Karnataka High Court
K. B. Dharmaraj vs Smt. G. L. Sujatha on 4 November, 2024
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WP No. 24517 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
WRIT PETITION NO. 24517 OF 2024 (GM-FC)
BETWEEN:
K. B. DHARMARAJ
S/O. LATE K. P. BASAVARAJAPPA,
AGED ABOUT 61 YEARS,
OCC: ASSISTANT-FDA, K.P.T.C.L. (NOW RETIED),
CIRCLE OFFICE, IN FRONT OF STADIUM,
HADADI ROAD, DAVANAGERE,
R/O. D. NO. C-23-3,
HUBBALLI CHOUDAPPANA GALLI,
BASAVARAJAPETE SOUTH,
DAVANAGERE-577 001.
...PETITIONER
(BY SRI. G.J. SUNKAPUR., ADVOCATE)
Digitally AND:
signed by
SUNITHA K S SMT. G. L. SUJATHA
Location: W/O. K. B. DHARMARAJ,
HIGH COURT D/O. K. LINGAPPA,
OF
KARNATAKA AGED ABOUT 53 YEARS,
R/AT KALLABALU ROAD,
JIGNI HOBLI, ANEKAL TALUK,
BENGALURU-560 105.
...RESPONDENT
(BY SRI. RAJA R., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR ENTIRE RECORDS IN MC NO. 4213/2021, ON THE FILE OF
THE IV ADDITIONAL PRL. JUDGE, FAMILY COURT AT
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WP No. 24517 of 2024
BENGALURU AND FOR A DIRECTION AND SET ASIDE THE
IMPUGNED ORDER DATED 3.7.24 ON IA NO. 2, IN MC NO.
4213/2021 PASSED BY THE IV ADDL. PRL. JUDGE, FAMILY
COURT AT BENGALURU, AT ANNEXURE-M.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL ORDER
This writ petition is filed challenging order on
I.A.No.2 dated 03.07.2024 passed in M.C.No.4213/2021
by the IV Additional Principal Judge, Family Court,
Bengaluru.
2. Brief facts leading to filing of this writ petition
are as under:
The petitioner married the respondent No.1 on
30.05.1994 at Sri. Bakeshwara Kalyana Mantapa,
Davanagere, as per the customs prevailing in their
community. After the marriage, the petitioner and
respondent No.1 were residing in Bengaluru. The
respondent left the petitioner's company and started living
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in Davanagere. The respondent No.1 lodged a false
criminal complaint against the petitioner on 15.10.1998
alleging that the petitioner assaulted her. It is contended
that a criminal case was registered in Crime No.444/1998.
The petitioner filed a petition for dissolution of their
marriage in M.C.No.1015/1998. Due to the intervention of
respectable persons, the petitioner did not prosecute the
proceedings. Once again, the petitioner and respondent
led happy marital life.
4. In October 2002, the petitioner was transferred
from Bengaluru to Davanagere, Nyamati, Honnali Taluk,
Davanagere District. The respondent did not accompany
the petitioner. The petitioner filed a petition for restitution
of conjugal rights in M.C.No.1397/2003 before the Family
Court at Davanagere. The said miscellaneous case was
transferred to the Family Court, Bengaluru. The
respondent filed an application under Section 24 of The
Hindu Marriage Act for interim maintenance. In support of
the said application she has filed an affidavit contending
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that the petitioner is not paying maintenance amount to
her daughters as ordered in C.Misc. No.97/2003, and since
the petitioner failed to pay the maintenance to her
daughters, inspite of the request and demand, her
daughters have filed a suit in O.S.No.27/2021 for the
permanent injunction not to disburse the retirement
amount to the petitioner concerning the arrears of
maintenance amount as per the order passed by this Court
in W.P.No.16837/2021. The employer of the petitioner had
deposited a sum of Rs.5,00,000/- in O.S.No.27/2021.
5. It is contended that the respondent is not
working due to her ill-health and for personal reasons she
left the job. She has filed a petition under Section 125 of
Code of Criminal Procedure claiming maintenance in
Crl.Misc.No.657/2019 which is pending for consideration.
It is contended that petitioner has the capacity to pay the
maintenance amount after his retirement, and he is
getting a pension of more than Rs.40,000/- per month.
Hence, it is contended that as respondent is staying in her
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maternal house with her second daughter, she needs more
than Rs.6,000/- for her medication. Hence, prays to grant
interim maintenance of the amount of Rs.30,000/- per
month.
6. The petitioner filed objections contending that
the property belonging to him was transferred in favour of
the respondent under a registered Gift Deed dated
17.04.2002 for her use and benefit. It is contended that
she is receiving handsome rent of more than Rs.30,000/-
per month, and is capable of maintaining herself. It is
contended that the petitioner has no capacity to pay the
interim maintenance as claimed by the respondent. Hence,
prays to reject the petition.
