IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR MISCELLANEOUS FIRST APPEAL NO. 4445 OF 2018 (FC) BETWEEN:
VIVEK M. NASHI S/O. MALLIKARJUN K. NASHI GE (CAPITAL) SR. ANALYST AGED ABOUT 35 YEARS R/O. NO.202, I BLOCK ALIENS ELITE PRASHANTH NAGAR MIAYAPUR HYDERABAD.
REPRESENTED BY HIS GENERAL POWER OF ATTORNEY HOLDER:
MR. SHIVANAND S/O. MALLIKARJUN NASHI AGED ABOUT 46 YEARS OCCUPATION: BUSINESS R/O: NO.243, 2ND CROSS BHAGYANAGAR, TILAKWADI BELGAUM-590 006. :APPELLANT (BY SRI ARUNA SHYAM M., ADV.) AND:
SMT. MANDIRA M. P. D/O. M. PRAKASH AGED ABOUT 31 YEARS WORKING AT AEGIS GLOBAL LTD., R/O. 98-A, 3RD CROSS, BHCS LAYOUT, VIJAYNAGAR, BENGALURU-560 040. :RESPONDENT (BY SRI K. CHANDRAMOHAN, ADV.) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19(1) OF THE FAMILY COURTS ACT, 1984 R/W SECTION 28(1) OF THE HINDU MARRIAGE ACT, 1955, PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE DATED 20.03.2018 PASSED IN M.C.NO.5150/2016 BY THE I ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU IN SO FAR AS IT AWARDS PERMANENT ALIMONY OF RS.15,00,000/-(RUPEES FIFTEEN LAKHS ONLY) TO THE RESPONDENT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NARAYANA SWAMY J., DELIVERED THE FOLLOWING:
JUDGMENT Appellant is the petitioner in M.C. No.5150/2016 on the file of I Prl. Judge, Family Court, Bengaluru and as the petition was filed under S.13(1)(ia) of the Hindu Marriage Act, 1955 (for short, ‘the Act’), the Family Court, by its order dated 28.03.2018 allowed the petition and the marriage between the parties solemnised on 15.02.2012 was dissolved by a decree of divorce. While passing such an order, the petitioner was directed to pay Rs.15,00,000/- to the respondent towards permanent alimony. Feeling aggrieved, the petitioner has filed this appeal.
2. Learned counsel for the appellant contended that the order passed by the court below is arbitrary and in violation of the principles of natural justice since the petitioner was not given any opportunity of hearing. Though the learned Judge has passed the order directing payment of permanent alimony to the respondent wife by the petitioner while passing such order, the Court should have assessed as to whether the petitioner is in a position to pay such an amount. Learned counsel submitted that since the respondent wife has herself voluntarily deserted the petitioner, the question of payment of such amount to her does not arise. The order is arbitrary and contrary to law and facts.
3. Learned counsel for the respondent – wife submitted that the learned Family Court Judge has disposed of the matter as per S.25 of the Act directing payment of permanent alimony and hence, there is no error committed.
4. It is the principal ground taken by the petitioner that in the absence of any application filed by the wife for payment of permanent alimony, it was improper on the part of the court below to pass the impugned order. Hence, on this ground alone, the order passed directing payment of permanent alimony is liable to be set aside.
5. Considering the submissions made and grounds urged, after persuasion of parties, husband – petitioner agreed that he is ready to pay Rs.10,00,000/- instead of Rs.15,00,000/- as a lumpsum settlement if the wife – respondent is withdrawing all complaints, allegations and criminal cases filed against the appellant / petitioner. In reply, learned counsel for the respondent – wife submitted that the respondent is ready and willing to withdraw the entire allegations and complaints and criminal cases filed against the appellant / petitioner if an amount of Rs.20,00,000/- is paid to her.
6. Since the dispute between the parties now is with regard to permanent alimony, though the appellant / petitioner agreed to pay only a sum of Rs.10,00,000/-, finally after much persuasion, learned counsel for the appellant submitted that appellant / petitioner has accepted to pay the total sum of Rs.17,00,000/- to the respondent / wife if the respondent withdraws the entire allegations, complaints and criminal cases filed by her.
In the result, the parties are directed to file an affidavit undertaking to withdraw the petitions, complaints, allegations made against each other. They shall make necessary applications before respective forums for withdrawal and such applications be considered and appropriate orders be passed in accordance with law.
The Judgment and order dated 20.03.2018 passed by the Family Court, Bengaluru in M.C. No.5150/2016 is hereby modified only with regard to the permanent alimony. Petitioner shall pay a sum of Rs.17,00,000/- towards permanent alimony to the respondent instead of Rs.15,00,000/-. In all other respects, the Judgment / order is kept intact.
The appellant / petitioner shall pay the amount of Rs.17,00,000/- to the respondent within a period of eight weeks.
At this stage, learned counsel for the appellant submitted that the appellant may be permitted to file the affidavit through his General Power of Attorney holder. Appellant is permitted to do so.
The appeal stands disposed of in the above terms.
I.A. Nos.2 and 3 of 2018 are dropped.
Sd/- JUDGE sac* Sd/- JUDGE