Hari Gopal Kumbhar vs Vijaya W/O Hari Kumbar @ Warnulkar
2022 Latest Caselaw 3647 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

      DATED THIS THE 4 T H DAY OF MARCH, 2022

                      BEFORE

      THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


       R.S.A. NO.100230/2021 (MAINTENANCE)

BETWEEN:

SRI HARI S/O GOPAL KUMBHAR,
AGED ABOUT 54 YEARS,
OCC: NIL (SEASONABLE),
R/AT KHANAPUR,
TQ: KHANAPUR,
DIST: BELAGAVI-580007.
                                        ... APPELLANT
(BY SRI MRUTYUNJAY TATA BANGI AND
 SRI S.S.YALIGAR, ADVOCATES)

AND

SMT.VIJAYA,
W/O HARI KUMBHAR @ WARNULKAR,
AGED ABOUT 50 YEARS,
OCC: TEACHER,
R/AT MBS KANABARGI SCHOOL,
TQ: DIST: BELAGAVI-590001.
                                      ... RESPONDENT

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF C.P.C., AGAINST THE JUDGMENT AND
DECREE DATED 06.02.2021 PASSED IN R.A.NO.36/2017 ON
THE FILE OF THE SENIOR CIVI L JUDGE AND J.M.F.C.,
KHANAPUR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 11.09.2017, PASSED IN
O.S.NO.102/2008 ON THE FI LE OF THE ADDITIONAL CIVIL
JUDGE AND J.M.F.C., KHANAPUR, DISMISSING THE SUIT
FILED FOR MAINTENANCE.

    THIS APPEAL COM ING ON FOR ORDERS THIS DAY, THE
COURT , DELIVERED THE FOLLOWING:
                                      2



                               JUDGMENT

Challenging the judgment and decree dated

06.02.2021 passed by Senior Civil Judge and

J.M.F.C., Khanapur in R.A.No.36/2017, dismissing

appeal and confirming judgment and decree dated

11.09.2017 passed by Addl.Civil Judge and J.M.F.C.,

Khanapur in O.S.No.102/2008, dismissing the suit

filed for maintenance, this second appeal is filed by

unsuccessful plaintiff.

2. For the sake of convenience, parties to this

appeal are referred to by their rankings before trial

Court.

3. Appellant-plaintiff filed O.S.No.102/2008

against respondent-defendant stating that plaintiff

and defendant got married on 24.04.1988 as per

customs prevailing in their community and led marital

life for about 15 years. From their wedlock, they

begot two sons namely Suhash and Sushant.

Thereafter defendant went to her parents' house and

stayed there. His efforts to bring her back to

matrimonial home were unsuccessful. At that time,

plaintiff was doing temporary job as slip boy in

Bhagyalaxmi Co-operative Sugar Factory, Khanapur.

The factory was closed and was later leased to a

private firm, rendering him jobless. But defendant

was working as a teacher in Education Department

and was earning Rs.10,000/- per month. Despite the

above, she was not helping him financially even for

his daily necessities. Therefore seeking maintenance

of Rs.1,500/- per month, suit was filed.

4. After service of summons, defendant

entered appearance and filed written statement

admitted relationship, but denied all other

contentions. She asserted that plaintiff was hale and

healthy and financially sound. He was capable of

maintaining himself and his family, but was not

taking responsibilities of maintaining her and

children. Plaintiff had also filed M.C.No.10/2008 for

restitution of conjugal rights and having realized that

he would not succeed in same, had filed instant suit

to harass defendant. She also asserted that as

plaintiff was not providing for her maintenance or

children, she alone was looking after their expenses

from her meager income and sought dismissal of suit.

5. Based on pleading, trial Court framed

following issues:

(1) Whether plaintiff proves that he is legally wedded husband of defendant?

(2) Whether plaintiff proves that he is unable to maintain himself?

(3) Whether plaintiff is entitled for maintenance as sought for?

      (4)     What order or decree?

      6.    Thereafter      plaintiff    examined            himself      as

PW1   and     concluded     his   evidence        by     marking         one

document namely ration card as Ex.P1. Defendant

examined herself as DW1. She also examined three

other witnesses as DWs.2, 3 and 4 and got marked

Exhibits D1 to D13.

7. On consideration, trial Court answered issue

no.1 in affirmative, issue nos.2 and 3 in negative and

issue no.4 by dismissing suit with compensatory cost

of Rs.5,000/-. Assailing same, plaintiff filed

R.A.No.36/2017 on several grounds. It was contended

that trial Court failed to appreciate material on record

in right perspective. It erroneously placed burden of

proof upon plaintiff instead of defendant. That proper

issues were not framed and conclusions were based

on assumptions and presumptions.

8. Considering same, first appellate Court

framed following points for its consideration.

1. Whether the Trial Court was justified in holding that plaintiff has failed to prove that he is unable to maintain himself?

