Sandhya T vs Sri. K.N. Sridhar
2023 Latest Caselaw 37 Kant

                           1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND 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.6993/2013 (FC)

BETWEEN:

SANDHYA T
W/O K.N. SRIDHAR
D/O THIMMEGOWDA
AGED ABOUT 31 YEARS
R/AT NO.385, 10TH CROSS
LAKSHMIPURAM
KEMPEGOWDA NAGAR
BANGALORE - 560 091.                    ...APPELLANT

(BY SMT. BINDU U, ADV., FOR
    SRI MUNISWAMY GOWDA S.G, ADV.)

AND:

SRI K.N. SRIDHAR
S/O SRI NAGARAJA K.R
AGED ABOUT 38 YEARS
R/AT NO.698, OPP. MOHAN THEATRE
3RD MAIN, LAKSHMAN NAGAR
HEGGANA HALLI CROSS
BANGALORE - 560 091.                  ...RESPONDENT

(BY SMT. RAJESHWARI M., ADV., FOR
    SRI R.B. SADASHIVAPPA, ADV.)

     THIS M.F.A. IS FILED UNDER SECTION 19(1) OF THE
FAMILY CORUTS ACT, 1984, PRAYING AGAINST THE ORDER
DATED 17.06.2013 PASSED IN M.C. NO.2425/2010 ON THE
FILE OF THE 3RD ADDITIONAL PRINCIPAL JUDGE, FAMILY
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COURT, BANGALORE, ALLOWING THE PETITION FILED U/SEC
13(1) (i-a) OF THE HIINDU MARRIAGE ACT.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, VISHWAJITH SHETTY       J.,   DELIVERED THE
FOLLOWING:

                        JUDGMENT

This miscellaneous first appeal under Section 19(1)

of the Family Courts Act, 1984, has been filed assailing

the judgment and decree dated 17.06.2013 passed by

the III Addl. Prl. Judge, Family Court, Bengaluru, wherein

the petition filed by the respondent-husband under

Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for

short, 'the Act'), has been allowed and the marriage

between the appellant and the respondent that was

solemnized on 20.11.2005 was dissolved by a decree of

divorce.

2. Heard the learned Counsel appearing for the

parties and also perused the material available on record.

3. Brief facts of the case leading to the filing of this

appeal are, the marriage of the appellant with the

respondent was solemnized on 20.11.2005 as per the

Hindu rites and customs. From the wedlock, the couple

have a son who was born on 04.10.2006. The

relationship between the couple got strained

subsequently and the appellant allegedly left the

matrimonial home with the child and inspite of the

respondent's efforts to bring her back, she had not joined

the company of the respondent. The respondent had

therefore filed a petition for restitution of conjugal rights

and in the said proceedings, the appellant had appeared

before the court and expressed her unwillingness to join

the respondent, and therefore, the said petition was

withdrawn by the respondent, and thereafter, the

respondent filed the petition under Section 13(1)(ia) of

the Act for dissolution of their marriage.

4. In the said proceedings, the appellant had

entered appearance and filed her statement of

objections. To substantiate his case, the respondent

examined himself as PW-1 before the Family Court and

got marked 15 documents as Exs.P-1 to P-15, whereas

the appellant had examined herself as RW-1 and got

marked one document as Ex.R-1. The learned Judge of

the Family Court vide the impugned judgment and decree

has dissolved the marriage between the parties that was

solemnized on 20.11.2005 and the petition filed by the

respondent under Section 13(1)(ia) of the Act was

allowed. Being aggrieved by the said judgment and

decree, the appellant-wife is in appeal before this Court.

5. Learned Counsel appearing for the appellant

submits that during the pendency of this appeal, the

appellant has filed an application under Section 25 of the

Act claiming permanent alimony. She submits that the

appellant does not intend to prosecute the appeal on its

merits and the appellant would be satisfied if her claim

for permanent alimony is allowed. She submits that

pursuant to the orders passed by this Court, the

appellant as well as the respondent have filed their

respective assets and liabilities statement. She also

submits that the respondent is earning a sum of

Rs.2,50,000/- per month from his employment and in

addition to the same, he is also receiving huge amount of

rent from the joint family properties owned by his

parents. She submits that the respondent has not

contributed any amount till date towards educational and

maintenance expenses of the child who is now studying

in first year PUC. She also submits that the minor son is

a very bright student and he intends to prosecute

medical or engineering course in future. She submits that

though the appellant is employed and earning a sum of

Rs.75,000/- per month, she has no job security and her

health conditions also do not permit her to work. She,

therefore, submits that considering the income and the

financial status of the respondent, the appellant and her

son are entitled for permanent alimony of Rs.5 crores as

claimed by her in the application filed under Section 25 of

the Act.

