Karnataka High Court
Mrs. Sameena W/O Rajesab Kolhapuri vs Mr. Rajesab S/O Abdulsalam Kolhapuri on 1 July, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC-D:8928
RPFC No. 100064 of 2021
C/W RPFC No. 100050 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REV.PET FAMILY COURT NO.100064 OF 2021
C/W. REV.PET FAMILY COURT NO. 100050 OF 2022
IN RPFC.NO.100064/2021
BETWEEN:
MR. RAJESAB S/O. ABDULSALAM KOLHAPURI,
AGE ABOUT: 49 YEARS,
OCC: PRIVATE SERVICE, (NOW NIL),
R/O: H.NO. 4805, 1ST MAIN,
SHIVAJI NAGAR, BELAGAVI,
PIN CODE: 590 016.
...PETITIONER
(BY SRI BAHUBALI N. KANABARGI, ADVOCATE)
Digitally signed
by V N
BADIGER AND:
Location: High
Court of
Karnataka
1. MRS. SAMEENA W/O. RAJESAB KOLHAPURI,
AGE: 41 YEARS, R/O: C/O ABDUL GAFAR,
5TH CROSS, DAMANAGATTI BUILDING,
PLOT NO. 14/B, R.S NO. 1000/2,
VEERABHADRA NAGAR, BELAGAVI,
PIN CODE - 590 016.
2. MISS MAHEK D/O. RAJESAB KOLHAPURI,
AGE ABOUT 22 YEARS, OCC: STUDENT,
R/O: HOSTEL AT DAVANAGERE, EXPERT COLLAGE,
DAVANAGERE, PIN CODE - 574 143.
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NC: 2024:KHC-D:8928
RPFC No. 100064 of 2021
C/W RPFC No. 100050 of 2022
3. MASTER MEHARAN S/O. RAJESAB KOLHAPURI,
AGE: 03 YEARS, OCC: STUDENT,
R/O: 5TH CROSS, DAMANAGATTI BUILDING,
PLOT NO. 14/B, R.S. NO. 1000/2, VEERABHADRA
NAGAR, BELAGAVI, PIN CODE - 590 016.
(SINCE RESPONDENT NO.3 IS MINOR,
REPRESENTED BY HIS NATURAL
GURDIAN MOTHER RESPONDENT NO. 1).
... RESPONDENTS
(BY SRI SUNANDA P. PATIL, ADVOCATE FOR R1 AND R2;
R3 IS MINOR REPRESENTED BY R1)
THIS RPFC IS FILED UNDER SEC. 19(4) OF THE
FAMILY COURT ACT, 1984, AGAINST THE JUDGMENT AND
ORDER DATED 16.04.2021 IN CRL.MISC.NO.363/2018 ON
THE FILE OF THE JUDGE, FAMILY COURT, BELAGAVI AND
ETC.,
IN RPFC.NO.100050/2022:
BETWEEN:
1. MRS. SAMEENA W/O. RAJESAB KOLHAPURI,
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O: C/O. ABDUL GAFAR, TH CROSS,
PLOT NO.14/B, VEERBHADRA NAGAR,
BELAGAVI - 590 010.
2. MISS. MAHEK D/O. RAJESAB KOLHAPURI,
AGE: 23 YEARS, OCC: STUDENT,
R/O: HOSTEL AT DAVENGRI EXPERT COLLEGE,
PIN CODE: 577 001.
3. MASTER MEHARAN S/O. RAJESAB KOLHAPURI,
AGE: 9 YEARS, OCC: STUDENT
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NC: 2024:KHC-D:8928
RPFC No. 100064 of 2021
C/W RPFC No. 100050 of 2022
(KLE SCHOOL BELAGAVI),
R/O: HOSTEL AT DAVENGRI EXPERT COLLEGE,
PIN CODE: 577 001.
SINCE MINOR REPRESENTED BY HIS
NATURAL MOTHER NEXT FRIEND
PETITIONER NO.1 SAMEENA.
