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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2021
BEFORE
THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
R.P.F.C. No.213 OF 2017
BETWEEN:
Shri. K.H. Umashankar, S/o. Shri Huchannna Aged about 49 years, R/at 1319/A, 3rd Cross, 2nd Main, T. Dasarahalli Bengaluru – 560057. ..Petitioner (By Sri. Shanmukhappa for M/s. Kesvy & Co.)
AND:
Smt. R. Chandrakala D/o. Shri M.G. Ramanna W/o. Shri K.H. Umashankar, Aged about 37 years R/at No.221/2, 10th Ward 10th Main, 5th Cross, Kalyana Nagara SLN Building, T. Dasarahalli Bengaluru – 560 057.
.. Respondent (By Smt. T.G. Sudha & Smt.K. Nirmala, Advocates)
**** This RPFC is filed under Section 19(4) of the Family Courts Act, 1984, praying to call for records and set aside the impugned order dated 10-11-2017 passed by the learned II Additional Principal Judge, Family Court at Bengaluru, in Crl.Misc. No.206/2009 vide Annexure A and dismiss the petition filed
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under Section 125 of the Code of Criminal Procedure, by allowing this Revision Petition and to grant such other relief or reliefs as this Hon’ble Court deems fit, under the facts and circumstances of the case, in the interest of justice and equity.
This RPFC coming on for Final Hearing, through Physical Hearing/Video Conferencing Hearing this day, the Court made the following:
O R D E R
The present respondent (wife) had instituted a petition against the present petitioner (husband), arraigning him as the respondent, under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as the "Cr.P.C.") in Crl.Misc.No.206/2009, in the Court of the II Additional Principal Judge, Family Court at Bengaluru (hereinafter for brevity referred to as the "Family Court"), seeking maintenance at the rate of `7,500/- per month and also `50,000/- towards the litigation expenses from the petitioner (husband).
The summary of the contention of the respondent(wife) in the Family Court was that, her marriage with the petitioner herein was performed on 19-05-1995 in Tumakur District. No issues were born to them. The petitioner has been working in Hindustan Aeronautics Limited
(HAL), Engine Division,
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Bangalore, and drawing a monthly salary of a sum of `20,000/-. Apart from the same, he also owns a building in Peenya Dasarahalli, consisting of shops and residential portions and getting rent of `10,000/- per month. The petitioner also owns landed properties in his native place. Since the petitioner deserted her, she is staying with her mother since 14-11-2008. Till the date of deserting her, the petitioner was subjecting her to cruelty and had neglected her and deprived her of the basic necessities in life.
It is further alleged in the petition that, in the month of June, the petitioner married a minor girl by name Sumathi at Sriramapura, Hosadurga Taluk. With this, she has prayed for monthly maintenance of a sum of `7,500/- and a sum of `50,000/- towards litigation expenses.
In response to the summons served upon him, the respondent in the Family Court appeared through his counsel and filed his statement of objections, wherein, he has admitted his marital relationship with the respondent herein, however, specifically denied the alleged ill-treatment said to have been meted to the respondent and also deserting her. On the other
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hand, he contended that, the respondent was quarrel-some lady and he tolerated her attitude, but still, she voluntarily deserted him without any reasons. He contended that, his net salary was only `8,000/- per month and the income from rent was only a sum of `2,000/- per month. He further contended that, though he wanted his wife to come and join him and had also sent a notice to that effect, since she did not turn up, he is not liable to pay any maintenance to her.
At the first instance, both the petitioner and respondent led their evidence in the Family Court as RW-1 and PW-1 respectively and the respondent (wife) got marked documents from Exhibits P-1 to P-4 and petitioner (husband) got marked documents as Exhibits R-1 and R-2 and after remand, both of them led their further oral evidence as PW-1 (wife) and RW-1 (husband) and few more documents were marked.
Before remand, the Family Court, after hearing both side, in its order dated 25-07-2012, allowed the petition in part and held that, the petitioner before it was entitled to monthly maintenance of a sum of `3,000/- from the date of filing of the
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petition, i.e. from 13-04-2009 during her lifetime and payable by the respondent before it.
The Respondent herein (wife) being not satisfied with the quantum of maintenance awarded in her favour by the Family Court, on the ground that it is inadequate, preferred a Revision Petition before this Court in R.P.F.C.No.82/2013 (Crl.Misc.), which matter came to be disposed of by this Court on 01-07-2016, wherein, after setting aside the impugned order passed by the Family Court, the matter was remanded back to the said Court for its fresh consideration after affording opportunity to the petitioner before it to adduce oral evidence and to furnish any documents, if any. After remand, the parties led their further oral evidence and some more documents were marked as Exhibits.
