Karnataka High Court
Dr Kumuda Rao H T vs Dr Aravindh H T on 18 April, 2023
Bench: Alok Aradhe, Vijaykumar A Patil
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M.F.A.No.8526 of 2016
C/W M.F.A.NO.3916 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2023
PRESENT
THE HON'BLE MR JUSTICE ALOK ARADHE
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
M.F.A. NO.8526 OF 2016 (FC)
C/W
M.F.A. NO.3916 OF 2016 (FC)
M.F.A. NO.8526 OF 2016
BETWEEN
DR. KUMUDA RAO H.T.
AGED ABOUT 38 YEARS
D/O SRI B.GANAPATHY SHANBHOGUE
W/O DR.ARAVIND RAO H.T.
R/AT SRI MAHALASA,
NEAR JUMADIKATTE ROAD,
HARINAGARA, GUNDIBAIL,
UDUPI-576103.
...APPELLANT
(BY SRI K.J.KAMATH, ADV.)
AND
DR. ARAVINDH H.T.
S/O SRI H.T.JAYARAM RAO
AGED ABOUT 38 YEARS,
R/AT FLAT NO.201, INLAND ENCLAVE,
NEAR CENTRAL WAREHOUSE,
MANNAGUDDA,
MANGALURU-575003.
...RESPONDENT
(BY SRI NATARAJ BALLAL, ADV.)
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M.F.A.No.8526 of 2016
C/W M.F.A.NO.3916 of 2016
THIS MFA IS FILED U/S.19(1) OF FAMILY COURTS ACT,
AGAINST THE JUDGMENT AND DECREE DATED 29.04.2016
PASSED IN M.C.NO.180/2014 ON THE FILE OF THE PRINCIPAL
JUDGE, FAMILY COURT, DAKSHINA KANNADA, MANGALURU,
ALLOWING THE PETITION FILED U/S 13(1) (i-a) OF HINDU
MARRIAGE ACT.
M.F.A. NO.3916 OF 2016
BETWEEN
DR. ARAVIND RAO H.T.
S/O H.T.JAYARAM RAO
AGED 37 YEARS,
R/AT MAXILLO FACIAL AND
DENTAL SPECIALITY CLINIC,
1ST FLOOR, ABOVE HONCE
MATRIX, MANJUSHREE BUILDING,
DONGARAKERI,
MANGALURU-575003.
...APPELLANT
(BY SRI NATARAJ BALLAL, ADV.)
AND
DR. KUMUDA
AGED 35 YEARS
DIVORCED WIFE OF
DR.ARAVIND RAO H.T.
R/AT SRI MAHALASA,
NEAR JUMADIKATTE ROAD,
HARINAGARA, GUNDIBAIL,
UDUPI-576103.
SENIOR LECTURER, ORAL MEDICINE
RADIOLOGY, A. B SHETTY DENTAL COLLEGE,
NITTE UNIVERSITY, DERALAKATTER,
MANGALORE
...RESPONDENT
(BY SRI K.J.KAMATH, ADV.)
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M.F.A.No.8526 of 2016
C/W M.F.A.NO.3916 of 2016
THIS MFA IS FILED U/S.19(1) OF FAMILY COURTS ACT,
AGAINST THE JUDGMENT AND DECREE DATED 29.04.2016
PASSED IN M.C.NO.180/2014 ON THE FILE OF THE PRINCIPAL
JUDGE, FAMILY COURT, DAKSHINA KANNADA, MANGALURU,
ALLOWING THE PETITION FILED U/S 13(1) (i-a) OF HINDU
MARRIAGE ACT, FOR DISSOLUTION OF MARRIAGE.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
ON 12.04.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED
THE FOLLOWING:
JUDGMENT
MFA No.8526/2016 is filed by the wife and MFA
No.3916/2016 is filed by the husband; both these appeals
are filed under Section 19(1) of the Family Courts Act,
1984, against the judgment and decree dated 29.04.2016
passed in M.C.No.180/2014 by the Principal Judge, Family
Court, Dakshina Kannada, Mangaluru, by which the
petition filed by the husband seeking dissolution of
marriage, was allowed and directed the husband to pay
Rs.30,00,000/- as a permanent alimony to the wife.
