Smt. Kusuma @ Lalitha vs Sri R. Venkataranga @ Venkatesha
2022 Latest Caselaw 10401 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 6TH DAY OF JULY 2022

                     PRESENT
          THE HON'BLE MR. ALOK ARADHE
              ACTING CHIEF JUSTICE
                       AND

         THE HON'BLE MS.JUSTICE J.M.KHAZI

            M.F.A.NO.6240 OF 2013 (MC)

  BETWEEN:

  SMT. KUSUMA @ LALITHA
  AGED ABOUT 44 YEARS
  D/O MAHADEVA
  W/O R VENKATARANGA ALIAS
  VENKATESHA
  BEHIND KRISHNA TEMPLE
  INDIRA COLONY
  T NARASIPURA TOWN
  MYSORE DISTRICT-571124
                                      ... APPELLANT
  (BY SRI. LOKESH D.K, ADVOCATE FOR
      SRI. P.NATARAJU, ADVOCATE)

  AND:

  SRI R. VENKATARANGA @ VENKATESHA
  AGED ABOUT 47 YEARS
  S/O T RANGA
  D.NO. 3/57, DODDANAIKA STREET
  KOLLEGALA
  CHAMARAJANAGAR DISTRICT-571440
                                  ... RESPONDENT

  (BY SRI. A.LOURDU MARIYAPPA, ADVOCATE)

      THIS MFA IS FILED U/S 28(1) OF THE HINDU
  MARRIAGE ACT PRAYING TO SET ASIDE THE
  JUDGMENT AND DECREE PASSED BY THE LEARNED
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SENIOR CIVIL JUDGE & JMFC, T.NARASIPURA, IN
M.C.NO.15/2008 DATED 16.02.2012 BY ALLOWING THIS
APPEAL & PASS SUCH OTHER ORDERS WHICH THIS
HON'BLE COURT DEEMS FIT UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE IN THE INTEREST OF
JUSTICE AND EQUITY.

     THIS MFA HAVING BEEN HEARD AND RESERVED
ON 30.06.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, J.M.KHAZI J., DELIVERED THE
FOLLOWING:

                    JUDGMENT

This appeal filed under Section 28(1) of the

Hindu Marriage Act, 1955 (hereinafter referred to

as 'the Act') by the wife, challenge is confined

only to the quantum of permanent alimony

granted by the trial Court while allowing the

petition filed by the husband under Section

13(1)(i-a) and (i-b) of the Act granting a decree of

divorce.

2. For the sake of convenience the parties

are referred to by their rank before the trial

Court.

3. FACTS: The marriage of petitioner and

respondent was solemnized on 05.03.2001 at

Kollegal. However, respondent had ran away from

the reception. Later on they had returned to the

matrimonial home. Within half an hour, the

respondent went to the bathroom and had

consumed tablets. She had disclosed that she

was suffering from stomach pain and was unfit

for marriage or to have children. On the next day,

she was crying with stomach ache and therefore,

the petitioner had to take her to parent's house

and requested them to get her medical care. Even

though the petitioner tried to get her medical

care, the same did not yield any result. The

marriage between the petitioner and respondent

had not been consummated. Even though

panchayaths were held, the respondent did not

cooperate and ultimately, she continued to stay

in her parents house. As on the date of filing the

petition, respondent had deserted the petitioner

for six years. The conduct of the respondent in

depriving the petitioner of matrimonial

cohabitation amounts to cruelty. In the absence

of any other alternative, he has filed this petition.

4. Earlier, the petitioner had filed

M.C.No.2/2004 for divorce. However, though the

respondent filed objections, later on she came

forward to join the petitioner and lead a happy

married life. Therefore, the petitioner got the

petition closed on 21.09.2005. However, the

respondent did not obey the Court order. On the

other hand, at the instigation of her parents, she

filed a false complaint against the petitioner and

his family members. For no fault of his, the

petitioner was arrested and detained in jail. The

respondent also gave false complaint to the

Education Department where the petitioner was

working. Therefore, he was suspended and later

on, his suspension was revoked. Respondent

also filed Crl.Misc.54/2005 for maintenance. In

the light of these, petitioner had sought a decree

of divorce.

