Dismissed

Sri. B. Sridhar Vallur v. Smt. C. G. Kalpana

Karnataka HC2 Aug 2024RPFC/4/2023

Case brief

AI extract

What is this about?

This revision petition challenged a Family Court order granting Rs. 75,000 monthly maintenance under Section 125 Cr.P.C. The High Court dismissed the petition, upholding the order as justified based on the petitioner's admitted income and family status, finding no material error or illegality.

What did the court decide?

Petition dismissed; Family Court order dated 03.09.2022 upholding maintenance of Rs. 75,000/month affirmed.

Sri. B. Sridhar Vallur Vs Smt. C. G. Kalpana — Maintenance and Alimony | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND 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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R.P.F.C. NO.4 OF 2023

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BETWEEN:

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SRI B. SRIDHAR VALLUR, S/O RADHAKRISHNA MURTHY, AGED ABOUT 48 YEARS, R/A #457, OTK ROAD, CHITTOOR, ANDHRA PRADESH - 517 001.

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AND ALSO R/A #12, LOAD STAND ART NO.12, GARFIELD BERGEY COUNTY,NEW JERSEY, USA - 07002.

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…PETITIONER

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[BY SRI RAJESH GOWDA, ADVOCATE (PH)]

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AND:

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SMT. C.G.KALPANA, W/O SRIDHAR VALLUR, AGED ABOUT 44 YEARS,

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MASTER MILAN S/O SRIDHAR VALLUR, AGED ABOUT 17 YEARS, PETITIONER NO.2 IS BEING MINOR, REP. BY HIS NATURAL GUARDIAN PETITIONER NO.1 SMT. C.G.KALPANA,

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BOTH ARE R/A #152, 1^ST FLOOR, NARAYANAPILLAI STREET, BHARATHINAGAR, BANGALORE - 560 001.

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…RESPONDENTS

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[BY SRI B.RAVINDRA, ADVOCATE FOR R1 & R2 (PH); R2 IS MINOR REP. BY R1]

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NOTE: THE PETITIONER NO.2 BORN ON 13.06.2005 AND WRONGLY MENTIONED HIS AGE ABOUT 07 YEARS IN THE PETITION AT THE TIME OF FILING OF THE PETITION, INSTEAD OF 09 YEARS. THE PETITIONER NO.2 ACTUAL AGED IS 17 YEARS, AS ON THIS DAY.

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THIS REVISION PETITION FAMILY COURT IS FILED UNDER SEC.19(4) OF FAMILY COURTS ACT, 1984 AGAINST THE ORDER DATED 03.09.2022 PASSED IN CRL.MIS.NO.716/2014 ON THE FILE OF THE I ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE PETITION FILED UNDER SEC.125 OF Cr.P.C., FOR MAINTENANCE.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 18.07.2024, THIS DAY, THROUGH VIDEO CONFERENCING, DHARWAD BENCH, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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CAV ORDER

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This petition is filed challenging order dated 03.09.2022 passed by I Addl. Principal Judge, Family Court, Bengaluru, in Crl.Misc.no.716/2014 filed under Section 125 of Code of Criminal Procedure, 1973, (' Cr.P.C ' for short) claiming maintenance of Rs.75,000/- per month.

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Sri Rajesh Gowda, learned counsel for petitioner submitted marriage of petitioner and respondent no.1 was solemnized on 04.07.2004 in Sugar Factory Kalyanamantapa, in Chittoor at Andhra Pradesh. After marriage, respondent no.1 resided in marital home at Chittoor. From wedlock, they begot respondent no.2 - son namely Master Millan on 13.06.2005. It was submitted that she left him without any reasons. Thereafter respondents filed petition under Section 125 of Cr.P.C. for claiming maintenance. It submitted that, respondent no.1 as suppressing

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facts and alleging against petitioner filed petition for maintenance, in petition it was contended that after 20 days of marriage, her mother-in-law demanded for dowry and harassed her for minor issues and forced to leave marital home. However, respondent no.1 was working as a Software Engineer at Hyderabad and took respondent no.1 with him, thereafter, they started to residing together.

