IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL R.P.F.C.NO.31/2013 C/W R.P.F.C.NO.50/2013 R.P.F.C.NO.31/2013:
BETWEEN:
SRI M.B.RAMACHANDRA S/O LATE M.BALANAIK AGED ABOUT 54 YEARS R/AT NO.26/6, SNEHA PALLAVI APARTMENTS 7TH MAIN, NHBCS LAYOUT CAUVERY NAGAR BANGALORE – 560 079 ...PETITIONER (BY SRI AJIT KALYAN, ADVOCATE) AND:
1. SMT.HEMA W/O M.B.RAMACHANDRA AGED ABOUT 45 YEARS 2. MASTER ACINTHYA HEMACHANDRA S/O M.B.RAMACHANDRA AGED ABOUT 18 YEARS 3. KUM. ADITHI HEMACHANDRA D/O M.B.RAMACHANDRA AGED ABOUT 12 YEARS R2 AND R3 ARE MINORS THEY ARE REPRESENTED BY RESPONDENT NO.1 MOTHER ALL ARE R/AT NO.1041 5TH A MAIN, 3RD BLOCK, 3RD STAGE BASAVESHWARANAGARA BANGALORE – 560 079 ...RESPONDENTS (BY SRI G.PAPI REDDY, ADVOCATE FOR R1 & R2; R3 IS MINOR REPRESENTED BY R1) THIS R.P.F.C. IS FILED UNDER SECTION 19(4) OF FAMILY COURTS ACT PRAYING TO SET ASIDE THE ORDER DATED 10.01.2013 PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT, BANGALORE IN C.MIS.NO.313/2009.
R.P.F.C.NO.50/2013:
BETWEEN:
1. SMT.HEMA W/O SRI M.B.RAMACHANDRA AGED ABOUT 45 YEARS 2. ACHINTHYA HEMACHANDRA S/O SRI M.B.RAMACHANDRA AGED ABOUT 18 YEARS 3. KUMARI ADITHI HEMACHANDRA D/O SRI M.B.RAMACHANDRA AGED ABOUT 12 YEARS (MINOR) PETITIONER NO.3, REP. BY HER NATURAL GUARDIAN MOTHER P1 R/AT #306, 10TH MAIN 3RD STAGE, 1ST BLOCK MANJUNATHANAGAR BANGALORE – 560 010 ...PETITIONERS (BY SRI G.PAPI REDDY, ADVOCATE) AND:
SRI M.B.RAMACHANDRA S/O LATE M.BALA NAIK AGED ABOUT 53 YEARS WORKING AS SENIOR GENERAL MANAGER ARDEX, ENDURA ADHESIVES (INDIA) PVT. LTD., NO.73/1 ‘B’, BYREGOWDA INDUSTRIAL ESTATE, PEENYA II STAGE SRIGANDHANAGAR, HEGGANAHALLI BANGALORE – 560 091 ...RESPONDENT (BY SRI AJITH KALYAN, ADVOCATE) THIS R.P.F.C. IS FILED UNDER SECTION 19(4) OF FAMILY COURTS ACT PRAYING TO SET ASIDE THE ORDER DATED 10.01.2013 PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT, BANGALORE IN C.MIS.NO.313/2009 FILED UNDER SECTION 125 OF CR.P.C.
THESE PETITIONS COMING ON FOR FURTHER HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner in R.P.F.C.No.31/2013 was the respondent and the petitioners in R.P.F.C.No.50/2013 were the petitioners in C.Misc.No.313/2009 on the file of the Principal Judge, Family Court, Bangalore.
2. The respondents in R.P.F.C.No.31/2013 are the petitioners in R.P.F.C.No.50/2013 and the petitioners in R.P.F.C.No.50/2013 are the respondents in R.P.F.C.No.31/2013. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the trial court.
