IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.12986/2017(GM-FC) BETWEEN:
MR. K. GIRISH S/O. V. KRISHNAIAH, AGED ABOUT 50 YEARS, RESIDING AT NO. 1950, ‘SHREE SAIGURUKRUPA’, GROUND FLOOR, 20TH MAIN, 4TH CROSS, JP NAGAR 2ND PHASE, BENGALURU 560078.
... PETITIONER (BY SRI PRASHANT N. RAJ, ADVOCATE FOR SRI RAJAGOPALA NAIDU, ADVOCATE) AND:
MRS. J. V. SANDHYARANI, W/O. K. GIRISH, AGED ABOUT 46 YEARS, RESIDING AT 1ST FLOOR, NO. 1950, ‘SREE SAIGURUKRUPA’, 20TH MAIN, 4TH CROSS, JP NAGAR, BENGALURU 560078.
AND ALSO AT ESTEEM HERITAGE APARTMENT, FLAT NO. G-6, AMBER BLOCK, RACE GARDEN ROAD, J.P. NAGAR 5TH PHASE, BENGALURU 78.
(BY SRI JAYSHAM J RAO, ADVOCATE FOR SRI ABHILESH J., ADVOCATE) …… ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDERS DATED 8.12.2016 PASSED ON IA FILED BY THE RESPONDENT UNDER SECTION 151 OF THE CPC AND SECTION 24 OF THE HINDU MARRIAGE ACT GRANTING INTERIM MAINTENANCE OF RS.10,000/-[RUPEES TEN THOUSAND ONLY] TOGETHER WITH LITIGATION EXPENSES BY THE VI ADDITIONAL FAMILY JUDGE, BENGALURU IN M.C.NO.4090/2013 VIDE ANNEXURE-A AND TO DISMISS THE APPLICATION OF THE RESPONDENT.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner husband filed the present writ petition against the Order dated 08.12.2016 made in M.C. No.4090/2013 on the file of the VI Addl. Prl.
Judge, Family Court, Bengaluru, allowing the application filed by the respondent-wife under Section 24 of the Hindu Marriage Act, in part, directing the husband to pay monthly maintenance of `10,000/- to the wife and son as interim maintenance from the date of the application till disposal of the M.C. petition.
2. The petitioner herein/husband filed a petition under Section 9 of the Hindu Marriage Act, 1956, (‘Act’ for short) for restitution of conjugal rights, directing the respondent/ wife to join the petitioner and perform her conjugal duties and for costs of the petition, raising various contentions. The petition was opposed by the wife by filing detailed objection denying all the averments and sought for dismissal of the petition. The wife also filed counter claim under Section 23-A of the Act and sought for dissolution of the marriage by granting divorce, raising various contentions.
3. During the pendency of M.C.No.4090/2013, the respondent-wife filed an application under Section 24 of the ‘Act’ seeking maintenance of `50,000/- per month from the petitioner, for herself and her son and `1,50,000/- towards litigation expenses, reiterating the contentions raised in the counter claim. It was contended that, her son is pursuing studies and his yearly educational expenses comes to `1,00,000/-. That apart, her son is actively practicing cricket, music and other curricular activities which requires minimum sum of `10,000/- per month. She has to meet the expenses of flat like maintenance, electricity and water charges which is about `7,500/- per month. Herself and her son require another sum of `20,000/- per month towards food, medicine etc. She further stated that the petitioner-husband earns more than `5 lakhs per month from his business. He is an income tax assessee and his monthly mobile bill runs to several thousands and she is not in a position to produce the income tax records as she is not entitled to obtain the same even under Right to Information Act. Therefore, she sought to allow the application by granting interim maintenance as prayed for.
4. The application was opposed by the petitioner- husband denying all the averments. The husband has raised the objection that if the wife is unable to maintain herself, the Court may direct the wife to join him and he will take care of her along with son by providing basic amenities. The husband contended that he is not liable to pay litigation expenses. He contended that the respondent is the one who commenced the litigation by filing false police complaint. The petitioner has not filed any other litigation against the respondent and present litigation does not require `1,50,000/-. Therefore, she is not entitled to monthly maintenance and sought for rejection of the application.
