IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD MISCELENEOUS FIRST APPEAL NO.971 OF 2011(FC) BETWEEN:
SMT. MAMATHA WIFE OF S. RENUKA PRASAD AGED ABOUT 34 YEARS RESIDING AT DOOR NO.17, I FLOOR ‘A’ STREET, EAST LINK ROAD MALLESHWARAM, BENGALURU – 560 003.
(BY SRI. M. R. HIREMATHAD., ADVOCATE) AND:
SRI. S. RENUKA PRASAD SON OF LATE S. SHANKARAPPA AGED ABOUT 43 YEARS RESIDING AT DOOR NO.17, I FLOOR A STREET EAST LINK ROAD MALLESHWARAM, BENGALURU – 560 003.
(BY SRI.K.N. NITHISH, ADVOCATE FOR SRI. K. V. NARASIMHAN, ADVOCATE ) ... APPELLANT ... RESPONDENT THIS MISCELENEOUS FIRST APPEAL FILED UNDER SECTION 19(1) OF FC ACT AGAINST THE JUDGEMENT AND DECREE DATED 5.1.2011 PASSED IN M.C.NO. 1663 OF 2003 ON THE FILE OF THE III ADDL. PRL. JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 13(1)(IA) OF THE HINDU MARRIAGE ACT FOR DISSOLUTION OF MARRIAGE.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD AND RESERVED ON 07.02.2019 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
JUDGEMENT This appeal is filed by the wife calling in question the judgment dated 05.01.2011 passed in M.C.No.1663/2003 on the file of the III Addl. Principal. Judge, Bengaluru (for short, ‘Family Court’) whereby, the Family Court has dissolved the couple’s marriage solemnized on 21.11.1999 allowing the husband's petition under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 (for short, ‘H M Act’).
2. The facts as pleaded by the husband are as follows:
a) The couple, after solemnization of marriage on 21.11.1999, started residing with the husband’s parents in their residence in Malleshwaram, Bengaluru. He was informed that the wife was a graduate and she had completed her graduation in Hindi. However, immediately after the marriage, he learnt that the wife had not even completed 10th standard. The wife was given to extreme behaviour. She would quarrel with him and his aged parents for no obvious reason. She would use extremely foul and abusive language.
b) He is an engineering graduate, and is the only son of his parents. His parents own certain immovable properties in Bengaluru which yield rental income. The wife, who has not cleared her 10th standard, is one of the three daughters. The wife’s father died about seven years prior to the date of the marriage, and her elder sisters, being married, reside either in Bengaluru or Pune. Her mother stayed at Shivamogga at the time of the wedding. The couple have a son by name Master Tejas born on 28.11.2000.
c) The wife’s behaviour worsened with time, but he hoped that there would be a change in her behaviour after the child’s birth because she was in the family way. The child was born prematurely, and the child had to undergo prolonged hospitalisation involving huge costs. He, though unemployed at that time, met the expenses to save the life of both the mother and the son.
d) However, there was no difference in the wife’s behaviour. She started insisting upon him to set up a separate residence, and though he and his parents could not get along with her mother, she would insist on getting her mother over to stay with them. This only aggravated the difficulties for him and his parents. The wife, with passing time, became more insistent on setting up a separate residence though it was common knowledge that he, being unemployed, was financially dependant on his parents and his parents were dependent upon him because they were aged and he was their only son.
e) He and his parents lived under constant threats of being embroiled in criminal proceedings at her instance. She, without lodging any complaint, would prevail upon the jurisdictional police to call on him and his parents, and each time he had to explain his difficulties to the police, who on being appraised of his difficulties would advise the wife to tone down her behaviour and her insistence on setting up a separate residence. Nevertheless, the wife continued being abusive and insistent. She would not look after the child or attend to the household work, and she paid little attention to hygiene or cleanliness. His mother, who is aged, had to attend to the whole household work.
f) She persisted with her aggressive conduct, and in the month of September - October, 2003, she repeatedly prevailed upon the jurisdictional police to visit his residence in their entire strength. The frequent visits by the jurisdictional police and the ensuing commotion humiliated him and his family members. Her behaviour caused extreme mental agony to him, and continuing to live with her was a threat to his life.
