Rachappa Mahadevappa Tambole vs Manjula Rachappa Tambole
2022 Latest Caselaw 1948 Kant

          IN THE HIGH COURT OF KARNATAKA,
                   DHARWAD BENCH

      DATED THIS THE 08TH DAY OF FEBRUARY 2022

                        PRESENT

        THE HON'BLE MR. JUSTICE S.G. PANDIT

                          AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

              M.F.A.NO.100308 OF 2014 (FC)
                          C/W
            M.F.A.NO.100309 OF 2014 (GW/WC),
                 MFA NO.100310/2014(FC)

IN M.F.A.NO.100308 OF 2014

BETWEEN

RACHAPPA MAHADEVAPPA TAMBOLE
AGE: 37 YEARS, OCC: SDA
OFFICE ASST.DIRECTOR OF AGRI.
R/O.BADAMI, DIST: BAGALKOT.
                                               ... APPELLANT

(BY SRI. J.S.SHETTY, ADVOCATE)

AND

SMT. MANJULA RACHAPPA TAMBOLE
AGE: 33 YEARS, OCC: HOUSEHOLD
R/O.RAMANAGAR S.K.DESAI
BUILDING, DHARWAD.
                                             ... RESPONDENT

(BY SRI G.S.SAVADATTI, ADVOCATE)

MFA FILED U/S. 19(1) OF FAMILY COURT ACT, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DTD:06.11.2013, PASSED IN MC NO.79/2011 ON THE FILE OF THE FAMILY COURT DHARWAD AND DISMISSAL OF THE RESTITUTION OF CONJUGAL RIGHTS PETITION BE RESTORED.

IN M.F.A.NO.100309 OF 2014

BETWEEN

RACHAPPA MAHADEVAPPA TAMBOLE AGE: 37 YEARS, OCC: SDA OFFICE ASST.DIRECTOR OF AGRI.

R/O.BADAMI, DIST: BAGALKOT.

... APPELLANT (BY SRI. J.S.SHETTY, ADVOCATE)

AND

SMT. MANJULA RACHAPPA TAMBOLE AGE: 33 YEARS, OCC: HOUSEHOLD R/O.RAMANAGAR S.K.DESAI BUILDING, DHARWAD.

... RESPONDENT

(BY SRI G.S.SAVADATTI, ADVOCATE)

MFA FILED U/S. 19(1) OF FAMILY COURT ACT, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DTD:06.11.2013, PASSED IN G & W NO.2/2011 ON THE FILE OF THE FAMILY COURT DHARWAD AND DISMISSAL OF THE PETITION BE RESTORED AND PASS THE ORDER TO HAND OVER THE CHILDREN TO THE CUSTODY OF THE APPELLANT.

IN M.F.A.NO.100310 OF 2014 BETWEEN

RACHAPPA MAHADEVAPPA TAMBOLE AGE: 40 YEARS, OCC: SDA OFFICE ASST.DIRECTOR OF AGRI.

R/O.BADAMI, DIST: BAGALKOT.

... APPELLANT (BY SRI. J.S.SHETTY, ADVOCATE)

AND

1. SMT. MANJULA RACHAPPA TAMBOLE AGE: 37 YEARS, OCC: HOUSEHOLD R/O: RAMANAGAR, S.K.DESAI BUILDING DHARWAD.

2. KIRAN S/O RACHAPPA TAMBOLE AGE: 10 YEARS, OCC: STUDENT R/O: RAMANAGAR, S.K.DESAI BUILDING DHARWAD.

3. KIRTI D/O RACHAPPA TAMBOLE AGE: 7 YEARS, OCC: STUDENT R/O: RAMANAGAR S.K.DESAI BUILDING DHARWAD.

RESPONDENT NOS.2 AND 3 ARE MINORS R/BY THEIR NATURAL GUARDIAN MOTHER-

RESPONDENT NO.1.