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Thereafter, however, she left petitioner without any reason and filed petition under Section 125 of Cr.P.C. for maintenance, falsely alleging that after 20 days of marriage, her mother-in-law demanded dowry, harassed her for minor issues and forced to leave marital home. In said petition she had admitted that after petitioner got job as Software Engineer at Hyderabad, he had taken respondent no.1 with him and they were residing together. Though, she alleged that while at Hyderabad, petitioner's family members made hectic efforts to convince him to leave her, same was denied by him and in any case, unsubstantiated.

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Even her allegations that, petitioner left her and went to USA, when she was two months pregnant, falsely assuring her that

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once he was settled, he would take her, but, thereafter petitioner never made efforts to contact her were without any basis and denied. It was submitted, fact that respondent no.1 had lodged complaint against petitioner and his parents before Bharathi Nagar Police Station for offences under Sections 498A read with Section 34 of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act, only on 01.07.2011, when he had left to USA on 25.03.2005 would stand testimony. It was stated claim of Rs.75,000/- p.m. by respondent no.1 was on ground that petitioner had passed B.E. and M.S. having income of more than Rs.1,00,000/- per month, based only on oral assertion.

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On appearance, petitioner filed objections denying allegations and stating that respondent no.1 was working in a Company, having sufficient source of income, but filed petition on false averments. On other hand, he had contended that respondent no.1 had left him even prior to his going to USA, while they were residing at Hyderabad for reasons best known to her. He also stated that petitioner and his family members had made efforts to bring her back unsuccessfully. At that time, she had sent a mediator to

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collect her certificates. And though, he requested her to join him at USA, she did not turn-up.

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However, on 22.07.2007, she filed complaint in All Women Police Station at Ambur, Vellore District, Tamil Nadu, against petitioner and his family members, forcing them to get Anticipatory Bail. It was submitted, having failed in criminal case, respondent no.1 thereafter filed M.C.no.2472/2007 for restitution of conjugal rights. However, said petition has been dismissed for nonprosecution. Thereafter, as per Exs.R1 and R2-certificates, petitioner's father-in-law acknowledged receipt of gold jewels.

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It was submitted, based on complaint by respondent no.1 against petitioner and his parents in Bharathiagar Police Station under provision of Section 498A read with Section 34 of IPC and Section 3 and 4 of Dowry Prohibition Act challenging said complaint, petitioner and his parents filed petition before this Court Crl.P.no.3976/2015 and complaint against petitioner's parents was quashed. Thereafter, C.C.no.55630/2013 proceeded only against petitioner. It was submitted, due to pendancy of said case, petitioner left job in USA and returned to India, and has been

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unable to return to USA. In view of same, he was dependent on his father for livelihood. It was submitted, respondent no.1 was employed and earning sufficient income and therefore not entitled for any maintenance and sought dismissal of petition.

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Before Family Court, respondent no.1 examined herself as PW-1 and got marked Exhibits P1 to P5. On other hand, petitioner examined himself as RW-1 and got marked Exhibits R1 to R7.

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Under impugned order, Family Court erroneously granted maintenance amount as claimed, especially when after returning from US petitioner was without employment or any source of income. It was submitted, when petitioner had called upon respondent no.1 to joint him at US, observation by Family Court that respondent no.1 wasn't at fault for not joining petitioner and that he was under duty to take care and maintain wife and son, was without any basis. It was contended since respondent no.1 had deserted him, conclusion by Family Court that petitioner was under duty to maintain respondents was contrary to record.

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It was submitted, observation about validity of decree of divorce obtained in foreign Court and its binding was well settled by various decisions of this Court and Hon'ble Supreme Court. Hence, impugned order called for interference. It was submitted, when petitioner was acquitted in criminal case filed by respondent no.1, observation by Family Court that he was convicted was perverse and contrary to record.

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It was submitted, when petitioner had contended that after his return from USA, he was without employment or source of income. It was submitted, though petitioner was alleged to be heading/managing educational institutions, Ex.R3 showed his father was Secretary of Educational Society. Further in affidavit of Assets and Liabilities, respondent no.1 though stated about petitioner earning Rs.2,00,000/- per month, no documents were produced to substantiate same. On other hand, this Court in Crl.Petn. no.3976/2015, disposed on 01.03.2016 (Ex.R4), observed that respondent no.1 was working lecturer in New Horizon College at Bengaluru. In view of above material, impugned order directing petitioner to pay maintenance at Rs.75,000/- p.m. was unjustified and called for interference.