3. Petitioner No.1 is the wife, petitioner Nos.2 and 3 are the son and daughter of respondent. The marriage of petitioner No.1 and respondent was solemnized on 29.05.1994 at Bangalore. Petitioner No.2 was aged 14 years and petitioner No.3 was aged 8 years at the time of filing of C.Misc.No.313/2009 before the trial court. Petitioners filed the said case claiming that the respondent having sufficient means failed and neglected to maintain the petitioners though they do not have their own source of income. Petitioners alleged that respondent has extra marital relationship with one Padmavathi, that subjected petitioner No.1 to cruelty and drove the petitioners out of his house.
4. The respondent contended that the petitioners themselves deserted him. He alleged that the first petitioner has extra marital relationship with one Harish and all his efforts to bring the petitioners back to his fold failed due to attitude of the first petitioner. He claimed that the first petitioner is working in Harsha Kriya Foundation and is earning handsome salary. He denied that he has salary of Rs.75,000/- per month. He claimed that he has housing loan liability and is repaying the same and sought dismissal of the petition.
5. The parties adduced evidence. The trial court on hearing both the parties by the impugned order awarded maintenance at Rs.15,000/- per month to each of the petitioners from the date of the order. It was ordered that petitioner No.1 is entitled to such maintenance till her life time or till she remarries, petitioner No.2 is entitled to such maintenance till he attains majority and petitioner No.3 is entitled to such maintenance till she gets married.
6. The conclusions of the trial Court were reached on the following grounds:
(i) The respondent has failed to prove that petitioner No.1 has willfully deserted him and since the respondent has made baseless allegations of infidelity against petitioner No.1, she has right to stay separately from him and claim maintenance;
(ii) Petitioner No.1 though qualified was not working since she has to take care of the children. She has no source of her own income;
(iii) The respondent is getting salary of Rs.1,90,136/- and the petitioners require minimum of Rs.45,000/- per month for their food, accommodation, educational expenses and other maintenance.
7. Sri G.Papi Reddy, learned Counsel for the petitioners-wife and children seeks to assail the impugned order of the trial Court on the following grounds:
(i) The trial Court was not justified in awarding maintenance from the date of the order instead of from the date of the petition; & (ii) Having regard to the income of the respondent and the requirement of the petitioners, the quantum of maintenance awarded is on the lower side.
8. In support of his contentions, he relies upon the following judgments:
1. Jaiminiben Hirenbhai Vyas v. Hirenbhai Rameshchandra Vyas1 1 (2015) 2 SCC 385 2. Nisha Saifi v. Mohd. Shahid2 3. Shailja v. Khobbanna3 9. Per contra, Sri Ajit Kalyan, learned Counsel for the respondent-husband also seeks to assail the impugned order of the trial Court on the following grounds:
(i) The evidence adduced by the parties clearly shows that the wife herself was guilty of desertion and she was guilty of adultery. Therefore, she was not entitled to maintenance;
(ii) The respondent husband was maintaining the children and he was paying the school fees;
(iii) The trial Court was in error in not giving statutory deductions in the income of the respondent;
(iv) The respondent has retired from the service with effect from 01.01.2015. Therefore, he is unable to pay the maintenance at the rate awarded; & (v) Wife was equally qualified as that of the respondent, therefore, the trial Court was not justified in awarding maintenance to her.
2 2019 SCC Online Del 7902 3 (2018) 12 SCC 199 10. In support of his contentions, he relies upon the following judgments:
1. Deb Narayan Halder v. Anushree Halder4 2. Begum Subanu v. A.M.Abdul Gafoor5 3. Guntamukkala Naga Venkata Kanaka Durga vs. Guntamukkala Eswar Sudhakar and Ors.6 4. Bhushan Kumar Meen v. Mansi Meen7 11. Having regard to the rival contentions, this Court has to see whether the impugned order of the trial Court in granting maintenance at the rate of Rs.15,000/- per month to each of the petitioners from the date of the order suffers any illegality or infirmity.