... PETITIONERS
(BY SRI MAHANTESH S. HIREMATH AND
SUNANDA P. PATIL, ADVOCATE)
AND:
MR. RAJESAB S/O. ABDULSALAM KOLHAPURI,
AGE: 51 YEARS, OCC: SERVICE AT PETROLEUM
COMPANY AT IRAQ, R/O: H.NO.4805, 1ST MAIN,
SHIVAJI NAGAR, BELAGAVI, AND ALSO C/O:
PETROCHINA INTERNAIONAL IRAQ FZE, IRAQ
BRANCH HALFYB BASE CAMP, KAHALAA, MISSAN
PROVINCE REPUBLIC OF IRAQ AT PRESENT IN
INDIA.
... RESPONDENT
(BY SRI BAHUBALI N. KANABARGI, ADVOCATE)
THIS RPFC IS FILED UNDER SEC.19(4) OF THE FAMILY
COURT ACT, 1984, PRAYING TO IMPUGNED ORDER DATED
16.04.2021 CRIMINAL MIS.NO.363/18 BY THE LEARNED
JUDGE OF FAMILY COURT OF BELAGAVI BE KINDLY SET
ASIDE BY ALLOWING REVISION PETITION FAMILY COURT
AND THEREBYMODIFY THE SAME IN THE INTEREST OF
JUSTICE AND EQUITY AND ETC.,
THESE PETITIONS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
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RPFC No. 100064 of 2021
C/W RPFC No. 100050 of 2022
ORDER
1. By order dated 16.04.2021, passed in Crl. Misc.
No.363/2018, the Family Court at Belagavi, while partly
allowing the application filed under Section 125 of the
Cr.P.C. by the respondents - wife and children has
directed the petitioner - husband to pay Rs.10,000/- p.m.
to his wife during her life time from the date of petition
and Rs.6,000/- p.m. to petitioner No.2 and Rs.10,000/-
p.m to petitioner No.3.
2. The petitioner - husband is before this Court in
RPFC No.100064/2021 against the aforesaid order of the
Family Court seeking to set aside the same while
respondents - wife and children are before this Court in
RPFC No.100050/2021 seeking enhancement of the said
monthly maintenance.
3. The marriage of the petitioner with respondent
is not in dispute. The children born out of the marriage is
also not in dispute. After having lived for about 18 years,
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the petitioner - husband allegedly thrown the respondents
- wife and children from the matrimonial home,
constraining them to take shelter at the house of the
brother of the respondent - wife. Admittedly, the
petitioner - husband has contacted the second marriage
and has a child from the second marriage as well and he
has provided a residential accommodation to the second
wife and the child from her, while he has neither made
any provision for the maintenance of the respondents -
wife and children nor has he made any provision for their
residence. Alleging deliberate negligence by the petitioner
- husband, in maintaining the respondents - wife and
children, in the petition filed under Section 125 of the
Cr.P.C, it is contended that, the petitioner - husband has
obtained his Masters' Degree in Computer Application and
as on the date of the petition, he was employed in
Petrochina International Company at its Iraq Branch as
Document Controller. Ex.P11 is the employment certificate
& Ex.P12 is the salary certificate dated 21.10.2018 issued
by the said employer. According to which the petitioner as
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on the date of Ex.P12 was drawing an average salary of
$9,095/- per month, which works out approximately to
Indian currency at Rs.6,18,460/- ($9,095 x Rs.68) per
month as on that date. The said employment and the said
salary certificate have not been disputed by the petitioner
- husband. However, the petitioner who examined himself
as RW1 in the said proceedings before the Family Court,
had taken up the contention the he had resigned from the
said job and he was then jobless. In the affidavit,
declaring his assets and liabilities, he has contended that
he has only monthly income of Rs.40,000/- from his house
properties. The Family Court declined to accept the said
stand of the petitioner - husband as he did not produced
any document with regard to he having resigned from the
job. However, admittedly the petitioner is now again
employed and is working at Iraq.
4. In his petition challenging the order passed by
the Family Court, the petitioner - husband has contended
that he has no employment, and he has borrowed the
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loan, he has aged parents, second wife and the child from
the second marriage to take care of, as such he is unable
to provide maintenance except nothing is urged.
