Thirumalaswamy S/O Govindaiah vs Smt. Saraswathi W/O Thirumala ...
2021 Latest Caselaw 1852 Kant

        IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

       DATED THIS THE 31ST DAY OF MARCH, 2021

                       BEFORE

    THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO

              R.P.F.C.No.100111/2017
                        C/W
              R.P.F.C.No.100121/2017

R.P.F.C.No.100111/2017:

BETWEEN:

THIRUMALASWAMY
S/O GOVINDAIAH
AGE: 46 YEARS,
OCC: AGRICULTURIST
R/O NAGARAHALU VILLAGE
TQ: SIRUGUPPA
DIST: BALLARI.                    ..PETITIONER

(BY SRI.RAJASHEKHAR GUNJALLI & SRI.J.BASAVARAJ,
ADVOCATES)

AND:

1. SMT.SARASWATHI
W/O THIRUMALASWAMY
D/O YETHIRAJULU
AGED ABOUT 36 YEARS
OCC: HOUSEHOLD,
R/O: SINDHUVALA VILLAGE
TQ. & DIST: BALLARI.

2. KUMARI PALLAVI
                           2


D/O THIRUMALASWAMY
AGED ABOUT 14 YEARS
OCC: STUDENT,
SINCE MINOR
REP. BY SMT.SARASWATHI
W/O THIRUMALASWAMY
D/O YETHIRAJULU
AGED ABOUT 36 YEARS
R/O: SINDHUVALA VILLAGE
TQ. & DIST: BALLARI.              ..RESPONDENTS

(BY    SMT.JOSHNA    DHANAVE,    ADVOCATE     FOR
SRI.V.S.KALASURMATH, ADVOCATE)

     THIS RPFC IS FILED UNDER SECTION 19(4) OF THE
FAMILY COURT ACT, AGAINST THE JUDGMENT AND
ORDER DATED 05.07.2017 IN CRL.MISC.NO.265/2016 ON
THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT,
BALLARI, PARTLY ALLOWING THE PETITION FILED UNDER
SECTION 125 OF CR.P.C.


R.P.F.C.No.100121/2017:

BETWEEN:

1. SMT.SARASWATHI
W/O THIRUMALASWAMY
D/O YETHIRAJULU
AGED ABOUT 37 YEARS
OCC: HOUSEHOLD,
R/O: SINDHUVALA VILLAGE
TQ. & DIST: BALLARI-583101

2. KUMARI PALLAVI
D/O THIRUMALASWAMY
AGED ABOUT 15 YEARS
OCC: STUDENT,
SINCE MINOR
                                3


REP. BY HER NATURAL GUARDIAN
MOTHER -PETITIONER NO.1
R/O: SINDHUVALA VILLAGE,
TQ. & DIST: BALLARI-583101                 ..PETITIONERS

(BY    SMT.JOSHNA    DHANAVE,             ADVOCATE            FOR
SRI.V.S.KALASURMATH, ADVOCATE)

AND:

THIRUMALASWAMY
S/O GOVINDAIAH
AGE: 47 YEARS,
OCC: AGRICULTURE
R/O NAGARAHALU VILLAGE
TQ: SIRUGUPPA TALUK,
DIST: BALLARI-583 101                     ..RESPONDENT

(BY SRI.RAJASHEKHAR GUNJALLI & SRI.J.BASAVARAJ,
ADVOCATES)

     THIS RPFC IS FILED UNDER SECTION 19(4) OF THE
FAMILY COURT ACT, AGAINST THE JUDGMENT AND
ORDER DATED 05.07.2017 IN CRL.MISC.NO.265/2016 ON
THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT,
BALLARI, PARTLY ALLOWING THE PETITION FILED UNDER
SECTION 125 OF CR.P.C.

     THESE RPFCs COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:


                              ORDER

With the consent of the learned counsel appearing

for the parties, petitions are taken up for final disposal.

RPFC No.100111/2017 is filed by husband against

order dated 05.07.2017 passed in Crl.Misc.No.265/2016

wherein first and second petitioner were granted

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

No.100121/2017 is filed by wife and minor daughter

before trial court and they seek enhancement of

maintenance.

2. Both the petitions arise from common order

passed in Crl. Misc. No.265/2016 wherein one

Smt.Saraswathi, aged 36 years, wife of

Sri.Thirumalaswamy and Kum.Pallavi, aged 14 years,

daughter of Saraswathi and Thirumalaswamy filed petition

under Section 125 of Cr.P.C. seeking maintenance at

Rs.20,000/- for the first petitioner and Rs.15,000/- for the

second petitioner.

3. In order to avoid confusion petitioner-wife is

hereinafter referred as petitioner No.1 and petitioner No.2

in the trial court is addressed accordingly and respondent -

Thirumalaswamy shall be referred as respondent who is

ranked in the trial court.