Regarding failure/negligence to maintain:
12. The relationship between the parties is not disputed. Though the respondent contended that the petitioners themselves deserted him, he did not seek custody of his minor children i.e. petitioner Nos.2 and 3 by initiating any legal action against petitioner No.1. The trial 4 (2003) 11 SCC 303 5 (1987) 2 SCC 285 6 AIR 2013 AP 58 7 (2010) 15 SCC 372 Court took that fact into consideration. He even does not dispute his liability to maintain the children.
13. So far as petitioner No.1, he contended that she herself has deserted him and she is living in adultery with one Harish. To substantiate the said allegation, the only evidence relied upon by him was that, after the petitioners leaving his house, took shelter in one Harshakriya Foundation which allegedly belonged to one M.Harish, the Managing Trustee.
14. Whereas the contention of the petitioners is that after they were driven out from the respondent’s house, petitioner No.1 was working in the said organization and temporarily they had taken shelter in the premises of the said organization.
15. The trial Court held that the fact of the petitioners taking shelter in the Harshakriya Foundation itself is not sufficient to prove adultery by petitioner No.1. The respondent also admitted in his evidence that said Harish was known to both to him and petitioner No.1 and he was the guide for both of them in their doctorate studies. Therefore, the trial Court held that mere acquaintance with the said M.Harish is not sufficient to hold that petitioner No.1 was living in adulterous life with him.
16. It is also to be noted that though the respondent alleged adultery by petitioner No.1, still he claims that he was always ready to take petitioner No.1 with him and he made attempts to get her back. Having said so, he has not initiated any proceedings for restitution of conjugal rights. Such conduct of the respondent was also considered by the trial Court in rejecting his allegations that petitioner No.1 herself was guilty of desertion and adultery.
17. The trial Court further held that the imputations made by the respondent against petitioner No.1 constitutes sufficient cause for her to live separately. It was not the case of the respondent that he ever maintained petitioner No.1 or made any arrangements for other petitioners. On rejecting all his excuses to live separately from the petitioners, the trial Court found the respondent guilty of neglecting to maintain them. The trial Court on sound appreciation of all the evidence on record has come to the said conclusion and no infirmity or illegality is found in the same.
Regarding ability of the petitioners to maintain themselves.
18. So far as petitioner Nos.2 and 3, as already pointed out, the respondent himself did not claim that he had no source of income. He did not dispute the liability to maintain them.
19. So far as petitioner No.1 is concerned, he claimed that she is working and earning salary. Whereas petitioner No.1 contends that on she begetting the children, at the behest of the respondent only she left that job to take care of the children. In support of her contention, she produced Ex.P24 and Ex.P25 issued by her former employer Mphasis BFL Limited. Those documents show that petitioner No.1 worked only upto 31.08.2001 and cheque for Rs.8,376/- was given to her by her employer in full and final settlement of her claim as on 17.12.2001.
20. Further, it is the contention of the respondent that petitioner No.1 is qualified person and she is capable of earning her livelihood, therefore, she is not entitled for maintenance. As already noticed, petitioner No.1 left her employment in the year 2001 to look after her children. Merely because, she is qualified it cannot be inferred that she has income.
21. In this regard, the Hon’ble Supreme Court in Shailja’s case referred to supra held that the wife is capable of earning is not sufficient reason to reduce or reject the maintenance. The judgment in Bhushan Kumar Meen’s case referred to supra relied upon by the learned Counsel for the respondent is not applicable to the facts of the case on hand.
22. Having regard to the material on record the trial Court was right in holding that the petitioners were not able to maintain themselves.
Regarding quantum of maintenance.
23. There was no dispute that the respondent was working as vice president of a company at the relevant time. The lower Court records show that the respondent did not place before the Court the records of his accurate income. The records further show that in spite of petitioners’ efforts to get the salary records of respondent, the respondent and his employer evaded the same and only on taking coercive steps, the employer produced the documents. The gross income of the respondent was Rs.1,90,136/- which was evident from the records.
