Dismissed

M Mahadevappa v. Smt. B S Rajeshwari

Karnataka HC29 Nov 2021RPFC/126/2021

Case brief

AI extract

What is this about?

In this revision petition, the High Court of Karnataka dismissed the husband's appeal against the Family Court's refusal to cancel a maintenance order. The Court held that the wife's commission was not a fixed salary and, crucially, the petitioner failed to prove his income or the wife's future earnings despite cross-examination.

What did the court decide?

The High Court rejected the revision petition and upheld the Family Court's maintenance order.

M Mahadevappa Vs Smt. B S Rajeshwari — Maintenance and Alimony | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF NOVEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE R. NATARAJ

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R.P.F.C. NO.126 OF 2021

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BETWEEN:

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M. MAHADEVAPPA SON OF (LATE) MUDDAPPA, AGED ABOUT 53 YEARS, TRAFFIC CONTROLLER, KSRTC, TUMAKURU DEPOT, TUMAKURU, KARNATAKA-572101

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…PETITIONER

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(BY SRI. ABHINAY Y.T., ADVOCATE)

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AND:

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SMT. B.S. RAJESHWARI AGENT: NEW INDIA ASSURANCE CO. LTD., AGED ABOUT 50 YEARS,

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M. KUSHAL SON OF M. MAHADEVAPPA, AGED ABOUT 24 YEARS

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M. CHANDAN SON OF M. MAHADEVAPPA, AGED ABOUT 23 YEARS

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M. RAHUL SON OF M. MAHADEVAPPA, AGED ABOUT 19 YEARS,

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ALL ARE RESIDING AT OPP. SREE RAMA TEMPLE, KR EXTENSION, TUMKURU, KARNATAKA-572101

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…RESPONDENTS

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THIS RPFC IS FILED UNDER SECTION 19(4) OF THE FAMILY COURTS ACT, 1984 AGAINST THE ORDER DATED 18.11.2020 PASSED IN CRL.MIS.NO.102/2018 ON THE FILE OF THE I ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, TUMAKURU C/C OF PRL. JUDGE, FAMILY COURT, TUMAKURU, DISMISSING THE PETITION FILED UNDER SECTION 127(2) OF THE CRIMINAL PROCEDURE CODE FOR SEEKING AN ORDER TO CANCEL THE ORDER OF MAINTENANCE ORDERED IN CRL.MIS.NO.197/2013.

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THIS RPFC COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision petition is filed by the husband challenging the Order dated 18.11.2020 passed by the learned I Additional Principal Judge, Family Court, Tumakuru, concurrent charge of Principal Judge, Family Court, (henceforth referred to as ‘the Trial Court’) in Crl. Mis. No.102/2018 by which the Trial Court rejected the petition filed by him under Section 127(2) of the Code of Criminal Procedure, 1973 (henceforth referred to as 'Cr.P.C' for short).

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The respondent No.1 is the wife of the petitioner and the respondent Nos.2 to 4 are their children. The respondents filed C.Mis.No.197/2013 (old C.Mis.No.896/2011) for maintenance which was allowed by the Family Court by Order dated 16.02.2017 holding that the respondents herein were entitled to maintenance of a sum of Rs.1,500/- each per month from the petitioner herein from the date of the petition till the date of passing of the Order or till the date of attaining the majority by respondent Nos.2 and 3 herein. The Family Court further ordered that the respondent Nos.1 and 4 herein were entitled to maintenance at the rate of Rs.3,000/- each per month from the date of passing of the Order or till the life time of the respondent No.1 herein and till the respondent No.4 attained the age of majority.

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The petitioner thereafter filed a petition under Section 127(2) of the Cr.P.C for cancelling the maintenance ordered in C.Mis. No. 197/2013 on the ground that the respondent No.1 was employed as an

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agent with New India Assurance Company Limited and was earning yearly commission. He also contended that he had purchased two sites in the name of the respondent No.1 which was valued at a sum of Rs.50,00,000/-. He further claimed that the respondent Nos.2 and 3 were also paying money to the respondent No.1 and therefore, the economic condition of the respondent No.1 had changed. He claimed that he had difficulty in paying maintenance to the respondents.

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The respondent No.1 objected and denied the

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assertions made by the petitioner.

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Based on these contentions, the case was set down for trial. The petitioner was examined as PW.1 and he marked documents as Exs.P1 to P13 while the respondent No.1 was examined as RW.1 and she marked a document as Ex.R1.

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The Trial Court after considering the evidence on record held that for the period from 30.04.2017 to 31.03.2018, the respondent had earned a commission of

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Rs.2,06,013/-. However, the Trial Court noticed that the petitioner had not furnished the pay slip to establish his income. He was also not in a position to establish that he had purchased two sites in the name of respondent No.1. The Trial Court further noticed that that the amount of commission received by the respondent No.1 was not her salary but depended upon the number of policies that the respondent No.1 could garner. The Trial Court, therefore, rejected the petition filed for cancellation of the Order of maintenance dated 16.02.2017 passed by the Family Court in C.Mis. No.197/2013.

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Being aggrieved by the aforesaid Order, the present petition is filed.

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The learned counsel for the petitioner submitted that if the respondent No.1 had earned a sum of Rs.2,06,013/for the period from 30.04.2017 to 31.03.2018 that only indicated that she is able to maintain herself and therefore, there is no need for the petitioner to pay any maintenance. He submitted that the petitioner

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had raised loan from Corporation bank to look after the cases and that he was paying monthly installments to the Corporation bank and therefore, was not left with any money to pay the maintenance to the respondents. The learned counsel invited the attention of this Court to the number of cases that were filed against the petitioner by the respondents.

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I have bestowed my attention to the facts of the case. As rightly contended by the learned counsel for the petitioner, the respondent No.1 had indeed earned a commission of Rs.2,06,013/for the period from 30.04.2017 to 31.03.2018 from M/s.New India Assurance Company, a General Insurance Company. The commission received by the respondent No.1 is unlike commission received from Life Insurance Corporation of India, which is a recurring amount depending upon the installments paid by the policy holders. It is therefore, clear that the amount of commission that the respondent No.1 earned depended upon the number of policies that she could gather. Therefore, this cannot be termed to be a salary

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that the respondent No.1 would get regularly. The petitioner having claimed that he had difficulty in paying the maintenance to respondent Nos.1 and 4 must have placed on record his latest pay slip indicating his salary. Since the petitioner deliberately did not furnish the said document and failed to prove the fact that the respondent No.1 had earned any commission subsequent to 31.03.2018, the Trial Court was justified in rejecting the petition filed by the petitioner for cancellation of the order of maintenance passed by the Family Court in C.Mis. No.197/2013.

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There is no merit in this Petition and the same is dismissed.

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In view of dismissal of this petition, the pending interlocutory application does not survive for consideration and the same stands disposed off.

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Sd/-

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JUDGE

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sma

M Mahadevappa v. Smt. B S Rajeshwari

Case brief

What is this about?

What did the court decide?

M Mahadevappa v. Smt. B S Rajeshwari

Case brief

What is this about?

What did the court decide?

What the court decided

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