IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.23167 OF 2016(GM-FC) BETWEEN:
SMT.MELO KAMALAM W/O VIMALANATHAN SIGAMANI AGED ABOUT 42 YEARS R/AT NO.19/1, 1ST FLOOR 2ND MAIN, IV CROSS, GANGANAGAR EXTENSION R.T.NAGAR POST, BANGALORE – 560 032.
(By Mis.P.ANUCHANGAPPA, ADV.) AND:
SRI.VIMALANATHAN SIGAMANI S/O S.THIAGARAJ AGED ABOUT 45 YEARS C/O MICROSOFT INDIA R & D PVT. LTD., LEVEL-II & III, BLOCK D EMBASSY GOLF LINKS BUSINESS PARK OFF INTERMEDIATE RING ROAD BANGALORE – 560 071.
… PETITIONER (By Mr.S.V.SHASTRI ADV. FOR C/R) - - -
… RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 29.01.2016 PASSED UNDER SECTION 36 OF THE DIVORCE ACT IN I.A.-5 IN M.C.NO.3492/11 PASSED BY IV ADDITIONAL FAMILY JUDGE (ANNEXURE-A) AND CONSEQUENTLY DIRECT THE RESPONDENT TO PAY A SUM OF RS.20,000/- TO THE PETITIONER TOWARDS MONTHLY MAINTENANCE AND RS.15,000/- TOWARDS LITIGATION EXPENSES.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mis.P.Anuchangappa, learned counsel for the petitioner.
Mr.S.V.Shastri, learned counsel for caveator/respondent.
2. The writ petition is admitted for hearing.
With consent of 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 29.01.2016 by passed by the Family Court, Bangalore, by which application filed by the petitioner under Section 36 of the Indian Divorce Act, 1869 (hereinafter referred to as ‘the Act’ for short) seeking a sum of Rs.20,000/- towards interim maintenance and a sum of Rs.15,000/- towards litigation expenses has been rejected.
4. Facts giving rise to filing of this petition briefly stated are that on 04.01.2002, the parties got married and it is the case of the petitioner that she was required to leave the matrimonial home along with her two children on 06.03.2011 on account of threat to her life. The respondent initiated the proceeding on 13.10.2011 seeking divorce. The petitioner filed an application on 27.10.2014 under Section 36 of the Act seeking maintenance. The aforesaid application has been rejected by the Family Court by impugned order. In the aforesaid factual background, this petition has been filed.
5. Learned counsel for the petitioner while inviting the attention of this court to paragraphs 7 to 9 of the affidavit filed before the Family Court submitted that the Family Court has failed to take into account the averments made in the aforesaid paragraphs are in a cryptic and cavalier manner has rejected the application submitted by the petitioner. It is further submitted that respondent is employed as Support Escalation Engineer and admittedly he is getting a salary of more than Rs.1,00,000/- p.m., which is evident from the additional affidavit filed by the respondent before the Family Court dated 26.07.2008. On the other hand, learned counsel for the respondent has submitted that the respondent is taking care of two minor children and the petitioner has sufficient means and income to maintain herself. In this connection, the respondent has invited the attention of this Court to the e-mails sent by the petitioner in the year 2013 and has pointed out from Annexure-R8 that the petitioner is the owner of the property which has been mortgaged with the Indian Bank. In support of aforesaid submissions, reliance has been placed on decision of Madhya Pradesh High Court in ‘MAMTA JAISWAL VS. RAJESH JAISWAL’, II (2000) DMC 170 and a decision of Madras High Court in ‘MANOKARAN @ RAMAMOORTHY VS. M.DEVAKI’, AIR 2003 MAD 212.
6. I have considered the submissions made by the learned counsel for the parties and have perused the record. The petitioner has made the following statements in paragraphs 7 to 9 of the affidavit dated 27.10.2014, which read as under:
7. I further state that as I could not secure a job, I started a windmill business but suffered losses in that too. I have no means of sustenance at all. I am still continuing to pay interest for the jewel loan pledged for the petitioner, my husband.
