IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.9377 OF 2017 (GM-CPC) BETWEEN:
MANJANA GOUDA S/O BASAVANA GOUDA, AGED ABOUT 7 YEARS, MINOR, C/O C.K.RAJAPPA, R/O CHALLEGERI UJJAPPARA HOUSE, HOSA BATHI, DAVANAGERE TALUK – 577 007.
REPRESENTED BY:
GUARDIAN AND NATURAL MOTHER SMT.ASHA W/O BASAVANA GOUDA, AGED ABOUT 26 YEARS, HOSA BATHI – 577 007.
DAVANAGERE TQ.
(BY SRI.K.N.LINGARAJU, ADVOCATE FOR SRI.REVANNA BELLARY, ADVOCATE) AND:
1. BASAVANA GOUDA S/O CHANDRA GOUDA, AGED ABOUT 34 YEARS, AGRICULTURIST, 2. SRI.CHANDRE GOUDA S/O BASAPPA, AGED ABOUT 61 YEARS, AGRICULTURIST, …PETITIONER 3. SMT.LALITHA W/O CHANDRE GOUDA AGED ABOUT 59 YEARS, HOUSEHOLD, AGRICULTURIST, 4. SRI.EARANNA GOUDA, S/O CHANDRE GOUDA, AGED ABOUT 32 YEARS, AGRICULTURIST, RESPONDENTS NO.1 TO 4 ARE RESIDENTS OF MAKANUR VILLAGE, RANEBENNUR TALUK – 581 123, HAVERI DISTRICT.
5. SMT.SUJATHA KUDERA W/O MANJAPPA KUDERA, D/O CHANDRE GOUDA, AGED ABOUT 26 YEARS, AGRICULTURIST, R/O MAKANUR, RANEBENNUR TQ, HAVERI DIST. – 581 123.
6. SMT.NAGARATHNA W/O UMESHA, D/O CHANDRE GOUDA, AGED ABOUT 22 YEARS, AGRICULTURIST, R/O KUNAGALI, HOLALKERE TQ, CHITRADURGA DIST. – 577 526.
…RESPONDENTS (BY SRI.SANTHOSH R.NELKUDRI, ADVOCATE FOR SRI.VIGNESHWAR S.SHASTRI, ADVOCATE FOR R1; NOTICE TO R2 TO R6 IS D/W V/O DT: 10.04.2017) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE TE IMPUGNED ORDERS ON I.A.NO.2 DATED 01.02.2017 IN O.S.NO.74/2016OF PRL.SENIOR CIVIL JUDGE AND JMFC COURT, RANEBENNUR VIDE ANNEXURE-E AND ALLOW I.A.NO.2 BY GRANTING INTERIM MONTHLY MAINTENANCE RS.15,000/- TO THE PETITIONER TILL DISPOSAL OF SUIT O.S.NO.74/2016 THE IMPUGNED ORDER OF THE TRIAL COURT IS AT ANNEXURE-E AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner being the minor plaintiff in a partition suit in O.S.No.74/2016, is invoking the writ jurisdiction of this court for assailing the order dated 01.02.2017, a copy whereof is at Annexure –E, whereby his application filed under Section 151 of CPC, 1908 for grant of maintenance has been rejected by the learned Prl. Sr. Civil Judge & JMFC, Ranebennur.
2. After service of notice, the respondents/defendants have entered appearance through their counsel who vehemently opposes the Writ Petition on the ground that such an application for maintenance does not lie in a partition suit; the properties in the suit in all do not belong to the 1st respondent-father; there is no source of income to the said respondent; petitioner is being looked after by his mother who has left the matrimonial home of the joint family.
3. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court is of the considered opinion that relief needs to be granted to the petitioner-minor boy [10 years old] for the following reasons:
(a) the marriage between the 1st respondent and petitioner’s mother is not in dispute; the legitimacy of petitioner is also not in dispute; petitioner and his mother are residing separately is also admitted in the Written Statement although it is alleged that such separate residing is unjustified; petitioner’s mother has left the matrimony alleging that the 1st respondent-father does not live in chastity and that he is in the company of other women;
(b) petitioner admittedly is the minor son who needs to be looked after by the 1st respondent-father, regardless of he having property or not; the right to look after minor children is not dependent upon wealthyness of father, when minor has no source of income; Mayne’s Hindu Law, 16th Edition at Paras 722 & 723 states as under:
“722. Aged parents and minor son – The maintenance of a wife, aged parents and a minor son is a matter of personal obligation arising from the very existence of the relationship and quite independent of the possession of any property, ancestral or acquired. A text of Manu cited in the Mitakshara and the Parasaramadhaviya says: “It is declared by Manu that the aged mother and father, the chaste wife and an infant child must be maintained even by doing a hundred misdeeds… 723. Son-While the obligation to maintain a minor son is personal and independent of the possession of any property, the obligation to maintain a grown-up son rests upon the latter being a co-sharer in the property of which his father is the manager….”
(c) the suit schedule properties are numerous and valuable although the 1st respondent-father contends that his share therein is too small i.e., 1/30th; this again is bit difficult to accept in the absence of material particulars in his pleadings, in support thereof; it is not the case of the 1st respondent that he is neither an able-bodied man or that he is otherwise incapable of earning; nor it is his case that his wife i.e., petitioner’s mother is capable of earning the livelihood for herself and for the minor; therefore, the 1st respondent cannot escape from the legal, religious and moral obligations of maintaining his legitimate minor child; and, (d) the contention that in a suit for partition, an application for maintenance for the benefit of minor is misconceived, is unsustainable; this court and other High Courts have consistently taken the view that such a claim lies even in a partition suit; the contention that petitioner has got an alternate remedy u/s 125 of Cr.P.C, 1973 or under other law is a poor solace to the starving child; after all, the availability of alternative remedy is no bar for exercise of writ jurisdiction in matters involving the life of a minor child; and, (e) keeping in view all aspects of the matter, justice can be meted out to both the sides if the maintenance at the rate of Rs.8,000/- per month is awarded that too w.e.f. 01.10.2019 i.e., prospectively and not from the date the application was filed on 30.04.2016; [by this 1st respondent would save more than Rs.3,00,000/- (Rupees Three Lakh), which otherwise he would have been made liable for].
In the above circumstances, this Writ Petition succeeds; the impugned order is set at naught; petitioner’s application filed under Section 151 of CPC, 1908 having been favoured, the 1st respondent-Basavana Gouda is directed to pay a sum of Rs.8,000/- by way of monthly maintenance on or before 5th day of every calendar month, to the petitioner, with effect from 01.10.2019.
The learned trail judge is directed to take all necessary steps to ensure the compliance with this order so that the maintenance amount reaches the hands of petitioner’s mother cum minor guardian Smt. Asha W/o Basavana Gouda in time, if necessary even by arrest and detention of the 1st respondent, should the same becomes inevitable, no other option availing.
The 1st respondent is liable to pay a cost of Rs.5,000/- to the petitioner being the litigation costs within one month.
MH/-
Sd/- JUDGE