2. MFA No.8526/2016 is filed by the wife
challenging the impugned judgment for non-granting of
permanent alimony of Rs.1,30,00,000/- and MFA
M.F.A.No.8526 of 2016
C/W M.F.A.NO.3916 of 2016
No.3916/2016 is filed by the husband seeking to set aside
the impugned judgment dated 29.04.2016 insofar as
directing the appellant-husband to pay Rs.30,00,000/- as
a permanent alimony.
3. The parties are referred to as per their ranking
before the Family Court as petitioner-husband and
respondent-wife.
4. Brief facts giving rise to filing of these appeals
are that the marriage of the appellant and respondent was
solemnized on 06.12.2000 at Venkataramana Temple,
Udupi, as per the Hindu rites and customs. Out of wedlock,
a male child viz., Athreya is born on 15.05.2004 and the
said child is in the custody of the respondent-wife. The
parties to the proceedings are highly qualified and they are
Doctors by profession. It is averred that the respondent-
wife has caused cruelty on petitioner-husband and pleaded
various instances of cruelty as a ground for decree of
divorce. It is further averred that the respondent-wife is
highly qualified and working as a Senior Lecturer in
M.F.A.No.8526 of 2016
C/W M.F.A.NO.3916 of 2016
A.B.Shetty Memorial Institute of Dental Sciences,
Mangaluru and drawing more than Rs.35,000/- per month
and in addition to that she is doing private practice and
she has lucrative income from the private practice, hence
she is not entitled for permanent alimony. It is also
averred that the petitioner-husband is required to take
care of his aged parents as he is the sole bread earner in
the family. He is staying at a rented premises and he has
no other means to pay the alimony sought for by the
respondent-wife. The Family Court has erred in directing
the petitioner-husband to pay permanent alimony of
Rs.30,00,000/- to the respondent-wife. The petitioner-
husband has assailed the impugned judgment insofar as
grant of permanent alimony to the wife.
5. The respondent-wife has entered appearance
before the Family Court and filed the statement of
objections by denying the allegation of cruelty. The
respondent-wife has admitted the relationship and the
birth of the child. It is averred that the petitioner-husband
M.F.A.No.8526 of 2016
C/W M.F.A.NO.3916 of 2016
is highly qualified and is earning Rs.2,50,000/- per month
and sought for permanent alimony of Rs.1,30,00,000/- to
the wife and her son. It is further averred that she is
staying in a rented premises and she has to incur her
personal expenditure, the expenditure on her son towards
his wellbeing and education and the salary which she is
getting from the Dental College is not sufficient to meet
the requirements. The Family Court has erred in granting
only a sum of Rs.30,00,000/- as permanent alimony and
hence, sought for grant of Rs.1,30,00,000/-.
6. The Family Court, on the basis of pleading and
evidence, framed the issues and recorded the evidence.
The respondent-wife has examined herself as RW.1 and
another witness as RW2 and produced Exs.R1 to R36. The
petitioner-husband examined himself as PW.1 and
examined other five witnesses as P.Ws.2 to 6 and
produced Ex.P1 to P16. The Family Court, based on the
evidence adduced by the parties, vide judgment and
decree dated 29.04.2016 has allowed the petition filed by
M.F.A.No.8526 of 2016
C/W M.F.A.NO.3916 of 2016
the petitioner-husband by dissolving the marriage and
further directed the petitioner-husband to pay permanent
alimony of Rs.30,00,000/- to the respondent-wife. In the
aforesaid factual matrix, the present appeals have been
filed by the petitioner-husband seeking to set aside the
award of permanent alimony of Rs.30,00,000/- and
respondent-wife has filed an appeal seeking for
enhancement of permanent alimony to Rs.1,30,00,000/-.
