Maheswaraiah H M vs Girijamma
2023 Latest Caselaw 213 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF JANUARY 2023

                       PRESENT

        THE HON'BLE MR. JUSTICE ALOK ARADHE

                            AND

   THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

              M.F.A.NO.6599/2013 (FC)
                        C/W
               M.F.A.NO.74/2013 (FC)

IN M.F.A.NO.6599/2013:

BETWEEN:

SMT. GIRIJAMMA
W/O MAHESHWARRIAH H.M
AGED ABOUT 39 YEARS
BASAPUR VILLAGE
DAVANAGERE TALUK - 577 201.                  ...APPELLANT

(BY SRI M.V. REVANASIDDAIAH, ADV., - ABSENT)

AND:

MAHESHWARRIAH H.M
S/O MRUTHYUNJAYADEVAIAH
AGED ABOUT 44 YEARS
ATTENDER, S.J.M.DENTAL COLLEGE,
CHITRADURGA - 577 501.                      ...RESPONDENT

(BY SRI SPPORTHY HEGDE, ADV.)

       THIS MFA FILED U/S 19(1) OF FAMILY COURTS ACT,
PRAYING    AGAINST    THE        JUDGMENT   AND   DECREE
DATED31.10.2012 PASSED IN O.S.NO.18/2011 ON THE FILE
OF JUDGE, FAMILY COURT, DAVANGERE, PARTLY DECREEING
THE PETITION FILED U/O 7, RULE 1 OF CPC.
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IN M.F.A.NO.74/2013:

BETWEEN:

MAHESWARAIAH H.M
S/O MURTHYNJAYADEVAIAH
AGED ABOUT 46 YEARS
ATTENDER, SJM DENTAL COLLEGE
CHITRADURGA - 575 501.                      ...APPELLANT

(BY SRI SPOORTHY HEGDE, ADV.)

AND:

GIRIJAMMA
W/O MAHESHWARAIAH H.M
AGED ABOUT 40 YEARS
R/O BASAPURA VILLAGE
DAVANAGERE TALUK - 577 001.               ...RESPONDENT

(BY SRI M.V. REVANASIDDAIAH, ADV., - ABSENT)

      THIS MFA FILED U/S 19 OF FAMILY COURTS ACT,
PRAYING AGAINST THE JUDGMENT AND DECREE DATED
31.08.2012 PASSED IN O.S.NO.18/2011 ON THE FILE OF THE
JUDGE, FAMILY COURT, DAVANAGERE, PARTLY DECREEING
THE SUIT FILED U/O 7 RULE 1 OF CPC, FOR MAINTENANCE
AND INJUNCTION.

    THESE APPEALS COMING ON FOR HEARING THIS DAY,
VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:

                    JUDGMENT

These two appeals filed under Section 19(1) of the

Family Courts Act, 1984, arise out of the judgment and

decree dated 11.11.2012 passed by the Judge, Family

Court, Davanagere, in O.S.No.18/2011, and therefore,

both the appeals are heard together and disposed of by

this common judgment.

2. Heard the learned Counsel appearing for the

respondent-husband and also perused the material on

record. There is no representation on behalf of the

appellant-wife.

3. Brief facts of the case as revealed from the

records that may be necessary for the disposal of these

appeals are, the marriage of the appellant-wife was

solemnized with the respondent-husband on 24.11.1995.

From the wedlock, the couple have no issues. The

appellant-wife was allegedly teased and tortured in her

matrimonial home on the ground that she had not

conceived. Subsequently, the appellant-wife was

deserted by the respondent-husband and she had to take

shelter in her brother's house. The respondent-husband

had also failed to provide with any maintenance and

totally neglected her, and therefore, she had filed

O.S.No.18/2011 before the Trial Court claiming monthly

maintenance of Rs.5,000/- per month and also had

sought for a decree of permanent injunction restraining

the respondent-husband from alienating his properties.

      4.     The    respondent-husband          had        entered

appearance    in   the   said   suit   and   filed   his   written

statement denying the allegations made against him and

he also contended that by birth he was a disabled

person, and therefore, the appellant-wife had neglected

him and she had left his company and voluntarily started

residing in her parents house. He also has denied that he

has got an income of Rs.15,000/- per month from his

employment and also contended that he had already sold

the property which was allotted to his share in the family

partition. He also stated that the appellant-wife wanted

him to stay along with her in her parents house and it is

under these circumstances, she had left his company and

started residing in her parents house.

5. Before the Trial Court, in order to substantiate

her case, the appellant-wife had examined herself as PW-

1 and another witness was examined as PW-1 and she

got marked 9 documents as Exs.P-1 to P-9. On behalf of

the respondent-husband, he examined himself as DW-1

and another witness as DW-2 and got marked two

documents as Exs.D-1 & D-2. The Trial Court vide the

impugned judgment and decree has partly decreed the

suit and had awarded monthly maintenance of Rs.2,000/-

per month to the appellant-wife and being aggrieved by

the same, the appellant-wife has filed

M.F.A.No.6599/2013, while the respondent-husband has

filed M.F.A.No.74/2013.

6. Learned Counsel for the respondent-husband

has submitted that except his salary, the respondent has

no other income and the respondent who is serving as

Attender in a private college is due to retire on attaining

the age of superannuation, and therefore, it would be

very difficult for him to pay the monthly maintenance in

future. He also submits that the appellant has other

sources of income, and therefore, she is not entitled for

any monthly maintenance.

7. The material on record would go to show that

the respondent-husband is working as Attender in a

private Dental College and it is the case of the appellant

that in the year 2011, the income of the respondent was

Rs.15,000/- per month. However, since she had failed to

produce any material to show his income, the Trial Court

has taken the income of the respondent at Rs.12,000/-

per month. The respondent who has denied that his

income was Rs.15,000/- per month, has not produced his

salary certificate before the Family Court.

8. Undisputedly, the respondent was allotted with

certain immovable properties in the family partition and it

is his case that he had sold the said properties. The

partition which is made available to the court is dated

03.11.2011 i.e., after the issuance of legal notice by the

appellant-wife on 11.09.2011. Therefore, it can be safely

presumed that only with an intention to deny the reliefs

that could be prayed for in the suit to be filed by the

appellant, the respondent has sold the properties which

were allotted to him in the family partition. It is also

relevant to take note of the fact that the sale deed is

executed on the very date of the partition deed.

9. Undisputedly, the couple have no issues from

the wedlock. It is not in dispute that the respondent is

still in service, and therefore, it can also be safely

presumed that his salary would have been increased

during the past more than ten years. Though the

respondent has contended that the wife has also got

other sources of income, he has not produced any

material before this Court or before the Trial Court to

substantiate this contention of his. Therefore, in our

considered view, the Trial Court was not justified in

awarding only a sum of Rs.2,000/- per month to the

appellant-wife towards her monthly maintenance and

even otherwise, since ten years time has elapsed after

the judgment and decree impugned has been passed, the

appellant-wife is entitled for enhancement in payment of

monthly maintenance. The Court is also required to take

into consideration that the cost of life and other expenses

would have increased, and therefore, in our considered

view, if the monthly maintenance amount awarded to the

appellant-wife is enhanced to Rs.3,000/- per month, the

same would serve the ends of justice. Accordingly, the

following order:

10. M.F.A.No.6599/2013 is allowed in part. The

monthly maintenance awarded by the Trial Court to the

appellant-wife payable by the respondent-husband is

enhanced to Rs.3,000/- per month. M.F.A.No.74/2013 is

dismissed.

Sd/-

JUDGE

Sd/-

JUDGE KK