Karnataka High Court
Sri. Dyamappa S/O Kallappa Sadar vs Smt. Dyamawwa Calling Herself on 10 January, 2024
Author: V.Srishananda
Bench: V.Srishananda
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RPFC No. 100001 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
REV.PET FAMILY COURT NO.100001 OF 2018
BETWEEN:
SRI. DYAMAPPA S/O. GANGAPPA
S/O. KALLAPPA SADAR,
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O: SADAR ONI, KELAGERI,
DHARWAD-580008.
...PETITIONER
(BY SRI. ROHIT S.PATIL, ADVOCATE AND
SRI. SHRIKANT T.PATIL, ADVOCATE)
AND:
SMT. DYAMAWWA CALLING HERSELF
AS WIFE OF DYAMAPPA
@ GANGAPPA SADAR,
Digitally signed
by SAMREEN
AGE: 66 YEARS, OCC: HOUSEHOLD WORK,
SAMREEN AYUB R/O: SADAR ONI, KELAGERI,
AYUB DESHNUR
DESHNUR Date:
2024.01.29
DHARWAD-580008.
15:25:03 +0530
...RESPONDENT
(BY SMT. N.R. MATTI, SRI. M.B. DEVALAPUR AND
SMT. B.F. HOSAMANI
SRI. SHIVASAI M.PATIL, ADVOCATES)
THIS R.P.F.C. IS FILED UNDER SECTION 19(4) OF THE
FAMILY COURT ACT, AGAINST THE JUDGMENT AND ORDER
DATED 19.12.2017, IN CRL.MISC. NO.84/2016, ON THE FILE
OF THE PRINCIPAL JUDGE, FAMILY COURT, DHARWAD, PARTLY
ALLOWING THE PETITION FILED UNDER SECTION 125 OF
CR.P.C.
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RPFC No. 100001 of 2018
THIS R.P.F.C., COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Shri. Rohit S. Patil, learned counsel for the revision
petitioner and Shri. B. F. Hosamani, learned counsel for the
respondent.
2. Present Revision Petition is filed challenging the
order passed in Criminal Miscellaneous No.84/2016 dated
19.12.2017 on the file of Principal Judge Family Court,
Dharwad.
3. Brief facts of the case which are utmost necessary
for disposal of the present revision petition are as under:
3.1. A petition came to be filed under Section 125 of the
Code of Criminal Procedure, 1973 (for short the 'Cr.P.C.), by
Smt. Dyamavva against the respondent claiming herself as the
wife of respondent who is the revision petitioner herein.
According to her, her marriage got solemnized as per the hindu
rights and customs about 50 years earlier i.e., on 08.05.1961
as arrange by their elders.
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3.2. It is further contended by her that at the time of
marriage, sum of Rs.4,000/- cash, 2 tolas gold, clothes and
writ watch was presented to the revision petitioner as dowry.
After the marriage, petitioner joined the house of the revision
petitioner and laid a happy marital life.
3.3. After 11 years of the marriage, a son was born and
he was named as Chandrashekhar.
3.4. When she went to delivery to her parental house
and returned to the house of the revision petitioner, the
revision petitioner her husband and mother-in-law started
harassing her on the ground of insufficient dowry being given at
the time of marriage. Her husband also started suspecting her
fidelity and was abusing her in filthy language and was
imparting mental ill-treatment. It is her specific case that her
husband and relatives did not come to see the child when she
was in the confinement period in her parental house. A
panchayat was convened by the elders and as per their decision
she joined the matrimonial home after the confinement period
was over. But, her husband and mother-in-law did not take
her to matrimonial home and refused to provide maintenance.
Left with no alternative, parents of the petitioner, maintained
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her and also brought up her son by providing necessary food
and other expenses.
3.5. The revision petitioner started living separately and
refused to maintain the petitioner and therefore, necessity
arose to file the petition for maintenance.
3.6. In pursuance of the notice issued in the said
petition, respondent appeared and filed detail objections
contending that there is no marriage between the petitioner
and the respondent. Respondent name is Dyamappa and
husband name of the petitioner is Gangappa and not
Dyamappa.
