Anitha Siddartha Satapute vs Siddartha Veerappa Satapute
2022 Latest Caselaw 8101 Kant

  IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

         DATED THIS THE 3 R D DAY OF JUNE, 2022

                        BEFORE

        THE HON'BLE MR.JUSTICE RAVI V.HOSMANI

                R.S.A. NO.466/2007 (INJ)

BETWEEN

1 .   ANITHA SIDDARTHA SATAPUT E
      MAJOR, HOUSEHOLD WORK ,
      R/O H.NO.2831/78,
      EKTHANAGAR, NEAR TAJANAGAR,
      UNAKAL, HUBLI-31.

2 .   KUMARI SHRUTI
      D/O SIDDARTHA SATAPUTE
      AGE: 15 YRS, MINOR REP. BY
      HER NATURAL MOT HER AND
      GUARDIAN-APPELLANT NO.1,
      R/O H.NO.2831/7, 8,
      EKATHANAGAR, NEAR TAJANAGAR,
      UNAKAL, HUBLI-31.

3 .   KUMARI POOJA @ ARUNA
      D/O SIDDARTHA SATAPUTE,
      AGE: 9 YEARS, REP. BY HER NATURAL
      GUARDIAN-APPELLANT NO.1,
      R/O NO.2831/7, 8, EKATHANAGAR,
      NEAR TAJANAGAR, UNAKAL, HUBLI-31.

                                           ...APPELLANTS

(BY SRI.LINGESH V KATTIMANI, ADV.)

AND

SIDDARTHA VEERAPPA SATAPUTE,
AGE: 39 YEARS,
OCC: SERVICE KSRTC CONDUCT OR
(BATCH NO.2085),
                              2




R/O DIVISIONAL CONTROLLER,
HUBLI DIVISION , NWKRTC,
HOSUR, HUBLI-21.
                                                ...RESPONDENT

(BY SRI.KIRAN K UMAR, ADV., FOR
    SRI .DINESH M KULKARNI , ADV.,)

     THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
JUDGMENT    AND     DECREE   DT.8.11.2006    PASSED    IN
R.A.NO.173/2005 ON THE FI LE OF T HE II ADDL. CIVIL JUDGE
(SR.DN), HUBLI , ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DT.24.8.2005 PASSED IN
O.S.NO.12/2001 ON THE FILE OF T HE IV ADDL. CIVI L JUDGE
(JR.DN) HUBLI. TRIAL COURT DECREED THE SUIT FOR
PERMANENT INJUNCTION; APPELLATE COURT ALLOWED THE
APPEAL.

    THIS RSA HAVING BEEN         HEARD   AND RESERVED FOR
JUDGMENT  ON    08.03.2022       T HIS   DAY,  THE  COURT
PRONOUNCED THE FOLLOWING:


                          JUDGMENT

Challenging judgment and decree dated 08.11.2006

passed by II Additional Civil Judge (Sr.Dn.) Hubli, in

R.A.No.173/2005 and judgment and decree dated

24.08.2005 passed by IV Additional Civil Judge (Jr.Dn.)

at Hubli, in O.S.No.12/2001, this appeal is filed.

2. Appellants were plaintiffs no.1 to 3 in original

suit and respondents no.1 to 3 in first appeal; while

respondent herein was defendant in suit and appellant

in first appeal. For sake of convenience, parties to this

appeal are referred to by their ranks in original suit.

3. Brief facts as stated are that, O.S.No.12/2001

was filed by plaintiffs against defendant seeking for

monthly maintenance of Rs.4,000/- and permanent

injunction restraining defendant from alienating plots

no.7 and 8 without consent of plaintiffs.

4. In plaint, it was stated that plaintiff no.1 was

legally wedded wife of defendant and plaintiffs no.2 and

3 were their children. It was stated that marriage was

solemnised on 17.05.1990 in Arya Samaj building,

Bengaluru, thereafter they were living together in

matrimonial home at Hubli. However, trouble began

brewing for plaintiff no.1 at matrimonial home as

parents, brothers and sisters of defendant were picking

up quarrels with plaintiff no.1 on flimsy reasons and

abused her in filthy language.