7. Learned counsel for the respondent-wife
submits that the wife is not aggrieved by the impugned
judgment insofar as grant of decree of divorce. The
present appeal is restricted only insofar as the grant of
permanent alimony of Rs.30,00,000/- as the respondent-
wife has prayed for a sum of Rs.1,30,00,000/- as
permanent alimony to herself and to the child. It is
submitted that the award of Rs.30,00,000/- as a
permanent alimony is erroneous, unjust and unsustainable
in law as the husband is a highly qualified Doctor having a
degree of MDS, working as Professor in Dental College,
M.F.A.No.8526 of 2016
C/W M.F.A.NO.3916 of 2016
having a private clinic and also practicing in various clinics
and he is earning more than Rs.2,50,000/- per month. He
submits that the respondent-wife is working as a Senior
Lecturer in A.B.Shetty Dental College and getting a salary
of Rs.35,000/- per month, which is not sufficient to meet
her requirements as she is staying in a rented premises,
she is required to take care of her personal expenses and
expenses of her son towards his wellbeing and education,
and she is also required to take care of her ailing mother.
Hence, he submits that granting of Rs.30,00,000/- as
permanent alimony to the respondent-wife is not sufficient
to survive for the rest of her life and not sufficient towards
the educational expenses of her son.
8. It is further submitted that the respondent-wife
has secured the loan of Rs.7,50,000/- each from Canara
Bank and State Bank of India and completed her Master
Degree for which the petitioner-husband and his sister
Dr.Aparna Bhat were the guarantors. The petitioner-
husband has not repaid the said loan amount. He also
M.F.A.No.8526 of 2016
C/W M.F.A.NO.3916 of 2016
submits that the petitioner-husband has made the
respondent-wife to obtain the loan from the bank on the
promise that he will repay the loan amount, however, he
went back on his promise. It is also submitted that the
Family Court has erred in not granting any permanent
alimony to the son.
9. The Family Court has erred in not considering
the fact that the respondent-wife has sustained accident
due to which she was required to leave the job for some
time and she has incurred huge medical expenses; hence,
granting of Rs.30,00,000/- as a permanent alimony to the
respondent-wife is very meager and not sufficient to meet
her expenses and her son's requirements.
10. He further submits that the son is now aged
about 18 years and till date the respondent-wife has taken
care of the child and she has incurred huge expenses
towards his education from the date of desertion. It is
further contended that with an intention to deprive the
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M.F.A.No.8526 of 2016
C/W M.F.A.NO.3916 of 2016
right of the respondent-wife, the petitioner-husband has
alienated the property in his mother's name.
11. It is submitted that the respondent-wife has
filed the affidavit of assets and liabilities as required,
wherein it is specifically pointed out that the petitioner-
husband is earning more than Rs.2,50,000/- per month
and the respondent-wife is getting a salary of Rs.35,000/-
per month and she is having a son, who is dependent
upon her. She has spent huge amount till date towards his
upbringing and education and she has to take care of
dependent ailing mother. It is further submitted that the
Family Court has not considered the evidence on record in
its proper perspective as PW-1 in his cross-examination
has admitted that he has private clinic in addition to
working in Dental College. It is also submitted that the
Family Court has committed error in not granting any
permanent alimony to the son who is in the custody of the
respondent-wife.
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C/W M.F.A.NO.3916 of 2016
12. Per contra, learned counsel for the petitioner-
husband submits that there is no justification for the
Family Court to grant Rs.30,00,000/- as permanent
alimony to the respondent-wife. It is submitted that the
petitioner-husband has paid Rs.7,500/- per month as
maintenance towards his son from the year 2014 i.e., from
the date when the respondent-wife left the matrimonial
home, and thereafter, he is paying Rs.12,000/- per month
as maintenance to his son as per the directions in the
proceedings under the provisions of Protection of Women
from Domestic Violence Act, 2005. It is submitted that the
respondent-wife is highly qualified and working as a Senior
Lecturer in the Dental College and earning more than
Rs.85,000/- per month and also earning huge sum from
private practice.
