Karnataka High Court
Udhay Somashekar vs Mrs Kavitha Gangadara Reddy on 29 July, 2024
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NC: 2024:KHC:30928
WP No. 12228 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 12228 OF 2023 (GM-FC)
BETWEEN:
UDHAY SOMASHEKAR
S/O. SRI.VURIBINDI SOMASHEKAR,
AGED ABOUT 41 YEARS,
CITIZEN OF SWEDEN
PERMANENT RESDIENT OF
SKVANDRONSGATAN,
16 LGH 1001 21749, MALMO,
SWEDEN
TEMPORARY RESIDENT WHILE VISITING INDIA AT
NO. 3-2-4, VIDYANAGAR COLONY,
CHANDRAGIRI ROAD,
TIRUPATHI RURAL, CHITTOR,
ANDRA PRADESH - 517 502
WORKING AT
ERICSSON,
Digitally
signed by MOBILVAGEN 12,
MEGHA 223 62 LUND, SWEDEN
MOHAN ...PETITIONER
Location: (BY SRI. SRINIVASA MURTHY S., ADVOCATE)
HIGH
COURT OF AND:
KARNATAKA
MRS. KAVITHA GANGADARA REDDY
W/O. MR. UDHAY.V.S,
AGED ABOUT 41 YEARS,
RESIDING AT NO. 1556, 17TH 'B' MAIN,
5TH BLOCK, HBR LAYOUT,
KALYANNAGAR,
BENGALURU- 560 043
...RESPONDENT
(BY SRI. VIJAYA KUMAR K., ADVOCATE)
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NC: 2024:KHC:30928
WP No. 12228 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
RECORDS IN CRIMINAL MISCELLANEOUS PETITION NO. 196/2021
ON THE FILE OF THE III ADDL. PRINCIPAL JUDGE, FAMILY COURT,
BENGALURU AND SET ASIDE THE ORDER DATED: 20.12.2022
(ANNEXURE-E) PARTLY ALLOWING IA NO.2 (ANNEXURE-C) IN
CRIMINAL MISCELLANEOUS PETITION NO.196/2021 ON THE FILE OF
III ADDL. PRINCIPAL JUDGE, FAMILY COURT AT BENGALURU AND
DISMISS THE IA NO.2.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
The present writ petition is filed aggrieved by the order passed in I.A.No.2 in Criminal Miscellaneous No.196/2021 dated 20.12.2022 by the III Additional Principal Judge, Family court, Bengaluru whereby the trial court had granted an amount of Rs.20,000/- to the wife as interim maintenance. Aggrieved thereby the husband is before this court.
2. The parties are referred to as wife and husband for the sake of convenience.
3. The respondent/husband herein has filed I.A.No.2 stating that the marriage was solemnized on 23.01.2017. The husband was working in Sweden and he is getting handsome salary, he deserted her without a valid reason. Wife is -3- NC: 2024:KHC:30928 WP No. 12228 of 2023 unemployed, and she is depending upon her mother and brothers for her livelihood, mother is also suffering from age related ailments and she is not in a position to take care of her. It is submitted that husband is bound to take care of wife and she sought for maintenance of an amount of Rs.1,00,000/- per month.
4. The husband had filed his objections for I.A.No.2 stating that the application is not maintainable. He submits that wife is living separately since 03.06.2017 and she refused to live with him at the place where he is residing and employed. The petitioner without any sufficient cause living separately, as such she is not entitled for any maintenance. It is the case of the husband that the wife is holding his money to the tune of Rs.5,70,779/- in addition to Rs.2,90,000/-. She suppressed the said facts and there are no bonafides in her application. This application is filed only to extract the money and it is his case that they have stayed together for 14 days in India and the marriage was not consummated. Thereafter he left to Sweden on 10.02.2017. The money which has been sent to her for the sake of taking care of his father, she did not spent for that purpose. She came to Sweden on 07.04.2017 and stayed with -4- NC: 2024:KHC:30928 WP No. 12228 of 2023 him for 57 days and returned to India on 03.06.2017. During her stay with him, he observed that the wife is under medication and she used to consume tablets on regular basis. On enquiry, she informed that she is having thyroid problem. According to the husband, she failed to understand his concerns and she started shouting at him that he is immature. Then he filed a petition under Section 13(1)(ia) of Hindu Marriage Act seeking divorce, and the wife had lodged the complaint against the husband and the family members.
