IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL R.P.F.C.NO.41 OF 2017 BETWEEN:
PURUSHOTHAM S/O RANGAPPA AGED ABOUT 43 YEARS R/AT NO.49, 3RD CROSS PENSION BLOCK, RAJENDRANAGAR MYSURU DISTRICT – 570 002 WORKING AT C.I.S.F. SOUTH ZONE HEAD QUARTERS, D.BLOCK RAJAJI BHAWAN, BASANTH NAGAR POST CHENNAI, TAMILNADU – 600 090 ...PETITIONER (BY SRI C.M.JAGADEESH, ADV.) AND 1. SMT.VANITHA W/O PURUSHOTHAM D/O KEMPARAJU AGED ABOUT 31 YEARS 2. MASTER GAGAN S/O PURUSHOTHAM AGED ABOUT 6 YEARS SINCE MINOR HE IS REPRESENTED BY HIS NATURAL GUARDIAN 1ST RESPONDENT BOTH ARE R/AT NO.474/1 NORTH EAST OF N.R.MOHALLA MYSURU, MYSURU DISTRICT – 570 003 ...RESPONDENTS (BY SRI L.MAHESH AND SRI P.S.NETHRESHA, ADVOCATES) THIS R.P.F.C. IS FILED UNDER SECTION 19(4) OF FAMILY COURTS ACT, AGAINST THE ORDER DATED 02.12.2016 PASSED IN C.MIS.NO.13/2013 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, MYSURU, PARTLY ALLOWING THE PETITION FILED UNDER SECTION 125 OF CR.P.C.
THIS R.P.F.C. COMING ON FOR FINAL DISPOSAL THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R “Whether the order of the Principal Judge, Family Court, Mysuru in C.Misc.No.13/2013 awarding maintenance of `Rs.10,000/- per month to the first respondent and `5,000/- per month to the second respondent with litigation expenses suffers impropriety and illegality?”, is the question involved in this case.
2. Respondent No.1 is the wife and respondent No.2 is the son of the petitioner. The marriage of the petitioner and the first respondent was solemnized on 04.06.2010 at Mysuru. At that time, the petitioner was working in Central Industrial Security Force at Delhi. Even now he is in the said service and now posted at Mangaluru. Second respondent was born in March 2011. The marriage of the parties did not sail well.
3. Respondents filed Crl.Misc.No.13/2013 under Section 125 Cr.P.C. before the Principal Judge, Family Court at Mysuru, alleging that the petitioner and his parents subjected respondent No.1 to cruelty in connection with their unlawful demands and he did not perform his marital and family obligations and deserted them. They claimed monthly maintenance of `25,000/- and litigations expenses of `10,000/-.
4. The petitioner contested the said petition alleging that the first respondent herself was guilty of desertion and she was a nagging wife and she was not ready to join the petitioner.
5. In his statement of objections, he claimed that he was and is always ready and willing to take the respondents to his fold and maintain them.
6. Before the trial court, the first respondent/wife was examined as PW-1 and the petitioner was examined as RW-1. They adduced documentary evidence at Exs.P1 to P19 and Exs.R1 to R24.
7. The trial court after hearing both side by the impugned order held that the petitioner having sufficient means has failed and neglected to maintain the respondents and his contention that he was always prepared to take his wife and child to his fold was unacceptable by his own admissions in the cross- examination.
8. The trial court further held that the petitioner was drawing salary of `31,686/- per month without making any provision for the wife and child and awarded maintenance of `10,000/- to the wife and `5,000/- to the child per month from the date of the petition till the child attains majority and during the life time of the wife. The trial court also awarded litigation expenses of `5,000/-.
9. Learned Counsel for the petitioner submits that wife herself was guilty of desertion, she subjected the petitioner and his parents to harassment and that was evident from the records. He submits that the trial court failed to appreciate the evidence on record regarding willful negligence judiciously.
10. So far as the quantum of compensation, he submits that the petitioner has dependant parents and handicapped brother and the trial court did not take that into consideration while awarding the maintenance.
11. Per contra, learned Counsel for the respondents submits that the evidence on record shows that the petitioner was never sincere in taking his wife and child to his fold, which was evident by his own admissions. He further submits that no evidence was adduced to show that petitioner’s parents and brother were dependent on him and the conduct of the petitioner all along was deprecable.
12. The petitioner did not dispute either in his statement of objections or in the evidence that after his marriage with the first respondent at any point of time, he took her to his work place and set up the family there. There is no dispute that on the ground of matrimonial dispute only, posting of the petitioner was changed from Delhi to Chennai with the advice by his higher officers to set up a house in Chennai and lead family life. That did not materialize.
13. There is no dispute that the first respondent herself along with her family members went to Delhi to join the petitioner and a quarrel took place there and they came back. There is no dispute that the wife has filed criminal case against the petitioner and his family members alleging dowry harassment even before the criminal miscellaneous case was filed. Though the petitioner claimed that wife herself was guilty of desertion, he did not initiate any legal action for restitution of conjugal rights.
14. It is submitted that only after these proceedings, now the petitioner has filed M.C.No.6663/2019 before the Family Court at Mysuru, seeking dissolution of marriage on the ground of cruelty. Nowhere the petitioner claims that after the birth of the child, he paid any maintenance for the child. He has not even filed any petition seeking custody of the child or visitation rights.
15. Though the petitioner made a tall claim in his statement of objections that he was ever ready and willing to live with his wife but she only deserted him, in his cross-examination he disowned the statement made in his pleading to that effect. To the suggestion that whether he was even at that time ready to take his wife back, he said that his parents find it difficult to take her back. Thus it is clear that the alleged offer of staying together had no sincerity and was a hollow. Therefore, the finding of the trial court with regard to willful negligence or failure of the petitioner in maintaining his wife and child is based on the sustainable evidence and suffers no infirmity.
16. So far as the quantum of maintenance, the petitioner admitted his salary slip Ex.P19. As per the said document, his gross salary was `31,686/- as on July 2016. Out of that, he made a deduction of `12,000/- towards General Provident Fund.
17. Learned Counsel for the petitioner relied upon a judgment of the Hon’ble Supreme Court in Kalyan Dey Chowdhury –vs- Rita Dey Chowdhury Nee Nandy reported in AIR 2017 SC 2383 to contend that 25% of the husband’s net salary would be just and proper to be awarded. A reading of the said judgment shows that in the said case, there was a male child and he had already attained majority, therefore, 25% of the net salary was awarded towards maintenance of the wife alone.
18. In the present case respondent No.2 is a minor child. In the case on hand, the petitioner did not adduce any evidence whether the GPF deduction of `12,000/- was a statutory deduction and if so, for his pay scale, which amount should have been the compulsory deduction. Therefore, the said judgment is not applicable to the facts of this case.
19. The trial court has awarded less than 50% of his gross salary for the maintenance of two persons. Therefore, by no stretch of any imagination, it can be said that the quantum of compensation and litigation expenses awarded are disproportionate. There is no merit in the petition. Therefore, the petition is dismissed.
The amount in deposit shall be disbursed to the respondents.
Sd/- JUDGE KNM/-