IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL R.P.F.C. NO. 67 OF 2014 BETWEEN:
SHRI K.V.NAGENDRA S/O LATE SHRI VENKATAPPA AGED ABOUT 49 YEARS R/AT KANANDHURU VILLAGE THIRTHAHALLI TALUK SHIMOGA DISTRICT-577 432 …. PETITIONER (BY SRI NANDISH GOWDA G.B., ADVOCATE) AND:
1. SMT B.GOURAMMA D/O SRI H.BALARAJ AGED ABOUT 47 YEARS RESIDING AT NO.308 4TH CROSS, VENKABHOVI COLONY DAVANAGERE-577 001 2. KUM. SHYAMALA D/O SHRI K.V.NAGENDRA AGED ABOUT 16 YEARS SINCE MINOR REPRESENTED BY HER MOTHER NATURAL GUARDIAN PETITIONER NO.1 SMT GOURAMMA C/O THIMMANNA CONTRACTOR NO.308, 4TH CROSS VENKABHOVI COLONY DAVANAGERE-577 001 ... RESPONDENTS (BY SRI SARITHA KULKARNI, ADV.) THIS RPFC IS FILED UNDER SECTION 19(4) OF THE FAMILY COURTS ACT PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 20.01.2014 PASSED IN CRL.MISC.NO.132/2012 ON THE FILE OF THE JUDGE, FAMILY COURT, DAVANGERE.
THIS RPFC COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R “Whether the Trial Court committed any illegality or impropriety in enhancing the maintenance amount from Rs.750/- to Rs.1,250/- payable to the respondents?” is the question involved in this case.
2. The marriage of the petitioner and respondent No.1 was solemnized on 20.10.1996. Out of the said marriage, respondent No.2 is born and as on the date of the filing of this petition, she was aged 16 years.
3. Respondent Nos.1 and 2 filed Crl.Misc.No.88/1999 before JMFC-II Court, Davangere against the petitioner under Section 125 of Cr.P.C claiming maintenance alleging that the petitioner though having sufficient income has failed and neglected to maintain them. The said Court vide order dated 30.03.2001, awarded maintenance of Rs.500/-p.m., to each of the respondents herein.
4. The respondents later filed Crl.Misc.No.109/2003 against the petitioner under Section 127(1) of Cr.P.C seeking enhancement of the maintenance on the ground of rise in the cost of living and their requirement. That petition came to be partly allowed on 28.09.2004 granting additional maintenance of Rs.500/-, whereby the total maintenance payable by the petitioner to the respondents was increased to Rs.1,000/- p.m., to each of them.
5. Petitioner challenged the said order before this Court in RPFC No.18/2005. This Court vide order dated 06.02.2006, partly allowed the said petition reducing the enhanced maintenance by Rs.250/-. Thereby the total maintenance payable to respondent Nos.1 and 2 each was at Rs.750/- p.m.
6. The petitioner claims to have filed M.C.No.28/1998 against respondent No.1 for dissolution of marriage and claims that, that petition was allowed and the marriage was dissolved.
7. Respondent Nos.1 and 2 filed Crl.Misc.No.132/2012 before the Family Court, Davangere again under Section 127 of Cr.P.C seeking enhancement of maintenance amount. The Trial Court by the impugned order, on contest partly allowed the petition and enhanced the maintenance at the rate of Rs.500/- p.m., whereby the petitioner is required to pay the maintenance to respondent Nos.1 and 2 each at Rs.1,250/- p.m.
8. The petitioner challenges the said order in this case on the ground that respondent No.1 is the divorcee wife, therefore, she is not entitled for maintenance and the paternity of respondent No.2 was disputed.
9. First of all before the Trial Court, the alleged decree of divorce was not produced. Secondly, at the first instance in Crl.Misc.No.88/1999 maintenance was awarded to respondent No.2 holding that she is the daughter of the petitioner. He did not challenge that order. Even his subsequent challenge before this Court for enhancement of the maintenance in RPFC No.18/2005 ended in affirmation of the relationship between himself and respondent No.2. So far as respondent No.1, the relationship was not in dispute.
10. When he did not produce any material before the Trial Court to show that any decree of divorce was granted and that such decree has a disabling effect for respondent No.1 in seeking enhancement of the maintenance, the Trial Court has rightly rejected such contention. Even otherwise, the Hon’ble Supreme Court in Dr.Swapan Kumar Banerjee –vs- State of West Bengal and Another1 has held that even the divorcee wife is entitled for the maintenance under Section 125 of Cr.P.C.
11. Having regard to the facts and circumstances of the case, absolutely there is no impropriety or illegality in the impugned order of the Trial Court warranting admission of this case. Therefore, the petition is dismissed with cost of Rs.5,000/- payable to each respondent.
In view of dismissal of the petition, I.A.No.1/2014 stood disposed of.
Sd/- JUDGE KG 1 2019 SCC ONLINE SC 1263