Sri. Ramesh S/O Hanumanthappa ... vs Smt. Chethana W/O Ramesh ...
2021 Latest Caselaw 697 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 12th DAY OF JANUARY 2021

                        BEFORE

      THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


                 RPFC No.100118/2017

BETWEEN

SRI. RAMESH S/O HANUMANTHAPPA SHIVANAKKANAVAR
AGE: 33 YEARS, OCC: ENGINEER,
R/O: RAGHAVENDRA COLONY,
HIREKERUR, DIST: HAVERI,
NOW R/AT: NO.6,
4TH MAIN, 5TH CROSS,
SRINIVASA NAGAR,
BENGALURU-560085.

                                            ...PETITIONER

(By SRI.P.K.SANNINGAMMANAVAR, ADV.)



AND

1.    SMT. CHETHANA W/O RAMESH SHIVANAKKANAVAR
      AGE: 31 YEARS, OCC: HOUSEHOLD WORK,
      R/AT: C/O H. A. BASAVANTHAPPA
      SRI.RANGANATH NILAYA,
      C.B. NAGAR, DHARWAD.

2.    KRUTHIKA D/O RAMESH SHIVANAKKANAVAR
                                      2




      AGE: 5 YEARS, OCC: STUDENT,
      MINOR, REP/BY MOTHER RESP.NO.1,
      SMT.CHETHANA
      W/O RAMESHH SHIVANAKKANAVAR,
      R/AT: C/O H. A. BASAVANTHAPPA
      SRI.RANGANATH NILAYA,
      C.B. NAGAR, DHARWAD.

                                                         ....RESPONDENTS

(By SRI. PRASHANT MATHAPATI, ADV. FOR R1;
 R2 MINOR REPRESENTED BY R1)

     THIS RPFC IS FILED UNDER SECTION 19(4) OF THE FAMILY
COURT ACT, AGAINST THE JUDGMENT AND ORDER DATED
30.12.2016 IN CRL.MISC.NO.74/2016, ON THE FILE OF THE
PRINCIPAL JUDGE, FAMILY COURT, DHARWAD, PARTLY ALLOWING
THE PETITION FILED UNDER SECTION 125 OF CR.P.C.

     THIS RPFC COMING ON FOR ORDERS, THIS DAY, THE COURT,
DELIVERED THE FOLLOWING:


                             JUDGMENT

Learned counsel for the petitioner has filed a memo for

retirement dated 07.01.2021. It is not accompanied by

acknowledgment of petitioner. Learned counsel for respondents

submits that it is the third counsel who is seeking retirement on

behalf of the petitioner and that the same is only with an intention

to dilate above proceedings. In view of above, memo for retirement

is rejected.

2. Heard the learned counsels on the main petition.

3. Learned counsel for the petitioner submits that

impugned order in this petition is an ex-parte order and the

petitioner did not avail an opportunity before trial Court and

therefore seeks for interference with the order.

4. He further submits that respondent No.1 has completed

her M.A., B.Ed. and working as a teacher and therefore it cannot be

said that she is unable to maintain herself. Without considering the

same, impugned order is passed.

5. On the other hand, learned counsel for respondents

submits that summons was duly served on the petitioner despite

the same he did not participate, and impugned order was passed by

considering evidence placed on record. He further submitted that

petitioner is working as software engineer and earning monthly

income of more than Rs.80,000/- in addition to having landed

properties as indicated by contents of Exs.P3 and P4. Learned

counsel also denies that respondent No.1 is working and is having

any source of income. He submits that she is unable to maintain

herself. Even respondent No.2 was attending school and requires

maintenance. Therefore, the order for payment of Rs.10,000/- per

month as maintenance to respondent No.1 and Rs.5,000/- per

month as maintenance to respondent No.2 is fully justified and no

grounds for interference are made out.

6. From perusal of impugned order, it is noted therein that

marriage of respondent No.1 was solemnized with the petitioner on

09.06.2010 at Hirekerur in accordance with Hindu customs.

Thereafter, she resided with petitioner at matrimonial home and

respondent No.2 was born on 27.12.2011. During the time

respondent No.1 was with the petitioner, she was ill-treated by him

and his family members. Despite advice by elders, petitioner did

not change his attitude. She stated that there was even an attempt

to administer poison to her and she had filed private complaint

No.218/2012 against the petitioner. Thereafter, respondent No.1

and her child began residing at her maternal home. But petitioner

failed to provide any maintenance to them despite having sufficient

means as he was working as software engineer with a monthly

salary of more than Rs.80,000/- and having a RCC house

constructed in CTS No.1558/B in Hirekerur and also owning 2 acres

31 guntas of agricultural land in Sy.No.62/2. Apart from above

petitioner also owns a site in Ranebennur. It is stated that from the

above sources, petitioner was having annual income of more than

Rs.5,00,000/-. Despite the same, he has failed and neglected to

maintain respondent No.1-wife and respondent No.2-child. In

support of her application, respondent No.1 produced copies of

wedding invitation as Ex.P1, Aadhar card as Ex.P2, CTS of house

site extract as Ex.P3, RTC of agricultural land as Ex.P4 and their

wedding photograph as Ex.P5. After considering the same, family

Court held that respondent No.1 is entitled for maintenance of

Rs.10,000/- per month and respondent No.2 is entitled for

maintenance of Rs.5,000/- per month.

7. In a petition filed under Section 125 of Cr.P.C., the

Hon'ble Supreme Court in the case of Rajathi Vs. C. Ganesan

reported in 1999 (6) SCC 326 has held that, a statement by wife

that she was unable to maintain herself would be sufficient and it

would be for the husband to prove otherwise. It was further held

that, burden lies on husband to prove that he has no sufficient

means to discharge his obligation or he did not neglect or refuse to

maintain her.

8. In the case on hand petitioner despite service of notice

has not appeared and contested the proceedings. Even in the

petition before this Court, there is no denial of his employment as

software engineer with salary of Rs.80,000/- per month. His only

contention is that respondent No.1 is also working and he lost his

jot. His employment proves his earning capacity and status. But

there are no records to substantiate the same. Apart from same, it

is available to the petitioner to establish these facts by filing

application under Section 127 of Cr.P.C, 1973.

9. Under these circumstances, order for payment of

maintenance at the rate of Rs.10,000/- per month to respondent

No.1 and Rs.5,000/- per month to respondent No.2 does not call for

any interference. Accordingly, the petition is dismissed.

Sd/-

JUDGE KGK