Partly allowed

Smt Chandrakala v. Sri Lokesh

Karnataka HC5 Jul 2021RPFC/30/2016

Case brief

AI extract

What is this about?

The High Court modified a Family Court order granting Rs.4,000 monthly maintenance, increasing it to Rs.6,000 due to inflation and insufficient quantum, while rejecting the husband's petition to set aside the order and dismissing any attempt to parallel proceedings under Section 127 Cr.P.C.

What did the court decide?

Maintenance enhanced to Rs.6,000 per month from date of revision petition; arrears of Rs.72,000 to be paid within three months. Husband's petition rejected.

Smt Chandrakala Vs Sri Lokesh — 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 5^TH DAY OF JULY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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RPFC No.30/2016 C/W RPFC No.3/2016

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IN RPFC No.30/2016

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BETWEEN:

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SMT.CHANDRAKALA AGED ABOUT 30 YEARS D/O SHIVANNA W/O LOKESH R/AT CHANNAPURA VILLAGE DODDABALLAPURA TALUK BANGALORE RURAL DISTRICT-561 203.

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...PETITIONER

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(BY SRI R VIJYAKUMAR, ADVOCATE)

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AND:

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SRI LOKESH S/O KRISHNAPPA AGED ABOUT 39 YEARS No.27, 4^TH MAIN ROAD 4^TH CROSS, SUMANGALI SEVASHRAMA ROAD HEBBAL, BANGALORE BANGALORE – 562 073. ...RESPONDENT (BY SRI SUNIL SESHGIRI RAO, ADVOCATE)

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THIS RPFC IS FILED UNDER SECTION 19(4) OF THE FAMILY COURT ACT 1984, AGAINST THE JUDGMENT AND ORDER DATED:2.12.2015 PASSED IN C.MIS.No.664/2009 ON THE FILE OF THE II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, PARTLY ALLOWING THE PETITION FILED U/S 125 OF CR.P.C.

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IN RPFC No.3/2016

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BETWEEN:

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SRI LOKESH S/O KRISHNAPPA AGED ABOUT 36 YEARS R/AT No.27, 4^TH MAIN ROAD 4^TH CROSS, SUMANGALI SEVASHRAMA ROAD HEBBAL, BANGALORE BANGALORE – 562 024. ...PETITIONER

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(BY SRI SUNIL SESHGIRI RAO, ADVOCATE)

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AND:

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SMT.CHANDRAKALA D/O SHIVANNA AGED ABOUT 33 YEARS R/AT CHANNAPURA VILLAGE DODDABALLAPURA TALUK BANGALORE RURAL DISTRICT. PIN – 561 203. ...RESPONDENT

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(BY SRI R VIJYAKUMAR, ADVOCATE)

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THIS RPFC IS FILED UNDER SECTION 19(4) OF FAMILY COURTS ACT, AGAINST THE JUDGMENT AND ORDER DATED:2.12.2015 PASSED IN C.MIS.No.664/2009 ON THE FILE OF THE II ADDITIONAL PRINCIPAL JUDGE,

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FAMILY COURT, BENGALURU, PARTLY ALLOWING THE PETITION FILED U/S 125 OF CR.P.C. THESE PETITIONS COMING ON FOR ADMISSION THIS DAY THE COURT MADE THE FOLLOWING:

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ORDER

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Though these petitions are listed today for Admission, with the consent of learned counsel for both the parties, they are taken for final disposal.

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These two petitions are directed against the judgment and order dated 2.12.2015 passed in C.Mis.No.664/2009 by the II Additional Principal Judge, Family Court, Bengaluru, partly allowing the petition filed u/S. 125 of Cr.P.C, granting maintenance of Rs.4,000/-per month to the petitioner-wife Chandrakala from the date of petition till her death or till her remarriage, of course whichever is earlier.

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The petitioner-wife being aggrieved by the same, has preferred RPFC No.30/2016 seeking enhancement of the maintenance. Per contra, the

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husband Mr.Lokesh has preferred RPFC No.3/2016 seeking to set aside the order passed by the learned judge, Family Court. Since both the petitions are inter related, they are taken up for disposal through a common order.

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In order to avoid confusion and overlapping, the parties are addressed in accordance with their status and relationship as stood before the family court.

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The parties are spouses. Smt. Chandrakala and Sri. Lokesh got married on 11-12-2015. They had a happy married life for six months. Husband is the son of one Krishnappa who is staying with Byrappa and Umadevi @ Lakshmidevi. It is also stated by the petitioner-wife that, her husband stays with his paternal uncle. The wife claims that she was harassed and tortured for bringing dowry to the tune of several lakhs. The petitioner was traumatized. A complaint

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was also lodged on 27-12-2006 by the wife to Vanitha Sahaya Vani, despite with harassment and torture she tolerated and she was willing to live with the husband who had earlier agreed to make a separate house. Husband-Lokesh is stated to be working as Computer Assistant SJBIT college, Uttarahalli Main road, and getting the salary of Rs.20,000/-. Petitioner was left in her parental house during the commencement of Ashada month and later he did not maintain. Legal notice was stated to have been issued by respondent husband to the petitioner-wife on 12-1-2007 that came to be replied on 30-1-2007. Petitioner claims that she was ready to join her marital house provided husband made a separate house.