4. Petitioner No.1 claims that she is the legally

wedded wife of the respondent. Their marriage was

solemnized 18 years back as on the date of petition in

front of respondent's residence at Nagarahalu Village,

Siruguppa Taluk, in the presence of elders and well

wishers and through the wedlock petitioner No.2 was born.

Petitioner claims at the time of marriage dowry was given

in the form of gold and other household articles. The

respondent was not satisfied and happy towards petitioner

No.1 as she gave birth to female child because he was

keen on male child and rest is that petitioners were ill-

treated finally respondent threw the petitioners to the

street. It is stated that petitioner No.1 is an unemployee

and not in a position to maintain herself. Besides

petitioner No.2 is a minor girl.

5. The respondent who filed his objection denied

the allegations made by the petitioner and he claims that

he was very much interested to lead marital life with the

petitioner No.1 and spent money for the sole purpose of

his child. Petitioner No.1 took Petitioner No.2 with her

spoiled education of petitioner No.2 and threatened him

that if he does not transfer the property in her name she

will lodge another complaint. Respondent is having 5

acres of agricultural land and petitioner claim is that

respondent is the only son for his parents and has got

irrigated land, house property and open sites and he gets

Rs.20,00,000/- by way of income every year and leading

luxurious life but without providing maintenance atleast to

buy necessaries.

6. Learned counsel for petitioners in RPFC

No.100121/2017 submits that petitioner No.1 with minor

daughter and she requires house for her residence for

which purpose she has to pay rents and in the present day

of shooting up of prices right from basic requirement to

meet the enhancement and her present rate of

maintenance requires to be enhanced so also petitioner

No.2 she is a small girl and cannot go even to labour work.

On the other hand expenditure from different kind for basic

requirement such as food and clothing and other materials

that are exclusively required for a lady. Learned counsel

further submits that petitioners are falling short of the

requirements more over petitioners have not been paid

maintenance from 08.11.2017.

7. Learned counsel for respondent submits that

respondent claims that he has only 5 acres of land and is

unable to pay Rs.5,000/- maintenance for each of the

petitioners and that it has to be reduced. Learned counsel

would submit stay order was granted by this court subject

to deposit of 50%.

8. In the circumstances, the concept of maintenance

and means has to be understood in a larger perception

than going for its liberal meaning. It is a known fact

necessaries are those which are necessary for keeping the

soul and body together. They differ from class to class,

place to place and time to time. What is necessary for a

particular class of people may be luxury for other class of

people at the next corner. However it is a part of society

and it is a way of life. Means to maintain not as a person

the capacity of the person to work and what amount he

gets. Suppose a well built person does not go to job to

avoid maintenance and then takes up a plea he does have

means.

9. Means is the capacity to work not how much

he earns, if a skilled person who has pleaded he earns

Rs.5,000/- a day and if he works for Rs.5,000/- and if he

deliberately avoids working beyond one hour and gets

Rs.1,000/- cannot be called as a person who can earn only

Rs.1,000/- per day and at the same time insofar as ladies

who are neglected by the present petitioner also have

requirement which are necessary for one class and luxury

for the next class. When they go on for shopping everyday

or alternate day or even once in a week for buying those

things apart from maintenance and necessaries any

amount would be insufficient. However in the context and

circumstances considering the conduct of the respondent

for not having paid the maintenance till now after

November, 2017 is not proper in the sense arrears might

have been stayed but considering the petitioners who are

his wife and child he could have volunteered to help them.

10. The order passed in Crl. Misc. No.265/2016 is

liable to be set aside as though the learned Judge was

right in ordering maintenance failed in his duty to quantify

the proper amount. In the circumstances, I find the

petitioner No.1 is entitled for maintenance of Rs.12,000/-

per month and petitioner No.2 is entitled for Rs.8,000/-

per month right from the date of petition till payment.

Insofar as arrears of maintenance it is stated that

petitioners have already withdrawn the amount of

maintenance of Rs.60,000/- which was deposited before

this court. Thus, arrears of maintenance when calculated

at the rate of Rs.12,000/- per month for petitioner No.1

and Rs.8,000/- per month for petitioner No.2 it would be

Rs.8,00,000/- less amount already paid.

11. Considering all the circumstances, I proceed to

pass the following:

ORDER

Order dated 05.07.2017 passed in

Crl.Misc.No.265/2016 by the learned Principal Judge,

Family Court, Ballari, is hereby set aside. The maintenance

is enhanced to Rs.12,000/- per month to petitioner No.1

and Rs.8,000/- per month to petitioner No.2. Insofar as

petitioner No.2 is concerned it is payable till she gets

married. Arrears of maintenance by the respondent shall

be paid in four equal monthly installments and first

payment shall be on 15.04.2021 with a single default

clause.

Accordingly RPFC No.100111/2017 is dismissed and

RPFC No.100121/2017 is allowed in part.

Sd/-

JUDGE

SBN