Karnataka High Court
Smt Smitha T R vs Dr Nataraj J R on 3 July, 2023
Bench: Alok Aradhe, Anant Ramanath Hegde
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MFA No. 7103 of 2017
C/W MFA No. 7104 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE ALOK ARADHE
AND
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
MISCELLANEOUS FIRST APPEAL NO. 7103 OF 2017 (FC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 7104 OF 2017 (FC)
IN MFA NO.7103/2017:
BETWEEN:
SMT SMITHA T R,
W/O DR. NATARAJ J R,
D/O M.C.RUDRARADYA,
AGED ABOUT 34 YEARS,
PREVIOUSLY R/AT NO.133,
PRAKRUTHI, 2ND CROSS, ITI LAYOUT,
MALLATHAHALLI, BENGALURU-560056,
PRESENTLY AT BESIDE DEEPTHI HOUSE,
Digitally signed
by BELUR 5TH CROSS, ASHOKANAGARA,TUMAKURU.
RANGADHAMA ...APPELLANT
NANDINI
(BY MISS KEERTHANA SWAMYNATHAN, ADVOCATE FOR
Location: HIGH
COURT OF SRI YESHU MISHRA, ADVOCATE)
KARNATAKA
AND:
DR NATARAJ J R,
S/O RAJASHEKARAIAH, JDM
MAJOR, AGED ABOUT 37 YEARS,
R/AT NO.133, PRAKRUTHI,
2ND CROSS, ITI LAYOUT,
MALLATHAHALLI, BENGALURU-560058.
...RESPONDENT
(BY SRI. VISHNU HEGDE, ADVOCATE FOR C/R1 - ABSENT)
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MFA No. 7103 of 2017
C/W MFA No. 7104 of 2017
THIS MFA IS FILED U/S 19(1) OF FAMILY COURTS ACT,
AGAINST THE JUDGMENT AND DECREE DATED 27.07.2017
PASSED IN M.C.NO.73/2016 ON THE FILE OF THE PRINCIPAL
JUDGE, FAMILY COURT, TUMAKURU, ALLOWING THE PETITION
FILED U/S 13(1)(i-a) (i-b) OF THE HINDU MARRIAGE ACT.
IN MFA NO.7104/2017:
BETWEEN:
SMT SMITHA T R,
W/O DR. NATARAJ J R,
D/O M.C.RUDRARADYA,
AGED ABOUT 34 YEARS,
R/AT NO.133, PRAKRUTHI,
2ND CROSS, ITI LAYOUT,
MALLATHAHALLI,
BENGALURU-560056,
PRESENTLY AT BESIDE DEEPTHI HOUSE,
5TH CROSS, ASHOKANAGARA, TUMAKURU.
...APPELLANT
(BY MISS KEERTHANA SWAMYNATHAN, ADVOCATE FOR
SRI. YESHU MISHRA, ADVOCATE)
AND:
DR NATARAJ J R,
S/O RAJASHEKARAIAH, JDM
MAJOR, AGED ABOUT 37 YEARS,
R/AT NO.133, PRAKRUTHI,
2ND CROSS, ITI LAYOUT,
MALLATHAHALLI, BENGALURU-560058.
...RESPONDENT
(BY SRI. VISHNU HEGDE, ADVOCATE FOR C/R1 - ABSENT)
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED:
27.07.2017 PASSED IN M.C.NO.206/2014 ON THE FILE OF THE
PRINCIPAL JUDGE, FAMILY COURT, TUMAKURU, DISMISSING
THE PETITION FILED UNDER SECTION 9 OF HINDU MARRIAGE
ACT, FOR RESTITUTION OF CONJUGAL RIGHTS.
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MFA No. 7103 of 2017
C/W MFA No. 7104 of 2017
THESE APPEALS COMING ON FOR HEARING THIS DAY,
ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are filed invoking Section 19(1) of the
Family Court Act, 1994. In terms of the common impugned
judgment and decrees dated 27.07.2017 passed the Family
Court, Tumakuru has dismissed the wife's petition in
M.C.No.206/2014, filed under Section 9 of the Hindu Marriage
Act, 1955, ('Act' for short) and allowed M.C.No.73/2016 filed by
the husband under Section 13(1)(i-a)(i-b) of Act.
2. Aggrieved by the judgment and decrees, the wife has
filed two appeals. MFA No.7103/2017 is filed challenging the
decree for dissolution of marriage and MFA No.7104/2017 is
filed challenging the decree dismissing the petition seeking
restitution of conjugal rights.
3. Since both cases are disposed of by a common
judgment, these appeals are also disposed of by a common
judgment. Heard the learned counsel for the wife. There is no
representation for the husband. However the court has
considered the statement of assets and liabilities and the
affidavit filed by the husband.
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4. For the sake of brevity, the parties to the proceedings
are referred to as the husband and the wife.
5. Though the wife has filed the appeals, challenging the
decree for dissolution of marriage and the decree dismissing
the petition for restitution of conjugal rights, learned counsel
for the wife on instructions would submit that the husband has
contracted a second marriage and a child is born from the
second marriage and for this reason, the wife is not pressing
her appeal challenging the decree for dissolution of marriage as
well as the decree dismissing the petition under Section 9 of
the Act. It is also submitted that the appropriate order on
alimony should have been passed by the Family Court and
urged the Court to pass appropriate orders in this regard by
considering the assets and liability statement filed by both
parties to the appeals.
6. Accordingly the Court heard the submission on behalf
of the wife. Though the husband is served, there is no
representation. However, the Court has perused the evidence
of the husband and also the affidavit filed by the husband.
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7. Brief facts necessary for adjudication on permanent
alimony can be summarized as under:
- Marriage of the parties was solemnised on 22.02.2007.
