Partly allowed

Mrs. Sameena W/O Rajesab Kolhapuri v. Mr. Rajesab S/O Abdulsalam Kolhapuri

Karnataka HC1 Jul 2024RPFC/100050/2022

Case brief

AI extract

What is this about?

Cross-revisions under Section 125 Cr.P.C. against a Family Court maintenance order. Husband failed to disclose income despite opportunities; court upheld the award and enhanced maintenance to Rs.60,000 for the wife, Rs.15,000 for the daughter and Rs.25,000 for the son per month.

What did the court decide?

Husband's revision dismissed; wife's enhancement petition partly allowed; maintenance enhanced to Rs.60,000/- (wife), Rs.15,000/- (daughter), Rs.25,000/- (son) p.m. from date of filing.

Mrs. Sameena W/O Rajesab Kolhapuri Vs Mr. Rajesab… — Maintenance and Alimony | Karnataka HC (2024)

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NC: 2024:KHC-D:8928 RPFC No. 100064 of 2021 C/W RPFC No. 100050 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 1^ST DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL

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REV.PET FAMILY COURT NO.100064 OF 2021 C/W. REV.PET FAMILY COURT NO. 100050 OF 2022

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IN RPFC.NO.100064/2021 BETWEEN:

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MR. RAJESAB S/O. ABDULSALAM KOLHAPURI, AGE ABOUT: 49 YEARS, OCC: PRIVATE SERVICE, (NOW NIL), R/O: H.NO. 4805, 1^ST MAIN, SHIVAJI NAGAR, BELAGAVI, PIN CODE: 590 016.

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…PETITIONER

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(BY SRI BAHUBALI N. KANABARGI, ADVOCATE)

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Digitally signed by V N BADIGER Location: High Court of Karnataka

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AND:

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MRS. SAMEENA W/O. RAJESAB KOLHAPURI, AGE: 41 YEARS, R/O: C/O ABDUL GAFAR, 5^TH CROSS, DAMANAGATTI BUILDING, PLOT NO. 14/B, R.S NO. 1000/2, VEERABHADRA NAGAR, BELAGAVI, PIN CODE – 590 016.

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MISS MAHEK D/O. RAJESAB KOLHAPURI, AGE ABOUT 22 YEARS, OCC: STUDENT, R/O: HOSTEL AT DAVANAGERE, EXPERT COLLAGE, DAVANAGERE, PIN CODE – 574 143.

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NC: 2024:KHC-D:8928 RPFC No. 100064 of 2021 C/W RPFC No. 100050 of 2022

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MASTER MEHARAN S/O. RAJESAB KOLHAPURI, AGE: 03 YEARS, OCC: STUDENT, R/O: 5^TH CROSS, DAMANAGATTI BUILDING, PLOT NO. 14/B, R.S. NO. 1000/2, VEERABHADRA NAGAR, BELAGAVI, PIN CODE – 590 016.

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(SINCE RESPONDENT NO.3 IS MINOR, REPRESENTED BY HIS NATURAL GURDIAN MOTHER RESPONDENT NO. 1).

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… RESPONDENTS

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(BY SRI SUNANDA P. PATIL, ADVOCATE FOR R1 AND R2; R3 IS MINOR REPRESENTED BY R1)

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THIS RPFC IS FILED UNDER SEC. 19(4) OF THE FAMILY COURT ACT, 1984, AGAINST THE JUDGMENT AND ORDER DATED 16.04.2021 IN CRL.MISC.NO.363/2018 ON THE FILE OF THE JUDGE, FAMILY COURT, BELAGAVI AND ETC.,

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IN RPFC.NO.100050/2022: BETWEEN:

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MRS. SAMEENA W/O. RAJESAB KOLHAPURI, AGE: 40 YEARS, OCC: HOUSEHOLD, R/O: C/O. ABDUL GAFAR,^TH CROSS, PLOT NO.14/B, VEERBHADRA NAGAR, BELAGAVI – 590 010.

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MISS. MAHEK D/O. RAJESAB KOLHAPURI, AGE: 23 YEARS, OCC: STUDENT, R/O: HOSTEL AT DAVENGRI EXPERT COLLEGE, PIN CODE: 577 001.