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On other hand, Sri B. Ravindra, learned counsel for caveat/respondent no.1 opposed petition. It was submitted marriage between petitioner and respondent no.1 and respondent no.2 being born to them was not in dispute. It was submitted, petitioner left respondent no.1 to go to USA when she was four months pregnant, assuring her that he would take her later. But, no efforts to take them or even to contact them were made. Therefore, respondent no.1 had filed complaint before Superintendent of police at Nellur, on 25.05.2007 about his missing. During investigation, when petitioner was contacted by Police, he assured them, about taking respondents to USA. However, petitioner failed to keep his word.

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It was submitted, respondents had specifically pleaded that petitioner had passed B.E. and M.S., which was also admitted. She also stated about petitioner earning more Rs.10,00,000/- p.a. In cross-examination, petitioner admitted about his employment in USA from 2005 with salary of more than $45,000/- per annum. Taking that for reference, his salary as on date of petition would be even more. Besides, his parents were running several Educational

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Institutions by name Vignana Sudha Educational Institutions at Chittoor, wherein his father was Chairman.

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It was submitted respondents were residing in a house in K.R. Puram paying Rs.20,000/- per month as rent. It was further submitted, respondent no.2 was studying First Year in B.E. Course at BMS College of Engineering, Bengaluru, with Rs.7,50,000/- was annual fee.

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It was submitted cross examination of petitioner would establish, petitioner had not made efforts to know about respondents or contact them. Thus he had failed and neglected to maintain them, despite having sufficient source of income. Hence, Family Court was justified in awarding maintenance of Rs.75,000/per month to respondents no.1 and 2 respectively.

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In support of his submissions, learned counsel relied on following decisions:

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AIR 1968 DELHI 174, (Chander Prakash Bodh Raj vs. Shila Rani Chander Prakash DD on 16^th April, 1968)

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W.P.No.20737/2021 (GM-FC) (Sri Punarvasu @ Vasu D.D. on 01.02.2023)

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RPFC No.133/2014

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(R.D. Rajeev Vs. Smt.Roopa,D.D. 25.01.2021)

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W.P.No.14094/2023 (GM-FC) (Smt. Shylaja S.R. Vs. Sri Hareesha A, D.D.28.02.2024)

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AIR 2015 SC 2025 (Shamina Farooqui V. Shahid Khan)

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AIR OnLine 2019 DEL 1972) (Arun Vats vs. Pallavi Sharma)

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W.P.No.2688/2023 C/w W.P.No.24296/2022(GM-FC) (Smt. Deepali Lengade Vs. Sri Sandeep Lengade)

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On above grounds, sought for dismissal of petition.

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Heard learned counsel and perused impugned order.

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Thus, point that would arise for consideration is:

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"Whether impugned order calls for interference?"

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From above, is not in dispute that marriage of petitioner and respondent no.1 was solemnized on 04.07.2004. Birth of respondent no.2 on 13.06.2005 is also not in dispute. Both parties admit that prior to petitioner going to USA for job on 25.03.2005, they were residing together at Hyderabad. But, for subsequent period, while respondent no.1 alleges, petitioner left her when she was pregnant on assurance of taking her to USA later, and thereafter failed to contact them and take care of their welfare; petitioner claims that he left to USA after informing respondent

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no.1 about his job in USA while she was residing with him at Hyderabad.

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Petitioner contends, while residing at Hyderabad, respondent no.1 left him without any reason and did not return, despite efforts by his family members. He claimed that she had sent mediator and collected her testimonials. He also claims, instead of joining him, she filed false complaint on 22.07.2007 at Amburam. And though she filed M.C.no.2472/2007 for restitution of conjugal rights, it was dismissed for non-prosecution. Thereafter, as per Exs.R6 and R7, she filed complaint before Bharatinagar Police Station, Bengaluru against petitioner and his parents alleging dowry harassment. Same was challenged in Crl.P.no.3976/2015, wherein this Court quashed proceedings against his parents. But due to filing of Criminal cases, he was forced to quit his job in USA and return to India, after which he was unemployed and dependent on his father for livelihood. Fact that respondent no.1 had filed petition for restitution of conjugal rights and also missing complaint against petitioner, wherein on being contacted by police, petitioner assured to take respondents to his place is pleaded and deposed by PW-1. There are no contrary suggestions by petitioner. On other hand,

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Exs.R.1 and R.2 are acknowledgements about return of testimonials and jewelry belonging to respondent no.1.

