Allowed

Smt. Shilpa W/O. Jagadish Hadapad v. Sri. Jagadish S/O. Basappa Hadapad

Karnataka HC28 Aug 2024RPFC/100034/2022

Case brief

AI extract

What is this about?

The High Court allowed a revision petition against a Family Court order rejecting a maintenance claim under Section 125 Cr.P.C. The High Court set aside the lower court's decision, finding the rejection based on lack of 498A complaint was hyper-technical. Maintenance of Rs. 6,000/month was awarded.

What did the court decide?

Impugned order set aside; Petitioner entitled to maintenance of Rs. 6,000/- per month from date of petition; Claim for arrears to be worked out separately.

Smt. Shilpa W/O. Jagadish Hadapad Vs Sri. Jagadish… — Maintenance and Alimony | Karnataka HC (2024)

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NC: 2024:KHC-D:12280 RPFC No. 100034 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 28^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE RAVI V.HOSMANI

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REVISION PETITION FAMILY COURT NO. 100034/2022

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BETWEEN:

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SMT. SHILPA W/O. JAGADISH HADAPAD, AGE: 31 YEARS, OCC: HOUSEHOLD WORK, R/O: C/O. CHANNAPPA B. HADAPAD, MANAGUNDI, TQ AND DIST: DHARWAD – 580 007.

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…PETITIONER

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(BY SRI GIRISH S. HIREMATH, ADVOCATE)

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AND:

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SRI JAGADISH S/O. BASAPPA HADAPAD, AGE: 43 YEARS, OCC: BUSINESS, R/O: NEAR TANGA STAND, PRAKASH PHOTO STUDIO, BADAMI, DIST: BAGALKOT – 587 201.

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…RESPONDENT (BY SRI R.H.ANGADI, SRI PRAVEEN P. JOSHI, & SMT. POOJA R. SAVADATTI, ADVOCATES)

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka

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THIS REVISION PETITION FAMILY COURT IS FILED UNDER SECTION 19(4) OF FAMILY COURTS ACT, PRAYING TO AWARD A MAINTENANCE AS CLAIMED IN THE CRL.MISC.NO.281/2019 AND SET ASIDE THE ORDER DATED 10.11.2021 PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT DHARWAD IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,

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THIS REVISION PETITION FAMILY COURT, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2024:KHC-D:12280 RPFC No. 100034 of 2022

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ORAL ORDER

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Challenging order dated 10.11.2021 passed by Principal Judge, Family Court, Dharwad, in Crl.Misc.no.281/2019, this Revision Petition is filed.

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Sri Girish S.Hiremath, learned counsel for petitioner submitted, marriage of petitioner and respondent was solemnized on 22.04.2022 at Badami. After marriage, parties resided together at matrimonial home for about two years. It was submitted, during said period, petitioner was subjected to harassment on basis of demand for dowry. Unable to sustain harassment, she took shelter with her parents. As she was without any source of income and as respondent, despite having sufficient means, has refused and neglected to maintain her, she filed application under Section 125 of Cr.P.C., claiming maintenance.

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After service of notice, respondent entered appearance and contested petition. Based on contentions, Family Court framed issues and recorded evidence. Petitioner examined herself and two others as PWs.1 to 3 and a copy of marriage invitation card got marked as Exhibit P1. Respondent examined himself as RW.1 and got marked copy of records of

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NC: 2024:KHC-D:12280 RPFC No. 100034 of 2022

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rights as Exhibit R.1. On consideration, Family Court answered

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point no.1 in negative, points no.2 to 4 as not surviving for consideration and point no.5 by dismissing petition. Challenging same, this petition is filed.

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It was submitted, while passing impugned order,

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Family Court had taken note of pleadings and deposition of petitioner, wherein she had stated that while she was residing with respondent, after marriage, there were demands for dowry and harassment on that count. Said assertion was supported by PWs.2 & 3. PW2 is father of petitioner and in fact, PW.3 is a third party. Ignoring said material, merely on ground that no complaint was filed against respondent for offence punishable under Section 498A of IPC, Family Court proceeded to reject petition. It was submitted, said reasoning was highly irregular calling for interference of this court.

