Karnataka High Court
Mr. M. Yashwanth vs D. A. Divya @ Divyashree on 16 June, 2023
Bench: H.P.Sandesh
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RPFC No. 70 of 2021
C/W RPFC No. 114 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REV.PET FAMILY COURT NO. 70 OF 2021
C/W
REV.PET FAMILY COURT NO. 114 OF 2021
IN RPFC NO.70 OF 2021:
BETWEEN:
1. MR. M. YASHWANTH
S/O. MALLESHAPPA,
AGED ABOUT 42 YEARS,
BUSINESSMAN AND LANDLORD,
R/AT "AKSHAYA" B.H.ROAD,
MALAVAGOPPA (P),
SHIVAMOGGA TALUK AND DISTRICT,
PIN-577 201.
...PETITIONER
Digitally signed
by SHARANYA T (BY SRI. SUKUMARAN G, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. D.A. DIVYA @ DIVYASHREE
W/O. M. YASHWANTH,
D/O. ANAND,
AGED ABOUT 32 YEARS,
2. THANAY S/O. M.YASHWANTH,
AGED ABOUT 12 YEARS,
BEING MINOR REPRESENTED
BY HIS NATURAL GUARDIAN
IS RESPONDENT NO.1,
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BOTH ARE R/AT
ARAVINDANAGARA, 2ND CROSS,
BASAVANAHALLI EXTENSION,
CHIKKAMAGALURU TOWN,
CHIKKAMAGALURU-577 101.
...RESPONDENTS
(BY SRI. GIRISH B. BALADARE, ADVOCATE FOR R1 AND R2;
R2-MINOR, REPRESENTED BY R1)
THIS RPFC IS FILED UNDER SECTION 19(4) OF FAMILY
COURTS ACT 1984 AGAINST THE ORDER DATED 21.04.2021
PASSED IN CRL.MISC.No.18/2015 ON THE FILE OF THE C/c
PRINCIPAL JUDGE, FAMILY COURT, CHIKKAMAGALURU, PARTLY
ALLOWING THE PETITION FILED UNDER SECTION 125 OF
Cr.P.C., FOR MAINTENANCE.
IN RPFC NO.114 OF 2021:
BETWEEN:
1. SMT.D.A.DIVYA @ DIVYASHREE
W/O. M.YASHWANTH,
D/O. ANAND,
AGED ABOUT 32 YEARS,
CHIKKAMAGALURU-577 101.
2. MASTER THANAY S/O. M. YASHWANTH,
AGED ABOUT 13 YEARS,
CHIKKAMAGALURU-577 101.
THE PETITIONER NO.2 IS MINOR,
REPRESENTED BY HIS NATURAL
GUARDIAN - MOTHER
SMT.D.A.DIVYA @ DIVYASHREE
BOTH ARE R/AT
ARAVINDANAGARA, 2ND CROSS,
BASAVANAHALLI EXTENSION,
CHIKKAMAGALURU CITY,
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CHIKKAMAGALURU-577 101.
...PETITIONERS
(BY SRI. GIRISH B. BALADARE, ADVOCATE)
AND:
1. MR. M. YASHWANTH
S/O. MALLESHAPPA,
AGED ABOUT 43 YEARS,
BUSINESS MAN AND LAND LORD
R/AT. AKSHAYA, MALAVAGOPPA
B.H.ROAD, SHIVAMOGGA TALUK
SHIVAMOGGA- -577 201.
...RESPONDENT
(BY SRI. SUKUMARAN G, ADVOCATE)
THIS RPFC IS FILED UNDER SEC.19 OF THE FAMILY
COURT ACT, AGAINST THE ORDER DATED 21.04.2021 PASSED
IN CRL.MIS.NO.18/2015 ON THE FILE OF THE C/C PRINCIPAL
JUDGE, FAMILY COURT, CHIKKAMAGALURU, ALLOWING THE
PETITION FILED UNDER SEC.125 OF CR.P.C. FOR
MAINTENANCE.
THESE PETITIONS COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
These matters are listed for admission. Heard the
learned counsel appearing for both the parties in both the
petitions.
2. These two petitions are filed being aggrieved by
the order dated 21.04.2021 passed in Crl.Misc.No.18/2015
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by the Principal Judge, Family Court, Chikkamagaluru,
granting maintenance of Rs.4,000/- each to the wife and a
son and the wife also filed a petition for enhancement,
respectively.