13. He further submits that as per the interim
direction of this Court in the present proceedings, the
petitioner-husband has deposited Rs.15,00,000/- before
the Family Court. It is also submitted that the Canara
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M.F.A.No.8526 of 2016
C/W M.F.A.NO.3916 of 2016
Bank has filed civil suit against the petitioner-husband
wherein the petitioner has been arrayed as defendant No.2
for recovery of money due from the respondent-wife as
the petitioner-husband stood as a guarantor to the said
loan; the sister of the petitioner-husband has filed civil suit
against the respondent-wife for recovery of amount which
she has paid towards the discharge of loan obtained by the
respondent-wife, as the sister of the petitioner-husband
stood as a guarantor for the said loan. He has pointed out
that he has filed the affidavit of Assets and Liabilities as
directed, wherein he has produced the income tax returns
of the petitioner-husband and also pointed out that the
respondent-wife is gainfully employed in the Dental
College. He has further submitted that the alleged
alienation of property in favour of the mother of the
petitioner-husband is much prior to the institution of
proceedings before the Family Court.
14. We have heard learned counsel for the
petitioner-husband and respondent-wife and perused the
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M.F.A.No.8526 of 2016
C/W M.F.A.NO.3916 of 2016
material on record. The parties neither dispute the
relationship nor birth of the child. The respondent-wife is
not challenging the grant of decree of divorce in the
present appeal and her appeal is restricted only insofar as
enhancement of permanent alimony. The petitioner-
husband has filed the appeal being aggrieved by award of
permanent alimony of Rs.30,00,000/- to the respondent-
wife. Both these appeals were heard together.
15. The respondent-wife in her statement of
objections has claimed permanent alimony of
Rs.30,00,000/- (Rupees Thirty Lakhs only) to her son and
Rs.1,00,00,000/- (Rupess One Crore only) as a permanent
alimony to herself. The respondent-wife in paragraph
18(xxiii) has pleaded that she is required to pay monthly
rent of Rs.8,500/- in Udupi. She has also pleaded that she
was required to repay the loan due to SBI Bank and
Canara Bank. The petitioner-husband is working in
Yenepoya Dental College as a Reader in Department of
Maxillo-Facial Surgery and earning Rs.50,000/- and he is
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M.F.A.No.8526 of 2016
C/W M.F.A.NO.3916 of 2016
having clinic at Dongerkeri, Mangaluru and in his practice
he is earning more than a Lakh and also by visiting various
clinics and hospitals in and around Mangaluru he is earning
more than Rs.1,00,000/-. In total the petitioner-husband
is earning Rs.2,50,000/-.
16. The petitioner-husband in his rejoinder to the
petition has denied the averments that he is earning
Rs.2,00,000/- and submits that he is earning Rs.48,000/-
per month. He has obtained car loan, clinic loan and the
said liability is approximately Rs.26,000/-. It is further
averred that the respondent-wife has not paid the loan
amount and he is required to repay the same and she is
drawing Rs.35,000/- as salary. The aforesaid assertion
has been reiterated by the respondent-wife and the
petitioner-husband in their evidence insofar as their
respective income and expenditures.
17. The parties to the proceedings have filed their
respective affidavits of assets and liabilities. The
respondent-wife has claimed that the petitioner-husband is
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M.F.A.No.8526 of 2016
C/W M.F.A.NO.3916 of 2016
working as a Professor in Yenepoya Dental College and
getting salary of Rs.80,000/- per month; income from
clinic approximately Rs.75,000/- per month and income
from private practice as a visiting practitioner
approximately Rs.50,000/- per month. The respondent-
wife has admitted that Rs.7,500/- maintenance is awarded
in M.C.No.60/2014 by the Family Court, Mangaluru.
