Madhu S/O Yasavanth Toravi @ ... vs Savita W/O Madhu Toravi @ ...
2022 Latest Caselaw 7302 Kant

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         IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 23RD DAY OF MAY, 2022

                         BEFORE

 THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR


                RPFC No.200001/2021

Between:

Madhu S/o Yasavanth Toravi @ Hunachigidad,
Age: 37 Years, Occ: Business,
R/o: Kirthi Nagar, Near Hashimpeer Darga,
Vijayapura-586 101.
                                               ... Petitioner
(By Sri.Bapugouda Siddappa, Advocate)

And:

Savita W/o Madhu Toravi @ Hunachigidad,
Savita D/o Yallappa Hosamani,
Age: 35 Years, Occ: Household work,
R/o: Behind Golden Heights Hotel,
Station Road, Vijayapura-586 102.
                                             ... Respondent
(By Sri. Sanjeev Kumar C. Patil, Advocate)

       This RPFC is filed under Section 19(4) of the Family
court Act 1984, praying to call for the records. To set
aside the impugned judgment and order dated 23.12.2020
passed in Criminal Miscellaneous No.335/2019 on the file
of the Court of I Addl. Prl. Judge, Family Court Vijayapura
At Vijayapura, by allowing the above said Revision Petition
filed by the petitioner and etc.
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      This petition coming on for Admission this day, the
Court made the following:-


                        ORDER

This revision petition is filed under Section 19(4)

the Family Court Act, challenging the order dated

23.12.2020 passed in Crl.Misc. No.335/2019 on the

file of the I Addl. Prl. Judge, Family Court, Vijayapura,

whereby the learned Family Judge has allowed the

petition filed by the petitioner-wife under Section 125

of Cr.P.C, by awarding maintenance of Rs.8,000/- per

month.

2. For the sake of convenience, parties are

referred to as per their ranking before the trial Court.

3. The brief facts leading to the case are that

the petitioner has filed petition under Section 125 of

Cr.P.C., seeking maintenance of Rs.40,000/- per

month from the respondent-husband. According to

the petitioner her marriage with respondent was

solemnized and sufficient dowry in the form of cash

and gold was paid during the marriage. It is further

alleged that after marriage, the respondent subjected

the petitioner to ill-treatment by driving her out of the

house and failed to maintain her, and as such the

petitioner was compelled to file the petition seeking

maintenance. After notice, respondent appeared and

filed objections denying the allegations and asserts

made thereunder. He has also contended that the

petitioner harassed the respondent-husband in all

possible ways and also initiated proceedings under the

Domestic Violence Act, wherein obtained interim

maintenance also. The respondent further denied that

he is having sufficient income to maintain petitioner

and on the contrary he contends that the petitioner is

employed in BLDEA Hospital and Medical College,

Vijayapura and getting salary of Rs.30,000/- per

month. He would further contend that she is capable

of maintaining herself and she does not require any

maintenance and on the contrary the respondent-

husband himself is not in a position to provide any

maintenance as he does not have any avocation and

as such he has sought for rejection of petition.

4. The petitioner was examined as PW.1 and

one witness was examined on behalf of petitioner as

PW.2. Petitioner has also placed reliance with 10

documents as Exs.P1 to P10. The respondent was

examined as RW.1 and one witness was examined as

RW.2 and placed reliance on two documents as Exs.R1

and R2.

5. After having heard the arguments, the

Family Court awarded maintenance of Rs.8,000/- per

month from the date of petition. Being aggrieved by

the award of maintenance, the respondent-husband

has filed this petition.

6. Learned counsel appearing for the revision

petitioner would contend that the petitioner-wife is

having a permanent job and earning more than

Rs.19,000/- per month and she does not require any

maintenance. He would also invite the attention of the

Court that she has also initiated proceedings under

the Domestic Violence Act, wherein the interim

maintenance of Rs.4,000/- per month was granted,

which was subsequently reduced to Rs.2,000/- per

month in Criminal Appeal No.19/2019 by the IV Addl.