5. The learned Judge of the Family Court, after considering the application and the objections, by the impugned order dated 08.12.2016, allowed the application filed under Section 24 of the ‘Act’, in part, and directed the petitioner to pay `10,000/- i.e., `5,000/- each to the respondent and her son. Hence the present writ petition is filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri Prashanth N Raj, advocate for Sri Rajagopala Naidu, learned counsel for the petitioner-husband contended with vehemence that the impugned order passed by the Family Court awarding maintenance of `10,000/- to the respondent/wife and her son is erroneous and contrary to the material on record and liable to be quashed. He further contended that the Family Court relying upon the income tax return of the petitioner for the years 2012-13, 2013-14, 2014-15 and 2015-16, has come to the conclusion that the gross total income of the petitioner is `13,75,803/-, without coming to any definite conclusion as to what is the income of the petitioner per month and how much the wife is entitled. In the absence of any specific finding recorded regarding income of the petitioner, the Family Court is not justified in awarding monthly maintenance of `10,000/- to the wife and son. He further contended that the petitioner has filed an application for restitution of conjugal rights. Since the petitioner is ready and willing to take back the wife and son to lead happy life, question of awarding maintenance would not arise at all. Therefore, he sought to allow the writ petition.
8. Per contra, Sri Jaysham J Rao, advocate for Sri Abhilesh J, learned counsel for the respondent-wife sought to justify the impugned order passed by the Family Court. He contended that in the objection to the application filed by the petitioner he has not stated anything about his income. He has only stated that petitioner is not liable to pay the litigation expenses to the wife and Court may direct the wife to join the petitioner and he will take care of wife and son. Except the said objection, petitioner has not stated about his income and as to why the wife is not entitled to maintenance. In the absence of the same, the Family Court is justified in granting maintenance. Hence, sought to dismiss the Writ Petition.
9. Having heard the learned counsel for the parties, it is undisputed fact that the present petitioner- husband filed petition under Section 9 of the ‘Act’ for restitution of conjugal rights against the respondent- wife. In the very petition, the respondent wife filed objections along with counter claim seeking for a decree of divorce by dissolution of the marriage dated 05.11.1995 raising various grounds. It is the specific case of the respondent wife in the application that the petitioner husband earns more than `5 lakhs from his business and he is an income tax assessee and his mobile bill runs to several thousands of rupees. She is not in a position to produce the income tax returns of the petitioner, even under RTI. She requires atleast `50,000/- for monthly maintenance for herself and her son, educational expenses, medical expenses, food and nourishment.
10. The petitioner filed objections to the application and stated that the respondent is not entitled to any maintenance since he has filed an application for restitution of conjugal rights. If she has no income, she can join the petitioner and she is not entitled to any maintenance. The petitioner has no income to pay maintenance to the respondent. On the contrary, if the respondent is unable to maintain herself, she may be directed to join the petitioner. The petitioner has not stated as to what is his income and whether the wife is capable of maintaining herself during pendency of the proceedings between the parties.
11. In the absence of specific contentions raised and documents produced by the petitioner, the Family Court proceeded to consider the xerox copy of the income tax returns of the petitioner husband for the years 2012-13, 2013-14, 2014-15 and came to the conclusion that the petitioner has gross total income of `13,75,803/-, `9,32,743/- and `6,57,793/- for the respective years and further recorded a finding that the xerox copies of the income tax returns pertaining to the petitioner show that he is having sufficient income. Said material has not been denied by the petitioner husband and he has not produced any material to show that before filing the petition, whether he made efforts to bring back the wife to the matrimonial home. No document is produced to show that he has paid maintenance except that he has paid educational expenses of his son, which is accepted by the wife. Thereby, the Family Court allowed the application in part and awarded maintenance of `10,000/- to the respondent-wife and her son.
12. It is undisputed fact that there is no dispute with regard to marriage between the parties and they are husband and wife. That is why, the petitioner husband filed a petition for restitution of conjugal rights. Out of the wedlock, son-Abhinav was born. When the relationship between the parties is admitted, when application came to be filed under Section 24 of the Act, and when there are no documents filed to establish that the wife has her own income, it appears that she has no independent income sufficient to maintain herself and her son.
13. Taking into consideration the entire material on record, the interim maintenance granted by the Family Court at `10,000/- is hardly sufficient. At one breath, the petitioner wants his wife back and filed a petition under Section 9 of the Act and in another breath, without disclosing his income, petitioner is denying maintenance of `10,000/-. This clearly depicts that the petitioner has not come to the Court with clean hands, clean heart and clean mind.
14. In view of the above, the impugned Order passed by the Family Court is just and proper. The petitioner has not made out any ground to interfere with the impugned Order in exercise of power under Article 227 of the Constitution of India. Accordingly, the writ petition is dismissed with cost of `10,000/- payable by the petitioner/husband to the respondent/wife before the Family Court on the next date of Hearing.
Ordered accordingly.
Sd/- JUDGE kcm