It is admitted that twins viz., Anchita and Abhigna were born
on 04.12.2010 from the marriage. It is also forthcoming from
the records that the children are with the wife.
8. The Court has passed a decree for dissolution of
marriage and has not passed any order relating to the payment
of either permanent alimony or maintenance in favour of the
wife or children.
9. In terms of the direction issued by this Court on
26.02.2021, the wife, on 07.04.2021 filed a statement of assets
and liabilities along with an affidavit. The husband, on
16.04.2021, filed a statement of assets and liabilities along
with an affidavit. Referring to the assets and liability
statement, the learned Counsel for the wife urged that the two
children are still aged 13, and the husband has not made any
arrangement for their maintenance and has an income of
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Rs.1,75,000/- per month and is under obligation to pay alimony
to the children and the wife.
10. It is also urged that the interim order dated
23.11.2022 to pay Rs.40,000/- per month passed by this Court
is also not complied and ever since the separation the wife is
taking care of the children. It is also urged that by taking into
consideration the huge expenditure involved in raising,
educating, and performing the marriage of the children and
also considering the obligation of the husband to maintain the
wife, Rs.1.25 crores is to be awarded towards permanent
alimony.
11. Learned counsel for the wife also relied on the Apex
Court decision in the case of RAJNESH vs NEHA & ANOTHER
reported in (2021) 2 SCC 324.
12. This Court has perused the records. The records
would reveal that the husband is a doctorate holder and
working as an Associate Professor at R.V. College of
Engineering, Bengaluru. According to the salary slip produced
by the husband, for the month of November 2020, his monthly
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salary is Rs.1,43,308/-. The bank statement produced by the
husband would reveal that on 31.03.2020 he received a salary
of Rs.1,67,081/-. It is also forthcoming from his affidavit that
he is incurring an expenditure of Rs.1,15,000.00 per month
towards his aunt (father's sister), mother, second wife and the
daughter from the second wife. It is also stated that the mother
receives a monthly pension of Rs.13,000.00 per month.
13. The husband has further stated that the wife is
getting a rental income from the property gifted by her father
and also income from the agricultural lands.
14. The wife in her affidavit has stated that she holds a
Post Graduate qualification in Business Management and is
working at IBM, earning a salary of Rs.1,15,000 per month.
15. In terms of the law laid down in the case of
RAJNESH vs NEHA & ANOTHER supra, while passing the
orders on permanent alimony, the status of the parties, the
income of the husband and the wife, age of the children, are to
be taken into consideration. It is also a well-settled principle
in law that the wife is also entitled to maintenance or alimony
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even if the husband succeeds in his petition seeking dissolution
of marriage.
16. There is nothing on record to show that the
husband has complied with the interim order passed by this
Court relating to the payment of interim maintenance in favour
of two children.
17. From the bank statement produced by the husband,
it is forthcoming that, he had a monthly salary of Rs.1,67,000/-
in January 2020. The wife is having a salary of Rs.1,13,960/
per month as seen from salary slip. Admittedly the children are
with the wife and they are aged 13 years. Since the wife is
earning, she can maintain herself. However, by reason of said
fact alone, the wife cannot be denied permanent alimony.
However, it is a factor to be taken into consideration while
deciding the quantum of alimony. It is also required to notice
that the husband apart from paying for the expenses of the
children also has the responsibility to look after his children. He
is not discharging the said obligation and the wife is taking care
of her two children, which of course is also her responsibility.
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This joint responsibility is now shouldered by the wife alone and
for this reason also the wife is entitled to maintenance.
18. Thus, having regard to the income of the husband
and wife, their expenses, status, educational qualification, and
the age of the wife and the children, this Court is of the view
that Rs.75,00,000/- (Rupees Seventy-Five Lakhs only) is to be
awarded towards permanent alimony to the wife and children.
Out of the said amount, Rs.30,00,000/- (Rupees Thirty lakhs
only) be the permanent alimony for each of the children and
the wife is entitled to Rs.15,00,000/- (Rupees Fifteen lakhs
only)
19. Since the children are minors, the amount awarded
in their favour shall be kept in a nationalized bank in fixed
deposit till they attain the age of majority.
20. The wife who is the mother of Anchita and Abhigna
is entitled to withdraw interest on the deposit referred to above
and the same should be utilised by the her for the benefit of
the minors.
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21. The amount to be kept in deposit shall be released
in favour of Anchita and Abhigna (the children of the appellant
and respondent) on them attaining majority.
22. Hence, the following:
ORDER
(i) The respondent/ husband shall pay Rs.75,00,000/-
towards permanent alimony of his wife/appellant and
two children Anchita and Abhigna within three
months from this date, failing which the amount shall
carry interest @ 6% per annum from this date till the
date of payment.
(ii) Out of the said amount, children Anchita and Abhigna
shall be entitled to Rs.30,00,000/- (Rupees Thirty
lakhs only) each as permanent alimony and the wife
is entitled to Rs.15,00,000/- (Rupees Fifteen lakhs
only) towards permanent alimony.
(iii) Since the children are minors, the amount awarded
in their favour shall be kept in a nationalized bank in
fixed deposit till they attain the age of majority, with
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the liberty to the appellant to withdraw the interest
on the said amount for the benefit of minors.
(iv) The amount to be kept in deposit shall be released in
favour of Anchita and Abhigna the children of the
appellant and respondent on them attaining majority.
(v) The impugned judgment and decree dated
27.07.2017 passed by the Family court Tumkuru in
M.C. No.73/2016 dissolving the marriage of the
appellant and the respondent and the impugned
judgment and decree dated 27.07.2017 in M.C. No.
206/2014 dismissing the petition for restitution of
conjugal rights is confirmed.
Appeals are disposed of accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
BRN