District and Sessions Judge, Vijayapur. He would also

contend that the petitioner is having sufficient income

and does not require any maintenance. Further, he

would contend that the Family Court has failed to

appreciate the salary certificate of the petitioner-wife

and failed to consider the income of the respondent-

husband and as such prayed for allowing the petition.

7. Per contra, learned counsel for the

respondent would support the impugned order of the

Family Court and alternatively he would submit that

the maintenance can be awarded @ Rs.5,000/- per

month by reducing it from Rs.8,000/- per month.

8. Having heard the arguments and perusing

the records, it is undisputed fact that the petitioner is

the wife of respondent. Further there is no serious

dispute of the fact that petitioner is employed in Shri

B.M.Patil Medical College, Hospital and R.C,

Vijayapura, and her gross income is Rs.19,910/- and

she is having net home taking income of more than

Rs.16,000/- per month. Learned counsel for the

petitioner would contend that the said employment is

not a permanent employment. However, it is to be

noted here that the petitioner is nowhere in her

petition asserted regarding her employment and this

fact is concealed by her.

9. At the same time, it is important to note

here that respondent is a degree holder and though

he asserts that he do not have any employment, the

records does establish that he is maintaining a two

wheeler which pre-supposes that he is having

sufficient income. Further the family owns agricultural

lands and his mother is a Government servant. Hence,

he does not have any liability to maintain his mother

or brother and sisters. Hence, it is evident that the

respondent being able bodied person capable of

maintaining a two wheeler which pre-supposes that he

is having sufficient income. It is further asserted that

the respondent is also securing sufficient income from

letting out the tenaments and admittedly the

respondent has not denied this aspect, but however

he did not disclose his exact income. Hence, it is safe

to presume that he is having sufficient income.

10. Learned counsel for the

respondent/revision petitioner has also produced the

copy of or order in Criminal Appeal No.19/2019,

pending on the file of the IV Addl. District and

Sessions Judge, Vijayapur. All along it is asserted that

the respondent-husband was not having any

avocation, but in the said petition in

Crl.A.No.19/2019, it is asserted that he is having a

private employment. However, respondent-husband

does not want to disclose his income also. Hence, this

Court safely presumes that he is having sufficient

income. The order in Criminal Appeal No.19/2019

discloses that the petitioner-wife is already getting

monthly maintenance of Rs.2,000/- in the proceedings

initiated under the Domestic Violence Act. Hence, this

Court cannot ignore the said maintenance to the

petitioner and this fact is not forthcoming in the order

of the Family Court. Hence, the interim maintenance

granted under the provisions of D.V.Act is required to

be taken into consideration. The wife is earning more

than Rs.19,000/- per month and she is also getting

maintenance of Rs.2,000/- per month under the

proceedings initiated under the Domestic Violence Act.

Hence, she is getting income of around Rs.21,000/-

per month as of now. In addition, she is seeking

maintenance under Section 125 of Cr.P.C. No doubt,

she is required to live equal to the status of her

husband and the husband-respondent is not prepared

to disclose his income. However, in the absence of any

other material, the Family Court has erred in awarding

maintenance of Rs.8,000/- per month, which appears

to be on the higher side.

11. Looking to the facts and circumstances, in

my considered opinion, it is just and proper to award

maintenance of Rs.4,000/- per month in these

proceedings considering the award of maintenance in

other proceedings, which will serve the purpose. At

the same time, in case of any changed circumstances,

the respondent-husband/revision petitioner is at

liberty to move to the concerned Court for

modification of the order of maintenance. Hence, the

petition needs to be allowed in part. Accordingly, I

proceed to pass the following:

ORDER

(a) The petition is allowed in part.

(b) The impugned order dated 23.12.2020

passed in Crl.Misc.No.335/2019 on the file of the

I Addl. Principal Judge, Family Court, Vijayapura,

is modified and the maintenance of Rs.8,000/-

per month awarded by the Family Court is

reduced to Rs.4,000/- per month.

(c) Rest of the order stands undisturbed.

(d) The interim maintenance amount deposited

before this Court shall be transmitted to the

Family Court forthwith to enable the respondent-

wife to withdraw the same.

Sd/-

JUDGE

msr