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On other hand, Sri R.H.Angadi, learned counsel for respondent sought to justify impugned order. It was submitted, petitioner had resided with respondent for only about one and a half month. It was submitted, petitioner was in fact his sister’s daughter. Though respondent had attempted to take her back on several occasions, she has refused to go.

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NC: 2024:KHC-D:12280 RPFC No. 100034 of 2022

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Therefore, rejection of petition on ground of failure to establish negligence by respondent would be justified. On said ground, he sought for dismissal of petition.

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Heard learned counsel on both sides and perused impugned order.

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From above, since petitioner is challenging rejection of petition for maintenance, point that would arise for consideration is:

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“Whether impugned order suffers material irregularity, illegality or error of jurisdiction and calls for interference?”

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From above, relationship of husband and wife between parties is not disputed. Petitioner residing separately from respondent some time after marriage is also not disputed. While petitioner contends that due to harassment for demands of dowry, she was forced to reside with her parents, respondent refutes same. In order to establish harassment by respondent, petitioner has made assertions in petition and examined herself

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as PW.1. In deposition, she reiterated assertions about harassment for demand for dowry. In cross-examination, it is elicited by respondent that he had approached petitioner

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NC: 2024:KHC-D:12280 RPFC No. 100034 of 2022

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several times with attempts to take her back but he was unsuccessful. It is also seen that respondent had in fact filed petition under Section 9 with alternative prayer under Section 13 and same came to be dismissed as not maintainable.

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Reasons assigned by Family Court that petitioner had not filed any complaint against respondent for offence punishable under Section 498A of IPC, would be too hyper technical. Normally, there is only oral evidence about occurrences between husband and wife. Merely on ground that complaint is not filed, would not be justification for rejecting oral evidence in entirety. PW.2 is father of petitioner and PW.3 is a third party. Both have deposed in support of petitionerPW.1. Merely on ground that they have admitted in crossexamination that there was no documentary evidence to show that there was demand for dowry would also be highly irregular. There is no admission elicited about petitioners residing separately from respondent without any justification.

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On other hand, merely on ground that respondent

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had approached petitioner to take her back on several occasions would not, by itself, establish that there was no

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NC: 2024:KHC-D:12280 RPFC No. 100034 of 2022

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justification for petitioner to reside separately. Therefore, conclusion drawn by Family Court would be contrary to material on record, if not perverse. On said ground alone, impugned order would require interference.

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Insofar as quantum of maintenance, petitioner has

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sought maintenance amount of Rs.10,000/- per month. In her deposition, she has stated that respondent was earning Rs.50,000/- per month from properties and by operating a photo studio. But same is not substantiated with any documentary evidence. On other hand, respondent has admitted about his avocation as photographer. In any case, respondent is an able bodied person. Hon’ble Supreme Court, in case of Anuj Garg v. Deepak Kumar Garg reported in 2022 SCCOnLine SC 1314, has held that an able bodied person would be under obligation to earn and support/maintain wife and cannot refuse to pay maintenance.

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Insofar as quantum of maintenance, there is no documentary evidence on record. In absence of same, it would be appropriate to direct respondent to pay nominal amount of maintenance to petitioner. Point for consideration is answered accordingly. Hence, following:

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NC: 2024:KHC-D:12280 RPFC No. 100034 of 2022

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ORDER

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(i) RPFC is allowed;

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(ii) Impugned order dated 10.11.2021 passed in CRL.MISC.no.281/2019 passed by Principal Judge, Family Court, Dharwad, is set-aside;

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(iii) Petitioner is held entitled for maintenance of Rs.6,000/- per month from date of petition on or before 10^th of every month; and

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(iv) Claim regarding arrears to be worked out in appropriate proceedings.

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Sd/(RAVI V.HOSMANI) JUDGE

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AV CT-ASC List No.: 1 Sl No.: 20

Smt. Shilpa W/O. Jagadish Hadapad v. Sri. Jagadish S/O. Basappa Hadapad

Case brief

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Smt. Shilpa W/O. Jagadish Hadapad v. Sri. Jagadish S/O. Basappa Hadapad

Case brief

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