Badrinarayan S/O Madhavrao Mirji vs Smt. Roopa @ Rama W/O Badrinarayan ...
2022 Latest Caselaw 8250 Kant

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                                     RPFC No. 100041 of 2020


     IN THE HIGH COU RT OF KARNATAKA, DHA RWAD B ENC H

          DA TED THIS THE 0 7TH DA Y OF JUNE, 2022

                           BEFOR E
           TH E H ON'BLE MR JUSTI CE E.S .INDIRES H
       REV .P ET FAMIL Y COUR T NO. 100041 O F 2020 (-)
BETWEEN:

1.    BADR INARA YA N S/O MA DHAVRAO MIRJI,
      AG E: 53 YEARS ,OCC: NIL ,
      R/O H.NO.158/2,MARAWADI GAL LI,
      WAR D NO.8,BA GALKOTE-587101.



                                               ...PETI TIONER

(B Y S RI. R.H.ANGADI.,A DV OCATE)

AND:

1.    SMT. ROOPA @ RA MA W/O BADRINA RAYA N MIRJI.
      AG E: 40 YEARS , OCC : PV T. S ERV IC E,
      R/O H.NO.S1, 2ND FLOOR ,
      UNI QUE NES T BU ILDING,
      NEAR LAX MI TEMPLE,
      VI DYA NAGAR, HUB BALLI ,
      NOW A T C /O SHAMSUNDARRA O KO THWAL,
      H.NO.M-8,R K ORC HID APAR TMENT,
      1ST FL OOR ,NEAR UTTARA DHIMA TH,
      BEH IND RA MBA PU RI KAL YANA MANTA PA,
      HUBBALLI -580021.

2.    AMRUT S /O BA DR INARA YAN MIRJI
      AG E :16 YEARS ,
      OCC : S TUDENT,
      R/O H.NO.S1, 2ND FLOOR ,
      UNI QUE NES T BU ILDING,
      NEAR LAX MI TEMPLE,
      VI DYA NAGAR, HUB BALLI ,
      NOW A T C /O SHAMSUNDARRA O KO THWAL,
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                                   RPFC No. 100041 of 2020


     H.NO.M-8,R K ORC HID APAR TMENT,
     1ST FL OOR ,NEAR UTTARA DHIMA TH,
     BEH IND RA MBA PU RI KAL YANA MANTA PA,
     HUBBALLI -580021.

3.   ANKI TH S/O BA DRI NARAYA N MIR JI
     AG E : 40 YEARS, OCC : S TUDENT,
     R/O H.NO.S1, 2ND FLOOR ,
     UNI QUE NES T BU ILDING,
     NEAR LAX MI TEMPLE,
     VI DYA NAGAR, HUB BALLI ,
     NOW A T C /O SHAMSUNDARRA O KO THWAL,
     H.NO.M-8,R K ORC HID APAR TMENT,
     1ST FL OOR , NEAR UTTARA DH IMA TH,
     BEH IND RA MBA PU RI KAL YANA MANTA PA,
     HUBBALLI -580021.
     RES PONDENT NO.2 AND 3 AR E MINORS
     R/B Y THEIR MOTHER P ETITIONER
     NO.1 /RES PONDENT NO.1 AS NA TURAL GUARDIAN.



                                            ...R ESPONDENT'S

(B Y S MT. GEETA K M., A DV OCATE FOR R1;

      R2 AND R3 AR E MINOR R /BY R1)


      THIS R PFC FILED UNDER S EC.19(1 ) OF THE FA MILY
COURTS A CT, 1984, AGA INST THE JUDGMENT A ND ORDER
DATED 30.09.2020, IN CRL.MIS C. NO.90/2016, ON THE
FILE OF THE PR INCIPAL JU DGE, FA MILY CO UR T, HUBB ALLI,
PAR TLY AL LOWING THE PETITION FILED UNDER S EC.125
OF CR .P.C .

     THIS PET ITON C OMING ON FOR ADMISS ION THIS
DAY, THE COUR T MA DE THE FOL LOWI NG:
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                                         RPFC No. 100041 of 2020


                              ORDER

This revision petition is filed by respondent-husband,

challenging the order dated 30/9/2020 in Crl.Misc.

No.90/2016 on the file of the Prl. Judge, Family Court,

Hubballi, allowing by granting maintenance to the

petitioners.

2. For the sake of convenience, the parties to this

revision petition are referred to with their rank before the

Family Court.

