Karnataka High Court
Mustafa S/O Mohanmmad Yusuf Shekh vs Smt. Mahajabeen W/O. Mustaq Shekh on 31 March, 2022
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 31 S T DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
R.P.F.C. NO.100070/2017
BETWEEN
MUSTAFA S/O M OHAMMAD YUSUF SHEKH
AGE: MAJOR OCC: RAILWAY EMPLOYEE
R/O SHIVAGANGA LAYOUT
KESHWAPUR HOUSE NO.431/24
GADAG ROAD, HUBBALLI 580020.
...PETITIONER
(BY SRI. JADHAV A.G., ADV.)
AND
1. SMT. MAHAJABEEN W/O. MUSTAQ SHEKH
AGE:MAJOR, OCC:HOUSE HOLD WORK
2. KUMARI YASMEEN D/O MUSTAFA SHEKH
AGED ABOUT 19 YEARS,
BOTH ARE R/O SADAR SOFA, MAKKU GALLI,
NEAR DEVANG MATH, OLD HUBBALLI ,
DIST:DHARWAD 580020.
...RESPONDENTS
(BY SRI.H.M.DHARIGOND, ADV.)
THIS RPFC IS FILED UNDER SECT ION 19(4) OF THE
FAMILY COURTS ACT, 1984, AGAI NST THE JUDGMENT AND
ORDER DATED 11.05.2017 IN CRL. MISC. NO.85/2015 ON
THE FILE OF T HE PRINCIPAL JUDGE, FAMILY COURT ,
HUBBALLI, ALLOWING THE PETITION FILED UNDER SECTION
127 OF CR.P.C.
2
THIS RPFC COMING ON FOR ORDERS THIS DAY, THE
COURT , MADE THE FOLLOWING:
ORDER
Challenging the order dated 11.05.2017 passed by
the Principal Judge, Family Court, Hubballi in Crl.Misc.
no.85/2015, this revision petition is filed.
2. The petitioner herein was respondent before
Family Court while respondents herein were petitioners
no.1 and 2. For sake of convenience, they will
hereinafter be referred to as per their ranks before
Family Court.
3. Brief facts leading to this petition are that,
respondent and petitioner no.1 are husband and wife.
From their wedlock, they begot a daughter-petitioner
no.2.
4. That petitioners had earlier file Crl.Misc.
no.39/1999 before the II Addl. Civil Judge (Jr.Dn.) and
JMFC-III Court, Hubballi seeking for monthly
maintenance from respondent. The same was allowed on
11.12.2002, directing respondent to pay monthly
maintenance of Rs.400/- to petitioner no.1 and Rs.300/-
to petitioner no.2. The same was enhanced in Criminal
Revision Petition no.16/2003 directing respondent to
pay monthly maintenance of Rs.500/- to petitioner no.1.
5. As monthly maintenance ordered was
insufficient, petitioners filed instant petition for
enhancing it to Rs.15,000/- and Rs.5,000/- respectively.
6. In the petition, it was stated that during
1999, respondent was Railway Employee with salary of
Rs.7,000/-. Thereafter, his salary had increased to
Rs.50,000/- per month and increase in cost of living
necessitated enhancement of maintenance.
7. On service of notice, respondent appeared
and filed objections opposing enhancement. He
contended that petitioner no.1 was owner of commercial
property earning monthly rent of Rs.12,000/-. In
addition, she was getting monthly rent of Rs.15,000/-
from property belonging to him and suppressing same,
petition was filed.
8. In order to establish their case, petitioner
no.1 was examined as PW-1. Exhibits P1 to P5 were
marked. The respondent examined himself as RW-1 and
also examined three other witnesses as RW2 to RW4 and
got marked exhibits R1 to R11.
9. Thereafter, Family Court framed following
points for consideration:
"1. Whether petitioners no.1 and 2 are
entitled for enhanced maintenance?
2. What order?"
10. On consideration, Family Court answered
point no.1 in affirmative and point no.2 by allowing
petition and enhancing monthly maintenance of
petitioners no.1 and 2 at Rs.15,000/- and Rs.5,000/-
respectively from date of petition till life time of
petitioner no.1 and till petitioner no.2 attains age of
majority or till her marriage.
11. Aggrieved by said order, respondent has filed
this petition.
12. Sri A.G.Jadhav, learned counsel for
respondent submitted that impugned order passed by
Family Court was contrary to law, facts of the case and
evidence on record. It was submitted that Family Court
had lost sight of fact that petitioners had suppressed
material fact about getting rental income by leasing
commercial shops. Even fact that two of their sons were
now earning, was also suppressed. It was further
contended that respondent had raised loan and arranged
for marriage of daughters.
13. Learned counsel would further submit that
petitioner no.2 had since attained age of majority, was
not entitled for maintenance. In order to establish the
same, respondent produced copies of property register
card, RTC extract, CT survey map, passbook of Axis
Bank, SBI Bank and loan ledger extracts of Axis Bank
and loan statement as per Exs.R1 to R11.
14. Learned counsel strenuously submitted that
during her cross-examination, petitioner no.1 - PW-1
admitted that she had received a building having three
shops from her mother. She also admitted that three
shops were occupied by Sanjivini Clinic, Medical Shop
and TV Repair Shop respectively. It was contended that
she had signed rent agreements of shops.
