Karnataka High Court

Mrs. Shruthi. S vs Mr. Kiran. A on 7 August, 2024

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                                                            NC: 2024:KHC:31503
                                                          WP No. 17875 of 2024




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 7TH DAY OF AUGUST, 2024

                                              BEFORE
                      THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
                          WRIT PETITION NO. 17875 OF 2024 (GM-FC)
                   BETWEEN:

                       MRS. SHRUTHI S.,
                       W/O MR. KIRAN A.,
                       D/O LATE SHIVASWAMY,
                       AGED ABOUT 34 YEARS,
                       ROAD NO.6/1,
                       2ND FLOOR 24TH MAIN ROAD,
                       E PIPE LINE ROAD,
                       J.C. NAGAR,
                       KURUBARAHALLI,
                       BENGALURU - 560 086
                                                                   ...PETITIONER
                   (BY SRI. DILIP KUMAR I.S., ADVOCATE)

                   AND:

Digitally signed       MR. KIRAN A.,
by YAMUNA K
L                      S/O MR. K. ARASEGOWDA,
Location: High         AGED ABOUT 41 YEARS,
Court of               R/AT NO.3901/44, 1ST MAIN,
Karnataka              2ND CROSS, GAYATHRI NAGAR,
                       BENGALURU - 560 021
                                                                  ...RESPONDENT
                   (BY SRI. MEGHACHANDRA D.N., ADVOCATE)

                                                ***
                        THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
                   CONSTITUTION OF INDIA, PRAYING TO A) CALL FOR THE RECORDS
                   FROM LEARNED II ADDL. PRINCIPAL JUDGE, FAMILY COURT AT
                   BANGALORE CITY IN MC.NO.1225/2021, EXAMINE THE LEGALITY
                   AND CORRECTNESS OF THE ORDER AND SET ASIDE THE ORDER
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                                            NC: 2024:KHC:31503
                                         WP No. 17875 of 2024




DATED 27/03/2024, PRODUCED AT ANNEXURE-A ON I.A.NOS.5 AND
6 FILED U/S 24 OF THE HINDU MARRIAGE ACT, 1955;B) GRANT THE
INTERIM MAINTENANCE AS SOUGHT IN THE PRAYER BY ENHANCING
THE MAINTENANCE TO THE PETITIONER AND MINOR SON;
C) ENHANCE THE LITIGATION EXPENSES; DIRECT THE RESPONDENT
TO PAY THE ARREARS OF RENT DUE BY HIM OR ALTERNATIVELY TO
PERMIT THE RESPONDENT TO ENTER THE SHARED HOUSE OF THE
RESPONDENT, ETC.

     THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:


CORAM:    HON'BLE SMT. JUSTICE LALITHA KANNEGANTI


                         ORAL ORDER

Aggrieved by the orders passed by the II Additional

Principal Judge, Family Court at Bengaluru, on I.A.No.V and

I.A.No.VI in M.C.No.1225/2021, dated 27.03.2024, the wife is

before this Court. The parties are referred to as the husband

and wife for the sake of convenience.

2. The husband had filed the M.C. petition, seeking

dissolution of the marriage between himself and his wife. In

that, the petitioner/wife herein had filed I.A.No.V and I.A.No.VI

seeking interim maintenance of `75,000/- per month, arrears

of rent, to pay the School fees of her son and the litigation

expenses of an amount of `1,00,000/-. It is the case of the

wife that her marriage was solemnized with the respondent on

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04.12.2013 and out of the wedlock, they are blessed with a

male child on 09.04.2016. The husband had filed a MC petition

on the false allegations. In fact, it is her case that she has

been mentally and physically harassed by the husband. It is

stated that she has also filed a petition under the Domestic

Violence Act. It is her case that the husband has completed his

B.E., M.S., and working as an Assistant Professor in AIT

College, Hesaraghatta Main Road and is drawing salary of

`50,000/- per month. It is stated that, he is the owner of

several immovable properties and has let out around seven

houses and receiving rental income. She has been paying the

School fees of her son, who is studying at VVS Gandhi

Centenary English School, Rajajinagar. When she has refused

to give consent for divorce, the husband has blocked her

mobile number and stopped paying the rent of the house. It is

her case that, though she is an MBA Graduate, even before and

after the marriage and even now, she is not working and she is

not able to secure employment.