After remand, the Family Court, after hearing both side afresh, by its impugned order dated 10-11-2017 allowed the petition of the petitioner before it (wife) and directed the respondent before it (husband) to pay a sum of `5,000/- per month towards rent, `10,000/- per month towards maintenance including food, clothing, and other expenses and a sum of
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`10,000/- towards litigation expenses to the petitioner before it from the date of the petition till she deserves to receive it. Aggrieved by the said order of the Family Court, the petitioner herein(husband) has preferred the present revision petition.
The respondent herein (wife) is being represented by her counsel. 9. The Family Court’s records were called for and the same are placed before this Court. 10. Learned counsel for the petitioner and learned counsel for the respondent are appearing physically before the Court. 11. Heard the arguments from both side. 12. After hearing the learned counsels from both side, the only point that arise for my consideration in this revision petition is, “Whether the order under revision suffers from any perversity, illegality or impropriety, warranting interference at the hands of this Court?”
Learned counsel for the petitioner(husband) confined his argument on only four points that, the documents filed by the present petitioner were not considered by the Family Court. The second point of argument was that, when initially, the quantum
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of maintenance ordered by the Family Court was only a sum of `7,500/- per month, upon remand, it was not justified in awarding the maintenance of `10,000/- per month from the date of the petition. The third point of argument of the learned counsel was that, when admittedly, the petitioner in the Family Court (respondent herein) was residing with her parents, the question of granting her any compensation towards rent does not arise. Lastly, he submitted that, the Family Court ignored the fact that, the petitioner before it (wife) has completed Hindi Ratna and was working as a Hindi Teacher in a Private School. With this, he prayed for setting aside the impugned order passed by the Family Court.
Learned counsel for the respondent herein (wife) in her argument submitted that, it was due to unbearable cruelty meted to her and ill-treatment practiced upon her by her husband, the petitioner in the Family Court (wife) had to leave her matrimonial home and in fact, she was thrown out by her husband. Being a lonely lady, having no other shelter, she had to go back to her parents house, where she is living. She further submitted that, as on date, the respondent’s father has lost his vision and mother is aged, as such, she has to take care of her
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parents. Learned counsel also submitted that, the salary of the petitioner herein (husband) as on date is more than `1,30,000/- per month, as such, considering these aspects, the impugned order does not warrant any interference at the hands of this Court.
It is not in dispute that, the parties herein are married to each other and that their marriage was performed on 19-05-1995. It is also not in dispute that, as on the date of the filing of the petition in the Family Court by the wife, she was living separately and away from her husband and was living in her parents house. Learned counsel for the husband in his argument did not dispute the finding of the Family Court about the entitlement of the wife for maintenance, however, his major thrust was on the quantum of monthly maintenance and granting of some amount towards rent.
A perusal of the evidence led by both side and the documents produced before the Family Court would go to show that, the wife before instituting the petition under Section 125 of the Cr.P.C., had issued a notice to her husband (respondent before the Family Court) as per Ex.P-3 on 19-01-2009, bringing
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to his notice that, he was treating his wife with carelessness and cruelty. It was also alleged therein that, the husband never looked after his wife with love and affection and not discharged his marital duties as a dutiful husband and had also alleged in the very same notice that, the husband had contracted the second marriage on 26-07-2008 with a minor girl by name Sumathi at Srirampura, Hosadurga Taluk, as such, he has also committed an offence of bigamy. It was further specifically stated in the said notice that, the wife (petitioner in the Family Court) was compelled and constrained to live away and separately from her husband. However, as could be seen from Exhibit P-4, he has replied to the notice sent by the wife, but has denied the allegations made in the said notice in-toto. He even denied that, the wife is entitled for any maintenance, much less, as prayed in the petition.
Subsequently, after remand, the wife while leading her further evidence also got produced several other documents including the Encumbrance Certificate at Ex.P-9, Admission Register at Ex.P-12, certified copy of the birth certificate at Exhibit P-13 and a copy of the notice issued by the Police at Ex.P-18 and the police complaint at Ex.P-19. The sum and
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substance of those exhibits and also the oral evidence of PW-1 after her cross-examination from the side of the respondent therein (husband) is that, the husband is said to have married one more girl by name Asharani and through her is alleged to have got a child by name Harshita B.U., as evidenced in the Certificate of Birth at Exhibit P-14. Apart from that, the School Admission records at Exs.P-11, P-12 and P-13 would go to show that, the said child Harshita was admitted to the School, however, showing the name of the father as one Shankar. Incidentally, the name of the present petitioner (respondent in the Family Court) is Sri. Umashankar. Thus, just by relying upon Exhibits P-11 to P-13, it cannot be concluded that the petitioner herein had married one Ms. Asharani or one Ms.Sumathi and had got a child by name Harshita. However, the fact remains that, apart from these, the petitioner in the Family Court (wife) had also filed a police complaint as could be evidenced in Exhibit P-15 where under, apart from the alleged bigamy against her husband, the complainant (wife) who was the petitioner in the Family Court has also alleged her husband of deserting her, after subjecting her to ill-treatment and cruelty. The said fact has not
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been denied or disputed from the respondent (husband) in the Family Court.