3.7. He also denied the other averments of the petition
filed by the petitioner.
3.8. Thereafter, the petitioner got examined herself as
PW.1 and on her behalf three more witnesses were examined.
She placed on record 20 documents which were exhibited and
marked at Ex.P.1 to P.20. The respondent got examined
himself as RW.1 and he also placed on record 34 documents
which were exhibited and marked at Ex.R.1 to R.34.
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3.9. On closure of recording the evidence, the learned
Judge heard the parties in detail and allowed the maintenance
petition in part and granted a sum of Rs.10,000/- as monthly
maintenance from the date of petition.
4. Being aggrieved by the same, the husband of the
petitioner has filed the present Revision Petition on the
following grounds:
GROUNDS
"18.That the impugned order passed
by the trial court is contrary to law, facts and
circumstance of the case.
19. That the marriage of the parties is
disputed by the respondent. Unless and until
there is a subsistence of marriage between
the spouses, court cannot allow the
maintenance to be paid by one party to the
other this cardinal principle is not followed by
the trial court.
20. That the marriage between the two
spouses is evidence by marriage card which is
at Ex.P.18. This is disputed by the respondent
on the ground that, the same is concocted
and created by petitioner. Unless and until
Ex.P.18 is proved, there is no question of
proof of marriage.
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21. That the evidence of PW.2 to PW.4
is tainted with interestedness. These
witnesses are the friends, relatives of the
petitioner. Particularly the cross examination
of these witnesses goes to the root of the
case.
22. That the written argument
submitted by the respondent is not properly
considered and no proper findings are given.
23. That the year of marriage is
mentioned as 1966 in the petition. In Ex.P.18
it is mentioned as 1961. This discrepancy in
the year of marriage is not properly
considered by the court below.
24. That the discrepancy is considered
while disposing off I.A.No.1 filed by the
petitioner for grant of interim maintenance.
Initially Rs. 6,000/- was ordered to be paid
towards interim maintenance by respondent
to petitioner. Later the said application was
dismissed by considered order dated
17.09.2016. In the light of said order, the
impugned order passed on the main petition
dated 19.12.2017 becomes illegal and not
sustainable in law.
25. That the trial court has not
considered the oral and documentary
evidence produced by the parties. Particularly
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the evidence of PW.2 and PW.1 regarding
marriage of petitioner with the respondent,
birth of Chandreshakar etc. The admissions
given by the parties are not properly
appreciated and highlighted by the trial court.
26. That, PW.2 is the Uncle of
petitioner and he has given evidence before
the trial court, if that is considered in its right
perspective, it will falsify the evidence of
PW.1.
27. PW.3 is the friend of petitioner's
son. This is admitted in the cross
examination. Further Ex. P.20 a document
relied by the petitioner is created document.
To that effect the admissions give by the
parties are not properly appreciated.
28. That the discrepancies elicited
between Ex.P.20 and R.11 are not properly
appreciated and no proper findings are given.
29. That the evidence of PW.4 indicates
that he is an interested witness and the same
ought not to have been considered in favour
of the petitioner by the trial court.
30. That the maintenance awarded by
the trial court and the costs of litigation
awarded by the trial court are highly
excessive and exorbitant.
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31. Valuation: That the petition was
one for grant of maintenance under section
125 of Cr. P.C. and court fee of Rs 20 was
paid before trial court as per KCF and SV Act.
That the same court fee of Rs 20/- is paid as
per Article 11(q) (iii) Schedule II of KCF and
SV Act in this petition."
5. Shri. Rohit S. Patil, learned counsel for the revision
petitioner reiterated the grounds urged in the petition and
contended that there is a serious dispute as to the relationship
between the parties, the learned Trial Judge ought not to have
allowed the petition for maintenance and sought for allowing
the Revision Petition.
6. Per contra, Shri. B. F. Hosamani, learned counsel
representing the wife - respondent, supported the impugned
judgment.
7. In view of the rival contentions of the parties, this
Court perused the material on record meticulously.
