IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27th DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.8693/2015 (GM-FC) BETWEEN:
SRI SATISH KUMAR S/O LATE N. GURUSHYAMACHARI AGED ABOUT 37 YEARS R/AT NO.19 1ST FLOOR 4TH CROSS, 4TH MAIN AGRAHARA DASARAHALLI BENGALURU-560 079 ... PETITIONER (BY SRI: SPOORTHY HEGDE N. ADVOCATE FOR SRI RAVINDRA PRASAD B. ADVOCATE) AND:
SMT. K.J. ANITHA W/O SRI SATHISH KUMAR D/O SRI INDIRACHAR TECHEAR AGED ABOUT 33 YEARS R/AT KETHOHALLI BENGALURU SOUTH TALUK W/AT PARKIRAMA SCHOOL NO.91, RAILWAYMENS LAYOUT RAMAKRISHNA NAGAR NANDINI LAYOUT BENGALURU-560 097 ... RESPONDENT (BY SRI: V. MANJUNATHA, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD:05.02.2015 OF I.A. NO.111/2014 PASSED BY THE III ADDITIONAL PRINICPAL JUDGE, FAMILY COURT, BENGALURU IN MC No.3590/2013 VIDE ANNEXURE-G.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The husband of the petitioner filed the present writ petition against the order dated 05.02.2015 on I.A. No.3 made in MC.No.3590/2013 disposing the application I.A.No.3/2014 filed by the wife, wherein interim maintenance was awarded at Rs.6,000/- p.m. to the respondent-wife and Rs.2,000/- p.m. to the minor child- Jeevitha from the date of application i.e. 21.11.2013 till the disposal of the case and also directed the present petitioner to pay Rs.20,000/- towards the litigation expenses.
2. The present petitioner-husband filed petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights raising various contentions. The respondent-wife filed objections denying the averments made in the petition.
3. During the pendency of the proceedings, the wife- respondent filed an application under Section 24 of the Hindu Marriage Act, 1955 directing the present petitioner to pay Rs.4,000/- p.m. towards maintenance and Rs.25,000/- towards litigation expenses. Respondent- wife reiterating her objections filed to the main petition, contended that the respondent is the legally wedded wife of the present petitioner and their marriage was solemnized on 25.10.2010 at L.N.R. Kalyana Mantapa, Dodda Alada Mara Road, Ramohalli, Kengeri Hobli, Bengaluru South Taluk. Out of wedlock, they had a daughter aged about 2 years namely, Jeevitha. It is her further case that the petitioner is demanding dowry of Rs. 2,00,000/- and his family members humiliated, assaulted and tortured her to bring more dowry. Ultimately they ignored the respondent and ill-treated her.
4. She has no source of income to maintain herself and her minor child. The petitioner is basically working in Tycho Electronics as Mechanical Engineer and drawing a salary of Rs.40,000/- per month and he is also having own houses in Kamakshipalya, Bengaluru and getting rental income of Rs.40,000 to 50,000/-. Therefore, she sought to allow the application. The said application was opposed by the husband by filing objections.
5. The Family Court after considering the application and objections, by impugned order dated 05.02.2015, awarded maintenance of Rs.6,000/- to the wife and Rs.2,000/- to the minor daughter and Rs.20,000/- towards litigation expenses to the respondent. Hence the present writ petition.
6. This Court while issuing notice to the respondent-present wife, on 13.03.2015 stayed the impugned order dated 05.02.2015 subject to the petitioner paying a sum of Rs.4,000/- p.m. to the respondent and the child. When the matter came up before this Court on 26.08.2019, counsel for the respondent submitted that the petitioner has not even complied interim direction directing the petitioner to pay Rs.4,000/- p.m. and as on today there is due amount of Rs.1,50,000/-. The same is placed on record.
7. I have heard the learned counsel for the parties to the lis.
8. Sri Spoorthy Hegde N., learned counsel for Sri Ravindra Prasad B. for the petitioner vehemently contended that the impugned order passed by the learned Judge, Family Court granting Rs.6,000/- to the wife and Rs.2,000/- to minor child is erroneous and contrary to the material on record. He would further contend that the learned Judge, Family Court failed to notice that the respondent is also working and getting salary of Rs.18,000/- p.m. Therefore, she is not entitled for any maintenance and the same is not considered by the learned Judge, Family Court.