5. It was stated that this led plaintiff no.1 to

attempt suicide, but was admitted to KMC Hospital and

rescued. Thereafter, on assurance of defendant's

parents to take good care, she went back to matrimonial

home by refraining from filing police complaint. About

three years prior to filing of suit, defendant began going

to Sabarimalai every year. During pilgrimage, plaintiff

no.1 was sent to her maternal home. Defendant

borrowed Rs.30,000/- from parents of plaintiff no.1,

assuring that he would construct a separate house for

her in Ektanagar and constructed a house, began living

there with plaintiff no.1. But, he soon began neglecting

her by not providing food and other basic necessities.

Whenever, prompted, he insisted her to bring money

from her parents. During this time, plaintiff no.1 gave

birth to plaintiffs no.2 & 3. Birth of plaintiff no.3 on day

of solar eclipse led to increased harassment by her in-

laws. She also came to know that defendant had fallen

in love with another girl by name Banu and intended to

marry her with support from his parents. When plaintiff

no.1 opposed, she was threatened at knife point stating

that he would elope with Banu. He then began residing

away from plaintiffs.

6. Since then they were living separately.

Sending paltry amount of Rs.1,000/- per month by

money order, defendant neglected to maintain plaintiffs

despite having sufficient means, as he was working as a

conductor in KSRTC and earning handsome salary. When

it was learnt that defendant was making hectic efforts

to sell plots nos.7 and 8 situated in Ektanagar, Hubballi,

suit was filed.

7. In said suit, defendant filed written statement

admitting plaintiff no.1 as wife and plaintiffs no.2 and 3

as their children, but denied all other plaint averments.

He specifically denied that he was owner of two plots as

pleaded and contended that plaintiffs were residing in

house belonging to his parents. He also asserted that

plaintiffs were getting maintenance as ordered in

Crl.Misc.Case and therefore, there was no cause of

action for filing suit. It was stated that he had never

refused to maintain plaintiffs and suit was filed only to

harass him. Further as only bread earner of his family,

he was required to maintain his parents, brothers and

sisters, in addition to plaintiffs and that his take home

salary was Rs.2,000/- only. He, therefore contended

that there was no merit in suit and sought for its

dismissal.

8. Based on pleadings, trial Court framed

following issues:

1. Whether plaintiff proves that she has suffered ill treatment by family members of defendant during her stay at her in- laws house?

2. Whether plaintiff proves that defendant had willfully deserted and neglected to maintain her along with her children, inspite of having sufficient means to maintain them?

3. Whether plaintiff are entitled for maintenance amount a sought for? If so, to what extent?

4. Whether plaintiff is entitled for relief of permanent injunction?

5. What order or decree?

9. To substantiate their case, plaintiff no.1 was

examined as PW.1 and another witness as PW.2.

Exhibits P.1 to P.13 were marked. While defendant

examined himself as DW.1 and another witness as

DW.2. Exhibits D.1 to D.18 were marked.

10. On consideration, trial Court answered issues

no.1 to 4 in affirmative and issue no.5 by decreeing suit

awarding monthly maintenance of Rs.2,500/- to

plaintiffs. Trial Court also restrained defendant from

alienating plot no.7 and 8 without consent of plaintiff.

11. Assailing said judgment and decree, defendant

filed R.A.No.173/2005 on several grounds. It was

contended that it was contrary to facts and law,

presumptions drawn were erroneous. It was contended

that proper issues were not framed and there was

improper appreciation of pleadings and evidence.

12. Considering grounds urged, first appellate

Court framed following points for consideration:

1. Whether the judgment and decree dated 24.08.2005 is not based on pleadings and evidence and hence it needs interference by this Court?

2. What order?

13. After answering point no.1 in affirmative, first

appellate Court answered point no.2 by allowing appeal

and setting aside judgment and decree passed by trial

Court. Aggrieved thereby, this second appeal is filed.

14. Sri S.G.Kadadakatti, learned counsel for

plaintiffs submitted that impugned judgment and decree

passed by first appellate Court was contrary to law,

facts of case and on improper appreciation of evidence.

It erred in holding that plaintiffs refused to live with

defendant and hence not entitled for maintenance,

contrary to admission by defendant that he was residing

away from plaintiffs. It was submitted that living

separately and failing to provide maintenance amounted

to 'cruelty'. He also submitted that there was non-

appreciation and improper appreciation of facts and

circumstances of case, which led to impugned order.