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It is further contended that husband has

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filed petition for restitution of conjugal rights in MC NO.600/2007. However, that petition came to be

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dismissed on 28-10-2009. Earlier maintenance

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amount of Rs.2,500/- was ordered in the same on 21-10-2009 but the same was not honoured.

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Respondent-husband appeared and filed objections denying the averments made by petitionerwife. It is contended by him that he has done his B.Sc in Computer Science, thereafter joined SJBIT college working as computer assistant and earning Rs.7,500/per month and he has look after his both parents and brothers and sisters of both the families. Petitioner left the matrimonial home without informing anybody and inspite of sincere efforts, she did not return. It is also contended that wife is working in garment factory and earning more than Rs.10,000/- per month and his wife has voluntarily left the home and therefore prays to reject the petition.

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The learned judge, Family Court, on the basis of the oral evidence of PW1-Chandrakala and documentary evidence of Exs.P1 to P6 on behalf of petitioner and oral evidence of RW1-Lokesh and documentary evidence of Exs.R1 to R5 on behalf of respondent, allowed the petition in part and directed the respondent-husband to pay monthly maintenance of Rs.4,000/- to the petitioner from the date of filing the petition till her lifetime or until her remarriage and also directed him to pay cost of legal proceedings to the extent of Rs.2,000/- to the petitioner-wife. Being aggrieved by the said order, both the petitioner-wife and respondent-husband have presented the revision petitions as mentioned above.

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Learned counsel Mr.Vijaya kumar for petitioner-wife would submit that earlier there was an order to pay interim maintenance of Rs.2,500/- per month in MC No.600/2007 by the learned judge,

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Family court. However, the said petition was

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dismissed for non prosecution on 28-10-2009.

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Learned judge, Family Court in his order dated 2-12-2015 granted maintenance of Rs.4,000/per month against this quantum, wife seeks enhancement and husband seeks for annulment.

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It was submitted by learned counsel Mr. Vijaya kumar for petitioner-wife that respondnethusband is working as System Analyst in a private college at Uttarahalli, Bangalore and getting a salary of Rs.20,000/- per month. Further, he submits that the husband did not even made an effort to make an application for restoration of the dismissal of the petitioner, in which payment of interim maintenance was ordered.

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Learned counsel for respondent-husband Mr. Sunil Sheshagiri Rao would submit that petitioner-wife

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is guilty of suppression as she has not disclosed what was her earnings as Anganawadi Teacher during the year 2013 when she first revealed. The income of the wife ranges from Rs.8,000/- to Rs.10,000/- as Anganawadi teacher. She has neglected and unjustifiably deserted her husband who has the task of maintaining his parents as well. It was also submitted that wife insisted for a separate house of residence as a condition to join the husband.

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Insofar as the income stated by the petitioner-wife of the husband is Rs.22,000/-, it is in the year 2015. As an Anganavadi teacher, she gets Rs.8,000/- per month as salary that too, the place of work and time are very much contingent either she may be asked to cook food for children and asked to teach them at different places of district where she has to go in her own expenditure.

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The relationship between the parties is not disputed. The present document what we are having at hand is the dismissal of petition filed for reinstitution of conjugal rights. This petition is stated to have been dismissed by the learned judge, Family Court on 28-10-2009. It is also submitted that, husband did not make efforts for restoration of the petition subsequent to the dismissal for default. in such a circumstance, I am surprised how come the learned Judge family court dismissed the matrimonial petition for default when there is an order of interim maintenance in favour of the wife. Because, when once the right of maintenance is ordered in favour of the wife, it has been the duty of the court to go ahead with the case for determining the quantum of maintenance in the ends of social justice. On the other hand, the order cannot be made by providing vetoing power to the husband. As such in a petition

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for divorce and restitution of conjugal rights and related, wherein the interim maintenance is granted to the wife, the husband at his volition cannot get it dismissed for (Non-prosecution) and the case also may not dismissed as withdrawn to prejudice the rights of maintenance. However, the present proceedings are not against the said proceedings. But the tendancy of the husband cannot be called as proper one wherein the payment of maintenance was terminated by dismissal of the matrimonial petition for default and later not being sought for restoration.

