Smt Latha vs N C Thippeswamy
2023 Latest Caselaw 845 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH 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.8201/2015 (MC)

BETWEEN:

SMT. LATHA
W/O N.C. THIPPESWAMY
AGED ABOUT 38 YEARS
HOUSEHOLD
C/O J.V. BASAVARAJ
DAVANAGERE ROAD
JAGALUR, DAVANAGERE
DISTRICT - 572 101.                      ...APPELLANT

(BY SRI YADUNANDAN N., ADV.)

AND:

N.C. THIPPESWAMY
S/O N. CHANNABASAPPA
AGED ABOUT 46 YEARS
AGRICULTURIST
R/O BETTADA NAGENAHALLI
CHITRADURGA DISTRICT.                 ...RESPONDENT

(BY SRI AKARSH KUMAR, ADV., FOR
SRI NARENDRA D.V. GOWDA, ADV.,)

      THIS M.F.A. IS FILED UNDER SECTION 28(1) OF THE
KARNATAKA HIGH COURT ACT, PRAYING AGAINST THE
JUDGMENT AND DECREE DATED:19.08.2015 PASSED IN
M.C.NO.20/2010 ON THE FILE OF 1ST ADDITIONAL SENIRO
CIVIL JUDGE, DAVANGER, ALLOWING THE PETITION FILED
U/SEC 13(1)(ia) AND (i-b) OF HINDU MARRIAGE ACT.
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    THIS APPEAL COMING ON FOR HEARING THIS DAY,
VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:

                      JUDGMENT

This Miscellaneous First Appeal is filed under

Section 28(1) of the Family Courts Act, 1984 assailing

the judgment and decree dated 19.08.2015 passed in

M.C.No.20/2010 wherein the petition filed by respondent

- husband under Section 13(1)(i-a)& (i-b) of the Hindu

Marriage Act, 1955 (hereinafter referred to as the "Act of

1955" for short) was allowed and the marriage between

the parties that was solemnized on 28.02.1994 dissolved

by a decree of divorce.

2. Heard the learned counsel for the parties and

also perused the material available on record.

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

appeal are, the marriage of the appellant with the

respondent was solemnized on 28.02.1994 in

Gurubhavana of Jagaluru Town, Davanagere District.

From the said wedlock, the couple have two daughters

namely Sneha and Neha, who are now aged about 26

and 22 years respectively. The couple lived together as

husband and wife for about 9 years and thereafter, they

started quarreling with each other and their relationship

got strained. Ultimately, on 18.01.2005, the appellant

along with her minor children left the company of the

respondent and started residing in her parents house.

She had filed petition under Section 125 of Cr.P.C.,

claiming maintenance from the respondent and in the

said proceedings, the appellant was awarded

maintenance of Rs.4,500/- per month for herself and her

two children. Since the appellant had refused to join the

company of the respondent, he had filed M.C.No.20/2010

before I Additional Senior Civil Judge, Davanagere

(hereinafter referred to as the "Trial Court") under

Section 13(1)(i-a)(i-b) of the Act of 1955 for dissolution

of marriage with the appellant. Before the Trial Court, the

appellant had entered appearance and filed her

statement of objections denying the allegations made

against her. The learned Judge vide the impugned

judgment and decree had allowed the petition and

dissolved the marriage between the parties. Being

aggrieved by the same, the appellant-wife is before this

Court.

4. Learned counsel for the appellant submits

that since the parties are residing separately for the last

about 17 years, it would not be possible for them to live

a normal married life in future and therefore, the appeal

may be considered for grant of permanent alimony to the

appellant taking into consideration that she has been

taking care of her daughters who are now of

marriageable age. She submits that the respondent is a

land owner and has got good income from his agricultural

property in which he has been growing areca nut crop.

She submits that though there is an order for payment of

maintenance, the respondent has been irregular in

payment of the same. Therefore, the appellant was

constrained to initiate execution proceedings against him.

5. Per contra, learned counsel for the

respondent submits that the daughters have filed suit for

partition and separate possession in joint family property,

which has now been decreed. He also submits that the

elder daughter who has completed her Engineering

degree is now working and therefore they have source of

income whereas the respondent is depending only on

agricultural income which is not definite.

6. It is the case of the appellant that the

respondent owns certain agricultural land and his source

of income is only from the said agricultural land. The

parties have placed before this Court the judgment and

decree passed in O.S.No.52/2017, which was filed by the

daughters of the parties seeking partition and separate

possession of the joint family property of the respondent.

The suit schedule properties in the said suit totally

measures about 20 acres of the agricultural land. In the

said suit, the respondent and his daughters, together

have been allotted 1/7th share in the suit schedule

properties and therefore approximately they would

together get 3 acres of land. Therefore, the income of the

respondent is required to be taken into consideration only

from the said 3 acres of land which has been allotted to

his share along with his daughters. Though a decree has

been passed in favour of the daughters, till date the

respondent himself has been in possession and

cultivation of the land that has been allotted to their joint

share. Taking into consideration the present market price

of arecanut it can be safely held that the respondent may

be having an income of Rs.3 lakhs per year and in the

said income he may have to spend a substantial amount

for the purpose of maintenance of arecanut plants and

after excluding the said expenses that he may incur, he

may be saving approximately Rs.1 lakh per year.

7. It is not in dispute that the elder daughter of

the couple has now completed his Engineering degree

and she is employed and therefore she has got a definite

source of income and she would be in a position to help

her mother. However, the fact remains that the younger

daughter is not employed and the mother may require

substantial amount for the purpose of performing the

marriage of the two daughters. The respondent has not

contributed for the upbringing of his daughters who are

now of marriageable age. Under the circumstances, we

are of the considered view that, if the respondent is

directed to pay permanent alimony of Rs.5 laksh to the

appellant that would meet the ends of justice.

Accordingly, the following :-

::ORDER::

               The      Miscellaneous    First

      appeal     is     disposed   of.   The

      respondent is directed to pay a sum

      of Rs.5,00,000/- (Five Lakhs) to the

      appellant as a permanent alimony

      within a period of six months from

      the date of receipt of certified copy

      of this order.




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NMS