5. The Trial court, considering the respective stands taken by both the wife and husband and also taking into consideration, the statement of assets and liabilities filed before the court observed that the wife failed to disclose in her affidavit the assets and liabilities as to how she is accumulating Rs.42,500/- per month for her maintenance. According to her, she lost her job during COVID-19 period, the statement of accounts produced by the wife along with the memo dated 24.11.2022 shows that she is unemployed and she had no income and she is also highly qualified. The court observed that whether the wife is living away from husband without any reasonable cause will be decided at a later point of time and -5- NC: 2024:KHC:30928 WP No. 12228 of 2023 considering the financial capacity of the husband granted an amount of ₹20,000/- per month to wife as maintenance. Aggrieved thereby, the husband is before this court.
6. Learned counsel appearing for the petitioner/husband submits that the wife had come up before the court by suppressing several factors. It is submitted that by order dated 25.01.2024, some documents are filed before this court. When the court directed them to file the actual returns, only a part of it is filed which is contrary to the judgment of the Hon'ble Apex Court in case of Rajnesh -Vs- Neha1, the SBI account statement is missing from 8.01.2023 to 01.04.2023 and the bank of Baroda and HDFC bank statements are not legible. When the matter came up on 25.01.2024 final chance is granted to comply with the order dated 25.01.2024. Thereafter, another memo dated 9.02.2024 is filed stating that the IT returns till 2021 are filed and later as she is not working, she could not file the IT returns. When the matter came up on 01.03.2024, this court directed the respondent to file a detailed affidavit before this court and what are the financial transactions, tax details from 2019 to till date and all the 1 AIR 2021 SC 569 -6- NC: 2024:KHC:30928 WP No. 12228 of 2023 documents relating to that. The respondent filed it on 06.03.2024 stating that she has produced before the Court, the bank statements from 2018 till date and IT returns of year 2019-2020 and 2020-2021 by memo dated 09.02.2024. The respondent has also reiterated that she is not been working from 01.09.2020 as she was laid-off and thus she has not filed any IT returns for the financial year 2021-22, 2022-23 and 2023-24 and also stated that she is jobless and she has no income and produced the termination letter dated 10.08.2020 stating that she would be laid off effectively from 01.09.2020. Learned counsel submit that she has filed another affidavit very next day on 07.03.2024 stating that she indeed filed NIL returns for 2021-22 and filed returns for the for the year 2023- 2024. Learned counsel for the petitioner submits that, this is in complete contradiction to the previous affidavit dated 06.03.2024 filed by the respondent. The justification the respondent has given for mis-representing her previous affidavit dated 06.03.2024 is about not having filed any IT returns for the financial year 2021-22 and 2023-24, was that, it was by oversight unintentional and bonafide mistake. He submits that on 01.03.2024, submission made by the -7- NC: 2024:KHC:30928 WP No. 12228 of 2023 respondent had been recorded by the court that no income tax returns are filed for the last three years. Counsel further submits that all this conduct of the respondent clearly shows that she has come before this court with unclean hands, and by suppression of facts and she is not entitled for any relief from the court. It is submitted that the trial court, though she has not filed all the documents as per the judgment of the Hon'ble Apex Court in case of Rajnesh -Vs-Neha referred supra, still granted maintenance. The trial court has also observed that the wife has failed to disclose in the statement of assets and liabilities as to how she is accumulating Rs.42,500/- per month for her maintenance, he submits that even with regard to her occupation also the statements of accounts on 07.03.2024 affidavit also are not correct. She says that she is a B.Arch graduate. She is jobless unable to work and she is suffering from arthritis. Then at para No.4, it is stated that she was working in Threefold Design and Architecture Firm at Bangalore as an architect and laid off from the firm due to COVID-19 from 01.09.2020. Looking at all these facts, and particularly when the acts of the Respondents are in clear -8- NC: 2024:KHC:30928 WP No. 12228 of 2023 contravention of the judgment of the Hon'ble Apex Court in Rajnesh Vs. Neha she is not entitled for any maintenance.