... RESPONDENTS (BY SRI G.S.SAVADATTI, ADVOCATE)

MFA FILED U/S. 19 OF FAMILY COURT ACT, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DTD:06.11.2013, PASSED IN O.S.NO.21/2011 ON THE FILE OF THE FAMILY COURT, DHARWAD AND FOR OTHER RELIEFS.

THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, ANANT RAMANATH HEGDE, J DELIVERED THE FOLLOWING:

COMMON JUDGEMENT

MFA No.100308/2014 is filed by the husband

challenging the judgment and decree dated 6.11.2013

passed in M.C.No.79/2011 on the file of Family Court,

Dharwad. Husband's petition seeking restitution of conjugal

rights is dismissed.

2. M.F.A.No.100309/2014 is filed by the husband

challenging the order dated 6.11.2013 passed in G & W

No.2/2011 on the file of Family Court, Dharwad wherein, the

father sought custody of his two children aged 10 years and

7 respectively (when the petition was filed). The petition

seeking custody is dismissed. Hence, the petitioner in G & W

No.2/2011, is in an appeal seeking custody of the children

from his wife.

3. MFA No.100310/2014 is filed by the respondent

in O.S.No.21/2011 on the file of Family Court, Dharwad,

wherein the suit of the plaintiffs (wife and two children)

seeking maintenance at Rs.6,000/- per month against the

Rachappa Mahadevappa Tamboli-the husband of plaintiff

No.1 and father of plaintiffs Nos.2 and 3, is decreed in part

awarding maintenance of Rs.2,000/- per month in favour of

the plaintiff No.1-wife and Rs.1,500/- per month to each of

the children namely Kiran and Kirti.

4. All three cases were listed together for the final

hearing.

5. Learned counsel appearing in all three matters

are heard. This Court has perused the records placed before

this Court.

6. The petition filed by the husband seeking

restitution of conjugal rights is dismissed primarily on the

ground that the petitioner-husband could not establish that

the respondent has stayed away from him without any

reasonable cause. The trial court based on the evidence on

record has concluded that on account of ill-treatment meted

out by the petitioner-husband, the respondent-wife was

forced to stay away from the husband along with her two

children. On going through the evidence on record, this Court

finds that the conclusion drawn by the trial court to the effect

that the petitioner-husband himself is responsible for the

respondent and two children staying away from him. The

Court has concluded that on account of ill-treatment, the

respondent is justified in staying away from the husband. It

has also come in evidence that two children are in the

custody of the mother and the mother is taking care of two

children. The trial Court has also placed judgment of

Allahabad High Court reported in AIR 1993 Allahabad

244 (Smt. Deepa Suyal Vs Dinesh Chandra Suyal),

applying the ratio laid out in the said judgment, the Trial

Court concluded that there is no ground for the petitioner to

seek restitution of conjugal right when the wife is enabled to

live with the husband on account of ill-treatment of the

husband.

Under these circumstances, there is no reason to

interfere with the judgment and decree passed by the Family

Court in M.C No.79/2011. Accordingly, the same deserves to

be dismissed.

7. As far as the petition seeking custody of the

children, which is filed by the husband in G & W No.2/2011 is

concerned it was contended on behalf of the appellant that,

the appellant being the father is best suited to take care of

his two children. It is submitted on behalf of the appellant

that the appellant is in a position to provide better education

to his children and it is further contended that respondent-

wife is living with her brothers and father, being the natural

guardian is entitled to custody. Learned counsel appearing

for the respondent would submit that the appellant is

alcoholic and has no love and affection towards his wife and

children and he is not suitable to take care of the welfare of

the minors. It is also submitted that the elder son has

already attained the age of majority and the petition against

him is to be dismissed. It is further contended that as far as

2nd child Kirti is concerned, she is now aged 17 years and all

these years she is looked after by the mother and she has

grown in the company of mother and at this juncture, in case

she removed from the custody of the mother, she will not be

in a position to adjust to the environment with her father. It

is also submitted that for the last 10 years there is no

contact between the father and children and on these

grounds, it is urged before the Court to dismiss the petition.

8. We have considered the contentions raised at the

bar and also perused the records placed before this Court.

