Karnataka High Court

Neelawwa @ Sarojini vs Shankreppa Kallappa Murgod on 30 July, 2024

Author: Hanchate Sanjeevkumar

Bench: Hanchate Sanjeevkumar

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                                                             NC: 2024:KHC-D:10714
                                                             RSA No. 5884 of 2010




                      IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                               DATED THIS THE 30TH DAY OF JULY, 2024

                                              BEFORE

                      THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

                             REGULAR SECOND APPEAL NO. 5884 OF 2010

                   BETWEEN:

                   SMT. NEELAWWA @ SAROJINI
                   W/O SHANKREPPA MURGOD,
                   AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
                   R/O PARISHWAD, TQ: KHANAPUR,
                   DIST: BELGAUM-590001.
                                                                ...APPELLANT
                   (BY SMT. SURABHI KULKARNI, ADVOCATE FOR
                   SRI CHETAN MUNNOLI AND LOKESH HEGDE, ADVOCATES)

                   AND:

                   SRI SHANKREPPA KALLAPPA MURGOD
                   AGE: 50 YEARS, OCC: TEACHER,
                   R/O YARADAL, TQ: BAILHONGAL-590001.
                   DIST: BELGAUM.
Digitally signed                                                     ...RESPONDENT
by SAROJA          (BY SRI BALAGOUDA A. PATIL AND
HANGARAKI          SRI M.R.MELAVANKI, ADVOCATE (NOC OBTAINED)
Location: HIGH     SRI PRAKASH B. ANGADI, ADVOCATE)
COURT OF
KARNATAKA                  THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO SET
DHARWAD
BENCH              ASIDE    THE   JUDGMENT   AND    DECREE   DATED   12.07.2010   IN
DHARWAD
                   R.A.NO.11/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
                   ASST. SESSIONS JUDGE, BAILHONGAL, REVERSING THE JUDGMENT
                   AND DECREE DATED 21.04.2007 IN O.S.NO.39/2001 ON THE FILE
                   OF THE ADDITIONAL CIVIL JUDGE (JR.DN.), BAILHONGAL.

                           THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
                   THE COURT DELIVERED THE FOLLOWING:
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                                                  NC: 2024:KHC-D:10714
                                                  RSA No. 5884 of 2010




                         ORAL JUDGMENT

1. Present appeal is filed by the plaintiff,

challenging the judgment and decree passed in

R.A.No.11/2007 dated 12.07.2010 on the file of the Senior

Civil Judge and Asst. Sessions Judge, Bailhongal (for short,

'the first appellate Court'), which reversed the judgment

and decree passed in O.S.No.39/2001 dated 21.04.2007

on the file of the Addl. Civil Judge (Jr.Dn.), Bailhongal (for

short, 'the trial Court').

2. For the purpose of convenience, ranking of the

parties is referred to as per their status before the trial

Court.

3. The plaintiff has filed suit for maintenance

against the defendant claiming that defendant is her

husband and has deserted the plaintiff, therefore, she has

filed suit for maintenance.

4. It is stated that the defendant has obtained

decree of divorce and though awarded monthly

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maintenance of Rs.2000/- per month, it is not sufficient,

therefore, filed suit for maintenance, claiming amount of

Rs.3000/- per month. The trial Court decreed the suit in

part by granting maintenance of Rs.2000/- per month.

5. Defendant has filed statement of objection and

has admitted the plaintiff as his wife and there was

desertion. It is justified that since in MFA No.6485/2002,

confirming the decree of divorce, an amount of Rs.1500/-

per month is granted and therefore partly allowed the

appeal.

6. The trial Court has granted maintenance of

Rs.2000/- per month, on the reason that plaintiff is his

wife, being deserted by the defendant, therefore, entitled

maintenance of Rs.2000/- per month.

7. Being aggrieved by the same, the defendant

was before the first appellate Court reversing the

judgment and decree passed by the trial Court and set

aside the same, on the reason that in MFA No.6485/2002

on which decree of divorce is granted, the plaintiff was

awarded Rs.1500/- per month, which is sufficient.

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Therefore, set aside the judgment and decree passed by

the trial Court. Against which, the plaintiff has filed the

present appeal.

8. This Court, while admitting the appeal on

31.07.2012, has framed the following substantial

questions of law:

"1. Whether the Lower Appellate Court has erred in law in holding that when the plaintiff is receiving maintenance in terms of the order in M.C.No.1/1999 the suit filed for maintenance is not maintainable?

2. Whether the Lower Appellate Court has erred in law in adjusting the maintenance paid in terms of the impugned judgment and decree towards the maintenance payable as per order passed in MFA No.6485/2002?"