18. She has a dependent son aged about 17 years
and approximately she incurs expenditure of Rs.35,000/-
per month. Her son had suffered knee injury in 2018 and
her mother, who is suffering from ailment, are depending
on her. She claims approximately Rs.15,000/- per month
is required towards food, clothing and medical expenses;
Rs.15,000/- is required for expenses for education and
general expenditure; Rs.5,000/- for extra educational,
vocational or professional courses. She has placed income
tax returns for financial years 2018-19 to 2020-21 for a
period of three years, wherein her income is shown as
Rs.38,078, Rs.43,245 and Rs.46,035/- respectively, and
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M.F.A.No.8526 of 2016
C/W M.F.A.NO.3916 of 2016
also provided list of valuables which claimed by her as self
acquired.
19. The petitioner-husband has filed affidavit on
06.01.2021 and an additional affidavit on 25.02.2023,
wherein he has claimed total monthly expenses of
Rs.67,371/-, and claims that his mother is aged about 73
years is dependent on him and he is working as Additional
Professor in Yenepoya Dental College and getting salary of
Rs.67,500/- per month. He is a co-borrower/guarantor for
the two loans obtained by the respondent-wife and claims
that he has taken the car loan and obtained education loan
for himself and paying EMIs to the Bank. In the additional
affidavit, it is stated that the respondent-wife is presently
getting salary not less than Rs.85,000-90,000/- per month
and he has produced the income tax returns for the
respective financial years.
20. Considering the aforesaid factual material and
evidence on record about the income and expenditure of
the parties, we need to examine whether the Family Court
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M.F.A.No.8526 of 2016
C/W M.F.A.NO.3916 of 2016
has justified in awarding Rs.30,00,000/- as permanent
alimony to the respondent-wife or whether it is required to
be further enhanced to Rs.1,30,00,000/- as claimed by the
respondent-wife.
21. Before adverting to the contentions of the
parties it will be useful to refer the decision of Hon'ble
Supreme Court in the case of Rajnesh vs. Neha and
another (2021) 2 SCC 324. The Hon'ble Supreme Court
has laid down the boarder parameters to determine the
quantum of alimony. Keeping in mind the ratio of
aforesaid decision, we proceed to consider the case on
hand.
22. The Family Court has given the finding in
paragraph 30 of the judgment by referring to the pleading
and evidence on record and came to the conclusion that
the petitioner-husband is having an income of
Rs.2,00,000/- per month and directed the petitioner-
husband to pay Rs.30,00,000/- to the respondent-wife as
permanent alimony. The aforesaid finding in based on the
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M.F.A.No.8526 of 2016
C/W M.F.A.NO.3916 of 2016
evidence on record and it does not suffer from any
infirmity calling interference in the present appeal.
23. Now coming to the claim of the respondent-wife
that she is entitled for permanent alimony of
Rs.1,30,00,000/- for herself and her son, this Court is
required to keep in mind the evidence on record and
subsequent affidavits of assets and liabilities filed by the
parties in the present proceedings. We have to consider
various factors such as standard of living of the parties to
the proceedings, duration of the marriage, the dependants
of the respondent-wife, expenses incurred by the
respondent-wife for herself and for her son, his
educational expenses incurred, food, clothing, residence,
social status and her educational qualification and income,
etc., and also the financial position of the petitioner-
husband, his social status, educational qualification,
employment, income other than the employment,
(financial capacity of the petitioner-husband) and
expenses, and keeping in mind the rising inflation rates,
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C/W M.F.A.NO.3916 of 2016
high cost of living. It is the moral duty of the petitioner-
husband to maintain his wife and son. We are of the
considered view that the respondent-wife has left the
matrimonial home on 01.05.2014 and started living in a
rented apartment along with her minor child and she has
taken care of the minor child from 2014 to this date by
providing good education and well being of the minor
child.