3. The husband filed this petition in M.C.No.1663/2003 for divorce on 25.10.2003. Though the husband did not specifically state that he and his wife were residing under the same roof, he furnished his own address even for the wife in the cause title. Thus, suggesting that they lived together. However, in his evidence he has asserted (relying upon a complaint lodged by him with the jurisdictional police) that on 29.10.2003, he was constrained to lodge information with the jurisdictional police and seek their intervention. He has stated that in the evening on 29.10.2003, the wife, while working in the kitchen, dropped a milk vessel. His mother enquired with the wife and she unreasonably became very enraged. She attacked his aged parents, and when he had to intervene to protect his parents, the wife became even more aggressive. Later, he set up a separate house for the wife and the son. But he had to change the residence immediately thereafter because of the wife’s conduct who continued to be quarrelsome and abusive. This has put him through severe mental trauma.
4. The wife contested the petition denying the petition averment as regards her alleged abusive behaviour specifically asserting that as on the date of the petition, both of them were living together. She was unconditional in her love and affection for the husband and his parents, but they continuously harassed her. She would feel helpless because her father is no more and her mother stayed in Shivammoga. Insofar as the allegation that she should prevail upon the jurisdictional police to frequently visit the residence, she contended that she was under duress from the husband and his parents for dowry. There was a serious threat for her life as they had on one occasion tried to douse her with kerosene.
It was because of the constant and repeated threats, she would approach the jurisdictional police, who were of the opinion that the dispute was within the four corners of her marital life. The police neither registered the information nor initiated any action against the husband/his parents except taking a humane approach and counselling the husband to desist from holding out threats and to make an effort to lead a happy life. The husband at the intervention of the police set up a separate residence, and they have been living together. However, the husband has continued to prosecute the petition filed by him for dissolution of the marriage. Therefore, the petition was not maintainable.
5. The husband examined himself as PW.1 and marked three exhibits viz., the wedding invitation, a copy of the information lodged by him with the jurisdictional police on 29.10.2003 (subsequent to the date of filing of the petition), and the acknowledgment issued by the jurisdictional police for having received the information. The wife examined herself as RW.1. She marked Exhibits R.1 to R.5 which include a couple of correspondences with her mother and sister (and the translation because the correspondences are not in the vernacular or English), her medical records and a copy of the information lodged by her with the jurisdictional police on 23.10.2003.
6. The family Court heard the parties and formulated the following two points for its consideration:
“a) Whether the petitioner proves that the respondent/wife has treated him with cruelty.
b) What order.”
7. The family Court has accepted the husband’s oral testimony that the wife was difficult in her conduct because she would be hysterical without any obvious reason and be abusive using filthy language. The husband, who had to suffer such conduct, was put to further difficulty because the wife coerced him to set up a separate house threatening either to walkout out of the residence or initiate criminal proceedings. The family Court has concluded that the cumulative effect of insistence on setting up a separate residence abandoning his aged parents (who were dependent on him) and the constant threats/use of abusive language put the husband to mental agony. Therefore, the husband was able to establish the mental cruelty.
8. Further, the family Court has concluded that the husband’s trauma was heightened by the wife's repeated complaints to the jurisdictional police without formal information in writing and prevailing upon the jurisdictional police to repeatedly visit the residence. Furthermore, the family Court has accepted the husband’s version of what transpired on 29.10.2003 viz., the wife assaulting the husband’s aged parents because they enquired with her about the dropping of the milk vessel. The family Court, for the aforesaid reasons, has concluded that the husband was entitled for dissolution of marriage on the ground of cruelty.
9. Insofar as the wife’s defence that the husband, despite pendency of the proceedings, had made separate accommodation for her and the son, and he was also living with them in this separate accommodation while his aged parents lived separately, the family Court has concluded that the fact that the husband, the only son, was compelled to set up a separate residence, was a circumstance that would only lend credence to the husband’s case that he was subjected to cruelty. The family Court has not accepted the wife's evidence that they were living together in a separate accommodation, but has preferred to accept the husband’s version that he has made a separate accommodation only for the wife and the son but he is residing separately with his aged parents.
10. The family Court has further discarded the wife’s evidence that she was under duress to meet demand for dowry and therefore, she had to approach the jurisdictional police for help. The wife has relied upon the letters written by her to her elder sister/mother stating that her life had become a hell because she was unable to meet the demand for dowry and that she was under duress to meet the demand for a sum of Rs. 2 to 3 lakhs. It is her evidence that after exchange of these letters in the month of October 2003, her mother sent a Demand Draft dated 13.11.2003 for a sum of Rs.1,50,000/-, which she deposited into her account, and she has withdrawn this amount and given to the husband. The family Court has concluded that the letters being written in the month of October 2003 i.e., after the date of the present petition in October 2003, would not inspire confidence.