3. The factual matrix of the case is that the first
petitioner in Crl.Misc.No.18/2015 married the respondent
on 28.02.2007. In the said wedlock, she gave birth to a
second petitioner, who is aged about 7 years at the time
of filing the petition in the year 2015 under the care and
custody of the first petitioner. In the petition, the
allegations are made against the husband, he started ill-
treating the wife both mentally and physically and also
demanding to bring the money. The case of the wife is
that as per the demand, the parents of petitioner No.1 had
paid the cash of Rs.1 Lakh and gold ornaments worth
about Rs.6,00,000/- as dowry at the time of marriage. The
respondent was coming home late night inebriated and
used to assault the first petitioner mercilessly, which leads
to file a petition in Crl.Misc.No.239/2009 under Section 12
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of the Domestic Violence Act, 2005, seeking maintenance
and not to commit any further act of domestic violence.
The said petition was partly allowed granting monthly
maintenance of Rs.4,000/- to the petitioners. The
respondent has challenged the same in Crl.A.No.107/2012
before the Fast Tract Court, Chikkamagaluru, the same
was dismissed. In the meanwhile, the first petitioner
preferred an appeal in Crl.A.No.134/2011 for enhancement
of maintenance before the Fast Tract Court,
Chikkamagaluru, the same was also dismissed. But the
respondent has failed to pay the maintenance amount of
Rs.4,000/- to the petitioner and he also filed a petition
seeking divorce in M.C.No.134/2013, the same came to be
dismissed on 30.06.2014. He also filed G & WC
No.21/2013 seeking custody of petitioner No.2, the same
was also dismissed on 30.06.2014. It is contended that
both of them are unable to lead their life in the paltry
amount of Rs.4,000/- and also contend that the second
petitioner is studying in III Standard at Sai Angels School,
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Chikkamagaluru and the yearly expenses would be
Rs.60,000/-.
4. It is also contended that the respondent is
doing share business having good income and also got
income of more than Rs.70 lakhs per year from
agricultural properties. He owns a site worth of Rs.25
Lakhs at Shivamogga City and he is capable of maintaining
the petitioners. But the respondent is not maintaining the
petitioners. The petitioners are facing extreme difficulties
to maintain themselves. The first petitioner is unemployed
and she has no income to lead day-to-day life. Hence,
sought for maintenance of Rs.40,000/- per month. Earlier
the said petition was dismissed on 25.01.2016 by placing
the respondent exparte. Subsequently, as per order in
RPFC No.63/2016 dated 02.11.2020 the said order dated
25.01.2016 was set aside and the matter was remanded
back to the Court for fresh disposal.
5. The respondent appeared and filed the
statement of objections, admitted the marriage, but he
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has denied all other averments made with regard to
payment of cash as dowry and gold ornaments worth of
Rs.6 Lakhs and reiterated with regard to the earlier
proceedings before the respective Courts. It is also
contended that the second petitioner is also filed a suit in
O.S.No.101/2015 for partition and separate possession of
the second petitioner. The said petition was partly
decreed granting 11 guntas of land. It is also contended
as per the earlier order in Crl.Misc.No.239/2009, the
respondent has paid up to date maintenance amount.
6. The Trial Court allowed both parties to lead
their evidence and the wife examined herself as P.W.1 and
got marked the documents as Exs.P1 to P68. On the other
hand, the husband examined himself as R.W.1 and he has
also relied upon the documents as Exs.R1 to R15.
7. The Trial Court having considered both oral and
documentary evidence while assessing the maintenance
discussed the judgment of the Apex Court in the case of
Rajnesh v. Neha reported in 2020 SCC OnLine SC 903,
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and also the judgments of this Court. Having considered
both oral and documentary evidence in paragraph No.29,
taken note of the earlier order directing to pay an amount
of Rs.4,000/- under the Domestic Violence Act in
Crl.Misc.No.239/2009 and also in paragraph No.30 taken
note of the judgment of this Court passed in
Crl.R.P.No.1265/2015 (Smt. Sumy Sreekumar and
another v. Mr. Rijesh Ram P. and another) and having
considered the material on record awarded an amount of
Rs.4,000/- each.
8. The very contention of the husband in RPFC
No.70/2021 is that both the Courts failed to consider that
the petitioner is not having any definite income to pay the
maintenance and the Trial Court committed an error in not
relying upon the documents Exs.R1 to R15 and on the
contrary to Exs.P1 to P68, does not give any indication for
allowing the petition. The order impugned is very illegal
and unsustainable and contrary to the evidence, when he
is unable to pay maintenance since he was not having any
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definite income, granting of maintenance of Rs.4,000/-
each is erroneous.
9. Per contra, the learned counsel appearing for
the respondents in RPFC No.70/2021, the petitioners in
RPFC No.114/2021 contends that both the Courts failed to
take note of the material on record. The husband is having
the source of income through his agricultural land though
the partition took place between the respondent and his
father only small share is allotted to the respondent only
to deprive the petitioner from claiming the property
through her husband. Apart from that, Exs.R9 to R14
clearly indicates that the father of the respondent owns
several luxury vehicles and having several acres of
agricultural lands. The documents - Exs.P22 to P28 clearly
discloses that those Cars are in the name of the husband
earlier and after commencement of the proceeding only
those vehicles are sold that too in favour of his father and
the same was also taken note of by the Trial Court but the
Trial Court failed to award the reasonable maintenance.
