Allowed

Smt S G Gayathri v. Dr T v Srinivas

Karnataka HC2 Sept 2013WP/32254/2013

Case brief

AI extract

What is this about?

High Court set aside lower court order rejecting interim maintenance claim under Section 24 Hindu Marriage Act. Held disputes regarding employment and health facts cannot be decided on affidavits alone. Restored application for reconsideration and awarded Rs. 5,000/month interim maintenance. Petition disposed of.

What did the court decide?

Interim maintenance of Rs. 5,000 per month granted pending reconsideration of Section 24 application; application restored to lower court.

Smt S G Gayathri Vs Dr T v Srinivas — Maintenance and Alimony | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 2^ND DAY OF SEPTEMBER 2013

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BEFORE

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THE HON’BLE MR. JUSTICE A S BOPANNA

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WRIT PETITION No.32254/2013 (GM-FC)

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Between:

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Smt. S.G. Gayathri W/o Dr. T. V. Srinivas Aged about 54 years Residing in Mysore C/o late Shri S.V. Gokulan No.14, Sreevara Manor Contour Road, Gokulam 3^rd Main, Mysore-570 002

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… Petitioner

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(By Ms. Geetha Devi M.P., Adv.)

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And :

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Dr. T.V. Srinivas S/o T. Venkatanarasaiah Aged about 58 years Department of Electronics & Communication Engineering Indian Institute of Science Bangalore – 560 012 … Respondent

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(By Ms. Prashanthi A. L., Adv. for M/s. G Jairaj & Assts. For C/R)

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This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, with a prayer to call for records in MC 2613/10 on the file of V Addl.Prl.Judge, Family Court at Bangalore and etc.

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This Writ Petition coming on for Preliminary hearing in 'B' group, this day, the Court made the following :

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O R D E R

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The petitioner is before this Court assailing the order dated 02.07.2013 passed in M.C.No.2613/2010 whereby the Court below while disposing of the application filed by the petitioner under Section 24 of the Hindu Marriage Act has rejected the claim for interim maintenance, but has only awarded litigation expenses of Rs.10,000/-.

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Heard the learned counsel appearing for the parties and perused the petition papers.

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In that light, a perusal of the order at the outset would disclose that the Court below no doubt has referred to the rival contentions which were addressed at that point of time wherein the petitioner herein had contended that she is not employed and is unable to maintain herself and therefore had sought for maintenance. On the other hand, the respondent had contended that she is well qualified and is a Speech Therapist, working and earning for herself and also the fixed deposits had been utilized by

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the petitioner and therefore in such circumstance, she is

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not entitled to maintenance.

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In the light of the said contentions, the Court below ultimately has referred to a brochure of NITTE Institute wherein the petitioner was stated to be working as an Assistant Professor in the said institution during the year 2009-10. To the extent of the contention that the petitioner is employed, the learned Judge had relied on the same. Insofar as the claim, though the Court has taken into consideration the salary of the respondent herein, it had ultimately come to the conclusion that the petitioner is not entitled to maintenance. Since the basic document that had been noticed by the Court below being the brochure of NITTE Institute of Speech and Hearing, the document produced by the petitioner at Annexure-K dated 21.04.2011 to rebut the same becomes relevant for considering that aspect of the matter. The said document is a certificate issued by the NITTE Institute of Speech and Hearing wherein it is indicated that the petitioner had stopped working from 14.04.2009. In a circumstance wherein the impugned order was passed on 02.07.2013,

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the conclusion on that aspect to indicate that she was working in NITTE Institute based on the brochure is wrong. That apart, the petitioner has also relied on several documents before this Court from Annexure-C onwards to indicate that her health is not good and she is taking treatment including for her spinal ailment. This in fact needs consideration in the background of the reference made to the pleading of the respondent herein before the Court below itself with regard to the health of the petitioner herein. No doubt the respondents through their objection statement have sought to contend that the petitioner apart from rendering her services in the NITTE Institute of Speech and Hearing had also worked in several other institutions which are referred to in para 10 of the objection statement.

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Having noticed the rival contentions, the said averments would disclose that these disputed facts as to whether the petitioner is employed in any institute and is earning sufficiently and also with regard to her health based on the documents in contradistinction to the contention put forth by the respondent needs

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consideration based on the evidence that would be recorded and cannot be decided on the averments made, even if supported by affidavit in the present proceedings as the same is a word against a word.

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Therefore keeping these aspects in view, I am of the opinion that the conclusion reached by the Court below by its order dated 02.07.2010 based only on such rival averments and contentions urged without proof not be justified. Accordingly, the order impugned herein is set aside. The application filed under Section 24 of the Hindu Marriage Act is restored to the file of the V Addl. Prl. Judge, Family Court in MC No.2613/2010 for reconsideration.

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It is also necessary for this Court to consider as to whether pending reconsideration of the application, any interim arrangement requires to be made. It is seen that the application was filed by the petitioner seeking for maintenance in July 2011 and also considering the fact that the petitioner at an earlier instance had instituted a proceedings in C.Mis.No.4/2010 under the Protection of

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Woman from the Domestic Violence Act and there being no dispute that an interim maintenance of Rs.5,000/- had been granted therein but that petition was not proceeded due to the instant proceedings, the respondent herein is directed to pay Rs.5,000/- per month as interim maintenance during the pendency of the interlocutory application under Section 24 of Hindu Marriage Act which has been presently restored for reconsideration. The total quantum of the maintenance in any event would ultimately depend on the result and disposal of the application. The said amount of Rs.5,000/- shall be paid on or before the 5^th of every month during the pendency of the application and if any higher amount is ordered by the Court below, the amount paid would be adjusted to that extent.

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The petition stands disposed of in the above terms.

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Sd/-

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JUDGE

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akc/bms

Smt S G Gayathri v. Dr T v Srinivas

Case brief

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Smt S G Gayathri v. Dr T v Srinivas

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