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MASTER MEHARAN S/O. RAJESAB KOLHAPURI, AGE: 9 YEARS, OCC: STUDENT

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NC: 2024:KHC-D:8928 RPFC No. 100064 of 2021 C/W RPFC No. 100050 of 2022

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(KLE SCHOOL BELAGAVI), R/O: HOSTEL AT DAVENGRI EXPERT COLLEGE, PIN CODE: 577 001. SINCE MINOR REPRESENTED BY HIS NATURAL MOTHER NEXT FRIEND PETITIONER NO.1 SAMEENA.

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… PETITIONERS

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(BY SRI MAHANTESH S. HIREMATH AND SUNANDA P. PATIL, ADVOCATE)

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AND:

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MR. RAJESAB S/O. ABDULSALAM KOLHAPURI, AGE: 51 YEARS, OCC: SERVICE AT PETROLEUM COMPANY AT IRAQ, R/O: H.NO.4805, 1^ST MAIN, SHIVAJI NAGAR, BELAGAVI, AND ALSO C/O: PETROCHINA INTERNAIONAL IRAQ FZE, IRAQ BRANCH HALFYB BASE CAMP, KAHALAA, MISSAN PROVINCE REPUBLIC OF IRAQ AT PRESENT IN INDIA.

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… RESPONDENT

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(BY SRI BAHUBALI N. KANABARGI, ADVOCATE)

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THIS RPFC IS FILED UNDER SEC.19(4) OF THE FAMILY COURT ACT, 1984, PRAYING TO IMPUGNED ORDER DATED 16.04.2021 CRIMINAL MIS.NO.363/18 BY THE LEARNED JUDGE OF FAMILY COURT OF BELAGAVI BE KINDLY SET ASIDE BY ALLOWING REVISION PETITION FAMILY COURT AND THEREBYMODIFY THE SAME IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,

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

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4 - NC: 2024:KHC-D:8928 RPFC No. 100064 of 2021 C/W RPFC No. 100050 of 2022

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ORDER

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By order dated 16.04.2021, passed in Crl. Misc. No.363/2018, the Family Court at Belagavi, while partly allowing the application filed under Section 125 of the Cr.P.C. by the respondents – wife and children has directed the petitioner – husband to pay Rs.10,000/- p.m. to his wife during her life time from the date of petition and Rs.6,000/- p.m. to petitioner No.2 and Rs.10,000/p.m to petitioner No.3.

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The petitioner – husband is before this Court in RPFC No.100064/2021 against the aforesaid order of the Family Court seeking to set aside the same while respondents – wife and children are before this Court in RPFC No.100050/2021 seeking enhancement of the said monthly maintenance.

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The marriage of the petitioner with respondent

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is not in dispute. The children born out of the marriage is also not in dispute. After having lived for about 18 years,

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the petitioner – husband allegedly thrown the respondents

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– wife and children from the matrimonial home,

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constraining them to take shelter at the house of the brother of the respondent – wife. Admittedly, the petitioner – husband has contacted the second marriage and has a child from the second marriage as well and he has provided a residential accommodation to the second wife and the child from her, while he has neither made any provision for the maintenance of the respondents – wife and children nor has he made any provision for their residence. Alleging deliberate negligence by the petitioner – husband, in maintaining the respondents – wife and children, in the petition filed under Section 125 of the Cr.P.C, it is contended that, the petitioner – husband has obtained his Masters’ Degree in Computer Application and as on the date of the petition, he was employed in Petrochina International Company at its Iraq Branch as Document Controller. Ex.P11 is the employment certificate & Ex.P12 is the salary certificate dated 21.10.2018 issued by the said employer. According to which the petitioner as

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on the date of Ex.P12 was drawing an average salary of $9,095/- per month, which works out approximately to Indian currency at Rs.6,18,460/- ($9,095 x Rs.68) per month as on that date. The said employment and the said salary certificate have not been disputed by the petitioner - husband. However, the petitioner who examined himself as RW1 in the said proceedings before the Family Court, had taken up the contention the he had resigned from the said job and he was then jobless. In the affidavit, declaring his assets and liabilities, he has contended that he has only monthly income of Rs.40,000/- from his house properties. The Family Court declined to accept the said stand of the petitioner – husband as he did not produced any document with regard to he having resigned from the job. However, admittedly the petitioner is now again employed and is working at Iraq.

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In his petition challenging the order passed by the Family Court, the petitioner – husband has contended that he has no employment, and he has borrowed the

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7 - NC: 2024:KHC-D:8928 RPFC No. 100064 of 2021 C/W RPFC No. 100050 of 2022

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loan, he has aged parents, second wife and the child from the second marriage to take care of, as such he is unable to provide maintenance except nothing is urged.

