Smt Mehar Taj vs Abdul Sattar
2021 Latest Caselaw 1225 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 20TH DAY OF JANUARY 2021

                             BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

                   R.P.F.C. No.7 OF 2017
BETWEEN:

Smt. Mehar Taj
W/o. Abdul Sattar,
D/o. Syed Basheer,
Aged about 56 years,
Presently R/at, C/o. Sanaulla
Wheel Puncure Shop,
Old check post, Bengaluru Main Road,
Dabaspet, Nelamangala Taluk,
Bengaluru Rural Dist.
                                                  ..Petitioner
(By Sri.Vijayakumara, Advocate)

AND:

Abdul Sattar
S/o. late Majeed Sab,
Aged about 79 years,
Retired KEB line man,
3rd Cross, Maraluru Dinne,
Tumkur. 572101.
                                                   .. Respondent
(By Smt. B.A. Vani, Advocate)

                                  ****

       This RPFC is filed under Section 19(4) of the Family Courts
Act, 1984, praying to set aside the impugned judgment and
order dated 24-10-2016 passed by the Principal Judge, Family
Court at Tumkuru in C.Misc.No.60/2015, by allowing the above
revision petition, in the interest of justice and equity.
                                                  RPFC No.7/2017
                                 2


     This RPFC coming on for Final Hearing through Physical
Hearing/Video Conferencing Hearing this day, the Court
made the following:

                            ORDER

The petition filed by the present petitioner under Section

125 of the Code of Criminal procedure, 1973 (hereinafter for

brevity referred to as the "Cr.P.C.") in the Court of the learned

Principal Judge, Family Court at Tumakuru (hereinafter for

brevity referred to as the "Trial Court") seeking a maintenance at

the rate of `22,000/- per month from the present respondent,

came to be dismissed by the Trial Court by its judgment dated

24-10-2016. It is against the said judgment, the petitioner in

the Trial Court has preferred this revision petition.

2. The respondent herein was the respondent in the Trial

Court. Both parties are being represented by their respective

counsels.

3. Heard the arguments from both side. Perused the

materials placed before this Court.

4. After hearing the learned counsels for the parties, the

only point that arise for my consideration in this revision petition

is:

RPFC No.7/2017

Whether the judgment under revision is perverse, illegal and erroneous warranting interference at the hands of this Court?

5. Learned counsel for the respondent herein

submitted that she is not disputing the marital relationship

between the parties herein and admits that the present

respondent is the husband of the present petitioner. However,

she further submits that the said marriage has now ended in

divorce, under the order on 24-10-2016, passed in

O.S.No.13/2015, by the learned Principal Judge, Family Court at

Tumakuru. She further submits that challenging the said

judgment of divorce, the present petitioner has preferred a

Miscellaneous First Appeal in M.F.A.No.287/2017 before this

Court and the same has been admitted and pending for its final

hearing.

The said submission regarding earlier marital relationship

of the parties and the present petitioner challenging the alleged

divorce obtained by the present respondent and the same being

challenged by the present petitioner in the said

M.F.A.No.287/2017 before a co-ordinate bench of this Court is

admitted by the learned counsel for the respondent also. As RPFC No.7/2017

such, the fact remains that as on date, the alleged divorce has

not reached its finality and is pending final hearing in this Court

in M.F.A.No.287/2017.

6. Learned counsel for the petitioner in his argument

submitted that the petitioner is an aged lady of 53 years and

she was driven away from the house of the respondent due to

his cruelty meted to her. Therefore, when she is residing

separately for valid reasons and when she is unable to maintain

herself, it is the duty of her husband to maintain her. This

aspect was not considered by the Trial Court.

7. Learned counsel for the respondent in her very brief

argument addressed only on the point of the financial condition

of the respondent, stating that, since the respondent himself is

aged more than 80 years and is a pensioner, he cannot maintain

his wife and on that ground alone, the present petition be

dismissed.

8. The admitted fact remains that prior to their marriage,

the petitioner herein was a divorcee and the respondent was a

widower. Therefore, though there was much age difference

between them, still, they got married to each other. According RPFC No.7/2017

to the oral submissions made by the learned counsels from both

side today, the said marriage between the parties has been

dissolved by an order of the Court passed in O.S.No.13/2015,

which order has been challenged by the petitioner herein by

preferring a Miscellaneous First Appeal in M.F.A.No.287/2017,

before this High Court, as such, the order of divorce also has not

reached its finality. Therefore, nothing bars this Court to

proceed on the notion that, the petitioner is entitled for

maintenance provided, it is convinced to the Court that she is

unable to maintain herself.

9. It is the shortest argument addressed by the learned

counsel for the respondent where she has pleaded the economic

constraint on the part of the respondent and also contended that

petitioner is self-sufficient to maintain herself since she owns a

house. In this regard, she draws the attention of this Court to

paragraph 18 of the impugned judgment.

