Karnataka High Court
Smt. Bibifathima W/O. Mohammed Jafar ... vs Sri. Moahmmed Jafar S/O. Nisar Ahmed ... on 4 July, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RPFC No. 100192 of 2023
C/W RPFC No. 100222 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REV.PET FAMILY COURT NO.100192 OF 2023
C/W
REV.PET FAMILY COURT NO. 100222 OF 2023
IN RPFC.NO.100192/2023:
BETWEEN:
1. SMT. BIBIFATHIMA W/O. MOHAMMED JAFAR HAKIM,
AGED ABOUT 34 YEARS, OCC: HOUSEWIFE,
R/O: SHIVAGANGA LAYOUT,
KUSUGAL ROAD, HUBBALLI,
DIST: DHARWAD.
2. KUMAR EMAIR S/O. MOHAMMED JAFAR HAKIM,
AGED ABOUT 11 YEARS, OCC: NIL,
SINCE MINOR REPRESENTED BY HIS MINOR
GUARDIAN NATURAL MOTHER PETITIONER NO.1
SMT. BIBIFATHIMA W/O. MOHAMMED JAFAR HAKIM,
R/O: SHIVAGANGA LAYOUT,
KUSUGAL ROAD, HUBBALLI,
Digitally signed DIST: DHARWAD.
by V N
BADIGER ...PETITIONERS
Location: High
Court of (BY SRI VIJAY S. CHINIWAR, ADVOCATE)
Karnataka
AND:
SRI MOHAMMED JAFAR S/O. NISAR AHMED HAKIM,
AGED ABOUT 36 YEARS,
OCC: PRIVATE SERVICE,
R/O: FLAT NO.TI, 3RD FLOOR,
THE LUXOR TERRACE APARTMENT,
PEARL LAYOUT, SHABRINAGARA,
HUBBALLI, DIST: DHARWAD.
...RESPONDENT
(BY SRI DINESH M. KULKARNI, ADVOCATE)
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RPFC No. 100192 of 2023
C/W RPFC No. 100222 of 2023
THIS RPFC IS FILED UNDER SEC.19(4) OF THE FAMILY COURT
ACT, 1984, PRAYING TO, CALL FOR RECORDS AND ALLOW THE
PETITION BY MODIFYING THE JUDGMENT AND ORDER DATED
9.08.2023 PASSED BY THE LEARNED PRINCIPAL JUDGE, FAMILY
COURT, AT. HUBBALLI, BY DIRECTING THE RESPONDENT TO PAY
THE MAINTENANCE AS PRAYED IN CRIMINAL MISC.NO.12/2023, IN
THE INTEREST OF JUSTICE AND EQUITY AND ETC.,
IN RPFC.NO.100222/2023:
BETWEEN:
MR. MAHAMMED JAFAR S/O. NISAR AHMED HAKIM,
AGEDA BOUT 36 YEARS, OCC: PRIVATE SERVICE,
R/O: FLAT NO T1, 3RD FLOOR,
THE LUXOR TERRACE APARTMENT,
PEARL LAYOUT, SHABRINGAR,
HUBBALLI - 5800 024.
...PETITIONER
(BY SRI DINESH M. KULKARNI,
VAIBHAVI INMADAR & A.R.PATIL, ADVOCATES)
AND:
1. SMT. BIBIFATHIMA W/O. MAHAMMED JAFAR HAKIM,
AGED ABOUT 34 YEARS, OCC (HOUSE WIFE),
VEMAN KANNADA AND ENGLISH CONVENT
SCHOOL, HEBSUR, R/O: SHIVAGANGA LAYOUT,
KUSUGAL ROAD, HUBBALLI - 580 024.
2. KUMAR EMAIR S/O. MAHAMMED JAFAR HAKIM,
AGED ABOUT 11 MONTHS, OCC: NIL,
R/O: SHIVAGANGA LAYOUT,
KUSUGAL ROAD, HUBBALLI - 580 024.
SINCE MINOR R/BY HIS NATURAL MINOR GUARDIN IS
MOTHER RESPONDENT NO. 1 SMT. BIBIFATHIMA.