7. Learned counsel for the respondent submits that the husband is earning good salary as he is working in Sweden and the wife, though she is an architect, but in view of the Covid, she lost her job and she is not working and she requires maintenance. Before the trial court, she sought for maintenance of an amount of Rs.1,00,000/- but the court had granted only an amount of Rs.20,000/-. It is submitted that by mistake and by oversight it is stated that she has not filed the income tax returns, but however, by way of an affidavit, it is clarified that she has not filed the income tax returns for the financial year 2021-22, 2022-23, filed the NIL returns for the year 2021-22, but filed the income tax returns for the year 2023-24. Only by oversight it is stated that she has not filed the income tax returns, instead, mentioning the other way. Learned counsel submits that the wife is entitled for the maintenance as she is not able to maintain herself and the husband, though he is having sufficient income to maintain the wife is coming before the court with all these grounds to avoid the maintenance to wife. Learned counsel submits that it is the -9- NC: 2024:KHC:30928 WP No. 12228 of 2023 bounden duty of the husband to maintain his wife when he is earning a handsome salary.
8. Having heard the counsels on either side, perused entire material on record. The wife has claimed maintenance of an amount of Rs.1,00,000/-. It is the case that the husband is working in Sweden and earning substantial amounts. In the judgment of the Hon'ble Apex Court in the case of Rajnesh Vs. Neha referred supra has observed that both the parties have to file their respective statements of assets and liabilities, and in the said judgment, the court has clearly mentioned what are all the documents that have to be filed. In case any affidavit that is filed with misrepresentation and suppression of facts, the party is liable for all the consequences. In this case, this court is of the considered opinion that the wife at every stage has suppressed the facts before the court by filing different affidavits, with regard to the income tax returns she has taken different stands which shows that she has not disclosed all the facts before this court. This is a fit case where the court has to consider as per the dictum of the Apex court in Rajnesh Vs. Neha referred supra and appropriate action has to be taken by the court. This court is inclined to remand this case to the trial
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NC: 2024:KHC:30928 WP No. 12228 of 2023 court. The entire exercise has to be done by the court basing on the actual and the required documents that are placed before the court and basing on such facts, the court has to again decide the maintenance. The parties have to file the relevant documents as per the judgment of the Hon'ble Apex Court. In case the court after conducting and considering all the facts and details comes to the conclusion that on oath the facts that are placed on record are not correct facts and there is suppression of facts, appropriate action needs to be initiated. In view of the above discussion, this Court is passing the following order:
ORDER i. The order passed in I.A.No.2 in Criminal Miscellaneous No.196/2021 dated 20.12.2022 by the III Additional Principal Judge, Family court, Bengaluru, is set aside and the matter is remanded back to the Trial Court.
ii. The trial court shall insist for all the documents that are relevant as per the judgment of the Hon'ble Apex court in the case of Rajnesh Vs. Neha referred supra and shall decide the application as expeditiously as possible, but not later than three months.
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NC: 2024:KHC:30928 WP No. 12228 of 2023 iii. The Registrar (Judicial) is directed to send the affidavits filed by both the parties before this court to the trial court along with the copy of the order.
iv. Accordingly, the writ petition is disposed off.
v. All IA's in this writ petition shall stand closed.
SD/-
(LALITHA KANNEGANTI) JUDGE TS List No.: 1 Sl No.: 50