9. It is submitted by the counsel for the

plaintiff/appellant that relationship between the plaintiff

and the defendant is admitted and plaintiff is deserted by

defendant and the defendant has filed petition for decree

of divorce and is granted. When the said decree is

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challenged by the plaintiff in MFA No.6485/2002, this

Court has awarded monthly maintenance of Rs.1500/- per

month, but it is insufficient. Therefore, prays to affirm the

judgment and decree passed by the trial Court.

10. On the other, learned counsel for the

defendant/respondent justifying the judgment and decree

passed by the first appellate Court submitted that

whatever maintenance granted in MFA No.6485/2002 is

sufficient, therefore, prays to dismiss the appeal, by

confirming the judgment and decree passed by the first

appellate Court.

11. The trial Court has granted maintenance of

Rs.2000/- per month and the first appellate Court has

reversed the judgment and decree passed by the trial

Court on the reason that in the decree of divorce in MFA

No.6485/2002, the plaintiff was awarded Rs.1500/- and

that is sufficient, accordingly adjusted the said amount

payable as maintenance amount. When the respondent

filed petition for seeking divorce, it is duty cast on the

husband/defendant to pay maintenance and that is what

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this Court has ordered granting maintenance amount to

the plaintiff in MFA No.6485/2002, but just because in

proceedings of decree of divorce, the maintenance amount

is granted, that cannot be a bar for claiming maintenance

amount by filing suit.

12. In the proceedings of decree of divorce in MFA

No.6485/2002, the maintenance granted was only for

Rs.1500/- p.m. and is insufficient to make out life in the

society. The defendant is a government school teacher and

being a government servant, has sufficient income to

maintain his wife.

13. It is submitted that now the defendant has

retired from his service, however, he is receiving pension

amount of Rs.22000/- p.m., therefore, considering income

being earned by the defendant, plaintiff is entitled for

sufficient amount of maintenance to sustain in the society

for her livelihood. Therefore, whatever amount is granted

in the proceedings of decree of divorce is insufficient,

therefore, the suit filed by the plaintiff is maintainable and

in this regard, the first appellate Court has committed

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error observing that whatever maintenance is granted in

MFA No.6485/2002 is sufficient. The first appellate Court

while considering the case has not taken judicial notice of

fact that whether by mere amount of Rs.1500/- p.m. a

person cannot make out a life in the society. If this

question is being posed by the first appellate Court itself,

then, rendering unjustifiable order in the appeal would

have been avoided. Therefore, what the trial Court has

decreed the suit in part by granting Rs.2000/- p.m. is

though less is to be affirmed. Therefore, in this regard, the

trial Court has committed error in declining grant of

maintenance amount therefore the first appellate Court is

not justified in declining maintenance amount to the

plaintiff and observed that the suit is not maintainable is

not correct. Therefore, both the substantial questions of

law are answered in the affirmative.

14. The plaintiff has claimed monthly maintenance

of Rs.3000/- per month. The trial Court has ordered

maintenance of Rs.2000/- per month. Now-a-days, every

price of commodity is rising. Therefore, it is not possible to

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make out life just with Rs.1500/- per month granted in

matrimonial case proceedings and even further Rs.2000/-

per month maintenance granted in this case also would be

insufficient. Therefore, in addition, the monthly maintenance

amount granted in MFA No.6485/2002 considering the

present market price of commodity, the same is needed for

meeting out basic necessity in life, this Court is of the

opinion to grant maintenance of Rs.3000/- per month, what

the plaintiff has claimed in the suit. Therefore, the suit filed

by the plaintiff is decreed granting monthly maintenance of

Rs.3000/- p.m. from the date of suit till life time of the

plaintiff.

15. The above said amount granted as maintenance,

is in addition to maintenance granted in MFA No.6485/2002.

16. Therefore, the judgment and decree passed by

the first appellate Court is set aside, thereby the judgment

and decree passed by the trial Court is affirmed.

17. Accordingly appeal is liable to be allowed. Hence,

I proceed to pass the following:

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ORDER i. Regular Second Appeal is allowed.

ii. The judgment and decree passed in

R.A.No.11/2007 dated 12.07.2010 on the

file of the Senior Civil Judge and

Asst.Sessions Judge, Bailhongal is set aside,

confirming and modifying the judgment and

decree passed in O.S.No.39/2001 dated

21.04.2007 on the file of the Addl.Civil

Judge (Jr.Dn.), Bailhongal, that the plaintiff

is awarded maintenance of Rs.3000/- per

month from the date of the suit till lifetime

of plaintiff.