IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.15255 OF 2018 (GM-FC) BETWEEN:
SRI K GIRIDHARAN AGED ABOUT 54 YEARS, S/O LATE KOTESHWARA RAO, NO.22, VINAYAKAR KOIL STREET, AMANJIKARAI, CHENNAI-600029 (BY MR.PRABHUGOUD.B.TUMBIGI, ADV. FOR SRI.RAMAKRISHNA.M, ADV.) AND:
… PETITIONER SMT R S UMARANI AGED ABOUT 53 YEARS, W/O SRI K GIRIDHARAN, R/AT NO.31, PATALAMMA TEMPLE STREET, BASAVANAGUDI, BENGALURU-560004 (BY MR.N.T.PREMANATH, ADV.) - - -
… RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS IN MC.NO.5253/2013 ON THE FILE OF THE PRINCIPAL JUDGE FAMILY COURT, BENGALURU AND SET ASIDE THE ORDER ON IA.NO.II.
THIS WRIT PETITION COMING ON FOR HEARING ON INTERLOCUTORY APPLICATION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Sri.Prabhugoud B.Tumbigi for Mr.Ramakrishna M, learned counsel for the petitioner.
Mr.N.T.Premanath, learned counsel for the respondent.
2. The writ petition is admitted for hearing.
With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Article 227 of Constitution of India, the petitioner has assailed the validity of the order dated 06.03.2018 passed by the family court, by which the application filed by respondent under Section 24 of the Hindu Marriage Act, 1955(hereinafter referred to as ‘the Act’ for short) has been allowed and a further sum of Rs.5,000/- p.m. has been granted towards interim maintenance from the date of application till disposal of the petition. In addition, a sum of Rs.10,000/- towards litigation expenses has been awarded to the respondent.
4. Facts giving rise to filing of this petition briefly stated are that the parties got married as per Hindu rights on 08.05.1989. Admittedly, the parties do not have any issues from the wedlock. The respondent filed a petition under Section 13 of the Act seeking dissolution of marriage on the grounds enumerated under Section 13(i)(ia) and (ib) of the Act. The respondent, filed an application under Section 24 of the Act seeking maintenance to the tune of Rs.40,000/-
p.m. and Rs.20,000/-p.m. towards litigation expenses.
It was averred in the application that the respondent is not employed anywhere and the petitioner is paying a sum of Rs.5,000/- p.m. which is not sufficient to maintain herself. It was also mentioned that the petitioner was working as Senior Scientist in Transmission Group, CVRDE, Avadi, Chennai and is drawing a salary of Rs.85,000/- p.m. and in addition, getting rental income of Rs.30,000/- p.m.
5. The petitioner filed an objection to the aforesaid application in which it was stated that the petitioner is required to take care of his ailing mother. It was also pointed out that the petitioner is making payment of sum of Rs.5,000/- to the respondent which was granted on an earlier occasion with great difficulty. It was also stated that mother of the respondent has gifted a property to her in Bangalore which is in Basavanagudi, Bengaluru where the respondent is running P.G.Hostel. It was also averred that the respondent after her mother’s death has got 1/3rd share in the property and getting rental income at Rs.10,000/- in respect of the portion which has been devolved on account of death of her mother. It was also stated that the respondent is getting an rental income of Rs.40,000/- from the P.G. accommodation. It was also stated that the petitioner has retired from service as scientist and was getting Rs.40,000/- as pension. The family court by an order dated 06.03.2018 partly allowed the application and directed the petitioner to pay a further sum of Rs.5,000/- as maintenance and a further sum of Rs.10,000/- as litigation expenses.
6. Learned counsel for the petitioner submitted that the petitioner is suffering from various ailments and respondent is running the P.G. accommodation in the name of Sister who has settled in Canada. It was further submitted that respondent has been allotted 1/3rd share in the property in the partition. It is further submitted that the respondent has sufficient income to maintain herself and she is well qualified and the petitioner is required to take care of his old and ailing mother and the petitioner himself is suffering from various ailments. In view of the aforesaid submission, reliance has been placed on the decision of High court of Madhya Pradesh in ‘MAMTA JAISWAL vs. RAJESH JAISWAL’, LAWS(MPH) 2000 3 38, in Civil Revision No.1290/1999.
7. On the other hand, learned counsel for the respondent submitted that despite a direction issued by this Court, the petitioner did not produce the documents pertaining to his pension and the petitioner is drawing a pension to the tune of Rs.60,000/- to Rs.70,000/- p.m. It is further submitted that the order passed by the Family Court does not suffer from any infirmity passed by this court in exercise of powers under Article 227 of the Constitution of India. The family court on the basis of meticulous appreciation of material on record has held that in an earlier proceeding, a sum of RS.5,000/- was awarded to the respondent by way of maintenance. Admittedly, the petitioner has retired from service. Pursuant to the order of the family court, the documents were summoned from which it is evident that the petitioner had obtained voluntary retirement and has received a sum of Rs.10 Lakhs towards gratuity and commuting and pension i.e., Rs.13,14,000/-. The petitioner is admittedly getting a sum of Rs.40,000/- as pension. It was further held that an order granting Rs.5,000/- as maintenance was passed in the year 2008 i.e., almost 10 years ago. It was further held that no documents have been produced by the petitioner to show that respondent is earning Rs.75,000/-p.m. by running P.G. accommodation and a sum of Rs.10,000/- working as a Teacher. The family court by taking into account the income of the petitioner held that wife is entitled to receive 25% of the aforesaid maintenance. Accordingly, the family court directed the petitioner to pay further sum of Rs.5,000/- p.m. as maintenance and also directed to pay Rs.10,000/-p.m. as litigation expenses. The order passed by the Trial Court neither suffers from any jurisdictional infirmity nor any error apparent on the face of the record warranting interference of this Court in exercise of its power under Article 227 of the Constitution of India. Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423].
In view of the above enunciation of law, the writ petition is disposed of with a liberty to the petitioner to take recourse to the remedy of review, if so advised.
Sd/- JUDGE SS