11. The learned counsel for the wife contended that the family Court has applied different yardsticks in appreciating the evidence placed on record by the husband and the wife. The family Court had to examine the wife's case in the light of the letters (Exhibits R1 - R3) which established that the wife had written to her sister and her mother pleading difficulties, and in response to such letters, her mother had sent a Demand Draft for a sum of Rs. 1,50,000/–. The family Court has discarded this evidence on the ground that the wife had not pleaded in the objection statement about either such correspondence with her sister/mother nor about receiving the Demand Draft and making over the amount of Rs.1,50,000/– to her husband, and that the correspondences are after the initiation of the divorce petition by the husband. But, the family Court should have seen that it is admitted by the husband that the couple were residing together, and therefore, the wife would be more concerned about not being precipitative. As such, the family Court could not have disbelieved the evidence in this regard on this ground. The family Court's failure to consider the evidence in this perspective has resulted in miscarriage of justice.
12. The learned counsel for the wife emphasized that the undisputed husband's evidence is that he has set up a separate residence for the wife and the son, and that he is also staying with them and paying for their maintenance. The husband has been categorical in these regards even in his examination-in-chief. This admission established the wife's case of continuing cohabitation, and because the husband had not even detailed the wife's conduct after they started living together in a separate residence, there was no evidence of cruelty as alleged.
13. The learned counsel canvassed that the circumstances should have been considered by the family Court more humanely, and in the light of the provisions of Section 23(1)(b) of the H M Act. The family Court's failure to consider the circumstances in the light of the provisions of Section 23(1)(b) of the H M Act renders the judgment perverse.
14. On the other hand, the learned counsel for the husband supported the judgment of the family Court contending that the wife, who was pleading that she was under constant threat because of dowry demand by the husband and his parents and therefore she had to repeatedly approach the jurisdictional police, had only placed letters/correspondence allegedly written by her in the month of October 2003. The evidence relied upon by the wife being post initiation of the proceedings for divorce by the husband in the month of October, 2003, as rightly concluded by the family Court, is too contrived to inspire confidence. Though the wife contended that a sum of Rs.1,50,000/– was made over in the month of November, 2003 to the husband after depositing the Demand Draft sent by her mother into her account and withdrawing cash, she had not placed any evidence to establish either the deposit of the Demand Draft or withdrawal or making over. The wife has not placed any material to reasonably infer that there was any demand for dowry either prior to the initiation of the petition or thereafter, and the aforesaid circumstances demonstrated that the wife had concocted a false case to justify the police intervention at her instance to coerce the husband to set up a separate residence.
15. Further, the learned counsel for the husband submitted that it is admitted that the husband had set up a separate residence, and is continuing to pay for the accommodation/maintenance despite pendency of the proceedings. The aforesaid circumstances established that the husband was under duress to abandon his aged parents and set up a separate residence. The circumstances of the case have been rightly considered by the family Court in concluding that the husband is able to establish cruelty and is entitled for dissolution of marriage on the grounds of cruelty. The appreciation of evidence by the family Court does not suffer from any perversity and as such, no grounds are made out for interference in this appeal.
16. It is obvious from the pleadings and evidence on record that the husband filed the present petition for divorce on grounds of cruelty under Section 13(1)(i-a) of the H M Act when the couple lived together under the same roof, and they continued to reside together under the same roof until the month of January 2004. The husband contends that after he set up a separate residence in the month of January 2004, and the wife and son started residing separately, but he continued to reside with his aged parents. The wife, while not disputing that the husband has set up a separate residence in the month of January 2004, and that such residence was later changed, contends that the husband and wife cohabit together in the separate accommodation/residence. The husband keeps visiting his parents. Thus, the wife contends that they continue to cohabit even now. Therefore, the questions that emerge for consideration are:
a) Whether the family Court has rightly appreciated the evidence on record in arriving at its conclusion that the husband is able to establish that the wife had subjected him to 'Cruelty' as of 23.09.2003, the date of the filing of the petition for dissolution of marriage on such ground.
b) Whether the wife is able to establish cohabitation even during the pendency of the proceedings for divorce by the husband, c) Whether the family Court has erred in not examining the respective plea in the light of the provisions of Section 23 of the Hindu Marriage Act, 1956, and if so, whether any interference is called for.