15. Learned counsel further submitted that as
shops were not in good condition, respondent got them
repaired at his cost borrowing loan from Bank, but
petitioner no.1 falsely denied said suggestions.
16. Attention was also drawn to deposition of
respondent wherein he deposed that he had taken care
of all expenses of his five children. He had provided for
their education and marriages. He also stated that by
borrowing loan from HDFC bank, he had constructed
shops.
17. Learned counsel further submitted that
respondent had also examined Dr.Manjunath Kabadi -
tenant of Sanjivini Clinic as RW-2, Shanvaz Kabbur -
tenant of Medical Shop as RW-3 and Noorahmmad
Changapuri - tenant of TV repair shop as RW-4, who
deposed that they were paying rents to petitioner no.1.
This evidence would establish that she was having
sufficient means whereas respondent though employed
with Railways, was repaying loan installments and was
also paying maintenance amount to petitioners regularly
as per earlier order.
18. On above grounds, learned counsel sought for
setting aside of impugned order passed by Family Court.
19. On the other hand, Sri H.M.Dharigond,
learned counsel for petitioners submitted that above
revision petition was devoid of merits. Learned counsel
submitted that after separation from petitioner no.1,
respondent had contracted second marriage and begot a
son from her. The second wife was working in Hulkoti
Engineering College and was earning more than
Rs.50,000/- per month. Even salary of respondent was
Rs.50,000/- to Rs.60,000/-. Apart from same, he was
getting rental income.
20. Despite having sufficient means as above,
respondent refused and neglected to maintain
petitioners. Petitioners had earlier succeeded in getting
an order for monthly maintenance. As it was grossly
inadequate for their survival, they had sought
enhancement. Family Court upon appreciation of
contentions and evidence on record, had passed a well
considered order enhancing maintenance, which was
fully justified, hence no interference was warranted.
21. Learned counsel drew attention of this Court
to deposition of petitioner to said effect. Further PW-1
had denied suggestions that respondent had got
repaired shops and building received by her from her
mother and her further assertion that respondent had
leased out said shops and from 2010 receiving rents.
Attention was also drawn to statement of PW-1 that
marriage of her daughters was performed by her after
selling her jewelry. It was further submitted that during
cross-examination, RW-1 admitted that documents of
shop premises produced by him were in his name and he
was receiving rents. RW-1 further admitted that he was
working in Railways and petitioner had obtained his
salary certificate from Railways and that his second wife
was working as lecturer in Hulkoti College, which would
establish that respondent had huge monthly income,
justifying impugned order. It was further contended that
though RW-2 to RW-4 stated that they were tenants of
petitioner no.1 and were paying rent to her but, none of
them produced rent agreements or rent receipts. Their
deposition was stereotyped and cryptic indicating that it
was untrue. Learned counsel however fairly admitted
that petitioner no.2 had attained age of majority during
pendency of this petition.
22. From above submissions, relationship of
petitioners and respondent is not in dispute. In view of
order passed in Crl.Misc. no.39/1999, entitlement for
maintenance is also indisputable. Only dispute would be
regarding quantum of maintenance.
23. Admittedly, petitioner no.1 is a housewife,
while respondent an employee of Railways. Ex.P4 -
Salary certificate of respondent for July, 2015 indicates
his gross monthly income as Rs.40,780/-. As admitted
by him during cross-examination, respondent was also
receiving rental income. Though petitioner no.1
admitted that she received building with three shops
from her mother, there was dispute about rental income
from said shops. While petitioner deposed that it was
respondent who had leased out said shops and was
receiving rent. Respondent contends that in addition to
receiving rental income from three shops belonging to
her, petitioner no.1 was also receiving rent from one
shop belonging to him. But, deposition of RW-2 to RW-4
being cryptic, vague and stereotyped, cannot be
accepted.
24. In view of admitted fact that petitioner no.2
has attained age of majority, would not be entitled for
continuation of maintenance. Therefore considering
evidence available on record and taking note of ratio of
judgments of various High Courts [Niloy alias Niloy
Ghosh V. Debolina reported in 2016 SCC OnLine Kar
9069 ; Sudhir Diwan v. Tripta Diwan, reported in
2008 SCC OnLine Del 224; Dr. Gladstone v. Geetha
Gladstone and Another reported in 2002 SCC OnLine
Ker 767], order for payment of monthly maintenance of
Rs.15,000/- + Rs.5,000/- would not be justified
25. Taking into account fact that petitioner no.2
was student and monthly maintenance awarded was
Rs.5,000/- only, I do not find any justification for
interference except insofar as directing its
discontinuation from date of petitioner no.2 attaining
age of majority.
26. Insofar as petitioner no.1, I deem it just and
proper to reduce monthly maintenance to Rs.13,000/-
per month. In the result, I pass the following:
ORDER
Petition is allowed in part.
Maintenance is reduced from Rs.15,000/- to
Rs.13,000/- per month in respect of petitioner no.1 -
Smt.Mahajabeen w/o Mustafa shekh.
It is ordered that petitioner no.2 shall not be
entitled for continuation of maintenance after date of
her attaining age of majority.
The respondent - Mustafa shekh is directed to
deposit arrears of maintenance as per modified order,
before Family Court within a period of two months from
date of receipt of certified copy of this order.
Amount in deposit is ordered to be transmitted to
Family Court for payment.
Sd/-
JUDGE
KGK