8. On such perusal of the material on record, it is seen
that the wife has been examined as PW.1 before the Trial Court
and she has specifically stated that her marriage has taken
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place about 50 years earlier on 08.05.1961 with the revision
petitioner and she laid the happy marital life.
9. It is also contended that a son by name
Chandrashekhar was born after 11 years of marriage and
thereafter, parties fell apart and the revision petitioner did not
treat her properly and so also his mother.
10. He further contended that the efforts made by the
relatives to joined her to the matrimonial home, did not heed
any result and therefore, she was constrained to file the
petition for maintenance.
11. She has produced the RTC extracts of the
properties owned by the revision petitioner and so also
produced the Aadhar card which is marked at Ex.P.1 and voter
I.D. card which is marked at Ex.P.2. The marriage invitation
card of her son's marriage is marked at Ex.P.4 and school
certificate of her son is marked at Ex.P.3, the copy of sale deed
where under the revision petitioner has purchased the property
is marked at Ex.P.5. Ownership of the revision petitioner with
regard to Tractor and Trailer bearing registration No.KA-25/RA-
4226 is marked at Ex.P.6. The proceedings of the Government
whereby, the land of the revision petitioner has been acquired
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by the Government of Karnataka is marked at Ex.P.7, RTC
extracts and other such documents were marked at Ex.P.8 to
P.20.
12. In her cross examination, she has admitted that she
does not know her date of birth as she is illiterate. She admits
that she has not produced any document to show that she is
aged 65 years. She has admitted that in the documents
produced by her, the name of revision petitioner has been
shown as Gangappa. She has answered that marriage of
Chandrashekhar has been performed by her brothers. She has
also answered that the revision petitioner has attended the said
marriage. In respect of other suggestions, she has either
pleaded ignorance or denied the suggestion.
13. PW.2 - Yallappa Mugad, PW.3 - Shankrappa
Hanchinamani, PW.4 - Kallappa R. Rashi.
14. These three witnesses are examined to corroborate
the oral testimony of PW.1. Among them, PW.2 is the relative
wherein he has stated that PW.1 is his niece. PW.2 is aged 85
years as on the date of deposition. He has specifically stated
that he has participated in the marriage that took place about
40 years earlier between the revision petitioner and PW.1. He
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also answered that after the birth of Chandrashekhar, the
revision petitioner refused to take her to matrimonial home. In
his cross examination he has answered that he is aged 93
years and he is having proper hearing capacity. To a specific
question as to why PW.1 is residing in the parental home, he
has answered that there is a dispute between the revision
petitioner and PW.1. He denied the suggestion that he has
given false evidence to help the PW.1.
15. To a specific question put by the Court as to
whether he is a literate, he has answered that he is having
capacity to read as he has attended the school when he was
young.
16. In further cross examination, he has denied the
suggestion that he has given false evidence that he has taken
active part in the marriage of revision petitioner with the PW.1.
17. PW.3 - Shankrappa Hanchinamani also deposed in
line with PW.2. In his cross examination, he has answered that
he has studied upto 10th standard and he is running a ration
shop. A specific question put to him that the revision petitioner
is having a wife by name Shantavva, he answered that she is
the second wife of revision petitioner.
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18. PW.4 - Kallappa R. Rashi also deposed in line with
the examination-in-chief of PWs.2 and 3. In his cross
examination, he has answered that he was born in the Kelageri
village, he is the permanent resident of Kelageri. He has
answered that he also attended the marriage of revision
petitioner with PW.1 and on that point of time he was aged 32
years. He has specifically answered that the marriage of
revision petitioner and his elder brother has taken place
simultaneously. He has also answered that he was participated
in 'Akki Kalu' ceremony.
19. The revision petitioner got examined himself as
RW.1. He has reiterated the contents of statement of objection
and further contended that there is no marital relationship
between himself and Smt. Dyamavva.