7. The Family Court, after hearing the learned
counsel for the parties allowed I.A.No.2 in part, vide order
dated 03.07.2024. The petitioner was directed to pay
interim maintenance of Rs.4,000/- to the respondent from
15.07.2023, pending disposal of the main petition. Three
months were granted to the petitioner to pay the arrears
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of the maintenance. Petitioner, aggrieved by the order on
I.A.No.2 dated 03.07.2024 passed in M.C.No.4213/2024,
has filed this writ petition.
8. Heard the learned counsel for the petitioner and
the respondent.
9. Learned counsel for the petitioner submits that
the respondent is working as a teacher and she is capable
of maintaining herself and submits that the petitioner has
gifted a house property in favour of the respondent and is
getting rent of Rs.30,000/- per month. He submits that
the respondent has filed an application to harass the
petitioner. He submits that the petitioner has retired from
the service and is getting a meagre pension, which is not
sufficient for maintaining himself. He submits that the
interim maintenance granted in favour of the petitioner is
on higher side. Hence, on these grounds pray to allow the
petition.
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10. Per contra, learned counsel for the respondent
supports the impugned judgment. He submits that due to
ill-health, the respondent has quit the job and she has no
source of income to maintain herself. It is also submitted
that the petitioner is not paying the maintenance granted
to the daughters. Hence, on these grounds, pray to
dismiss the petition.
11. Perused the records and considered the
application of the learned counsel for the parties.
12. It is not in dispute that the petitioner and
respondent were husband and wife and the dispute arises
between them. Petitioner sought for dissolution of
marriage in M.C.No.1015/1998 and due to pacification by
the elders petitioner did not prosecute the proceedings.
Thereafter respondent and two daughters have filed
petition in which maintenance under Section 125 of Code
of Criminal Procedure, 1973 (Cr.P.C. for short) in
C.Misc.No.97/2003 on the file of II Additional Principal
Judge, Family Court, Bengaluru. Learned Family Court,
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after the trial, allowed the petition filed by the daughters
and granted maintenance of Rs.1,500/- per month each to
the daughters, and the petition filed by the respondent
was dismissed. Respondent and her daughters, aggrieved
by the order passed in C.Misc.No.97/2003, appear to have
filed RPFC No.22/2011.
This Court vide order dated 20.06.2012 disposed of
the revision petition and modified the order passed in
C.Misc.No.97/2023. The daughters of the petitioner again
filed C.Misc.No.429/2016 under Section 127 of Cr.P.C
sought for enhancement of maintenance from Rs.10,000/-
to Rs.30,000/- per month on the file of II Additional
Principal Judge, Family Court, Benglauru. The Family Court
vide order dated 13.04.2018 has allowed the petition filed
by the daughters with cost and the maintenance amount
of Rs.5,000/- each per month as ordered in
C.Misc.No.97/2003, was enhanced to Rs.12,000/- each per
month from the date of the petition. The petitioner,
aggrieved by the order passed in C.Mis.No.429/2016, filed
a revision petition in RPFC No.82/2018. Coordinate Bench
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of this Court vide order dated 31.05.2019 allowed the
revision petition in part and the maintenance amount was
enhanced from Rs.5,000/- to Rs.10,000/- to each of the
daughters from the date of petition. The Coordinate Bench
has reduced the amount by Rs.2,000/- as granted by the
trial Court in C.Misc.No.429/2016.
13. The petitioner has filed a petition for dissolution
of marriage in M.C.No.4213/2021. In the miscellaneous
proceedings, the respondent filed an application under
Section 24 of The Hindu Marriage Act seeking interim
maintenance. The perusal of the affidavit filed by the
petitioner discloses the assets and liability that the
petitioner is getting a pension of Rs.40,000/- per month.
The Family Court, considering the affidavit filed by the
petitioner disclosing the assets and liability, wherein the
petitioner is getting Rs.40,000/- per month, has allowed
the application in part and granted interim maintenance of
Rs.4,000/- per month to the respondent.
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14. Though it is the case of the petitioner that he
has gifted the house property measuring 40x50 sq.ft., the
petitioner has not produced any records to show that the
respondent is receiving the rental income from the said
property. Petitioner, being the husband is under legal
obligation to maintain the wife, is avoiding to pay the
maintenance. Further, the petitioner has not produced any
record to show that the respondent is capable of
maintaining herself and she is gainfully employed. The
Family Court, considering the entire material on record,
was justified in passing an impugned order. I do not find
any error in the impugned order.
15. Accordingly, I proceed to pass the following
ORDER
The Writ petition is dismissed.
Sd/-
(ASHOK S.KINAGI)
JUDGE
BVK
