IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE B M SHYAM PRASAD WRIT PETITION NO.3323/2018 C/W.
Writ Petition No.49490/2013 (gm-fc) In writ petition No.3323/2018:
Between:
Sri Khaja Iftheqar Ahmed, S/o. Sri. K.M. Syed Pasha, Aged about 40 years, R/at No.6,1st Floor, 6th Cross, Nandi Durga Extension, Bangalore-560 046. …Petitioner (By Sri M.P. Sreekanth, Advocate) And:
Master Durran, S/o Sri. Khaja Iftheqar Ahmed, Aged about 12 years, R/at No.124, 1st Floor, 2nd Cross, VI Block, Koramangala, Bangalore-560 095.
Represented by his Natural Mother and natural Guardian- Smt. Famidha Khan ... Respondent (By Smt. Geetha Devi M P, Advocate) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to set aside the impugned order dated 17.07.2017 passed in I.A.No.10 filed in Crl.Misc. No.392/2011 before the Court of I Additional Principal Judge, Family Court at Bengaluru produced at Annexure-G.
In writ petition No.49490/2013:
Between:
Sri Dr. Khaja Iftheqar Ahmed, Aged about 34 years, Son of K.M. Syed Pasha, R/at No.6,1st Floor, 6th Cross, Nandi Durga Extension, Bangalore-560 046. …Petitioner (By Sri M.S. Sreekanth, Advocate) And:
Master Durran, Aged about 8 years, Son of Sri. Khaja Iftheqar Ahmed, R/at No.124, 1st Floor, 2nd Cross, VI Block, Koramangala, Bangalore-560 095.
Represented by his Natural Mother and natural Guardian- Smt. Famidha Khan ... Respondent (By Smt. Geetha Devi M P, Advocate) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to issue a writ of mandamus to the I Addl. Judge, Family Court, Bengaluru and to set aside the impugned order dated 27.08.2013 passed in I.A.No.5 in Crl.Misc. No.392/2011 produced at Annexure-D.
These writ petitions coming on for Preliminary Hearing this day, the court made the following:
ORDER The present writ petitions are filed by the respondent in Crl.Misc.No.392/2011 which is instituted under Section 125 (1)(B) of Cr.P.C on the file of the I Additional Principal Judge, Family Court at Bengaluru (for short “the learned Family Court”) by the petitioner’s minor son represented by his mother – Ms.Fameeda Khan. The writ petition in W.P.No.49490/2013 is filed impugning the order dated 27.08.2013 awarding interim maintenance to the minor son at the rate of Rs.10,000/- per month, and the writ petition in W.P.No.3323/2018 is filed impugning the order dated 17.07.2017 allowing application (I.A.No.10) filed on behalf of the respondent for amendment of the petition in Crl.Misc.No.392/2011.
2. The learned Family Court, by the order dated 27.08.2013, has directed the petitioner – father to pay the interim maintenance at the rate of Rs.10,000/- per month to the respondent, a minor son, who is represented by his mother, Ms. Fameeda Khan whose marriage with the petitioner herein is admittedly dissolved. The learned Family Court, by the other impugned order dated 17.07.2017, has permitted the respondent herein to amend the petition to include additional paragraphs and also amend the amount claimed as maintenance. It is undisputed by the learned counsel for the parties that after the impugned order dated 17.07.2017, amendment has been carried out and the amended petition is also filed.
3. Mr. M.P.Srikanth, the learned counsel for the petitioner submitted that even though the jurisdiction of the Court to allow the amendment in a proceedings under Section 125 of Cr.P.C is not disputed, the learned Family Court has erred in allowing the amendment application i.e., I.A.No.10 filed by the respondent in the facts and circumstances of the case. The respondent’s evidence is completed, and at this stage, the present application I.A.No.10 is filed seeking amendment of the petition, seeking enhancement of compensation and setting up additional pleadings. As such, the application is belated, and therefore, the application for amendment could not have been allowed.
4. The learned counsel further contends that the claim petition is filed seeking maintenance in a sum of Rs.20,000/- per month, but by way of present amendment, the claim for maintenance is increased to a sum of Rs.50,000/- per month, and this change in the claim amount changes the nature of the claim and as such, the application could not have been allowed even on this ground. Further, the learned counsel argues that the decision of the Hon’ble Supreme Court in the case of S.R.Sukumar v. S.Sunaad Raghuram reported in (2015) 9 SCC 609 would not apply to the present case, nevertheless, the learned Family Court has relied upon this decision to allow the application.
5. As regards the order dated 27.08.2013, which is impugned in the first of the writ petition, granting interim maintenance to the respondent in a sum of Rs.10,000/- per month, the learned counsel contended that the petitioner is not liable to pay any maintenance even to the respondent, as Ms. Fameeda Khan, the mother, has deliberately denied access to the respondent, and Ms. Fameeda Khan has independent income in excess of Rs.44,500/- per month, which was available to Ms. Fameeda Khan even as of the year 2008. The petitioner has paid, as part of full and final settlement, a sum of Rs.7,00,000/- and this amount includes a sum of Rs.4,00,000/- as the value of the Santro Car made over to Ms. Fameeda Khan. Therefore, the learned Family Court Judge could not have granted interim maintenance at the rate of Rs.10,000/- per month.