24. It was argued that out of that income, income towards vehicle loans, conveyance expenses, residential telephone reimbursement, vehicle repairs and maintenance reimbursement, gift/meals voucher, driver’s salary reimbursement were only perks and they were not included in the income under the Income Tax Act, 1961. This matter was not being considered for assessment of the liability of the respondent under the Income Tax Act, 1961, it was only to assess his ability to pay maintenance.
25. So far as deductions of housing loan etc in arriving at net income, only the statutory deductions have to be taken into consideration and not the voluntary deductions. If the respondent has availed housing loan for constructing the house, it was for his benefit and he was residing in that. The petitioners require maintenance for the purpose of their accommodation, food, education and medicines. Therefore, petitioners were also entitled for the services which the respondent was availing by way of perks. Under such circumstances, this Court does not find any fault in taking into consideration the income received by way of perks.
26. It was also argued that father of petitioner No.1 had residential house and though she lived for sometime in that house, she chose to find rental accommodation only for the purpose of the case. It was moral and legal duty of the respondent to provide accommodation for his wife and children. He cannot compel them to seek accommodation with petitioner No.1’s father gratis. Petitioner No.1 deposed that her father is also old aged and he needed some income for his survival, therefore, she vacated the premises.
27. Salary of the respondent was Rs.1,90,136/- at the relevant time. No material was placed by the respondent to show that how much was his deductions towards the income tax. Learned Counsel for the respondent contends that 30% of the income has to be deducted from his salary for his liability towards the income tax. Even if that is taken into consideration, his salary is Rs.1,33,000/-.
28. The records reveal that petitioner Nos.2 and 3 were pursuing their education in National Public School and their fee receipts were also produced. Considering that, the trial Court awarded maintenance at the rate of Rs.15,000/- each p.m. After deducting that from Rs.1,33,000/- a sum of Rs.88,000/- will be still available for the respondent for his sustenance. That will be nearly double the amount in which he expects other three to live together. Therefore this Court does not find any disproportionality in awarding Rs.15,000/- per month as maintenance to each of the petitioners.
29. Though the petitioners claim of maintenance awarded is on the lower side, they failed to quantify their requirement beyond Rs.15,000/- per month. This Court does not find any infirmity in awarding the maintenance at the rate of Rs.15,000/- per month.
30. It was contended that respondent has retired from service, so he is unable to pay the maintenance. Whether respondent has taken the retirement or not, is not the matter for adjudication by this Court. If at all there are changed circumstances, it is open for the respondent to seek appropriate remedy if available.
Regarding granting maintenance from the date of the order.
31. Petition was filed in the year 2009. The trial Court itself held that the respondent has neglected to maintain the petitioners even prior to the petition. The trial Court does not assign any reasons for not awarding maintenance from the date of petition.
32. In Jaiminiben Hirenbhai Vyas’s case referred to supra the Hon’ble Supreme Court in the similar situation held that maintenance should be paid from the date of petition and if at all it is not paid from the date of the petition, the Court shall assign reasons for not granting maintenance from the date of petition. No such reasons are assigned by the trial Court in this case. Therefore, the order of rejection of the maintenance by the trial court from the date of the petition till the date of the order suffers infirmity and to that extent requires modification.
33. Under the aforesaid circumstances, R.P.F.C No.31/2013 is dismissed with costs. R.P.F.C. No.50/2013 is hereby partly allowed with costs. The impugned order of the Principal Judge, Family Court, Bengaluru in C.Misc.313/2009 dated 10.01.2013 is hereby modified. Petitioner Nos.1 to 3 in R.P.F.C. No.50/2013 are awarded maintenance at the rate of Rs.15,000/- per month each from the date of filing of the petition in C.Misc.No.313/2009 till the period stated in the impugned order.
Sd/- JUDGE KSR