24. The petitioner-husband was paying the
maintenance of Rs.7,500/- from the year 2014 to 2020
and thereafter he has paid Rs.12,000/- per month to the
minor son. He has not spent any money on the minor
son's education. All along it is the respondent-wife, who is
taking care of the minor son. It is evident from the record
that the petitioner-husband is earning Rs.2,50,000/- per
month and it also evident from the record that the
respondent-wife is employed and earning Rs.35,000/- per
month. Keeping in mind the status of the respondent-wife
that she is the Doctor by profession and minor son is fully
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C/W M.F.A.NO.3916 of 2016
dependent on the respondent-wife, she has another
dependent i.e., ailing mother, and she is residing in a
rented premises, we are of the considered view that the
permanent alimony granted by the Family Court is not
sufficient to the respondent-wife and her minor son for the
rest of their life. The respondent-wife has provided
education to the minor son till this day and now he has
completed 12th Standard and he intends to pursue BDS
Course and to pursue professional courses like BDS, the
admitted income of the respondent-wife is not sufficient.
25. The petitioner-husband, in his cross-
examination has admitted that he did not pay any amount
towards the education, basic needs or any other allied
expenses of his son. The petitioner-husband has not
produced any evidence before the Family Court contrary to
the contentions urged by the respondent-wife that she is
taking care of the son by incurring huge expenses and
staying in the rented premises. The petitioner-husband
has admitted in his cross-examination that in addition to
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C/W M.F.A.NO.3916 of 2016
working at Dental College, Mangaluru, he is running clinic
and visiting other clinics. However, he claims that he has
stopped his private practice.
26. This Court, can draw the inference based on the
affidavit filed by the petitioner-husband that he is running
the clinic and he is getting substantial income from the
said source. This Court has to keep in mind that the
petitioner-husband being the father of the son is required
to perform his obligations towards his ward, which he has
failed except paying the monthly minimum maintenance
that was awarded on the legal proceedings. The
respondent-wife, being the single parent, is all along
taking care of the minor son and she is required to incur
huge expenses towards his intended professional course.
Keeping the aforesaid facts in mind, it is imperative on this
Court to enhance the permanent alimony which would
improve the quality of life of the respondent-wife and
would help the son's education and well being.
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27. It is moral obligation of the petitioner-father
who is highly qualified doctor and financially well placed,
having income of more than Rs.2,50,000/- and also having
movable and immovable properties to take care of wife
and son. We are of the view that the petitioner-husband is
morally and legally bound to pay additional permanent
alimony of Rs.15,00,000/- (Rupees Fifteen Lakhs only) to
the respondent-wife and her son. The petitioner-husband
has to pay, in total, a sum of Rs.45,00,000/- (Rupees
Forty Five Lakhs only) as a permanent alimony to the
respondent-wife and her son.
28. This Court is conscious of the fact that while
determining the permanent alimony the Court is required
to consider various factors and the material available
before it. There cannot be any arithmetical formula for
determination of permanent alimony as it depends on
various factors referred supra. Keeping in mind the
income, status and well being of the parties and
dependent son, we are of the view that the respondent-
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C/W M.F.A.NO.3916 of 2016
wife and son are entitled for Rs.45,00,000/- (Rupees Forty
Five Lakhs only) as permanent alimony.
29. For the aforementioned reasons, we pass the
following :
ORDER
1. MFA No.8526/2016 is allowed in part by
modifying the impugned judgment dated
29.04.2016 to the extent of awarding
permanent alimony of Rs.45,00000/-
(Rupees Forty Five Lakhs only) to the
respondent-wife and son.
2. MFA No.3916/2016 is dismissed.
No order as to cost.
Sd/-
JUDGE
Sd/-
JUDGE
BSR
CT:DMN