17. It is settled law that the relief under the provisions of the H M Act, including the relief of dissolution of marriage on the ground of 'cruelty', could be granted only if the Courts are satisfied that none of the conditions mentioned in Section 23 of the H M Act exist and that there are legal grounds for refusal of such prayer. The Courts grant relief under the provisions of the H M Act only if these criteria are met, and not otherwise. This would be irrespective of whether a petition for relief under the provisions of the H M Act is defended or not. The provisions of Section 23 of the H M Act reads as follows:
"23. Decree in Proceedings.-(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner except in cases where the relief sought by him on the ground specified in sub-clause (a), sub-clause (b) and sub- clause (c) of clause (ii) of section 5 is not in any way taking advantage of his or her own wrong or disability for the purposes of such relief, and (b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory or connived at or condoned the act or acts complained of, or where the ground of petitioner is cruelty the petitioner has not in any manner condoned the cruelty, and (bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and (c) the petition not being a petition presented under section 11 is not presented are prosecuted in collusion with the respondent, and (d) there is not been any unnecessary or improper delay in instituting the proceedings, and (e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise the court shall decree such relief accordingly.
(the underlining is by this Court) 18. Insofar as the courts' duty to examine whether a relief under the provisions of H M Act would be barred because of any of the conditions mentioned in Section 23 thereof, the important phrases in the section are, 'whether defended or not', 'if the court is satisfied, and 'then and in such a case, but not otherwise'. These phrases emphasize the courts' duty to examine the material on record to be satisfied that the relief/s under the provisions of the H M Act is/are not barred, and such relief/s are granted only if the courts are satisfied that the relief/s could be granted and not otherwise. This interdict under the statue is irrespective of whether pleading in this regard is taken or not taken by the concerned party. This should be the true import of the other phrase 'whether defended or not'. The Hon'ble Supreme Court in Dastane vs. Dastane reported in (1975) 2 SCC 326) has also held, while referring to the intent under Section 23 as an interdict, as follows:
“Even though condonation was not pleaded as a defence by the respondent it is our duty, in view of the provisions of section 23(1)(b) to find whether the cruelty was condoned by the appellant. That section casts an obligation on the court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be decreed only if we are satisfied "but not otherwise", that the petitioner has not in any manner condoned the cruelty. It is, of course, necessary that there should be evidence on the record of the case to show that the appellant had condoned the cruelty.”
The wife has not specifically referred to Section 23(1)(b) of the H M Act, but there is reference to the same inasmuch as she refers to continued cohabitation. The family Court should have examined whether the husband is able to establish ‘Cruelty’ by the wife. If ‘Cruelty’ is indeed established, whether there is cohabitation between the couple, and if there is cohabitation, whether that could be construed as condonation of ‘Cruelty’ by the husband. The family Court, without examining these aspects, could not have granted the relief of dissolution of marriage on the ground of ‘Cruelty’.
19. The husband has examined himself as PW1. He has stated that he had informed the wife even prior to marriage that it was important for him, being the only son, to look after his aged parents and he would need her support. He has also stated that, after initiation of the present petition, he had to set up a separate residence, and consequentially, his parents had to stay separately. He has further stated that he has been paying for the wife’s separate accommodation and certain amount regularly towards maintenance. His evidence that he had informed the wife about his keenness to look after his aged parents even before the marriage or that has set up separate residence is not challenged.
20. Further, the husband has stated that the jurisdictional police would repeatedly visit the residence at the wife’s insistence, and that there would be commotion at home. The jurisdictional police visited the residence on 23.10.2003, and thereafter, he filed the petition for divorce. Furthermore, he has stated that he was constrained to approach the jurisdictional police on 29.10.2003 because the wife physically assaulted him and his aged parents when she was asked about dropping a milk vessel. The husband’s evidence about the jurisdictional police repeatedly visiting the residence is challenged by suggesting to him that the wife was constrained to approach the jurisdictional police because of the harassment, and insofar as the police visiting the residence on 23.10.2003, it is suggested that she was compelled because she was doused with kerosene. However, the husband has denied these suggestions.