Added to that, as could be seen in Exhibit P-25, the wife has lodged one more complaint against her husband before the Peenya Police Station, upon which, a case in Crime No.123/2017 was registered against him for the offence punishable under Sections 495, 506, and 489A read with Section 34 of the IPC. The oral evidence supported by the documentary evidence would go to show that, the wife had justifiable reason for staying away and separately from her husband.
The next point that would arise for consideration is, whether the wife is entitled for maintenance from her husband, which point, the Family Court has answered in her favour and granted maintenance payable by the respondent before it to his wife.
The wife as PW-1 in her evidence has stated that, she has no avocation to follow and she is residing with her parents to eke out her livelihood, as such, her husband, who is an employee in HAL and drawing a salary of a sum of `1,20,000/- per month
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was liable to pay her the maintenance. Initially, she had claimed the maintenance at the rate of `7,500/- per month, however, after remand, by amending her petition, she claimed a sum of `40,000/- per month towards maintenance.
The husband (respondent in the Family Court and petitioner herein) has not denied that, he has been working in Hindustan Aeronautics Limited, Engine Division, Bangalore. Though initially, he contended that, his gross salary for the month of May-2010 was `23,263-40 and had produced a certified copy of salary slip and marked it as Exhibit R-2, however, the same witness, subsequently also, has produced his subsequent salary slip for the month of May-2017 and got it marked as Exhibit R-4, in which his gross salary for the month of May-2017 is shown to be a sum of `61,001-51 and after deductions, the net pay was shown at `30,962/-. He has also produced a loan allotment letter at Ex.R-5, shown to have been issued by LIC Housing Finance Limited, wherein it is shown that, he was granted a loan of a sum of `23,90,000/- with proposed repayment in 136 equated monthly instalment (EMI) of a sum of `28,701/-. However, neither the said loan shown to have been granted by the LIC Housing Finance Limited as per Ex.R-5 nor his
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total deductions at `30,039-51 as shown in Exhibit R-4 can be taken into consideration for the simple reason that, except the statutory deductions, all other deductions are voluntarily incurred by the petitioner herein (husband) for his own purposes. The statutory deductions are only a sum of `200/- towards professional tax and a sum of `3,466/- towards provident fund. Remaining all other deductions are voluntary deductions incurred by him including its extra-premium towards provident fund (`16,898/-) volunteered to be paid by him, as could be seen in Exhibit R-4 and so also the loan from the LIC Housing Finance Limited. None of these deductions are statutory deductions but the same are loans or the alleged commitments not shown to have been made or incurred by him for the purpose of his family. Therefore, computing his income, it has to be taken into account only the statutory deductions which are `3,466/- (Provident Fund) + `200/- (Professional Tax) = `3,666/-, to which another sum of `2,147/- towards income tax is added, the total statutory deductions would arrive at `5,813/- and after deducting the same from his gross salary of `61,001-51, the net eligible income for which he would be entitled had he not offered or volunteered for other incurred deductions/expenses would be
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`55,188-51.
However, the initial prayer made by the respondent (wife) for a monthly maintenance at `7,500/- only, which subsequent to the amendment was modified to a sum of `40,000/- per month. Though the learned counsel for petitioner (husband) submitted that, the Family Court ought not to have awarded the enhanced amount of maintenance from the date of the petition, at which time, there was no amendment of the quantum of the maintenance prayed for, still, it cannot be ignored of the fact that, the amendment carried out in the petition dates back to the filing of the petition. Still, it also cannot be ignored of the fact that, as on the date of preferring the previous revision petition before this Court in R.P.F.C No.82/2013 also, the respondent’s (wife’s) requirement was at the maximum `7,500/- per month. It is on that regard only, she had led her oral and documentary evidence. Proportionately, the income of the respondent (husband) as on the said date was also not as per Exhibit R-4, but it was much lesser than the salary which is shown in Exhibit R-4. Therefore, merely because subsequent to the amendment prayer for maintenance was enhanced to a sum of `40,000/-, the Family Court was not justified in awarding maintenance at the rate of `10,000/- per
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month from the date of the petition. Therefore, considering the fact that the requirement as pleaded by the wife in the Family Court and as led in her evidence, was for a sum of `7,500/- per month, since she was granted with maintenance of only a sum of `3,600/- per month, she had preferred a revision petition in R.P.F.C.No.82/2013 before this Court. As such, as on the said date, till she made an amendment application, her requirement was only a sum of `7,500/- per month, which was the maximum amount claimed by her. As such, her entitlement for maintenance, if any, till such period, in the facts and circumstances of the case, is justifiable only to an extent of a sum of `7,500/- per month.