6. Learned Counsel appearing for the respondent

per contra submits that the application filed by the

appellant seeking maintenance in the proceedings under

the Protection of Women from Domestic Violence Act,

2005, was dismissed and the said order has attained

finality. She submits that no application was filed seeking

maintenance or permanent alimony before the Family

Court and it is only for the first time an application under

Section 25 of the Act is filed before this Court in this

appeal. She submits that though the respondent was

always ready and willing to meet the education and

maintenance expenses of his son, no claim was made by

the appellant in this regard earlier, and therefore, it

cannot be said that the respondent has not paid any

amount towards the maintenance and educational

expenses of his son. She submits that the appellant is

also employed and gainfully earning, and therefore, she

is not entitled for any amount towards permanent

alimony. She submits that the respondent is not earning

any rental income as contended by the appellant and

except his monthly salary, he has no other source of

income. She submits that the respondent is required to

take care of his aged parents and from his monthly

earnings, he needs a sum of Rs.50,000/- towards his

personal expenses, and in addition to the same, he is

also required to pay monthly installments towards the

loan borrowed by him in addition to the insurance

premiums which he is required to pay. She, however,

submits that the respondent is ready and willing to pay

reasonable amount towards the maintenance and

educational expenses of his son.

7. From the perusal of the assets and liabilities

statement filed on behalf of the respondent, it is seen

that his monthly salary is Rs.1,17,086/- and in addition

to the same, he also gets HRA allowance of Rs.57,927/-

and special allowance of Rs.46,501/- per month. He has

also stated that he owns one vacant revenue site. The

material on record would also go to show that the father

of the respondent owns several landed properties in

Bengaluru and out of the said properties, two properties

bearing Sy. Nos.26/1 & 26/2 of Kenchanapura village,

Bengaluru South Taluk, were acquired for Nadaprabhu

Kempegowda Layout and a total compensation of

RS.1,36,00,000/- was awarded to him. It is also not in

dispute that father of the respondent is a pensioner and

residing in his own house in Bengaluru. Therefore, it

cannot be said that the parents of the respondent are

dependent upon him for their livelihood. The total income

per month of the respondent from his employment is

Rs.2,21,514/-.

8. Indisputedly, the respondent has not paid any

amount towards the maintenance and educational

expenses of his son who is now studying in first year

PUC. For the purpose of the future educational expenses

of the son, the appellant may need a substantial amount.

The monthly income of the appellant is only about

Rs.85,000/- which is inclusive of HRA allowance, whereas

the monthly income of the respondent including HRA and

other allowances is Rs.2,21,514/-. The appellant has

already stated in her assets and liabilities statement that

she has borrowed a mortgage loan of Rs.28,00,000/- and

educational loan of Rs.1,09,510/- to meet the NEET

coaching expenses of her son. Though the appellant has

stated that the respondent is also earning monthly

income from the joint family properties owned by his

parents, the same is not proved by her by furnishing

necessary material before this Court. But the fact

remains that the respondent has not denied the said

statement of the appellant in his objections filed to the

application filed by the appellant under Section 25 of the

Act. The respondent is aged about 49 years and he has

got another 11 years of service. Merely for the reason

that the appellant is earning, there cannot be a bar from

awarding any amount to her towards permanent alimony.

The material on record would go to show that the

husband is having a substantial amount of income and

his financial status and standard of living is much higher

compared to that of the wife.

9. The Hon'ble Supreme Court in the case of

RAJNESH VS NEHA & ANOTHER - (2021)2 SCC 324, has

observed that awarding of permanent alimony would be

dependent upon factual situation which is based on

various factors that is brought before the court and there

cannot be a straight jacket formula for fixing the

quantum of permanent alimony. The financial capacity of

the husband, his actual income, reasonable expenses for

his own maintenance and dependent family members

whom he is obliged to maintain under law and his

liabilities, if any, is required to be taken into

consideration for arriving at an appropriate quantum of

maintenance or permanent alimony. The court is also

required to take into consideration the financial status

and standard of living of the wife and the respondent into

consideration, and accordingly, award maintenance/

permanent alimony. The Hon'ble Apex Court has also

observed that while considering the case for awarding

maintenance of minor children, the court is required to

take into consideration the expenses for food, clothing,

medical and educational expenses and it also would be

reasonable to award the amount for extra curricular and

coaching classes and it has been held that educational

expenses must be normally borne by the father and if the

wife is working and sufficiently earning, the expenses

may be shared proportionately between the parties.

10. In the present case, undisputedly, the income

of the respondent is much more compared to the income

of the appellant. Further, till date, the respondent has

not contributed any amount towards the maintenance

and educational expenses of the son who is studying in

first year PUC. Under the circumstances, we are of the

considered view that if an amount of Rs.50 lakhs is

awarded to the appellant towards permanent alimony

and towards maintenance and medical expenses of their

son Samartha, it would meet the ends of justice. The said

amount of Rs.50 lakhs shall be payable by the

respondent to the appellant within a period of three

months from the date of receipt of the certified copy of

this judgment. In addition to the same, the respondent is

also required to bear 60% of the future educational

expenses of his son viz., Samartha from the date of this

order. It is needless to state that as and when the

appellant makes a claim for payment of the educational

expenses, the respondent shall pay the same within 15

days from the date of receiving such claim from the

appellant, failing which he would be liable to pay interest

at the rate of 12% per annum on the claim amount for

the delayed period. IA-1/2020 is accordingly allowed in

part. Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE KK