY THE VI TH ADDITIONAL FAMILY COURT, BANGALORE IN M.C.NO.4555/2015 VIDE ANNEXURE-F AND TO CONSEQUENTLY ALLOW I.A.NO.9 SEEKING INTERIM MAINTENANCE VIDE ANNEXURE-C; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.G.L.Vishwanath, learned counsel for the petitioner.
Mr.N.S.Sanjay Gowda, learned counsel for Mr.J.A.Rafeeq, learned counsel for the respondent.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 02.04.2018 passed by the Family Court. In order to appreciate the petitioner’s grievance, few facts need mention which are stated hereinafter.
4. The marriage between the parties was solemnized on 03.06.1996. Two children were born out of the wed lock. The petitioner filed a petition in the month of October 2015 seeking dissolution of marriage on the ground of physical and mental cruelty. The petitioner also filed an application under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’ for short) seeking maintenance for herself and the two children as well as litigation expenses. The Family Court by an order 02.04.2018 allowed the application filed by the petitioner in part. However, the amount of maintenance was not quantified and the respondent is directed to pay educational expenses of the children which includes tuition fee, transportation fee, boarding fee from the academic year 2017-18 onwards during the pendency of the petition. The petitioner was directed to bear day-to-day living expenses and other miscellaneous expenses and the petitioner was awarded a sum of `15,000/- as one time litigation expenses. In the aforesaid factual background, the petitioner has approached this Court.
5. Learned counsel for the petitioner submitted that the Family Court grossly erred in not ordering the maintenance from the year when it was sought. It is further submitted that the quantification of the amount of maintenance has not been provided for in the order. Learned counsel for the petitioner while inviting the attention of this Court to averments made in paragraph 13 of the objections filed on behalf of the respondent, has submitted that respondent in unequivocal terms has expressed his willingness to take care of the children and to meet the complete expenses. It is further submitted that however, till today except an amount of `5,00,000/- as directed by this Court, the respondent has not chosen to pay the expenses which have already been incurred by the petitioner for the education of the children. In this connection, learned counsel for the petitioner has also invited the attention of this Court to the income tax returns of the respondent for the past 3 years to show the income of the respondent.
6. On the other hand, learned counsel for the respondent has reiterated his commitment to bear the complete expenses of the children. However, it is submitted that the petitioner has not furnished the details of the expenses incurred by her towards education of the children. It is further submitted that during the pendency of the petition, some details of education expenses incurred by the petitioner have been furnished to him. Learned counsel for the respondent has also invited the attention of this Court to income tax returns filed before this Court to show the income of the petitioner, in support of the contention that her income is more than that of the petitioner.
7. I have considered the submissions made by both the sides and have perused the record. Admittedly, the parties have filed the documents for the first time in this proceeding which were not filed before the Family Court. From the perusal of the order passed by the Family Court, it is evident that the Family Court without reference to the income tax returns could not have recorded a finding with regard to the income of the parties. Besides that, the Family Court has failed to quantify the amount of maintenance which is payable to the children, the details of which have been filed for the first time before this Court.
8. In the peculiar fact situation of the case and in the absence of any quantification of the amount of maintenance payable to the children by the Family Court, I deem it appropriate to quash the impugned order dated 02.04.2018 and to permit the parties to file all the relevant documents in support of their respective claims within one week from the date of receipt of certified copy of the order passed today. Thereafter, the Family Court is directed to decide the application filed by the petitioner under Section 24 of the Act afresh by a speaking order within a period of two weeks from the date of filing of the application, keeping in view the prayer made in the application under Section 24 of the Act.
Accordingly, the writ petition is disposed of.
Sd/- JUDGE RV