3. It is the case of the petitioners that petitioner No.1

got married with respondent on 17/12/2001 at Raichur and

in their wedlock two children were born namely Amruth-

petitioner No. 2 and Ankith-petitioner No.3. It is further

averred in the petition that respondent was working in

Campbell as service Engineer and he has neglected to

maintain the petitioners and accordingly, the petitioners

have filed Crl.Misc.No.90/2016 before the Family Court,

Hubballi seeking maintenance.

RPFC No. 100041 of 2020

4. On service of notice, respondent entered appearance

and filed detailed objections denying the claim petition. In

order to prove their case, petitioner No.1 was examined as

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

produced ten documents and the same were marked as

Ex.P.1 to Ex.P.10. The respondent was examined as RW.1

and produced seven documents and the same were

marked as EX.R.1 to EX.R.7. The Family Court, after

considering the material on record, by order dated

30/9/2020, allowed the petition in part awarding

maintenance of Rs.5,000/- per month to the petitioner

No.1 and Rs.10,000/- each to the petitioner Nos. 2 and 3.

Felling aggrieved by the order of the Family Court, the

respondent-husband has preferred this petition.

5. Heard Sri.R.H.Angadi, learned counsel appearing for

the petitioner and Smt.Geeta K M learned counsel

appearing for the respondents.

6. Sri.R.H.Angadi, learned counsel for the petitioner

argued that respondent No.2 herein has attained the age of

RPFC No. 100041 of 2020

majority and accordingly award of maintenance by the

Family Court, in favour of respondent No.2 herein requires

interference in this petition. He further contended that the

petitioner-husband under went surgery for loss of eye sight

and there is gradual reduction in the income of the

petitioner and the said aspect has not been considered by

Family Court. He also relies upon the judgment of the

Bombay High Court in the case of Sanjay Damodar Kale

V/s. Kalyani Sanjay Kale and another, reported in

2020 SCC Online Bom 694 and contended that income of

both the parties has to be ascertained while dealing with

the petition under Section 125 of Cr.P.C. and accordingly,

he sought for dismissal of the claim petition.

7. Smt.Geeta K M, learned counsel appearing for the

respondents sought to justify the impugned order passed

by the Family Court, Hubballi.

8. In the light of the submissions made by the learned

counsel for the parties and taking into account, the finding

recorded by the Family Court, it is not in dispute that

RPFC No. 100041 of 2020

respondent Nos. 2 and 3 are children of the petitioner and

the respondent No.1. Perusal of the records would indicate

that respondent No.2-Amruth has attained the age

majority and therefore, in view of the law declared by the

Hon'ble Apex Court in the case of Amrendra Kumar Paul

V/s. Maya Paul and others reported in (2009) 8 SCC

359, major son is not entitled for maintenance from their

parents. In that view of the matter, awarding of

maintenance in favour of respondent No.2-Amruth till the

date of attaining the majority cannot be granted in view of

the law declared by the Hon'ble Apex Court in the case of

Amrendra Kumar Paul (supra). Accordingly, I find force

in the submission made by the learned counsel appearing

for the petitioner.

9. Insofar as awarding of maintenance to the

respondent No.1-wife is concerned, though there is

submission made by the learned counsel appearing for the

petitioner that petitioner herein has filed M.C.No.60/2013

under Section 9 of the Hindu Marriage Act, seeking

RPFC No. 100041 of 2020

restitution of conjugal rights and the said petition came to

be decreed by the competent Court as per Ex.R.6 and

Ex.R.7, taking into consideration law declared by the

Hon'ble Apex Court in the case of Shailja and another

V/s. Khobbanna reported in AIR 2017 SC 1174,

wherein the Hon'ble Apex Court has held that merely

because the wife is capable of earning is not sufficient

reason to reduce the maintenance granted by the Family

Court. Therefore, I am of the view that, awarding of the

maintenance to respondent No.1 and respondent No.3

cannot be disturbed in this petition.

In the light of the observations made above, I pass

the following:

ORDER

i) The Revision Petition is allowed in part;

ii) Order dated 30/9/2020 in Crl. Misc. No.90/2016 by the Prl. Judge, Family Court, Hubballi is modified insofar as the 2nd respondent herein as mentioned above;

RPFC No. 100041 of 2020

iii) Award of maintenance insofar as the respondent Nos. 1 and 3 are confirmed;

iv) The amount in deposit be transmitted to the Family Court for disbursement in accordance with law;

v) The registry is directed to send back the trial Court records forthwith.

Sd/-

JUDGE

VB