IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY, 2017 BEFORE THE HON’BLE MR. JUSTICE A S BOPANNA WRIT PETITION No.31297/2016 (GM-FC) C/W WRIT PETITION No.20146/2016 (GM-FC) BETWEEN:
NAVEEN KUMAR M N S/O NARAYANACHAR, AGED ABOUT 39 YEARS, R/AT NO.160, PADMAM FLATS, 22ND A MAIN, 1ST CROSS, RAGHAVENDRA LAYOUT, PAMANABHANAGAR, BANGALORE-560070.
(BY SRI. SHIVARAMA BHAT O, ADV.) AND:
SMT. B R VEENA W/O NAVEEN KUMAR M.N. AGED ABOUT 37 YEARS, R/AT FLAT NO.D 103, VAISHNAVI RATHNAM APARTMENTS, S.M.ROAD, T. DASARAHALLI, BANGALORE-560057.
... PETITIONER (COMMON) ... RESPONDENT (COMMON) (BY SRI. K PRAKASH & SRI DEEPAK J DESAI, ADVS.) W.P.NO.31297/2016 IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE ORDER DATED 02.01.2016 PASSED ON I.A.II IN O.S.230/2014 ON THE FILE OF VTH ADDL. PRL. JUDGE, FAMILY COURT AT BENGALURU VIDE ANNEX-A.
W.P.NO.20146/2016 IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE ORDER DATED 02.01.2016 PASSED ON I.A.II IN M.C.NO.3728/2014 ON THE FILE OF I ADDL. PRL. JUDGE, FAMILY COURT AT BENGALURU VIDE ANNEX-A.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R In both these petitions, the parties are the same. Hence, these petitions are taken up together as it arises out of matrimonial dispute between the same parties and is disposed of by this common order.
2. In W.P.No.31297/2016 the petitioner-husband is assailing the order dated 02.01.2016 passed in O.S.No.230/2014. In W.P.No.20146/2016, the petitioner-husband is assailing the order dated 02.01.2016 passed in M.C.No.3728/2014 whereby the maintenance of Rs.15,000/- is granted in respect of two children of the parties.
3. For the purpose of convenience and clarity, wherever the context requires, the parties would be referred to as the ‘husband’ and ‘wife’ as they are differently arrayed in the petitions before the Court below. At the outset, the order passed in M.C.No.3728/2014 is taken for consideration. The respondent-wife has filed the petition seeking dissolution of marriage. In the said proceedings, she has filed the application in IA No.II under Section 24 of the Hindu Marriage Act, 1955 seeking interim maintenance. Learned counsel for the husband contends that the application under the said provision would not be maintainable, keeping in view the fact that under Section 26 of the said Act, the power to provide maintenance for the children is available. The consideration as made by the Court below is what requires to be taken note for the purpose of arriving at the conclusion as to whether the order ultimately passed is justified or not.
4. The fact that both the husband and wife are employed is not in dispute. Though the Court below has taken the income of the husband at Rs.95,000/- per month, learned counsel for the husband would contend that the actual income of the husband is Rs.75,000/- per month. In any event, the fact that the wife is employed and has her own income which is similar to the income of the husband cannot be in dispute. Even if that be the position, what is to be considered is the appropriate maintenance that is required for the children keeping in view the status of the family.
5. In that regard, the Court below in the background of the income of the parents and also taking into consideration the fact that the elder daughter was admitted in the Carmel Kinder Garten and the fee being paid there is Rs.9,900/- per quarter and also the fact that the second child is to be admitted to Vidhya Soudha Public School, has arrived at the conclusion that the maintenance is to be paid at Rs.10,000/- and Rs.5,000/- respectively. Insofar as the consideration as made by the Court below there is no error whatsoever.
6. However, the quantum of Rs.10,000/- per month for a child aged about 7 years, more particularly when the mother who is also employed would have to contribute her part towards the maintenance, would be slightly excessive. Hence insofar as the first child is concerned, the quantum of maintenance is reduced to Rs.8,000/- per month while the sum of Rs.5,000/- per month ordered for the benefit of the second child is maintained.
7. Insofar as W.P.No.31297/2016, the same arises out of the suit in O.S.No.230/2014. The suit in question is filed by the wife seeking for partition and separate possession of her share in the properties to which she claims to have contributed for the purchase of the same.
In the said suit, the wife has filed an application in IA-II under Order XXXIX Rules 1 and 2 CPC seeking ad-interim temporary injunction to restrain the husband and persons claiming under him from alienating or encumbering the suit schedule properties.
8. Learned counsel for the husband while assailing the said order would contend that the suit of the present nature itself would not be maintainable. Even if the averments that she has contributed for the purchase of the properties is taken into consideration and when the purchase is not a joint purchase, at best she could only seek for recovery of the amount and not for partition is the contention. Even if the said contention is kept in view, ultimately the rights of the parties in respect of the suit schedule properties is to be determined either for directing refund of the amount or for an equal share in the said properties.
9. Therefore in the said circumstance, until the suit is decided between the parties, the subject matter of the suit is to be retained in tact. In that circumstance, the injunction as granted by the Court below is justified and the same does not call for interference. Needless to mention that the observations of the Court below as also this Court would stand limited only insofar as the interlocutory applications are concerned and any of the observations shall not weigh in the mind of the Court below while deciding the main matter which shall be done based only on the evidence and the material that would be available before the Court at the time of passing the final judgment.
In terms of the above, both these petitions stand disposed of.
Sd/- JUDGE akc/bms