...RESPONDENTS
(BY SRI VIJAY S. CHINIWAR, ADVOCATE FOR R1;
R2 IS MINOR R/BY R1)
RPFC FILED UNDER SEC. 19(4) OF THE FAMILY COURT ACT,
1984, AGAINST THE JUDGMENT AND ORDER DATED 09.08.2023, IN
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RPFC No. 100192 of 2023
C/W RPFC No. 100222 of 2023
CRL.MISC. NO.12/2023, ON THE FILE OF THE I ADDITIONAL
PRINCIPAL JUDGE, FAMILY COURT AT HUBBALLI, PARTLY ALLOWING
THE PETITION FILED UNDER SEC.125 OF CR.P.C.WITHIN THE
PERIOD OF LIMITATIONSUBMITTEDOFFICE OBJECTIONS ARE
COMPLIED WITH.I.A.1/2023 FOR STAY I.A. IS FILED UNDER SEC.151
OF CPC., PRAYING TO STAY THE IMPUGNED ORDER DATED 09TH
AUGUST 2023 PASSED BY THE 1ST ADDITIONAL PRL.JUDGE, FAMILY
COURT, HUBBALLI IN CRL.MISC.NO.12 OF 2023, PENDING DISPOSAL
OF THE ABOVE CASE ON MERITS, IN THE INTEREST OF JUSTICE AND
EQUITY AND ETC.,
THESE PETITIONS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. RPFC No.100192/2023 is by the petitioner-wife
and RPFC No.100222/2023 is by the respondent-husband
against the order dated 09.08.2023 passed in Criminal
Miscellaneous No.12/2023 on the file of I Additional Principal
Judge Family Court, Hubballi by which the Family Court at
Hubballi directed the respondent-husband to pay Rs.7,000/-
to the petitioner-wife and Rs.3,000/- to the child.
2. The marriage between the parties has been
solemnized on 18.02.2021 at Hubballi and child-petitioner
No.2 has born to them. The above Miscellaneous Petition was
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filed by the wife under Section 125 of the Code of Criminal
Procedure, 1973, (for short, hereinafter referred to as
Çr.P.C.'), claiming maintenance of Rs.40,000/- per month
alleging respondent-husband subjecting the petitioner-wife
to harassment and deliberately neglecting to provide
maintenance. That the respondent-husband was having illicit
relationship. That a complaint was filed before the local
Jamath who had called the respondent for mediation to
which the respondent remained absent. That on 01.11.2022
petitioner-wife had filed a complaint before the Women
Police Station, who had summoned the respondent-husband
and his parents and advised. Whereby, the respondent-
husband and his parents had promised to take the
petitioner-wife and also undertaken that they would not
subject her to any harassment. However, they did not keep
up the said promise. Therefore, again the petitioner-wife
approached the Women Police Station on 27.11.2022, at
which time they did not turn up before the Police Station
accordingly and they advised petitioner to approach the
Court, accordingly she filed the petition.
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3. That the respondent-husband is carrying on
business of Real Estate Development under the name and
style of 'Caliph'' and he also doing wholesale fish business
and having income of more than Rs.1,50,000/- per month.
He is also working as a Sales Consultant in a private firm
earning salary. That the petitioner did not have any source of
income and having been driven away from the matrimonial
home, she has taken shelter with her parents and she has no
source of income for herself.
4. In the objection statement respondent-husband
though admitted the marriage and the birth of the child
denied the allegations made in the petition. That before the
marriage they were residing in a small house and after the
marriage because of the demand made by the petitioner-wife
he has made a spacious house paying monthly rent of
Rs.7,000/-. That she refused to co-operate in leading a
happy married life. She was rude in her behaviour towards
the respondent and his family members. She started
harassing the respondent and his parents and demanded the
respondent to abandon his parents and his unmarried sister.
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That during the month of April-2022 she went to her parent's
house and thereafter she has not returned to the
matrimonial home. Respondent finally approached the
Women Police Station on 31.10.2022 submitted the petition
requesting to call upon the petitioner-wife to join the
company of the respondent. Though she had promised
before the Police Station to join the respondent, she failed.
5. As regard to the income, it is contended that he is
working as a Sales Consultant in Raam Hundai Showroom,
Hubballi and getting salary of Rs.11,993/- per month, of
which he is paying rent upto Rs.7,000/- and paying
instalment towards the bank loan, as such he has no income
of his own. The Family Court on consideration of the
pleadings, framed the following points for its consideration
and recorded the evidence:
"1. Whether the petitioner No.1 proves that,
the respondent has ill-treated the petitioner No.1
and also wilfully neglected to maintain both the
petitioners?
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2. Whether the petitioner No.1 proves that,
the respondent is able to maintain the petitioners
and having sufficient means?
3. Whether the petitioner No.1 proves that
she is unable to maintain herself and her son?
4. Whether the petitioners are entitled for the
reliefs as sought?"
6. Petitioner and his brother examined as PW.1 and
2 and produced eleven documents marked at Ex.P.1 to P.11.
Respondent examined himself as RW.1 and produced eight
documents which were marked at Ex.R.1 to R.8. The Family
Court on appreciation of the evidence and the arguments
found that the petitioner-wife and the child was entitled for
maintenance and were neglected by the respondent-husband
accordingly, directed payment of Rs.7,000/- to the
petitioner-wife and Rs.3,000/- to the child petitioner No.2
per month. Aggrieved by the same, the petitioner-wife
before this Court in RPFC No.100192/2023 seeking
enhancement, while respondent-husband is before this Court
in RPFC No.100222/2023 to set aside the order.