15. Learned counsel further submitted that

plaintiffs had earlier filed an application under Section

125 of Cr.P.C. for maintenance, which was opposed on

similar grounds. On consideration, trial Court concluded

that defendant failed and neglected to maintain his wife

and children (plaintiffs herein) inspite of having

sufficient means. He also submitted that RPFC

No.100010/2016 was filed by plaintiffs herein seeking

enhancement of maintenance to Rs.5,000/- each, which

was allowed on 23.09.2021 enhancing monthly

maintenance to Rs.3,000/- each. Learned counsel

submitted that as defendant had not challenged said

order, it attained finality. Therefore, finding therein

about failure and neglect to maintain plaintiffs had

attained finality, which would bind him in these

proceedings also. While passing impugned judgment and

decree, first appellate Court failed to consider said

factor. He further drew attention to fact that this Court

had taken note of current net salary of defendant at

Rs.23,288/- and rise in cost of living, therefore,

impugned judgment would virtually nullify said order.

16. Insofar as decree of injunction, it was

submitted that admittedly, plaintiffs were in possession

of house property in plot nos.7 & 8, which was

constructed with money borrowed from parents of

plaintiff no.1. Apart from under provisions of Hindu

Adoption Maintenance Act, 1956 ('HAM Act' for short),

defendant was required to maintain plaintiffs under

provisions of Code of Criminal Procedure (hereinafter

referred to as 'Cr.P.C.' for short) and also the Protection

of Women from Domestic Violence Act, 2005 (for short

'D.V.Act'). Provisions of Section 17 of D.V. Act entitled

wife to reside in property belonging to her husband. On

proper consideration, trial Court had granted decree of

injunction also. However, first appellate Court set aside

same without much justification.

17. Learned counsel further submitted that appeal

was admitted on 10.11.2008, to consider following

substantial questions of law:

a. Whether first appellate Court is right in reversing findings, which is based on evidence, without reasoning?

            b.    Whether first appellate Court is
                  justified  in   substantiating    its
                  operation   without   any    material
                  evidence    and   disbelieving   the
                  statement made by appellant on
                  oath without any proper reasoning?

            c.    Whether first appellate Court is
                  justified in dismissing suit both on
                  fact and law, under circumstances of
                  case?

            d.    Whether first appellate Court is

justified in set-asiding findings of trial Court, without any evidence?

18. On other hand, Sri. Kiran Kumar, Advocate

appearing for Sri. Dinesh M. Kulkarni, learned counsel

for defendant opposed appeal. He contended that

consideration of claim for maintenance under Section

125 of Cr.P.C. and suit for maintenance under Section

18 of HAM Act were not same. In a suit for

maintenance, plaintiff was required to establish either

of following:

• that husband was guilty of desertion without reasonable cause and without consent of wife or against her wish or willfully neglected her;

• he treated her with such cruelty as to cause reasonable apprehension in her mind that it would be harmful or injurious for her to live with him;

• he was suffering from virulent form of leprosy;

• he had any other wife living;

• he had kept a concubine in same house with his wife or habitually resides with concubine elsewhere;

• he ceased to be Hindu by conversion

• any other justifiable cause for living separately.

19. He further submitted that only circumstance

which would disentitle wife from claiming maintenance

would be, if she were unchaste or ceased to be Hindu by

conversion, either of which defendant failed to plead

and establish. Therefore, on proper appreciation of suit

claim in light of purpose of HAM Act, trial Court decreed

suit. He further submitted that plaintiffs were also

occupying house belonging to defendant's parents. It

was lastly submitted that defendant was paying

maintenance as ordered in proceedings under Section

125 of Cr.P.C. and impugned decree would cast

additional burden as he was also required to take care

of his aged parents.

20. Heard learned counsel for appellants. Perused

impugned judgment and decree and record.

21. From above submission, it is not in dispute

that defendant was husband of plaintiff no.1 and father

of plaintiffs no.2 and 3. It is also not in dispute that

after marriage, plaintiff no.1 and defendant lived

together for some time, but thereafter residing

separately. While plaintiffs contend that when plaintiff

no.1 went to defendant's house after marriage, his

parents and family members ill-treated her and when

she opposed his intention to marry another girl, he

deserted plaintiffs and started residing separately.

22. On other hand, it is defendant's case that he

never ill-treated or refused/neglected to maintain

plaintiffs. He was ready and willing to take them back

and in fact, it was plaintiff no.1, who was not willing to

maintain marital relationship with him, without any

justifiable cause and therefore, not entitled for

maintenance.

