Karnataka High Court
Smt. Rowena Meryl Crasta vs Mr. Alwyn Roshan D Souza on 12 July, 2023
Bench: Alok Aradhe, Anant Ramanath Hegde
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MFA.CROB No. 100 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE ALOK ARADHE
AND
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
MFA CROSS OBJECTION NO. 100 OF 2016 (FC)
BETWEEN:
SMT. ROWENA MERYL CRASTA,
W/O ALWYN ROSHAN DSOUZA,
AGED ABOUT 32 YEARS,
RESIDING AT "CASA GRANDE",
NO.6701, ATTAVAR, MANGALURU - 575 005,
D K DISTRICT.
...CROSS OBJECTOR
(BY SMT. S. B. LAKSHMI, ADVOCATE)
AND:
MR. ALWYN ROSHAN D'SOUZA,
S/O JOHN BAPTIST,
Digitally AGED ABOUT 36 YEARS,
signed by MODANKAR, JODUMARGA,
PRAMILA G V BANTWAL - 574 719, D. K. DISTRICT.
Location: ...RESPONDENT
HIGH COURT (BY SRI. K RAVISHANKAR, ADVOCATE - (ABSENT))
OF
KARNATAKA THIS MFA.CROB IN MFA.NO.730/2016 IS FILED U/O 41
RULE 22 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 10.08.2015 PASSED IN M.C NO.251/2014 ON THE FILE
OF THE PRINCIPAL JUDGE, FAMILY COURT, DAKSHINA
KANNADA, MANGALURU, ALLOWING THE PETITION FILED U/S
10(1)(ix)(x) R/W SEC.37 & 41 OF DIVORCE ACT.
THIS MFA CROB. COMING ON FOR HEARING THIS DAY,
ANANT RAMANATH HEGDE J., MADE THE FOLLOWING:
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MFA.CROB No. 100 of 2016
JUDGMENT
This cross objection is filed invoking Section 19(1) of the
Family Courts Act, 1984 read with Order XLI Rule 22 of the
Code of Civil Procedure, 1908.
2. The wife has filed the present cross objection being
aggrieved by the rejection of part of her claim for permanent
alimony wherein she had sought permanent alimony of
Rs.25.00 lakhs. In terms of the impugned judgment and
decree passed by the Family Court, Rs.10 lakhs is awarded
towards permanent alimony and the cross objection is in
respect of disallowed claim.
3. In the same judgment and decree, the petition filed
by the wife under Section 10(1) (ix), (x) and Sections 37 and
41 of the Indian Divorce Act, 1869 seeking dissolution of
marriage on the ground of desertion and cruelty under the
Divorce Act, 1869 is allowed. The wife had also claimed
permanent alimony invoking Section 37 of the Indian Divorce
Act.
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MFA.CROB No. 100 of 2016
4. Aggrieved by the decree of divorce, the husband
had filed an appeal in MFA No.730/2016. The same was
dismissed for non-prosecution vide order dated 15.03.2022.
5. Hence, this Court is only required to decide in this
cross objection the quantum of alimony payable to the wife
who is said to be taking care of the minor daughter.
6. The facts necessary for adjudication of the case can
be summarized as under:
The marriage was solemnised on 16.01.2010. The
marriage is consummated and from the marriage, the couple
have a daughter born on 25.04.2011. Thereafter, it appears
that the relationship between the husband and the wife
strained and accordingly, the wife filed a petition seeking
dissolution of marriage and also permanent alimony making.
7. The Family Court after the trial has accepted the
contention of the wife and granted a decree for dissolution of
marriage and also awarded Rs.10 lakhs permanent alimony.
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8. As already noticed, the appeal filed by the husband
challenging the decree for dissolution of marriage is dismissed
for non-prosecution and the wife has presented this cross
objection seeking enhancement of permanent alimony.
9. In terms of the judgment of the Apex Court in the
case of Rajnesh vs. Neha and another reported in (2021) 2
SCC 324, parties were directed to file statement of assets and
liabilities vide order dated 19.04.2023.
10. Pursuant to the direction, the wife has filed the
statement of assets and liabilities in the form of affidavit on
10.05.2023 and the husband has filed statement of assets and
liabilities in the form of affidavit on 07.06.2023.
11. Heard the learned counsel appearing for the cross-
objector/wife.
12. Learned counsel would submit that the wife is not
having any income and Rs.10.00 lakhs awarded by the Family
Court is inadequate considering the fact that the wife has to
take care of the minor daughter who is now aged 12 years. It
is also her contention that the husband is running a hotel and
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his grandmother owns more than 5 acres of land in Amtadi
Village, Bantwal Taluk. It is also her contention that the
husband has not disclosed his real income and he has not
furnished his statement of account for the past 3 years prior to
the filing of the affidavit and he has not complied with the
direction issued by the Hon'ble Apex Court in the case of
Rajnesh vs. Neha and another supra in its letter and spirit.