10. A perusal of the impugned judgment would go to show

that the Trial Court has denied the maintenance to the present

petitioner on the ground that, it was stated that she owns a

house. In that relation, the learned Trial Court relied upon the

evidence of DW-3 in another suit i.e. in O.S.No.13/2015 where RPFC No.7/2017

the said witness who is stated to be the own brother of the

present petitioner is shown to have stated that, their father had

given one house to the present petitioner, which in turn, she has

given to her sister's daughter (niece). The Trial Court, observing

that the evidence discloses that the petitioner owns a house, as

such, she has got means for her maintenance, denied

maintenance to her.

11. The said finding of the Trial Court is not acceptable for

two reasons. Firstly, nowhere, the Trial Court has mentioned

that the said alleged deposition of DW-3 in O.S.No.13/2015 was

confronted to PW-1 before it, that too, admittedly, when

petitioner was not a party in the said O.S.No.13/2015. As such,

the petitioner in the Trial Court had no occasion to cross-

examine DW-3 on his alleged statement.

Secondly, even according to the Trial Court, the house said

to have been given to PW-1 by her father has in turn been given

by her to her niece (sister's daughter), as such, it can be inferred

that the petitioner is neither in possession nor in control of the

said house. The Trial Court nowhere has stated as to what that

"giving house by father to PW-1" and PW-1 in turn "giving the RPFC No.7/2017

house to her niece". There are no materials even before the

Trial Court to ascertain as to whether even before giving the

house to her sister's daughter, she was holding any control over

that house or any right or at least was getting any income from

the said house before the act of the alleged giving of the said

house to her niece. Therefore, merely because a house is said to

have been given to the petitioner which itself is not sufficient to

take the statement on its face value, has made the Trial Court to

jump to a conclusion that the petitioner was capable of

maintaining herself, when there were no materials placed before

it to show that the petitioner had no source of income so that

she could maintain herself. Merely because a house has passed

to petitioner's niece through her which house was originally

belonging to her father, could not be construed as a property

giving some periodical income to the petitioner for her

maintenance.

12. On the other hand, admittedly, the present respondent

is a retired employee from Karnataka Electricity Board and it is

contended that he is getting monthly pension at the rate of

`22,000/- which is also taken into note by the Trial Court.

According to PW-1, the respondent is also getting an income RPFC No.7/2017

from his house property at Maraluru Dinne, at `3,000/- per

month as on the date of the evidence. The said source of

quantum of income of the respondent in the Trial Court has not

been shaken or dismantled from the respondent's side. No

where the Trial Court has held that the alleged income of the

respondent could not be proved.

Thus, from the records placed before me, it is clear that

the respondent, as on the date of the evidence recorded by the

Trial Court, was getting a monthly income of `25,000/-. There is

all the possibility of the said income increasing at a later date, as

he is a pensioner getting a monthly pension which increases

periodically depending upon the rate of Dearness Allowance and

other factors covering the salary in question under the pension

scheme. In such a situation, the petitioner, as a wife, who has

challenged her divorce with the present respondent, is entitled

for maintenance since the said divorce proceedings is still

pending adjudication before the competent Court.

However, the Trial Court without noticing these aspects

jumped to a conclusion that merely because PW-1 is shown to

have been given a house by her father she has got means for her

maintenance and able to maintain herself.

RPFC No.7/2017

13. Since the said finding is now proved to be an

erroneous one, the impugned judgment deserves interference at

the hands of this Court.

Considering the materials placed before this court,

regarding the financial capacity of the present respondent, I am

of the view that the respondent requires to be directed to pay a

reasonable maintenance to his wife during her life time or till any

order regarding maintenance is passed in M.F.A.No.287/2017 or

the disposal of the said M.F.A.No.287/2017 with order on

maintenance.

Accordingly, considering the facts and circumstances of

the case, as analysed above, I proceed to pass the following:

ORDER

[i] The petition of the petitioner is allowed in

part;

[ii] The impugned judgment dated

24-10-2016 passed by the Principal Judge, Family

Court at Tumakuru in C.Misc.No.60/2015, is set

aside;

[iii] The petition of the petitioner filed under

Section 125 of the Code of Criminal Procedure, 1973 RPFC No.7/2017

in the Court of the Principal Judge, Family Court at

Tumakuru in C.Misc.No.60/2015, is allowed in part;

[iv] The respondent - Abdul Sattar is directed

to pay monthly maintenance at the rate of `5,000/-

per month to petitioner - Smt. Mehar Taj from the

date of petition and continue to pay during her life

time or till she re-marries any other person or till the

adjudication of M.F.A.No.287/2017 regarding divorce

petition alleged to have been pending, with orders on

maintenance.

Needless to say that in case the petitioner

herein succeeds in her M.F.A.No.287/2017, she would

continue to get the maintenance from the

respondent.

In view of disposal of the revision petition, I.A.No.1/2017

does not survive for consideration.

Sd/-

JUDGE BMV*