5. After due service of notice, the

respondent appeared through counsel and filed

written statement admitting the fact that their

marriage was solemnized on 05.03.2001 at

Kollegal. However, she had denied that she

walked out of the reception and did not co-

operate with the petitioner to consummate the

marriage. However, she admits that the marriage

is not consummated. The respondent denied

that she told the petitioner that she is suffering

from stomach ache and is not able to bare

children. The filing of the petition in

M.C.No.2/2004 by the petitioner and withdrawal

of the same by way of joint memo dated

21.09.2005 was also admitted.

6. The respondent has alleged that the

marriage was performed by giving dowry in a sum

of Rs.1,50,000/-, watch, gold ornaments and

clothes worth Rs.1,25,000/- and cash of

Rs.30,000/-, to enable the petitioner to get a

government job. She has also alleged that after

the 'Beegara oota' held at the petitioner's place,

he left the respondent to her parent's house and

did not take her back. It is the petitioner who

had refused to consummate the marriage saying

that he is not willing to lead a marital life. After

M.C.No.2/2004 was filed by the petitioner, the

respondent filed an application under Section 24

of the Hindu Marriage Act. To avoid payment of

maintenance, petitioner withdrew

M.C.No.2/2004. He took her to the matrimonial

home for a period of seven days. However, during

this period, the respondent was harassed and ill

treated by the petitioner and his family members

and therefore, she had filed a complaint in

Cr.No.97/2005. Since then she has been living

in her parental home.

7. Based on the pleadings, the trial court

has framed issues.

8. Enquiry was held, wherein three

witnesses were examined on behalf of petitioner

including the petitioner as PWs-1 to 3 and Ex.P1

to 10 were marked.

9. Respondent was deposed as RW-1.

10. Vide the impugned judgment and

decree, the trial court has allowed the petition

granting decree of divorce. It has directed the

petitioner to pay permanent alimony in a sum of

Rs.1,25,000/- to the respondent.

11. The present appeal filed under Section

28 (1) of the Act, respondent has confined her

challenge in respect of the judgment and decree

with regard to grant of permanent alimony,

contending that it is on the lower side and that

she is not having any source of income for her

livelihood. She is entirely dependent on her

parents who are very poor. Now the father of the

respondent is also no more. Since the petitioner

is working as a music teacher, he is earning

Rs.10,000/- p.m. and he is also getting rental

income of Rs.4,000/-p.m. Taking into

consideration these aspects, the compensation

may be enhanced adequately.

12. Heard arguments and perused the

records.

13. Since the respondent has not

challenged the judgment and decree insofar as it

grants decree of divorce, the same has attained

finality. The limited question which is required to

be decided in this appeal is whether the

permanent alimony granted is inadequate and on

the lower side and thus, requires enhancement.

14. During the course of the arguments,

learned counsel representing the petitioner

submitted that at present the petitioner is

drawing salary to the extent of Rs.40,000/-p.m.

The marriage was performed on 05.03.2001.

Since, the marriage 21 years have elapsed. There

is no allegation to the effect that either of the

parties have remarried. It is also not the case of

the petitioner that the respondent is either

employed or having any source of income.

15. Taking into consideration all the

aforesaid aspects, we are of the considered

opinion that it would be reasonable to enhance

the permanent alimony to Rs.10,00,000/-. To

aforesaid extent, the impugned judgment and

decree is liable to be modified and accordingly,

we proceed to pass the following:

ORDER

(i) The appeal filed by

respondent/wife is allowed.

     (ii)    The    permanent        alimony     is

             enhanced    to     Rs.10,00,000/-   as

against Rs.1,25,000/- granted by

the trial Court.

(iii) The registry is directed to transmit

the trial Court record along with

copy of this judgment.

Sd/-

ACTING CHIEF JUSTICE

Sd/-

JUDGE

RR