21. The wife has examined herself as RW.2. She has reiterated that she was harassed for dowry, and an attempt on her life was made by dousing her with kerosene because she was unable to meet the demand for dowry. Apart from their alleged incident of being doused with kerosene, the wife has also stated about she not being permitted to go to Shimogga for prenatal and postnatal care as another instance of harassment for dowry. She has stated that she was helped by her sister and brother-in-law when she was hospitalized for the birth of the child. She has also stated that they paid the hospitalization charges. Insofar as the efforts by her to meet the demand for dowry, and the help received by her from her family members, she has stated that her mother sent her a sum of Rs.1,50,000/- as dowry by way of Demand Draft. She encashed the Demand Draft, and made over the amount to her father-in-law. However, in the Cross- examination, she admits that her-in-law met all the hospital expenses when she was hospitalized for the birth of child, and she states that her in-laws abused her because the husband, who was employed in a private firm at the time of finalization of the wedding, quit employment and remained without employment significantly. She speaks about her family members visiting the marital home to advise the husband and her-in-laws, but she has not examined any person to establish the reason for such visits and the counseling.
22. The husband’s case is that he was under duress from the wife to set up a separate residence as she wanted to live separately, and this duress was created by the wife’s aggressive conduct with she impressing upon the jurisdictional police to repeatedly visit the residence. The wife, on the other hand, contends that she was under duress because the husband and his parents were demanding dowry, and that there was threat to her life. The husband and his parents, on one occasion, tried to douse her with kerosene. Therefore, she was constrained to repeatedly approach the jurisdictional police.
23. The husband, insofar as what transpired prior to the date of the petition has been consistent. His evidence that he had informed the wife, even before marriage, that his parents depended on him and he was keen to look after them has not been challenged. Similarly, he presented the present petition for divorce while the couple resided together, and he set up separate residence after the jurisdictional police counseled the couple on the husband’s complaint on 29.10.2003 is also not challenged. These circumstances bespeak of duress and compulsion on the husband compelling him to lodge information with police, an extreme circumstance by itself given the other circumstances of the case.
24. On the other hand, as is obvious from an analysis of her evidence, the wife is not consistent in her allegations as regards harassment for dowry. Further, the wife has been elaborate about her sisters/brothers-in law supporting her in going to the police station and also in meeting the demand for dowry. But she has not examined anyone. Insofar as the payment of Rs.1,50,000/- as dowry, her evidence is twofold. There was insistence by the husband/his parents for dowry and therefore, she wrote to her sister and mother. The mother sent Demand Draft in the month of November 2003 which she encashed and made over to the husband.
25. The wife in support of the first fold has relied upon letters she has written to her sister/ mother. But, as observed by the family Court, not only the letters are dated after the initiation of the proceedings but there is no pleading in this regard in the Objection Statement filed by the wife in the month of December, 2004, which is after 12 months from the date of initiation of the petition. This creates serious doubt. Insofar as the second fold viz., receipt of Demand Draft from the mother, deposit of the same into her account and making over the amount to the husband after withdrawing, there is no evidence at all except her own testimony. Her evidence, shorn of necessary details, is difficult to accept, and it is equally difficult to accept that the jurisdictional police would not initiate action against the husband and his family members if they had doused her with kerosene as asserted.
26. It is essentially from these circumstances, it will have to be ascertained whether the husband was subjected to Cruelty, or whether the wife was under duress. It is settled law that even in matrimonial cases, the evidence on record will have to be measured on the scale of preponderance of probabilities. This exercise of measuring the evidence on the scale of preponderance of probabilities involves weeding out the impossible and improbable, and from a wide range of probabilities, believe, from a prudent man's perspective, that a particular fact exists. If the material discussed above is thus examined, it is established that the husband, who was compelled to set up a separate residence abandoning his aged parents because of the wife's conduct, would be greatly disappointed by the turn of events and subject to anguish and harassment. In the considered opinion of this Court, it cannot be reasonably inferred that the wife was under duress for dowry, and it is the husband who had to yield to some duress and setup a separate residence. As such, this Court is of the considered view that the husband is able to establish cruelty.
27. This takes us to the second facet of the case i.e., whether the cohabitation between the couple, as asserted by the wife, is established, and if cohabitation is established, can it be reasonably inferred that the husband has condoned the cruelty by the wife. The husband's case is that he has set up separate accommodation for the wife and son, but he continues to reside with his parents. The wife contends that the husband is living with her and the son. There is no dispute that the husband's father died a few years prior to the date of commencement of recording of evidence. But, the husband in his chief examination has stated as hereunder:
'After the above incident I made a separate house on 29.1.04 and took respondent to separate house. Again on 4.3.05 I changed to other house as owner of the house requested to vacate the house. Even in separate house also, respondents behaviour has not improved, but she has been quarrelling with me and abuses me with filthy language, tortures me mentally without allowing me to be peaceful in the house'.