23. While considering issue of ill-treatment of

plaintiffs and desertion by defendant, trial Court

referred to plaint averments and deposition of plaintiff

no.1 as PW-1, wherein she stated that her marriage

with defendant was love marriage. During her stay with

defendant in matrimonial home, he treated her rashly

and not with love and care. Harassment suffered at

hands of his family forced her to attempt suicide.

Evidence of PW.2 - brother of plaintiff no.1,

corroborating her deposition was also referred. Taking

note of fact that nothing material was elicited from

plaintiffs' witnesses and admission of defendant that he

was residing separately, held that plaintiffs' allegation

of having suffered cruelty at the hands of defendant

stood established. Even documentary evidence was

referred to. Ex.P.2 - copy of FIR, Ex.P.3 - letter of Legal

Aid Board and production of letters of plaintiff no.1, to

conclude that plaintiffs suffered both physically and

mentally. It also referred to order passed in

Crl.Misc.no.131/2001, wherein, finding regarding ill-

treatment recorded had attained finality. Insofar as

quantum, it took note of salary as per Ex.P.18 at

Rs.6,000/- per month and granted decree directing

defendant to pay Rs.2,500/- per month as maintenance

to plaintiffs.

24. Insofar as relief of injunction, trial Court

referred to admission of defendant that plaintiffs were

in possession of house in plot nos.7 and 8, so also

referred to averments about his attempt to evict

plaintiffs. It concluded that above evidence established

plaintiffs' possession and interference with same by

defendant. It held that transfer of ownership of house in

plot nos.7 and 8 to his father by defendant also

substantiate interference. On said findings, it proceeded

to grant decree of injunction.

25. While reversing judgment and decree passed

by trial Court, first appellate Court referred to

contention of defendant that he had never refused to

maintain plaintiffs and was ready and willing to look-

after them. It also referred to suggestion of defendant

during cross-examination of PW.1 that defendant was

ready to forget past and live with plaintiffs, which was

answered by her stating that she is ready to reside with

him only in house at Ektanagar.

26. First appellate Court also held that plaintiff

no.1 admitted that she was staying away from

defendant. It held that provisions of HAM Act required

to establish circumstances beyond her control and

because of attitude of defendant i.e., willful neglect and

cruelty of such nature causing reasonable apprehension

in her mind that it would be harmful or injurious to live

with him. It observed that despite claiming that due to

harassment meted out by defendant's parents, brothers

and sisters, plaintiff no.1 attempted to commit suicide,

and on their assurance to take care of her, she had not

given police complaint, but she had not examined any

other witness, such as neighbours to substantiate same.

27. It observed that plaintiff had attempted to

improve upon pleadings by mentioning various other

instances of cruelty or harassment, during her

deposition before Court. It concluded that her allegation

about defendant attempting to contract second marriage

as not established. It held that filing of various cases

against defendant and his family members by plaintiff

no.1, as attempts to cover up her intention not to reside

with defendant. On said conclusion, it held that

plaintiffs failed to substantiate ill-treatment and neglect

by defendant to maintain them.

28. First appellate Court also referred to

admission of plaintiff no.1 that she had passed Diploma

in Electronics and completed one year training at

KEONICS and that she was earning income from tuition

and tailoring at home. On above evidence, it held that

plaintiff no.1 failed to establish that defendant willfully

neglected plaintiffs. It held that trial Court had not

appreciated grounds on which a party living separately

could claim maintenance.

29. Even prior to enactment of HAM Act, a Hindu

wife was entitled to be maintained by her husband as

per uncodified Hindu Law. High Court of Orissa in case

of Jagat Krishna Das Vs. Ajit Kumar Das reported in

AIR 1964 Ori. 75, held that Section 18(1) of HAM Act

entitled Hindu wife to be maintained by her husband

during her life time and in case of claim for

maintenance, onus was on defendant to plead and prove

that plaintiffs are not entitled for maintenance. In this

case, reason assigned by first appellate Court for

reversing finding of trial Court was that though

defendant had unequivocally offered to take plaintiffs

back and maintain them, but plaintiffs had failed to lead

evidence to establish that defendant had deserted them.

During course of cross-examination defendant had

admitted that he was residing separately from plaintiffs.