20. In his cross examination, he has answered that he
has studied upto 4th standard. He admits that he had elder
brother by name Basappa who is no more and his elder brother
has got eight sons. He has answered that he is possessing 5
acres of land in Lokur. He has further answered that the name
of his sister-in-law (wife of his elder brother) is Paravva. He
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admits that in Ex.P.13 the name of Paravva is found and so
also the name of his elder brother.
21. He admits that he has sold portion of his land and
he has earned a sum of Rs. 4 to 5 lakhs from the sale
consideration.
22. He admits that in Ex.P.18 the name of his mother
Rudravva is found and so also the name of his father Kallappa
is found. He admits that name of his elder brother Basappa is
also found in Ex.P.18. He admits that in the said document,
after Dyamappa within brackets the name of Gangappa is
found. He admits that his name is mentioned as Gangappa in
the ration card, but he does not know why his name has been
mentioned as Gangappa in the ration card. He also admits that
Dyamavva is residing in Kelageri village but in a separate
street. He admits that PWs.2 to 4 are residents of the same
street that of Dyamavva.
23. The above evidence on record was appreciated by
the learned Trial Judge in recording a finding that Dyamavva
got married herself with the revision petitioner and she has
been deserted.
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24. After so recording a finding as to relationship,
taking note of the documents that has been placed on record
by Smt. Dyamavva with regard to financial capacity of revision
petitioner, the Trial Court has come to the conclusion that a
sum of Rs.10,000/- is to be paid as monthly maintenance by
the revision petitioner to Smt. Dyamavva.
25. There is no dispute that the revision petitioner has
owned the landed properties not only in Lokur and other places
as could be seen from the material documents available on
record.
26. He also admitted that he has sold some of the
properties and also obtained the compensation when some of
the properties were acquired by the Government.
27. Taking note of all these aspects of the matter and
financial capacity of the revision petitioner, adjudging the
maintenance of Rs.10,000/- by the Trial Court is just and
proper. More over Smt. Dyamavva who is the respondent in
the present Revision Petition has not filed any application for
enhancement of the maintenance.
28. Under these circumstances, even after re-
appreciating the material evidence on record, in the light of
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grounds urged by the revision petitioner, and having regard to
the scope of the revision, this Court is of the considered opinion
that the finding recorded by the learned Trial Judge that the
relationship existed between the revision petitioner and Smt.
Dyamavva is justified.
29. Further, as could be seen from Ex.P.18 itself,
Dyamappa is also called as Gangappa. Therefore, mere
discrepancy in the records that the husband name of Smt.
Dyamavva being shown as Gangappa Sagar itself did not create
any serious doubt at the marital relationship of the revision
petitioner and the respondent.
30. Further, PWs.2 to 4 are the villagers and among
them PW.2 is only the relative and PWs.3 and 4 are the
independent witnesses of the same village. They did not
possess any enmity or animosity as against the revision
petitioner. So also, they did not possess any extra affinity as
against the respondent in this Revision Petition to favour her by
deposing false. Further, the revision petitioner himself
admitted that his name is shown as Gangappa in the ration
card.
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31. Further, while marrying the son born in the marital
relationship between the revision petitioner and the
respondent, she has printed the name of the father of
Chandrashekhar as Dyamappa @ Gangappa. It has also
admitted in the evidence that Gangappa @ Dyamappa has
attended the marriage of Chandrashkhar.
32. If the contention of the revision petitioner is to be
accepted that he is no way connected with the respondent and
he has not married the respondent where was the necessity for
him to attend that marriage of Chandrashekhar is a question
that remains unanswered.
33. Taking note of all these aspects of the matter, this
Court does not find any legal infirmity or perversity in recoding
positive finding as to the existence of husband and wife
relationship between the revision petitioner and the respondent
in this Revision Petition.
34. So far as the quantum of maintenance is concerned,
taking note of the assets possessed by the revision petitioner,
the Trail Court in its discretion has granted a sum of
Rs.10,000/- as monthly maintenance, which is just and proper.
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35. Accordingly, the following order is passed:
ORDER
The Revision Petition lacks merit and hereby
dismissed.
Sd/-
JUDGE
SMM
