IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.7336 OF 2017 (GM-FC) BETWEEN:
MRS. SHALINI W/O S.VINOD MARTIN AGED ABOUT 31 YEARS NO.503/1, 8TH BLOCK KORAMANGALA, K.R. GARDEN BANGALORE-560097.
(By Ms.MAITREYI KRISHNAN, ADV., FOR Mr. CLIFTON D. ROZARIO, ADV.) AND:
MR. VINOD MARTIN S/O SAMUEL AGED ABOUT 31 YEARS NO.60, 4TH CROSS, BABUSAPALYA NANJAPPA GARDEN BANGALORE-560043.
(By Mr. H.V. BHANUPRAKASH, ADV.(ABSENT)) - - -
… PETITIONER … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DTD:5.10.2016 PASSED BY THE LEARNED II ADDITIONAL FAMILY COURT AT BANGALORE DISMISSING THE IA NO.5 FILED BY THE PETITIONER UNDER SECTION 43 OF THE DIVORCE ACT, 1896 IN M.C.NO.2105/2014 ANNEXURE-H & ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Ms.Maitreyi Krishnan for Mr.Clifton D.Rozario, learned counsel for the petitioner.
None for the respondents.
2. In this petition under Articles 226 & 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 05.10.2016, by which application filed by the petitioner seeking a direction to the respondent to pay educational expenses of the minor son has been rejected.
3. Facts giving rise to the filing of the petition briefly stated are that admittedly, the parties to this proceeding were married on 17.01.2013 and a son was born to them on 08.02.2014. The petitioner filed an application under Section 36 of the Indian Divorce Act, 1869 (hereinafter referred to as ‘the Act’ for short), in which the Trial Court granted an impugned order directing payment of maintenance of Rs.3,000/- p.m. to the petitioner and her minor child who was aged about 1 year 5 months. Thereafter, the petitioner filed an application seeking educational expenses for her minor child. The aforesaid application has been rejected by the Trial Court on the ground that the petitioner has not filed any application for modification of the order dated 20.07.2015.
4. Learned counsel for the petitioner submitted that the Trial Court grossly erred in rejecting the aforesaid application on the ground that in the absence of application for modification of the order dated 20.07.2015, this application cannot be entertained. It is further submitted that it ought to have appreciated the remedies under Section 36 of the Act was separate and at that time the child was aged about 1½ years, whereas, he is presently aged about 5 years.
5. I have considered the submissions made by learned counsel for the petitioner and have perused the record. From perusal of paragraph 7 of the impugned order, it is evident that the application filed by the petitioner has been rejected on the ground that the petitioner has not filed an application for enhancement or alteration of the earlier order. The Trial Court has completely failed to appreciate that the remedy provided to the petitioner under Section 36 of the Act was separate remedy and since the child was aged about 5 years, therefore, the petitioner was entitled to seek educational expenses for studies of her child. The impugned order therefore suffers from the vice of non- application of mind. Accordingly, it is quashed and set aside. The Trial Court is directed to decide the application filed by the petitioner viz., I.A.5 afresh after hearing the respondent within a period of two weeks from the date of receipt of a certified copy of the order passed today.
Accordingly, the petition is disposed of.
Sd/- JUDGE SS