9. It is a settled position of law that whenever the

Court is required to adjudicate the issue relating to custody,

the Court has to keep in mind the interest of the child. The

welfare of the child is paramount consideration while deciding

the dispute relating to custody of the child. The trial Court

keeping in mind the above-said principle has analysed the

evidence on record and it is forthcoming from the evidence

placed before the Court that the petitioner-appellant has not

made any provision relating to maintenance of the wife and

children. The trial Court has taken note of the fact that the

petitioner-husband has not made any payment towards

maintenance of his wife and children since 2006. It is also

noticed by the trial Court that the petitioner has not even

bothered to pay the school fees of the children. The trial

Court has also noticed that the petitioner was working at

Karwar when the petition was pending before it and he was

alone in his home in Karvar and his mother was residing in

Karikatti village in Saundatti taluk. Taking into consideration

these factual backgrounds, the trial Court has concluded that

the father is not in a position to take care of his children in

the way he is expected to. Under these circumstances, the

Trial Court found it to dismiss the petition. On re-appreciation

of evidence on record and also considering the fact that the

minor child is about to attain the age of majority in a year

and the minor child has spent all her formative years with

the mother, this Court is of the opinion that the custody of

the child should not be disturbed.

Under these circumstances, the appeal fails and

deserves to be dismissed confirming the order dated

06.11.2013 passed in G & W No.2/2011 on the file of Family

Court, Dharwad.

10. As far as MFA No.100310/2014, wherein the

judgment and decree for the award of maintenance at

Rs.5,000/- passed in favour of the plaintiffs against the

defendant are concerned, the learned counsel for the

appellant would submit that he is not liable to pay the

maintenance on the ground that the wife has deserted him

without any cause and she is in a position to maintain

herself, as she is working in Khadi Bandara and earning

Rs.10,000/- per month. The trial court based on evidence on

record has concluded that the defendant-appellant has not

made any provision for the maintenance of his two children.

As far as the contention of the defendant that the wife is

earning is not supported by any materials on record. The

husband is a Government employee and was earning

Rs.15,000/- per month when the said suit was filed.

According to the defendant-husband, his salary is only

Rs.7,000/- per month and not Rs.15,000/- as claimed by the

dependants. The trial Court has held that the defendant-

husband has failed to produce the salary certificate to

substantiate his contention. In a case like this, the plaintiff

and minor children, who seek maintenance from the husband

are not expected to produce the salary certificate. The

defendant-husband or father of minor children must produce

the salary certificate before the Court to enable the Court to

pass appropriate orders based on his salary certificate. The

trial Court has taken note of this particular aspect and on

appreciation of evidence on record has concluded that the

defendant-husband has failed to maintain the plaintiffs-wife

and children. The trial Court has awarded monthly

maintenance of Rs.2,000/- per month in favour of the wife

and Rs.1,500/- each in favour of the minor children. The

decree of maintenance of Rs.5,000/- per month in all at in

stretch of imagination can not be considered as excessive

and there is no scope to interfere with the judgment and

decree passed by the Family Court.

Under these circumstances, this appeal also fails and

deserves to be dismissed confirming the order dated

06.11.2013 passed in O.S.No.21/2011 on the file of Family

Court, Dharwad. Hence, the following;

ORDER

The MFA No.100308/2014 is dismissed confirming the

judgment and decree dated 06.11.2013 passed in M.C.

No.79/2011 on the file of Family Court, Dharwad.

The MFA No.100309/2014 is dismissed confirming the

order dated 06.11.2013 passed in G & W No.2/2011 on the

file of Family Court, Dharwad.

The MFA No.100310/2014 is dismissed confirming the

order dated 06.11.2013 passed in O.S.No.21/2011 on the file

of Family Court, Dharwad.

The cost of litigation deposited in terms of order passed

by this Court shall be transmitted to the trial Court and same

shall be released in favour of respondent.

Pending applications, if any, do not survive for

consideration and accordingly, they are disposed of.

SD/-

JUDGE

SD/-

JUDGE am