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10. Having heard the respective learned counsel
and also on perusal of the material available on record,
the points that would arise for consideration of this Court
are:
(i) Whether the Trial Court has committed an
error in granting maintenance of Rs.4,000/-
each?
(ii) Whether the Trial Court has committed an
error in granting meager maintenance of
Rs.4,000/- each?
(iii) What order?
11. Having heard the respective learned counsel
and also on perusal of the material available on record,
there is no dispute with regard to the fact that the
marriage was solemnized on 28.02.2007 and also no
dispute with regard to the dispute was arisen between the
parties immediately after the marriage and the same leads
to file a petition in Crl.Misc.No.239/2009 under the
Domestic Violence Act and also no dispute regarding the
maintenance of Rs.4,000/- was awarded in that petition,
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the same is also challenged before the Court by both the
sides and both the petitions are dismissed. The present
petition is filed in the year 2015 seeking maintenance and
no dispute with regard to the fact that in terms of the
earlier order passed in Crl.Misc.No.239/2009, the husband
is making the payment of Rs.4,000/-. Now, apart from
the said amount, the Trial Court passed an order directing
to pay an amount of Rs.4,000/- each and the total amount
would be Rs.12,000/- for the wife and the son. Having
perused the material at the time of filing the petition in
2015, the son is aged about 7 years. Now, he would be
aged about 14 years and also not in dispute that the
second petitioner has pursuing the education and earlier it
was stated that he was pursuing III Standard at Sai
Angels School, Chikkamagaluru. The wife claims that the
fee would be Rs.60,000/- per year. In order to prove the
said fact, the wife produced the School fee bills of the
second petitioner i.e., Exs.P10-P21. The wife relied upon
the documents - Exs.P22 to P28, B Register extracts,
which discloses that the husband was having those
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vehicles and the same was transferred subsequent to the
dispute between the wife and the husband and the same is
also observed by the Trial Court while considering and
appreciating the material on record. The said vehicles are
transferred to the father in terms of the documents Exs.R9
to R14 - B Register extracts. It is also the case of the wife
that the husband is also doing share business.
12. Learned counsel appearing for the wife brought
to the notice of this Court that the Partition Deed effected
between the father and the son and also the other
daughter of his father, wherein, the husband has received
an amount of Rs.10 Lakhs and also 21 guntas of land. It
is also not in dispute that the suit is also filed for the relief
of partition by the son, wherein, 11 guntas of land was
given to the second petitioner. The learned counsel
submits that an appeal is pending before this Court in
R.F.A. This Court cannot look into the material with regard
to the partition is concerned, the same has to be
adjudicated in this Court separately. Only the Court has to
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take note of the present cost and standard of living and
cost of education and also no doubt that the father has got
major share in the said partition and the same cannot be
considered but only the Court has to look into the status of
the parties and conduct.
13. Having taken note of already getting Rs.4,000/-
in view of the order passed in Crl.Misc.No.239/2009 and
the present order in Crl.Misc.No.18/2015, the second
petitioner-son is also pursuing his education in
Chikkamagaluru, having taken note of the school fee and
also the same is borne by the wife herself out of
Rs.12,000/- and it is very difficult to maintain herself and
also to maintain the child, who is pursuing the education
and aged about 13 years and to meet the school fee
expenses, it is appropriate to modify the order of the Trial
Court enhancing the maintenance to the son as Rs.8,000/-
instead of Rs.4,000/- and also taking note of the fact that
an amount of Rs.4,000/- which the mother is already
getting in Crl.Misc.No.239/2009, there is no need to
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enhance the maintenance to the wife. For the child, it is
enhanced to Rs.8,000/- in Crl.Misc.No.18/2015, since the
wife has to meet the educational expenses. In all, the
maintenance payable is Rs.16,000/-, inclusive of order
passed in Domestic Violence Petition to the wife and the
son. Hence, I answer the points accordingly.
14. In view of the discussions made above, I pass
the following:
ORDER
(i) The petition filed by the wife-RPFC No.114/2021
is allowed by granting the additional
maintenance of Rs.4,000/- per month to the
second petitioner i.e., the son from the date of
petition apart from the amount already ordered
by the Trial Court in Crl.Misc.No.239/2009 as
well as Crl.Misc.No.18/2015 and in all,
Rs.16,000/- instead of Rs.12,000/-
(ii) The petition filed by the husband-RPFC
No.70/2021, is dismissed.
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In view of disposal of the petitions, IAs., if any, does
not survive for consideration in both the petitions, the
same stands disposed of.
Sd/-
JUDGE
CP
