Karnataka High Court

Udhay Somashekar vs Mrs Kavitha Gangadara Reddy on 29 July, 2024

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                                                         NC: 2024:KHC:30928
                                                       WP No. 12228 of 2023




            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 29TH DAY OF JULY, 2024

                                      BEFORE
             THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
                WRIT PETITION NO. 12228 OF 2023 (GM-FC)
            BETWEEN:

                UDHAY SOMASHEKAR
                S/O. SRI.VURIBINDI SOMASHEKAR,
                AGED ABOUT 41 YEARS,
                CITIZEN OF SWEDEN
                PERMANENT RESDIENT OF
                SKVANDRONSGATAN,
                16 LGH 1001 21749, MALMO,
                SWEDEN

                TEMPORARY RESIDENT WHILE VISITING INDIA AT
                NO. 3-2-4, VIDYANAGAR COLONY,
                CHANDRAGIRI ROAD,
                TIRUPATHI RURAL, CHITTOR,
                ANDRA PRADESH - 517 502

                WORKING AT
                ERICSSON,
Digitally
signed by       MOBILVAGEN 12,
MEGHA           223 62 LUND, SWEDEN
MOHAN                                                           ...PETITIONER
Location:   (BY SRI. SRINIVASA MURTHY S., ADVOCATE)
HIGH
COURT OF    AND:
KARNATAKA
                MRS. KAVITHA GANGADARA REDDY
                W/O. MR. UDHAY.V.S,
                AGED ABOUT 41 YEARS,
                RESIDING AT NO. 1556, 17TH 'B' MAIN,
                5TH BLOCK, HBR LAYOUT,
                KALYANNAGAR,
                BENGALURU- 560 043
                                                               ...RESPONDENT
            (BY SRI. VIJAYA KUMAR K., ADVOCATE)
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                                           NC: 2024:KHC:30928
                                        WP No. 12228 of 2023




      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
RECORDS IN CRIMINAL MISCELLANEOUS PETITION NO. 196/2021
ON THE FILE OF THE III ADDL. PRINCIPAL JUDGE, FAMILY COURT,
BENGALURU AND SET ASIDE THE ORDER DATED: 20.12.2022
(ANNEXURE-E) PARTLY ALLOWING IA NO.2 (ANNEXURE-C) IN
CRIMINAL MISCELLANEOUS PETITION NO.196/2021 ON THE FILE OF
III ADDL. PRINCIPAL JUDGE, FAMILY COURT AT BENGALURU AND
DISMISS THE IA NO.2.

      THIS 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

The present writ petition is filed aggrieved by the order

passed in I.A.No.2 in Criminal Miscellaneous No.196/2021

dated 20.12.2022 by the III Additional Principal Judge, Family

court, Bengaluru whereby the trial court had granted an

amount of Rs.20,000/- to the wife as interim maintenance.

Aggrieved thereby the husband is before this court.

2. The parties are referred to as wife and husband for the

sake of convenience.

3. The respondent/husband herein has filed I.A.No.2

stating that the marriage was solemnized on 23.01.2017. The

husband was working in Sweden and he is getting handsome

salary, he deserted her without a valid reason. Wife is

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unemployed, and she is depending upon her mother and

brothers for her livelihood, mother is also suffering from age

related ailments and she is not in a position to take care of her.

It is submitted that husband is bound to take care of wife and

she sought for maintenance of an amount of Rs.1,00,000/- per

month.

4. The husband had filed his objections for I.A.No.2

stating that the application is not maintainable. He submits that

wife is living separately since 03.06.2017 and she refused to

live with him at the place where he is residing and employed.

The petitioner without any sufficient cause living separately, as

such she is not entitled for any maintenance. It is the case of

the husband that the wife is holding his money to the tune of

Rs.5,70,779/- in addition to Rs.2,90,000/-. She suppressed the

said facts and there are no bonafides in her application. This

application is filed only to extract the money and it is his case

that they have stayed together for 14 days in India and the

marriage was not consummated. Thereafter he left to Sweden

on 10.02.2017. The money which has been sent to her for the

sake of taking care of his father, she did not spent for that

purpose. She came to Sweden on 07.04.2017 and stayed with

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him for 57 days and returned to India on 03.06.2017. During

her stay with him, he observed that the wife is under

medication and she used to consume tablets on regular basis.

On enquiry, she informed that she is having thyroid problem.

According to the husband, she failed to understand his

concerns and she started shouting at him that he is immature.

Then he filed a petition under Section 13(1)(ia) of Hindu

Marriage Act seeking divorce, and the wife had lodged the

complaint against the husband and the family members.

5. The Trial court, considering the respective stands

taken by both the wife and husband and also taking into

consideration, the statement of assets and liabilities filed before

the court observed that the wife failed to disclose in her

affidavit the assets and liabilities as to how she is accumulating

Rs.42,500/- per month for her maintenance. According to her,

she lost her job during COVID-19 period, the statement of

accounts produced by the wife along with the memo dated

24.11.2022 shows that she is unemployed and she had no

income and she is also highly qualified. The court observed that

whether the wife is living away from husband without any

reasonable cause will be decided at a later point of time and

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considering the financial capacity of the husband granted an

amount of ₹20,000/- per month to wife as maintenance.

Aggrieved thereby, the husband is before this court.

6. Learned counsel appearing for the petitioner/husband

submits that the wife had come up before the court by

suppressing several factors. It is submitted that by order dated

25.01.2024, some documents are filed before this court. When

the court directed them to file the actual returns, only a part of

it is filed which is contrary to the judgment of the Hon'ble Apex

Court in case of Rajnesh -Vs- Neha1, the SBI account

statement is missing from 8.01.2023 to 01.04.2023 and the

bank of Baroda and HDFC bank statements are not legible.