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7. Learned counsel for the petitioner-wife and child
reiterating the grounds urged in the memorandum of petition
submits that the Family Court at paragraph Nos.39, 40 and
41 of the impugned order has taken note of the properties
which stands in the name of the father of the respondent-
husband and has also taken note of the life style being led by
the respondent-husband. He refers to Ex.R.7 and R.8 the
Bank Statements and submits that there is no consideration
of the same by the Family Court. He submits that the Family
Court having taken note of these aspects of the matter, has
awarded meagre amount of maintenance which is not
sufficient. Hence, he seeks for enhancement.
8. Per contra, learned counsel for the respondent-
husband submits that the properties are not standing in the
name of the respondent-husband. That apart, the
respondent-husband is earning only sum of Rs.11,993/- per
month from his employment as Sales Consultant and he has
no other income. He further submits that the petitioner-wife
is M.A., B.Ed., graduate and she was working as a teacher in
Veman Kannada and English Convent School, Hebasur and
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was earning salary of Rs.20,000/- to Rs.25,000/- per month.
Thus, he submits that the petitioner-wife being capable of
earning and maintaining herself, she is not entitled for
enhancement under Section 125 of Cr.P.C. Hence, seeks for
setting aside of the order passed by the Family Court.
9. In response to the submission that the petitioner-
wife working as a teacher, learned counsel for the petitioner-
wife submits that in fact she was working upto the year 2019
and was getting only Rs.6,000/- per month and not
Rs.20,000/- to Rs.25,000/-, as alleged. That after the birth
of the child she has stopped working and she is completely
dependent on maintenance amount being paid by the
respondent-husband.
10. Heard. Perused the records.
11. Marriage between the parties is not in dispute and
petitioner No.2 being their child is also not in dispute. From
the records what emanates is that there were certain
matrimonial discords between the parties resulting in both of
them approaching the Women Police Station seeking their
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interventions. Though, several allegations and counter
allegations are made the fact remains that the petitioner-
wife has been residing with her parents and she is presently
without any employment. Though it is submitted on behalf
of the respondent-husband that the petitioner-wife is still
continuing to work, on a query by this Court as to the place
of work of the petitioner-wife, there is no answer to the
same.
12. On the contrary, learned counsel for the
petitioner-wife submitted that she was in the working upto
the year 2019 and was earning Rs.6,000/- and after the
birth of the child she is not working. The said submission is
not seriously refuted by the learned counsel for the
respondent-husband.
13. The respondent-husband himself has produced
Bank Statements at Ex.R7 and Ex.R8 before the Family
Court.
14. Counsel for the petitioner-wife submits that Ex.R7
is the Bank Statement pertaining to IDFC Bank while Ex.R8
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pertains to Bank Statement of Bank of Baroda. In Ex.R7,
there is a reference to personal loan and payment of equal
monthly instalments. Ex.R8 on the other hand, refers to a
savings bank account. Referring to the credit column of
Ex.P8, counsel for the petitioner submits that the
respondent-husband has continuously deposited amounts
into the said bank account. There is reference of transactions
made in the said bank account. On 03.01.2022 Rs.2900/- is
credited, on 04.01.2022 Rs.10000/- is credited, on
05.01.2022 Rs.6000/- is credited. Similarly, on 07.01.2022
Rs.9500/- is credited, on 10.01.2022 Rs.2500/- is credited,
on 10.01.2022 Rs.25000/- is credited. Similarly, on
01.03.2022 Rs.5500/- is credited, on 04.03.2022 Rs.29400/-
is credited. No explanation is offered by the respondent-
husband regarding those deposits.
15. However, there appears to be neither any
discussion nor any appreciation of this part of the evidence
by the Family Court while determining the income of the
respondents-husband.
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16. Matter requires further consideration with regard
to the income, assets and liability of the respondent
husband.
17. In that view of the matter and in view of the
Family Court not adverting to these aspects of the matter,
order impugned is set aside and the matter is remitted to the
Family Court for fresh consideration.
18. It is made clear the Family Court after affording
opportunity to the parties may pass appropriate orders.
19. In the meanwhile, the respondent-husband shall
continue to pay Rs.6000/- to the petitioner-wife and
Rs.3000/- to the child as interim maintenance awarded by
this Court vide order dated 21.12.2013. He shall also deposit
arrears of amounts as directed before the Family Court.
20. Both the petitions are disposed of accordingly.
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21. Since both the parties are being represented by
their counsel they shall appear before the Family Court on
31.07.2024 without further notice.
SD/-
JUDGE
SMM - para 1 to 14
KGK - para 15 to till end
CT-ASC