Even in the cross examination, he has continued in the same vein. His cross examination in this regard reads as follows:
"It is true for the last 2 years myself and my wife and child residing separately from my parents. It is also true I took separate house on rent. It is true, on the advice of my elderly people and the police I took separate house for our living"
He further states in the cross examination that his mother-in- law has not visited him or his wife in the separate accommodation that they have been living and it was one of his conditions that his wife's relatives must not visit the house. In the light of this evidence, there cannot be any doubt about the cohabitation between the husband and wife even after the initiation of the petition by the husband. The family Court has not considered this unequivocal and clear admission by the husband of cohabitation even during the pendency of the proceedings.
28. The Hon'ble Supreme Court in Dastane vs.
Dastane supra has elucidated that condonation, as contemplated under Section 23(1)(b) of the H M Act, would mean two things: forgiveness and restoration. The forgiveness being from the spouse who has suffered matrimonial offence, and the restoration being the resumption of matrimonial relationship between the spouses. The Hon'ble Supreme Court has declared that, “condonation under section 23(1)(b) therefore means conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed.”
29. The twin elements of condonation viz., forgiveness and restoration, in each case will have to be reasonably inferred from the probabilities as borne out by the material on record. In the present case, the twin elements of condonation can be reasonably inferred from the fact that there is cohabitation between the couple, that too on the husband's terms as is obvious from the husband's own evidence. Though the husband has contended that the wife has continued with her abusive behaviour, he has not placed any material on record from which the wife's continued difficult conduct or attitude i.e., even after they shifted residence can be reasonably inferred. On the other hand, the wife has stated in her evidence that though they lived together under one roof, both, on the court hearing dates, start from home in the morning to attend the court. The husband goes to his lawyer's office, and she to her lawyer's office because the husband was prosecuting the case. The wife has further stated that otherwise they live together as husband and wife. There is no reason to disbelieve this evidence.
30. In the aforesaid circumstances, this Court is of the considered view that though the husband is able to prove that the wife had subjected him to cruelty prior to the initiation of the petition, but the wife is able to prove condonation of such cruelty. However, the husband has not established any cruelty on the part of the wife post such condonation, a necessary concomitant for the husband to revive his case of cruelty by the wife. The family Court has allowed the petition without examining the evidence on record in the light of the settled law. Therefore, the wife has made out grounds for interference in this appeal, and the points for consideration formulated are accordingly answered.
31. Insofar as the pending applications filed by the wife under Section 24 of the H M Act, in view of the finding by this Court resulting in restoration of the marital status, which was put in hiatus because of the impugned judgment, it is held that the husband would be obliged to pay maintenance to the wife. The son, born on 28.11.2000, is a major. This Court vide the order dated 21.04.2011 has directed the husband to pay a sum of Rs.6500/- per month exclusive of house rent and tuition fee for the son. This Court has directed the husband to pay this amount on or before 10th of every month. The husband in his evidence has admitted that his family owns immovable properties in Bengaluru that fetch rental income. In view of the circumstances of the case, and because of the lapse of time, this Court is of the considered view that in exercise of the jurisdiction under the provisions of Section 25 of the H M Act, the husband-respondent should be called upon to pay a sum of Rs.10,000/- every month to the wife-appellant, exclusive of the house rent, on or before 10th of every month, and also meet exigent expenses like health expenses that may become necessary.
For the foregoing reasons, the appeal is allowed. The judgment and decree dated 5.1.2011 passed in M.C.No.1663/2003 on the file of the III Addl. Principal Family Court Judge, Bengaluru, is set aside. The petition filed under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, is dismissed. The respondent-husband is directed to pay to the appellant-wife from the date of this judgment, a sum of Rs.10,000/– every month on or before 10th of each month as maintenance for the wife exclusive of House Rent, and the husband shall also be obliged to meet all exigent expenses that would be necessary for the wife like health expenses.
The office is directed to draw decree accordingly.
In view of the disposal of the appeal in the above terms, all the pending applications are disposed off subject to the aforesaid order.
Sd/- Sd/-
JUDGE JUDGE nv* ct:sr