13. This Court has also perused the records and also
the statement of assets and liabilities filed by the wife as well
as the husband.
14. The documents placed before this Court along with
the affidavit would establish the fact that the husband is
running a hotel in Amtadi Grama Panchayat jurisdiction,
Bantwal Taluk. It is also an admitted fact that the daughter of
the couple is residing with the wife and she is taking care of the
daughter. The wife has also produced the fee receipts of her
daughter's school where she is incurring school fees of
Rs.39,600/- per annum. In addition to that the wife has also
produced the receipts relating to the medical expenses incurred
by the wife. She has also produced the three years statement
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of bank account jointly held in the name of the wife as well as
her mother.
15. The husband has produced a statement of bank
account held by him covering one year prior to the affidavit. In
a proceeding of this nature, to find out the real income and
expenditure of the parties to the proceeding, it is expected that
the parties should file statement of bank account atleast for a
period of three years prior to the filing of the affidavit.
However, the husband has not filed the statement of account
for three years prior to the date of filing of statement of assets
and liabilities.
16. Under the circumstances, this Court has to draw an
adverse inference against the husband that he is trying to hide
the real income with an intention to avoid payment of alimony
to his wife and daughter.
17. It is also forthcoming from the records that
grandmother of the husband is owning more than 5 acres of
agricultural land. Since the parties are Christians, it cannot be
said that the husband is having right over the properties,
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nevertheless the Court can certainly infer that the husband is
also staying with his grandmother and having some benefit
from the income derived from the properties referred to in the
affidavit filed by the wife. It is also to be noticed that the
husband in his statement of assets and liabilities has gone to
the extent of saying that he has no income. This contention
cannot be accepted. Appellant is an able bodied person. He
has the obligation to maintain his wife and the daughter.
18. The wife in her statement of assets and liabilities,
has stated that the husband is running a hotel and this aspect
has not been denied by filing a counter affidavit. The document
produced by the wife i.e., the pamphlet pertaining to the hotel
reveals the cell phone number said to be the cell phone number
of the husband. This aspect is not disputed. Under the
circumstances, this Court is of the view that the husband must
be having atleast Rs.20,000/- to Rs.25,000/- income per month
from his hotel business. Hence, this Court deems that atleast
Rs.10,000/- per month should be the obligation of the husband
to maintain his wife and the daughter.
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19. This Court has already noticed that the Family Court
awarded Rs.10,00,000/- as permanent alimony to the wife and
it is stated that Rs.2,20,000/- is paid by the husband in a
execution proceedings filed before the Executing Court.
However, the husband has made a statement that he has paid
Rs.2,87,000/-. At this juncture, this Court is not in a position
to decide as to how much amount is paid by the husband. Since
the matter to recover the alimony ordered by the Family Court
is pending before the Executing Court the controversy relating
to actual payment will be decided by the Executing Court.
20. This Court has already noticed that the Family Court
has awarded Rs.10,00,000/- towards permanent alimony,
however, no interest is awarded on the said amount and the
amount is not yet paid.
21. Taking into consideration the materials placed
before this Court, the assets and liability statement filed by the
respective parties, this Court is of the view that permanent
alimony is to be enhanced by another Rs.5,00,000/- in addition
to Rs.10,00,000/- already ordered by the Family Court.
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22. Taking note of the fact that the husband has not yet
paid the alimony awarded by the Family Court and also the wife
is made to file a petition to recover the alimony, this Court
deems it appropriate to award interest on the alimony awarded
by the Family Court @ 6% per annum from the date of the
order passed by the Family Court till actual payment.
23. As far as the enhanced alimony of Rs.5,00,000/- is
concerned same shall carry interest @ 6% per annum from this
date till realisation of the amount.
24. Hence, the following:
ORDER
(i) The impugned judgment and decree dated
10.08.2015 passed in M.C. 251/2014 by the
Family Court, Dakshina Kannada, Mangaluru
are modified.
(ii) The permanent alimony to the wife and
daughter is enhanced by another
Rs.5,00,000/- by this Court.
(iii) The permanent alimony of Rs.10,00,000/-
awarded by the Family Court shall carry
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interest @ 6% per annum from 10.06.2015,
the date of the judgment of the Family Court
till realization of the amount.
(iv) The enhanced permanent alimony of
Rs.5,00,000/- awarded by this Court shall
carry interest @ 6% per annum from
13.07.2023, the date of the judgment of the
this Court till realization of the amount.
(v) No orders as to cost.
(vi) The appeal is allowed-in-part.
Sd/-
JUDGE
Sd/-
JUDGE
BRN