5. This Court had provided sufficient opportunity
to the petitioner - husband to furnish details regarding his
employment, assets and liabilities. However, learned
counsel for the petitioner expressed his helplessness
stating that all his sincere efforts in contacting the
petitioner-husband have not yielded any result, as the
petitioner is not contactable. He submits that even his
counterpart made attempts, to contact the petitioner, but
to no avail.
6. From the records, it is clear that the Family
Court after appreciating the evidence of the parties had
accepted the salary certificate produced at Ex.P12 and had
declined to accept the contention of the petitioner -
husband of he having resigned from job for he not
producing any iota of evidence regarding the same.
Nothing has changed from the date of impugned order
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dated 16.04.2021 till date with regard to the status of the
employment of the petitioner or his income. Therefore, the
only inference that can be drawn by this Court is that the
petitioner is deliberately avoiding the repeated directions
of this Court to furnish the details of his income for over
three years. On the last date of hearing on 26.07.2024, at
the request of the counsel for the petitioner, finally a
week's accommodation was granted enabling him to seek
information, if any, to which as stated above, learned
counsel for the petitioner submits that the petitioner is not
contactable. This Court is therefore of the view that no
grounds are made out by the petitioner - husband to set
aside the order passed by the Family Court.
7. As regards the assessment of maintenance is
concerned, one of criteria apart from the income of the
husband, is the status and standard of life to which the
parties were accustomed. There is no dispute of the fact
that the petitioner lived with the respondents - wife and
children for about 18 years, while he was earning in
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excess of Rs.6,00,000/- per months as his salary. The
details of assets and liability furnished before the Family
Court and the admission made by the petitioner -
husband in his deposition indicate that the petitioner -
husband owns 11 residential flats at Sadashiv Nagar and 4
residential flats in Ashok Nagar. Even on a conservative
estimation, he has more than sufficient income & means
to cater to the necessity and standard of living to which
respondents - wife and children were accustomed. The
Family Court though concluded that the petitioner has
neglected to provide them maintenance without justifiable
reason has not adverted to this aspect of the matter while
arriving at the monthly maintenance of Rs.10,000/-,
Rs.6,0000/- & Rs.10,000/ - being awarded to the
respondents.
8. For the aforesaid reasons and analysis, this
Court is of the considered view that, the salary certificate
at Ex.P12 and the property details provided in the
affidavit, produced by the petitioner - husband before the
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Family Court and his deposition regarding the immovable
properties as noted above be taken as the basis for
consideration of claim of respondents - wife and children
for enhancement of monthly maintenance. It is settled
position that generally, 25% of the husband's net salary is
considered to be just and proper to be awarded as
maintenance to the respondents - wife, besides, the same
must be befitting to the status of the parties and the
capacity of the spouse to pay the maintenance
9. Since as noted above, the salary received by
the petitioner - husband even as per Ex.P12 in the year
2018 is in excess of Rs.6,00,000/-, 25% of the same
would work out to approximately Rs.1,50,000/-.
10. However, since the petitioner - husband is
married for the second time and has a child from the said
marriage, this Court is of the view that the petitioner -
husband be directed to pay Rs.60,000/- to the respondent
- wife; Rs.15,000/- to respondent No.2; & Rs.25,000/- to
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respondent No.3 instead of Rs.10,000/-, Rs.6,000/-, &
Rs.10,000/- respectively awarded by the Family Court.
11. Consequently, the petition filed by the
petitioner - husband is dismissed and the petition filed by
the petitioners - wife and children is partly allowed.
12. The enhanced payment of maintenance shall be
paid from the date of filing of this petition. The other
directions of the Family Court to pay the maintenance to
the respondent - wife during her life time and to
petitioner No.2 till her marriage and petitioner No.3 till he
attains the age of majority is maintained as it is.
13. It is needless to state that, the petitioner
husband shall also ensure to pay and meet the
educational expenses of the children.
14. The respondents - wife and children are at
liberty to initiate such proceedings to recover the said
amount in accordance with law.
SD/-
JUDGE