3. The respondent/husband had filed his objections to

the said applications. It is the case of the husband that, he is a

Civil Engineer and due to COVID pandemic, has suffered

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massive loss and has to repay loan of `68,75,000/- to Canara

Bank. Whereas the wife is an M.B.A. Graduate and she is the

joint owner of M/s. Sunila Wines and getting `15,000/- per

month towards her share. She is a joint owner of six acres of

coconut field and approximately getting income of `5,00,000/-

per annum. At the time of execution of the rental agreement,

the husband had paid an amount of `50,000/- to the owner as

advance amount. He had requested the landlord orally to

deduct the arrears of rent from the advance amount. After the

wife filed the Domestic Violence case against the husband, he

stopped paying the rent. He undertakes to pay 50% towards

his son's educational expenses.

4. The Family Court, considering the submissions on

behalf of both the parties, had granted an amount of `10,000/-

per month to the wife as well as her son as interim

maintenance from the date of the application till the disposal of

the case and the husband was directed to pay an amount

`10,000/- towards litigation expenses and he was also directed

to pay the actual educational expenses of his son to his wife for

every academic year. The Court had directed the husband to

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deposit the arrears within three months from the date of the

said order.

5. While passing the said order, the Family Court had

considered that the wife had not produced cogent material to

show that, the husband is the owner of several immovable

properties including houses and commercial shops and getting

rental income. She has not produced the documents to show

that the husband is the owner of Sri. Lakshmi Venkateshwara

Kalyana Mantapa, Amruthur, Kunigal Taluk. The Court also

observed that the Canara Bank and Axis Bank statements of

the husband prima facie discloses that, he is getting regular

income and capable to pay reasonable maintenance to his wife

and son. The Court has also observed that though the wife is

an MBA graduate, but the husband has failed to show that she

is working and getting income, as such, he is not permitted to

escape from the liability to pay the maintenance and

accordingly, granted the maintenance.

6. Learned counsel appearing for the petitioner/wife

submits that, the husband has filed the income tax returns for

three years and for the year 2022-23, he has declared the

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profit deemed under Section 44AD @8/% of `57,03,000/- is

equal to Rs.4,56,240 and profit declared under Section 44AD @

14.26% of Rs.57,03,000/- is equal to Rs.8,13,440/- and paid

the tax. All the three years income-tax returns depicts the

transactions of similar nature. The learned counsel appearing

for the petitioner/wife submits that, in these income tax

returns, to show the profit, he had only shown the transactions

pertaining to Axis Bank and he has failed to disclose the income

tax details about his income/transactions that have taken place

through Canara Bank account. It is submitted that even before

the income tax Department, the husband had suppressed his

true income. Though the wife has taken a specific stand that

her husband owns immovable properties and is drawing lot of

wealth from them, the husband has not denied it in his

objections, which shows that the said fact has been accepted

and there is no denial. Learned counsel for the husband

submits that the Family Court, when this contention was raised

by the wife, had given a finding that the wife had failed to

produce the relevant document. When the contention of the

wife is not denied in their statement of objections and not

adverted to in their objections Statement, the Court should

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have drawn an adverse inference and accepted the stand taken

by the wife. It is submitted on behalf of the petitioner/wife that,

right from day one, the husband is not paying any amount for

the maintenance of the wife and the child. When his income is

running into lakhs of rupees, he has failed to maintain the wife

and the child. He has relied on a judgment of the Hon'ble Apex

Court in the case of Kiran Tomar & Ors. Vs. State of Uttar

Pradesh & Anr.1 wherein it is stated that the income tax

returns do not necessarily furnish an accurate guide of the real

income. Particularly, when parties are engaged in a

matrimonial conflict, there is tendency to underestimate the

income. Hence, it is for the Family Court to determine on a

holistic assessment of the evidence, what would be the real

income of the parties, so as to enable the applicant to live in a

condition commensurate with the status to which they were

accustomed during the time when they were staying together.