2. Whether the findings recorded by the Trial Court on various issues are correct?

3. Whether the judgment passed by the Trial Court requires interference of this Court?

4. What order or decree?

9. On consideration, appellate Court answered

point nos.1 and 2 in affirmative, point no.3 in

negative and point no.4 by dismissing appeal and

confirming judgment and decree passed by trial

Court. Aggrieved thereby, this second appeal is filed.

10. Heard learned counsel for appellant.

Perused impugned judgment and decree and record.

11. Sri S.S.Yaligar, advocate appearing for Sri

Mrutyunjay Tata Bangi, learned counsel for appellant

submitted that relationship between plaintiff and

defendant was admitted. It was not in dispute that

plaintiff had lost his employment while defendant was

working as a teacher in government school and

earning handsome salary. Despite same, trial Court

proceeded to dismiss suit. It was submitted that

plaintiff being without employment or having any

source of income could not be denied maintenance

from defendant who was working as teacher in

government school. It was submitted that conclusions

arrived at by trial Court were perverse and

capricious. It was also submitted that defendant-wife

was not ready to lead matrimonial life with plaintiff

and despite having independent income, was refusing

to maintain plaintiff who was without job. In the light

of above submission, learned counsel proposes

following substantial questions of law for

consideration.

1. Whether the trial Court and the appellate Court would be justified in dismissing the suit for maintenance by the husband when the husband has no independent source of income and even after loss of seasonable employment?

2. Whether a wife who denies to lead a matrimonial life and refuses to join the husband and who has no independent source of income would maintain a claim for maintenance?

12. From above submission, only point that

arises for consideration in this appeal is:

"Whether proposed substantial questions of law arise for consideration in this appeal?"

13. The relationship of plaintiff and defendant

as husband and wife is not in dispute. That they led

marital life for 15 years and begot two children is

also not in dispute. Subsequently due to misgivings

between them, defendant was living separately from

plaintiff, along with children is also not in dispute.

The only basis for claim of maintenance by plaintiff

was that he was unemployed and defendant was

working as a government school teacher.

14. Plaintiff admitted in cross-examination that

he had completed Job Oriented Course after his

S.S.L.C. and studied up-to P.U.C. and also worked on

daily wages under an engineer for two years prior to

marriage and thereafter worked with another

engineer for one year. He was also working as civil

mestri under an engineer in Bhagyalaxmi Sugar

Factory. In fact, plaintiff neither pleaded that he was

physically incapable of working and earning income

nor established that he suffered from any disability

preventing him from working and earning income.

Plaintiff had also deposed that his children were

studying and he was also contributing for their

education. It also took note of salary certificate of

plaintiff issued by sugar factory as per Exhibits D1,

D2 and D4. Certified copy of judgment and decree in

M.C.No.10/2008 as Ex.D3. Copies of pension

sanctioned order, salary particulars, service book,

authorization letter, I.D. card and copy of

disbursement of pension were produced as Exhibits

D7 to D13 respectively. Considering the above

material, trial Court held plaintiff failed to establish

that he was either incapable of earning income or did

not have sufficient source of income.

15. Defendant also examined Enforcement

Officer of Provident Fund as DW2 and Second Division

Assistant of Bhagyalaxmi Sugar Factory as DW3 and

Deputy Manager of M/s Laila Sugars Private Limited

as DW4. DW4 admitted that plaintiff was working as

fuel clerk in M/s Laila Sugars Private Limited from

29.09.2009 till retirement on 31.10.2013. At the time

of retirement, his basic salary was Rs.8,450+DA+HRA

+MA totaling to Rs.15,046/- per month. Ex.D13 was a

photograph issued by M/s Laila Sugars Private

Limited, which tallied with photo displayed in Ex.P1-

ration card.

16. On appreciation of above evidence which

consisted of unequivocal documents indicating

employment of plaintiff and salary certificates

indicating his income as well as deposition of officials

of sugar factory who stated about employment and

income of plaintiff came to a conclusion that plaintiff

was failed to establish that he was unable to maintain

himself that he had sustained physical disability as

would prevent him earning livelihood dismissed suit.

17. Appellate Court upon re-appreciation of

entire evidence on record and conclusions drawn by

trial Court, did not find any material error of

procedure or justification for interfering with findings

of trial Court and dismissed appeal. Appellate Court

specifically referred to admission by plaintiff about

his employment in Bhagyalaxmi Sugar Factory and

also his educational qualification to arrive at a

conclusion that plaintiff failed to establish that he

was unable to maintain himself and dismissed appeal.

Conclusions drawn by both Courts are with reference

to evidence on record and while drawing said

conclusion, no material fact or evidence has been left

out. Therefore, conclusions drawn are neither

perverse nor capricious. Deposition of DW3 and DW4

would clearly establish that plaintiff was working in

Bhagyalaxmi Sugar Factory until his retirement. As it

was not established that he was physically unable to

eke out living and as it was admitted that he was in

employment earning salary and getting monthly

pension after retirement, it cannot be held that

plaintiff was unable to maintain himself. Therefore

neither of the proposed substantial questions of law

arises for consideration herein. Appeal is accordingly

dismissed without issuing notice to respondent.

SD/-

JUDGE CLK