The respondent (husband) in the Trial Court who is the petitioner herein also contended that, the wife is not entitled for any maintenance, because she is employed and working as a Hindi Teacher in a private School, in which regard, he has also produced a document shown to be a salary certificate issued by the said School at Dasarahalli, Bangalore, marked at Exhibit R-1. The said document shows that the respondent (wife) was working in the said School as on 01-12-2010 as a Hindi Teacher and was getting a monthly salary of `1,800/-. Admittedly, the wife has not admitted the said document as true and denied the
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same. She contended that, she has undergone Primary and Nursery School Training, but she could not complete it. Admittedly, the author of Exhibit R-1 was also not summoned or examined on behalf of the husband in the Family Court. As such, it cannot be relied upon that she has been working as a Hindi Teacher and getting an income as contended by the petitioner(husband). However, considering the circumstances of the case and her evidence regarding her requirement for maintenance and also of the fact that, she has been residing in her parents house at the relevant point of time, I am of the view that, the maintenance payable to her from the date of the petition till she carried out the amendment in her prayer regarding quantum of maintenance would be justifiable if it is confined to `7,500/- per month, which was her prayer too, earlier.
Subsequent to the allowing of the amendment application, the claim of the wife for maintenance was enhanced to `40,000/- per month. In that regard, she had stated that her commitment due to age related expenditure has increased and more particularly, the income of her husband has also been increased.
She contended that, her husband's income
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subsequently crossed a sum of `90,000/- in her further evidence in the examination-in-chief on 25-07-2016. However, in that regard, she has not produced any documents, as such, rightly the Family Court has relied on the available documents placed before it, more particularly, Exhibit R-4 which was produced by none else than the respondent (husband) before it. As already observed above, the net salary of petitioner herein (husband) after deducting the statutory deductions including the Income Tax deducted from his salary comes to `55,188-51. Thus, considering those deductions and also his net take home salary, the quantum of maintenance awarded at `10,000/- per month by the Family Court cannot be considered as irrational or without any basis. As such, the said quantification of the maintenance payable to the petitioner (wife) before it at `10,000/- per month cannot be considered as excessive or exorbitant which quantum of amount is payable from the date of filing of the amendment application by the wife in the Family Court.
The other point of argument of the learned counsel for the petitioner herein (husband) was, regarding the awarding of the rent at the rate of `5,000/- per month to the wife by the
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husband. In that regard, the learned counsel for the petitioner herein submitted that, admittedly when she (wife) is residing in her parents house, she is not entitled for any amount towards rent. But the Family Court, anticipating that in case, if she leaves her parents house and starts living separately, she may have to pay rent, as such, it has awarded the said rent, which reasoning is not convincing in the circumstances of the case.
PW-1 (wife) in her further cross-examination dated 18-07-2017 has stated that, though she is said to be staying with her parents, but she is staying separately in one portion of the house belonging to her father and she is paying rent. Admittedly, she has not produced any rent receipt till date. Since she is staying with her parents, her evidence that she is sharing the liability of the rent with her father cannot be ignored. As such, granting of the amount towards rent at the rate of `5,000/- per month payable by the petitioner herein (husband) to the respondent (wife) also cannot be found fault with. It also cannot be ignored of the fact that, admittedly, the respondent apart from his salary income has also got income from the building property, which according to the wife is `10,000/- per month as on the date of her evidence. The
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husband has also got the landed property as evidenced in Exhibit P-10, which are the RTC extracts and which property has not been denied or disputed by the husband. Thus, taking stock of the overall facts and circumstances of the case, the quantum of maintenance awarded by the Family Court though requires modification to the extent of bifurcating the quantum of maintenance prior to the filing of amendment application and subsequent thereto. Rest of the aspects ordered by the Family Court does not warrant any interference at the hands of this Court. Accordingly, I proceed to pass the following:- O R D E R [i] The revision petition of the petitioner herein (husband) is allowed in part; [ii] The quantum of maintenance ordered at `10,000/- per month payable by the petitioner herein (husband) from the date of the petition is modified and fixed at `7,500/- per month, from the date of the petition till the date of the petitioner in the Family Court (wife) filing the amendment application which is dated 22-08-2017.
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However, the maintenance ordered at the rate of `10,000/- per month, from the date of the filing of the amendment application remains unaltered; [iii] Barring the above, the quantum of rent, litigation expenses and payment of arrears of rent, if any, and other aspects ordered by the Family Court remain unaltered. Accordingly, the impugned order dated 10-11-2017 passed by the learned II Additional Principal Judge, Family Court at Bengaluru, in Crl.Misc.No.206/2009, stands modified.
In view of disposal of the main petition, I.A.No.1/2019 does not survive for consideration. Registry to transmit a copy of this order to the Family Court along with its records forthwith.
Sd/-
JUDGE
BMV*