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Further, learned counsel Mr. Vijaya kumar for wife would submit that there was huge arrears of maintenance, but the husband adopted negative tactics of offering Rs.500/- or Rs.1,000/- and took two years to clear the arrears of Rs.28,000/-. The wife had to bear the agony of short of income for her maintenance Learned counsel also submits regarding

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the salary of Rs.20,000/- to the husband during the year 2015 and submits that it may be around Rs.40,000/- in the present day. However, the salary certificate is not produced.

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Learned counsel for respondent- husband would submit that the accusation made against the husband are tissues of falsehood and he is spending the days with difficulty and he has also involved in discharging the duty of maintaining his parents. Learned counsel would submit that monthly income of the husband is not more than Rs.17,000/- as reflected by the salary certificate. For this, learned counsel for petitioner-wife shows that the salary certificate of the year of 2015 states that his income was Rs.17,000/and in the year 2018 it was Rs.31,000/- and he submits that husband’s present day salary may be more than Rs.40,000/-. In this context, no salary certificate is filed. It was also submitted by learned

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counsel for husband that wife has gone on record admitting that she got Anganawadi employment during the year 2013 and as such she should have informed the same to the court voluntarily and the amount of maintenance should have been invariably got reduced than the present rate of Rs.4,000/- as ordered by the learned judge, Family Court.

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Learned counsel for petitioner-wife submits that this court directed the husband to pay maintenance on two dates by making orders to that effect on 4-01-2017 and 21-6-2018. In this connection, learned counsel for respondent-husband would submit he also has filed a petition under Section 127 Cr.P.C. for alteration of the maintenance in the year 2018 and wife has also filed petition under Section 127 Cr.P.C. during 2016. In this connection, I find that moving before the Family court whether by the wife or by the husband for alteration which

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includes enhancement, reduction or annulment and maintaining appeal is not the sole option and technically amounts to putting the court into conflict and more particularly stopping the proceeding before the trial court on the stroke that petition is pending before the high court.

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This kind of approach of the parties is not proper. No doubt, Section 127 Cr.P.C., contemplates the circumstances under which there can be variation or modification which may include enhancement, revision or even cancellation, so also jurisdiction of the civil court in the matters of maintenance.

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But the order of Section 125 Cr.P.C. is in revision before this court. Considering this, the good sense should have prevailed over the parties, more particularly, to adjudicate petition under Section 127 Cr.P.C, after filing the revision petition. The parties

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through this order not to venture for such a kind of conduct hereafter. When they have already filed the revision petition they should have waited before this court or if they found that Section 127 Cr.P.C. would be fair or better, they should have got dismissed the present petition as not pressed as principles of natural justice and social justice are very much matters for the parties to the proceeding equally fair conduct is a mandate for the purpose. It is not that proceedings go only in the ends of opportunity by saying social justice to win.

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However, if the subsequent circumstances

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are taken into consideration, the probable variation or increase in the salary of the husband are considered and the income of the petitioner-wife as anganavadi worker is also considered. In all the set of circumstances, it is stated that except an amount of Rs.72,000/-even after the filing of the revision

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petition here, wife has not received any other amount and arrears itself has mounted more than Rs.1,44,000/- as per the order dated 4-1-2017. In the circumstances, the concept of maintenance is to make claim to procure the necessaries which includes medicine to keep the body and sole together that may also include food, clothing and shelter. The sky rocketing of the prices of necessaries are also considered. Both the parties have remained separate.

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In the whole set of circumstances and considering the situation, I find the learned judge, family court though was right in granting maintenance, erred seriously in quantifying the amount at Rs.4,000/- per month which is definitely on the lower side. He should have ordered the maintenance atleast an amount of Rs.6,000/- per month from the date of petition as it falls short of the same, this Court finds it just and proper to grant

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maintenance of Rs.6,000/per month to the

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petitioner.

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Accordingly, petition filed by the petitionerwife in RPFC No.30/2016 is allowed in part. The petition filed by husband in RPFC No.3/2016 is hereby rejected.

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The amount of maintenance payable by the husband to the wife is increased to Rs.6,000/- per month, however, it is from the date of filing of the revision petition. To that extent impugned Judgment is modified. To clarify further, the maintenance shall be payable by the husband at the rate of Rs.4,000/per month from the date of filing of the maintenance petition before the family court till the date of payment and at the rate of Rs.6,000/- from the date of filing of the revision petition till full settlement during the life time or till she remarries.

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The husband is granted time of three months to pay the arrears of maintenance whether in three monthly installments or in lump sum as per his choice, but the settlement shall be made within time gap of three months.

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No orders as to costs in both the petitions.

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Sd/JUDGE

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tsn*

Smt Chandrakala v. Sri Lokesh

Case brief

What is this about?

What did the court decide?

Smt Chandrakala v. Sri Lokesh

Case brief

What is this about?

What did the court decide?

What the court decided

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