Indeed, only evidence led by plaintiffs to support her

allegations of ill-treatment by her husband and family

members, neglect to provide maintenance was her own

deposition and that of her brother. However, plaintiffs

have asserted about ill-treatment and harassment by

narrating specific instances. Though defendant

contended that false complaints/prosecution was meted

out by plaintiffs against him and his family members, he

has without any explanation offered to take them back

and maintain them. Dual stand of husband in alleging

abuse of process of Court by his wife, while not

resorting to any remedies either for dissolution of

marriage or judicial separation etc., would render his

stand suspect. In an unreported decision, Madurai

Bench of High Court of Madras in R. Sundaravalli Vs.

R. Ramasamy in S.A.(MD)No.870 of 2014, disposed

of on 08.04.2021 has held that Courts cannot look for

corroboration for what happened within four walls of a

home. An unemployed wife seeking small amount as

maintenance would not justify casting of unreasonable

burden on her to reverse well considered decision of

trial Court. On said reasoning, substantial questions of

law were answered in favour of wife and judgment and

decree of trial Court was restored. Ration of said

decision would apply on all fours to instant case. First

appellate Court was not justified in casting burden upon

plaintiffs to establish their entitlement for maintenance

and ill-treatment/harassment and neglect by husband.

30. In view of aforesaid, onus lies on defendant to

establish that plaintiffs were not entitled for

maintenance. Provisions of Section 18 (2) HAM Act,

which clearly provide right of wife to claim maintenance

would not be forfeited merely on account of her residing

separately would also support above conclusion.

31. Observation of first appellate Court that

plaintiffs failed to lead any evidence to establish

attempted suicide on account of ill-treatment by

defendant would be in ignorance of evidence of

defendant, where he produced letters written by plaintiff

no.1 (Exs.D6 & 7) to contend that his wife attempted to

commit suicide for her own reasons. This contention

would be admission of attempt to commit suicide.

32. Apart from above, it has come on record that

maintenance was sought under different enactments in

separate proceedings. In this regard, observations of

Hon'ble Supreme Court in case of Rajnesh Vs. Neha

reported in (2021) 2 SCC 324 would have to be taken

into account:

"60. I t is well settled that a wife can make a claim for maintenance under different statutes. For instance , there is no bar to seek maintenance both under the DV Act and Section 125 CrPC, or under HMA. It would,

however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance , which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/Family Court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.

61. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adj ustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the court concerned in the previous proceeding."

33. It is not in dispute that defendant has

suffered order of maintenance in proceedings under

Section 125 of Cr.P.C. This Court in RPFC

No.100010/2016 disposed of on 23.09.2021 has

enhanced monthly maintenance to each of plaintiffs at

Rs.3,000/- taking into account current monthly salary of

defendant at Rs.23,288/-. Even subsequent

development of marriage of plaintiff no.2 was noted for

ordering discontinuation maintenance to plaintiff no.2

from date of her marriage. As submitted at bar, said

judgment has attained finality. Therefore, maintenance

awarded b trial Court at Rs.2,500/- per month to each

of plaintiffs has to be modified in terms of judgment

dated 23.09.2021 passed in RPFC No.100010/2016.

34. Insofar as decree of permanent injunction

restraining defendant from alienating plots no.7 & 8,

trial Court referred to admission of defendant that

plaintiffs were in possession of house in plots no.7 and

8. It also referred to plaintiffs' assertion about attempts

by defendant to dispossess plaintiffs and concluded that

there was interference by defendant. It also held that

transfer of ownership of house to his father by

defendant also substantiated interference. On said

finding, it granted decree of permanent injunction.

35. First appellate Court has not assigned any

reasons while reversing said decree, which calls for

interference in second appeal.

36. In view of above discussion, findings of first

appellate Court would be perverse and contrary to

evidence on record. Hence, substantial questions of law

are answered in favour of plaintiffs. Hence, I pass

following:

ORDER

Appeal is allowed in part. Judgment and decree

dated 08.11.2006 passed by II Additional Civil Judge

(Sr.Dn.) Hubli, in R.A.No.173/2005 is set aside.

Judgment and decree dated 24.08.2005 passed by IV

Additional Civil Judge (Jr.Dn.) at Hubli, in

O.S.No.12/2001 is restored except insofar as amount of

maintenance, which is modified to Rs.3,000/- per month

in respect of plaintiffs no.1 and 3. Insofar as plaintiff

no.2, it shall be at rate of Rs.3,000/- till date of her

marriage.

No order as to costs.

Sd/-

JUDGE

BVK