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This Court had provided sufficient opportunity

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to the petitioner – husband to furnish details regarding his employment, assets and liabilities. However, learned counsel for the petitioner expressed his helplessness stating that all his sincere efforts in contacting the petitioner-husband have not yielded any result, as the petitioner is not contactable. He submits that even his counterpart made attempts, to contact the petitioner, but to no avail.

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From the records, it is clear that the Family

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Court after appreciating the evidence of the parties had accepted the salary certificate produced at Ex.P12 and had declined to accept the contention of the petitioner – husband of he having resigned from job for he not producing any iota of evidence regarding the same. Nothing has changed from the date of impugned order

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dated 16.04.2021 till date with regard to the status of the employment of the petitioner or his income. Therefore, the only inference that can be drawn by this Court is that the petitioner is deliberately avoiding the repeated directions of this Court to furnish the details of his income for over three years. On the last date of hearing on 26.07.2024, at the request of the counsel for the petitioner, finally a week’s accommodation was granted enabling him to seek information, if any, to which as stated above, learned counsel for the petitioner submits that the petitioner is not contactable. This Court is therefore of the view that no grounds are made out by the petitioner – husband to set aside the order passed by the Family Court.

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As regards the assessment of maintenance is concerned, one of criteria apart from the income of the husband, is the status and standard of life to which the parties were accustomed. There is no dispute of the fact

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that the petitioner lived with the respondents – wife and children for about 18 years, while he was earning in

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excess of Rs.6,00,000/- per months as his salary. The details of assets and liability furnished before the Family Court and the admission made by the petitioner – husband in his deposition indicate that the petitioner - husband owns 11 residential flats at Sadashiv Nagar and 4 residential flats in Ashok Nagar. Even on a conservative estimation, he has more than sufficient income & means to cater to the necessity and standard of living to which respondents – wife and children were accustomed. The Family Court though concluded that the petitioner has neglected to provide them maintenance without justifiable reason has not adverted to this aspect of the matter while arriving at the monthly maintenance of Rs.10,000/-, Rs.6,0000/- & Rs.10,000/ - being awarded to the respondents.

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For the aforesaid reasons and analysis, this Court is of the considered view that, the salary certificate at Ex.P12 and the property details provided in the affidavit, produced by the petitioner – husband before the

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Family Court and his deposition regarding the immovable properties as noted above be taken as the basis for consideration of claim of respondents – wife and children for enhancement of monthly maintenance. It is settled position that generally, 25% of the husband’s net salary is considered to be just and proper to be awarded as maintenance to the respondents – wife, besides, the same must be befitting to the status of the parties and the capacity of the spouse to pay the maintenance

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Since as noted above, the salary received by

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the petitioner - husband even as per Ex.P12 in the year 2018 is in excess of Rs.6,00,000/-, 25% of the same would work out to approximately Rs.1,50,000/-.

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However, since the petitioner – husband is married for the second time and has a child from the said marriage, this Court is of the view that the petitioner – husband be directed to pay Rs.60,000/- to the respondent – wife; Rs.15,000/- to respondent No.2; & Rs.25,000/- to

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respondent No.3 instead of Rs.10,000/-, Rs.6,000/-, & Rs.10,000/- respectively awarded by the Family Court.

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Consequently, the petition filed by the petitioner – husband is dismissed and the petition filed by the petitioners – wife and children is partly allowed.

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The enhanced payment of maintenance shall be paid from the date of filing of this petition. The other directions of the Family Court to pay the maintenance to the respondent – wife during her life time and to petitioner No.2 till her marriage and petitioner No.3 till he attains the age of majority is maintained as it is.

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It is needless to state that, the petitioner

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husband shall also ensure to pay and meet the educational expenses of the children.

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The respondents – wife and children are at liberty to initiate such proceedings to recover the said amount in accordance with law.

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VNP*/CT-ASC / List No.: 1 Sl No.: 1

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SD/JUDGE

Mrs. Sameena W/O Rajesab Kolhapuri v. Mr. Rajesab S/O Abdulsalam Kolhapuri

Case brief

What is this about?

What did the court decide?

Mrs. Sameena W/O Rajesab Kolhapuri v. Mr. Rajesab S/O Abdulsalam Kolhapuri

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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