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While passing order, Family Court noted, petitioner's statement that he had obtained decree of divorce against respondent no.1, which it observed to be ex-parte , without material to establish that respondent no.1 was served with notice therein. On said ground, it held decree was unenforceable.

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In fact, filing of divorce petition, when respondent no.1 was in India itself would substantiate allegations against petitioner that he had failed and neglected to take care of and maintain respondents. On other hand, filing of missing complaint and petition for restitution of conjugal rights would indicate efforts by respondent no.1 to resume marital relationship with petitioner. Mere aspersions cast on basis of complaints filed by respondent no.1 would not be sufficient to establish that it was respondents, who had deserted petitioner without any just cause. Especially so when criminal cases were filed by respondent no.1 much later. Therefore, family Court rightly observed mere filing of

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petition/complaint or taking return of testimonials and jewelry did not dilute claim of respondents for maintenance.

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Indeed, observation by Family Court that petitioner was convicted in C.C.no.53030/2013 would be erroneous, same would not amount to material irregularity or illegality so as to affect validity of impugned order. Therefore, finding of Family Court insofar as entitlement for maintenance did not call for interference.

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On quantum, Family Court referred to admission that petitioner was earning $45,000 per annum in USA. It refers to his admission that New Jersey Court (which had granted divorce decree) had held him liable to pay $500 to respondent no.1 towards maintenance. It also noted status of petitioner's family by referring to educational institutions run by them to hold petitioner liable to pay monthly maintenance of Rs.50,000/- to respondent no.1 and Rs.25,000/- to respondent no.2.

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There is no dispute about petitioner being educationally qualified having obtained B.E. and M.S.Course. From his admission, it is noted that he was earning huge salary of $45000/- and Ex.P.5 would indicate respondent no.2 is school going child at time of

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petition and who is now said to be admitted to B.E. Course in Bengaluru, for which respondents have taken a house for rent. When considered from point of view of status of petitioner and his family and cost of living, order to pay monthly maintenance at Rs.75,000/- cannot be said to be excessive, exorbitant or contrary to material on record.

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Affidavit of assets and liabilities of petitioner indicates parents of petitioner are getting pension of Rs.43,000/- and Rs.82,000/- respectively. Petitioner has virtually answered most of columns therein in negative. He has not produced bank pass books or IT returns of his parents or audited balance sheets of Educational Institutions.

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Insofar as decisions relied upon, in Chander Prakash and Punarvasu @ Vasu cases (supra), it is held husband being able bodied man was under obligation to earn and maintain his wife and children and burden would lie on him to establish that he was not earning sufficiently.

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In R.D. Rajeev , S.R. Shailaja and Arun Vats cases (supra), merely establishing about wife being educationally qualified

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or was working prior to marriage would not qualify as proof of earning. Actual employment and earning of income therefrom required to be established by husband.

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In Shamima Farooqui and Deepali Lengade cases (supra), it is held object of Section 125 of Cr.P.C. is to ameliorate financial status of wife so that she can sustain herself, as she would have in house of her husband. In Shamima 's case (supra), it is held High Court would not be justified in revising order of Family Court merely taking different view.

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In Pyla Mutyalamma Alia Satyavathi v. Pyla Suri Demudu and Anr ., reported in (2011)12 SCC 189, has held there can be no re-evaluation of evidence and Revisional Court can interfere only in case impugned order suffers from material irregularity or illegality or from error of jurisdiction. No such case having been established, point for consideration is answered in negative.

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32. Consequently, petition is dismissed.

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Sd/(RAVI V. HOSMANI) JUDGE

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Psg*/GRD

Sri. B. Sridhar Vallur v. Smt. C. G. Kalpana

Case brief

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Sri. B. Sridhar Vallur v. Smt. C. G. Kalpana

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