6. Ms. Geetha Devi M.P., the learned counsel for the respondent, submitted that after the interim order was granted by this Court in W.P.No.3323/2018 staying the impugned order dated 17.07.2017, there has been no progress in the miscellaneous proceedings. The petitioner, despite the orders to pay maintenance at the rate of Rs.10,000/- per month, has not paid any amount so far and Ms. Famida Khan has alone been shouldering the responsibility of looking after the respondent.
7. The learned counsel relied upon the decision of the Hon’ble Supreme Court in the case of Kunapareddy @ Nookala Shanka Balaji vs. Kunapareddy Swarna Kumari and Another reported in (2016) 11 SCC 774 to contend that though there is no specific provision in the Criminal Code to allow an amendment to a complaint, the Hon’ble Supreme Court has consistently held that in appropriate cases, when the amendment is justified and the proposed amendment does not prejudice the other side, a Court can allow the amendment. As such, the learned Family Court could indeed have allowed the amendment and no exception can be taken on the ground that it had no jurisdiction.
8. Further, the learned counsel contended that the initial claim was for Rs.20,000/- per month, because, as of the date of the petition, the respondent was aged six years and was a Grade-I student. But, with passage of time, the expenses for the child (respondent) including the tuition fee payable for the education have increased and therefore, the amendment is necessary. A mere perusal of the application would indicate that the amendment for enhancement in the maintenance claim from Rs.20,000/- to Rs.50,000/- per month in such changed circumstances. Therefore, the amendment is justified. Furthermore, the learned counsel submitted that no amount has been received by Ms. Famida Khan, the respondent’s mother towards maintenance, and if the petitioner is able to establish payment of any amount, it is only towards settlement of her claim. As such, the respondent could not be denied maintenance on that ground.
9. The learned counsel for the parties do not dispute, and rightly, that in appropriate cases, and subject to the conditions as enunciated by the Hon’ble Apex Court in the decisions adverted to above, amendment could be allowed even in a proceedings under Section 125 of Cr. P.C. However, the dispute is whether the learned Family Court could have allowed the proposed amendment in the facts and circumstances of the case.
10. The undisputed facts are that the petitioner and Ms. Famida Khan are divorced parents; the respondent, a minor, has been in the custody of the mother, and the respondent, who was aged about 6 years as of the date of the petition, was a Grade I Student. It is also undisputed that the respondent, post the petition, has continued his education. The amendment is to bring on record subsequent events and other associated circumstances, which according to the mother - Ms. Famida Khan would justify grant of higher maintenance. The amendment as such essentially relates to what could be termed as circumstances that have evolved post the filing of the petition. Therefore, the contention that the amendment is belated is not tenable, and similarly amendment sets up a new cause of action is not tenable, as the proposed amendment is because of the alleged changed circumstances and the increase in the cost of meeting the educational and other expenses for the respondent. In any event the claim for maintenance is a continuing cause of action.
11. Further, the petitioner cannot be prejudiced by the amendment being allowed because mere amendment of pleading does not take place of evidence necessary to establish a claim, and the respondent will be entitled to claim enhanced amount only if such claim is substantiated by cogent and acceptable evidence, and in any event, the petitioner can place appropriate evidence to dispute the claim. Therefore, it cannot be said that the amendment is prejudicial to the petitioner, and as such there is no irregularity in the impugned order dated 17.07.2017 and no interference is called for by this Court in exercise of its writ jurisdiction.
12. As regards the objections to grant of interim maintenance on the ground that the petitioner and Ms. Famida Khan settled for a sum of Rs.7,00,000/- including the cost of maintenance for the respondent, even if the submission of the learned counsel for the petitioner could be accepted, the payment includes a sum of Rs.4,00,000/- as the value of the Car and actual payment is a sum of Rs.3,00,000/-. This Court, in the facts and circumstances, can only tentatively opine, given the rival claims (and the undisputed relationship, the age of the respondent and the fact that the child is pursuing education in Bangalore) that a sum of Rs.10,000/- per month cannot be termed unreasonable so as to exonerate the petitioner from the liability to pay any maintenance to the child – the respondent during the pendency of the proceedings before the learned Family Court. As such, even the other order dated 27.08.2013 does not call for any interference.
13. Accordingly, both the writ petitions are dismissed. However, Mr. M. P. Srikanth, the learned counsel for the petitioner submits that any observation made by this Court would prejudice the petitioner as it could influence the learned Family Court. But, it is trite that any observation made by this Court is only for the adjudication of the questions that arise in the present writ petitions and can have no bearing on the final order to be passed by the learned Family Court on merits upon appreciation of the respective claims substantiated by pleadings and evidence on record.
SD/- JUDGE PYR