When the matter came up on 25.01.2024 final chance is

granted to comply with the order dated 25.01.2024. Thereafter,

another memo dated 9.02.2024 is filed stating that the IT

returns till 2021 are filed and later as she is not working, she

could not file the IT returns. When the matter came up on

01.03.2024, this court directed the respondent to file a detailed

affidavit before this court and what are the financial

transactions, tax details from 2019 to till date and all the

AIR 2021 SC 569

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documents relating to that. The respondent filed it on

06.03.2024 stating that she has produced before the Court, the

bank statements from 2018 till date and IT returns of year

2019-2020 and 2020-2021 by memo dated 09.02.2024. The

respondent has also reiterated that she is not been working

from 01.09.2020 as she was laid-off and thus she has not filed

any IT returns for the financial year 2021-22, 2022-23 and

2023-24 and also stated that she is jobless and she has no

income and produced the termination letter dated 10.08.2020

stating that she would be laid off effectively from 01.09.2020.

Learned counsel submit that she has filed another affidavit very

next day on 07.03.2024 stating that she indeed filed NIL

returns for 2021-22 and filed returns for the for the year 2023-

2024. Learned counsel for the petitioner submits that, this is in

complete contradiction to the previous affidavit dated

06.03.2024 filed by the respondent. The justification the

respondent has given for mis-representing her previous

affidavit dated 06.03.2024 is about not having filed any IT

returns for the financial year 2021-22 and 2023-24, was that, it

was by oversight unintentional and bonafide mistake. He

submits that on 01.03.2024, submission made by the

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respondent had been recorded by the court that no income tax

returns are filed for the last three years. Counsel further

submits that all this conduct of the respondent clearly shows

that she has come before this court with unclean hands, and by

suppression of facts and she is not entitled for any relief from

the court. It is submitted that the trial court, though she has

not filed all the documents as per the judgment of the Hon'ble

Apex Court in case of Rajnesh -Vs-Neha referred supra,

still granted maintenance. The trial court has also observed

that the wife has failed to disclose in the statement of assets

and liabilities as to how she is accumulating Rs.42,500/- per

month for her maintenance, he submits that even with regard

to her occupation also the statements of accounts on

07.03.2024 affidavit also are not correct. She says that she is

a B.Arch graduate. She is jobless unable to work and she is

suffering from arthritis. Then at para No.4, it is stated that she

was working in Threefold Design and Architecture Firm at

Bangalore as an architect and laid off from the firm due to

COVID-19 from 01.09.2020. Looking at all these facts, and

particularly when the acts of the Respondents are in clear

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contravention of the judgment of the Hon'ble Apex Court in

Rajnesh Vs. Neha she is not entitled for any maintenance.

7. Learned counsel for the respondent submits that the

husband is earning good salary as he is working in Sweden and

the wife, though she is an architect, but in view of the Covid,

she lost her job and she is not working and she requires

maintenance. Before the trial court, she sought for

maintenance of an amount of Rs.1,00,000/- but the court had

granted only an amount of Rs.20,000/-. It is submitted that by

mistake and by oversight it is stated that she has not filed the

income tax returns, but however, by way of an affidavit, it is

clarified that she has not filed the income tax returns for the

financial year 2021-22, 2022-23, filed the NIL returns for the

year 2021-22, but filed the income tax returns for the year

2023-24. Only by oversight it is stated that she has not filed

the income tax returns, instead, mentioning the other way.

Learned counsel submits that the wife is entitled for the

maintenance as she is not able to maintain herself and the

husband, though he is having sufficient income to maintain the

wife is coming before the court with all these grounds to avoid

the maintenance to wife. Learned counsel submits that it is the

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bounden duty of the husband to maintain his wife when he is

earning a handsome salary.

8. Having heard the counsels on either side, perused

entire material on record. The wife has claimed maintenance of

an amount of Rs.1,00,000/-. It is the case that the husband is

working in Sweden and earning substantial amounts. In the

judgment of the Hon'ble Apex Court in the case of Rajnesh Vs.

Neha referred supra has observed that both the parties have to

file their respective statements of assets and liabilities, and in

the said judgment, the court has clearly mentioned what are all

the documents that have to be filed. In case any affidavit that

is filed with misrepresentation and suppression of facts, the

party is liable for all the consequences. In this case, this court

is of the considered opinion that the wife at every stage has

suppressed the facts before the court by filing different

affidavits, with regard to the income tax returns she has taken

different stands which shows that she has not disclosed all the

facts before this court. This is a fit case where the court has to

consider as per the dictum of the Apex court in Rajnesh Vs.

Neha referred supra and appropriate action has to be taken by

the court. This court is inclined to remand this case to the trial

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court. The entire exercise has to be done by the court basing

on the actual and the required documents that are placed

before the court and basing on such facts, the court has to

again decide the maintenance. The parties have to file the

relevant documents as per the judgment of the Hon'ble Apex

Court. In case the court after conducting and considering all the

facts and details comes to the conclusion that on oath the facts

that are placed on record are not correct facts and there is

suppression of facts, appropriate action needs to be initiated. In

view of the above discussion, this Court is passing the following

order:

ORDER

i. The order passed in I.A.No.2 in Criminal Miscellaneous No.196/2021 dated 20.12.2022 by the III Additional Principal Judge, Family court, Bengaluru, is set aside and the matter is remanded back to the Trial Court.

ii. The trial court shall insist for all the documents that are relevant as per the judgment of the Hon'ble Apex court in the case of Rajnesh Vs. Neha referred supra and shall decide the application as expeditiously as possible, but not later than three months.

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iii. The Registrar (Judicial) is directed to send the affidavits filed by both the parties before this court to the trial court along with the copy of the order.