He would further contend that the petitioner filed present writ petition under Section 9 of the Hindu Marriage Act seeking Conjugal rights, which clearly depicts that petitioner has love and affection towards respondent and his daughter. The respondent filed application under Section 125 of Cr.P.C. in C.Misc. No.108/2014 only with an intention to tarnish the image of the petitioner socially and mentally. Therefore, she cannot be granted maintenance in two applications parallelly.
He further contended that, the learned Judge, Family Court has not provided sufficient opportunity to the petitioner to put forth his case. He further submitted that present respondent in her cross-examination held on 13.06.2017 stated that “I was getting Rs.7,000/-p.m at that time. After the marriage, I left the job. Even after marriage, I was working at Parigrama Centre for Learning and was getting Rs.5,000/- p.m. Since past five years, I have been working in the said Centre. It is not true to suggest that I have been getting Rs.18,000/- p.m. It is true to suggest that I have been working as a teacher in the said Centre. Therefore, he submits that petitioner is not liable to pay any maintenance and impugned order is liable to be quashed.
09. Per contra, Sri V.Manjunath, learned counsel appearing for respondent-wife sought to justify the impugned order passed by the learned Judge, Family Court and contended that the petitioner-husband has not produced any material document before the learned Judge, Family Court to prove that his wife is also working and earning. In the absence of any oral and documentary evidence not being produced by the petitioner, impugned order passed awarding maintenance of Rs.6,000/- to the wife and Rs.2,000/-to the child is just and proper.
He would further contend that the alleged statement that she is working as a teacher in the said centre is only made on 13.06.2017. As on the date of the order passed by the Family Court no such material is produced and the same is taken into consideration. He further contended that at one breath petitioner has filed for restitution of Conjugal rights and he says that he has love and affection towards his wife and daughter and in another breath he does not want to pay maintenance though he is working as Mechanical Engineer and getting handsome salary. Therefore, he sought to dismiss the writ petition.
10. Having heard the learned counsel for the parties, it is undisputed fact that there is no dispute between the parties regarding the relationship as husband and wife and their marriage was solemnized on 25.10.2010 and out of the wedlock they have got one girl child aged about 5 years. It is the specific case of the wife that present petitioner is working as Mechanical Engineer in Tyco Electronics and he is earning Rs.40,000/- p.m. and it is her specific case that he is having house at Kamakshipalya, at Bengaluru and getting Rs.40,000 to Rs.50,000 as rent. The said contention was denied by the petitioner by filing objection. The learned counsel, Family Court after considering the entire material on record, held that there is no dispute that petitioner is working in Tyco Electronics as Mechanical Engineer and that he was drawing salary of Rs.40,000/- p.m and also he is getting income of Rs.40,000/- to 50,000/- p.m.. Petitioner has not denied the nature of employment and income by way of salary and respondent has not produced any documents to show that the petitioner owns house property and getting Rs.40,000 to 50,000 p.m.
11. The respondent is a housewife. She has no source of income to maintain herself and her minor child and she is depending on the petitioner-husband and he is bound to pay maintenance to the wife and her minor child.
12. Taking into consideration all these aspects and in the absence of any documents, the learned Judge, Family Court came to the conclusion that wife is entitled for maintenance of Rs.6,000/- and minor child for Rs.2,000/- p.m. in order to meet the day to day livelihood. It is the duty of the husband who has got sufficient income to pay interim maintenance, in view of Section 24 of the Hindu Marriage Act. The learned Judge, Family Court taking into consideration the salary of the petitioner which is admittedly at Rs. 40,000/- p.m. and analyzing the capacity of the petitioner has proceeded to pass the impugned order.
13. When relationship and salary drawn by the petitioner is admitted, in the absence of any documents as on the date of her cross examination and the contention of the petitioner that respondent has admitted in her cross examination that she is working as a teacher in the Parigrama Centre When the cross examination was made on 13.06.2017 subsequent to the order passed by the learned Judge, Family Court, cannot be accepted.
14. Accordingly impugned order passed by the learned Judge, Family Court is just and proper and no ground is made out for interference with the impugned order passed by the learned Judge, Family Court in order to exercise power under Article 227 of Constitution of India Accordingly, the writ petition is dismissed.
Sd/- JUDGE HR