7. Learned counsel for the petitioner/wife submits that,

the properties that are stated, the photographs that are filed

and the income from both Canara Bank and Axis Bank

statements clearly shows that the respondent/husband is

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having a good business and only an amount of `10,000/- per

month is granted as maintenance to the wife. From an amount

of Rs.10,000/-, it is very difficult for the wife and the child to

sustain. All these factors were not taken into consideration by

the Family Court.

8. Learned counsel appearing for the respondent/

husband submits that, till the year 2021, till the wife had filed

Domestic Violence Case, he has been paying an amount of

`3,500/- as maintenance and also he was paying the rent of

the house. Without any basis, when the domestic violence case

is filed, from then on, he has not been paying any amount. It

is submitted that in fact, he has been paying the school fees of

the child right from 2019. The learned counsel appearing for

the petitioner/wife had denied the same saying that only a part

of the amounts are paid but the full school fees is not paid. It is

submitted on behalf of the husband that if the wife is not in a

position to take care of the child, the respondent/husband is

ready to take care of the responsibility of the child. It is further

submitted that when the case was coming up for the cross-

examination right from the year 2022, on one pretext or the

other, the wife is not co-operating with the trial and in this

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regard, he has filed a writ petition before this Court and this

Court had given a direction to the Family Court to expeditiously

dispose of the MC petition. It is submitted that, the husband is

ready to pay the entire school fees of the child and also an

amount of `10,000/- per month to the wife and an amount of

`5,000/- towards maintenance of the son and there may be a

direction to the wife to proceed with the matter before the

Family Court, expeditiously.

9. It is submitted on behalf of the respondent/husband

that, the contention of the learned counsel for the petitioner/

wife that the husband has not disclosed the Canara Bank

account details is not true, as all the Bank accounts are linked

to PAN and all those accounts reflect in the income tax

statement filed by him.

10. Having heard the learned counsel on either side,

perused the material on record. The petitioner/wife had taken

a specific stand that the husband is having immovable

properties and also deriving income out of the same. His

income runs into lakhs of rupees. The husband had filed his

Canara Bank and Axis Bank accounts wherein it shows that

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there are huge transactions as per the said accounts. When the

wife had taken the specific stand with regard to the properties

that are owned by the husband, when the husband had the

opportunity to file his objections, for the reasons best known to

them, it was never adverted to and they have not stated

anything in their statement of objections. The learned counsel

for the respondent/husband submits that, due to oversight, the

said aspect could not be adverted and the same should not be

considered by the Court. When they have specifically adverted

to each and every paragraph in filing their Statement of

objections, it cannot be said that, due to oversight, they have

not denied the same. The Bank accounts and the properties

that are filed shows that the husband is having sufficient

income and in spite of having income, the husband is not

providing the maintenance to the wife and child, befitting his

income and status. When the wife is not working and granting a

maintenance of an amount of `10,000/- per month to the wife

and the child, and how both the wife and the child will be able

to maintain with that `10,000/- was not at all considered by the

Family Court. Looking at the above material that is placed

before this Court, in the considered opinion of the Court, the

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husband is having sufficient income to take care of his wife and

child which he is obligated to do.

Accordingly, this Court is passing the following:

ORDER

i) The Writ Petition is allowed, by enhancing

the maintenance payable by the husband from

`10,000/- per month to `30,000/- per month;

            ii)    The    husband         shall   pay   the   entire

      educational expenses of the child.            If the wife has

      already     paid   any   portion       of   the   educational

expenses from the year 2022 till now, she can file

the statement before the Family Court and basing

on that, the said amounts have to be reimbursed by

the husband to the wife;