8. I state that my house rent in Bangalore is Rs.5500 water and electricity charges add up to another Rs.1500-2000/- I require another Rs.10,000/- for my food and day to day expenses. I require another Rs.2,000/- for miscellaneous expenses the telephone commuting expenses, newspaper, maids salary and medicines etc.
9. I state that the petitioner holds the position of Support Escalation Engineer in Microsoft India R & D Private Limited and earns more than 12 Lakhs per annum. He is capable of providing for me as he earns a handsome salary.
8. The respondent in the additional affidavit in para 14, which is dated 26.07.2018 has stated that he has employed as support escalation Engineer and he is getting a salary of more than Rs.1 Lakh p.m., which reads as under:
14. I state that, I am working in Microsoft India R & D Pvt. Limited as Support Escalation Engineer and getting a salary of more than 1 lakh per month. My elder son has passed 9th Grade and now Studying in 10th Grade. My younger son has passed 3rd grade and studying in 4th grade and children are studying CBSC syllabus in an International school. From 19.05.2011 till date both sons are living with me and sons are attached to each other and children are brought up in an open, respected and friendly culture. Apart from academic studies the two sons are taking part in various activities. Elder son learned to play musical instruments such as the electric and acoustic guitar. He understands musical notations and plays by sheet music. He sings western and won first prize in competitions as well. The certificates and photographs are marked as Exhibits. Younger son plays Electronic Keyboard (Piano) in school assembly. He understands musical notations and plays by sheet music. Both the children are avid western singers, they had a good stint in global gospel Choir “Glorious” and participated in several on stage performance which was attended by few thousand people year on year, some events by sharing stage and singing along with “Hillsong – Australia” and “Parra Gospel Rock Band”. They have attended several “Music summer camps” conducted by Glorious Bengaluru. Both of them attended cricket coaching classes and Japanese Mathematics class (Kumon). Some photographs and sample event participation details are marked as Exhibits.
9. Admittedly, the petitioner is taking care of the minor children. However, the fact remains that he is under a legal obligation to maintain the petitioner who is his legally wedded wife. From the averments made in para 7 & 8 in the affidavit sworn in by the petitioner on 27.10.2014 it is evident that the petitioner is not able to maintain herself and therefore the respondent is under an obligation to maintain his wife. However, the family court has not considered the aforesaid aspect of the matter and merely on the basis of the fact that share capital of the company of the petitioner wife was Rs.20 Lakhs has come to the conclusion that the petitioner is financially sound and has sufficient means to maintain herself. The aforesaid finding is cryptic and has been recorded in a cavalier manner and suffers from the vice of non application of mind.
10. So far as reliance placed by learned counsel for the respondent in the case of ‘SRI.MAMTHA JAISWAL’ is concerned, in the aforesaid case the petitioner wife was granted maintenance at the rate of Rs.800/-p.m and it has been held that inaction on the part of a well qualified spouse for not earning a source of livelihood should not be encouraged. In the instant case, the petitioner wife in para 7 of the affidavit has stated that she has not able to secure the job, therefore the aforesaid decision has no application to the fact situation of the case. Similarly, the decision of Madras High Court in the case of ‘MANOKARAN’ supra has no application to the fact situation of the case as on the facts of that case it was found that the petitioner wife was able to maintain herself. The impugned order therefore cannot be sustained in the eye of law it is therefore quashed and set aside. Taking into account the income of the respondent, which is above Rs.1 Lakh per month as well as the fact that he is taking care of the minor children it is directed that the respondent shall pay a sum of Rs.15,000/- to the petitioner by way of maintenance from the date of application filed by the petitioner. Taking into account the fact that the proceeding seeking divorce are pending since 2011, I deem it appropriate to direct the family court to decide the proceeding within a period of three months from the date of receipt of certified copy of the order passed today.
Accordingly, this petition is disposed of.
Sd/- JUDGE SS