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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2018 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.53833/2018 (GM-FC)
BETWEEN:
DR. PRAVEEN KUMAR M.A., S/O. LATE M.L. ANNEGOWDA, AGED ABOUT 46 YEARS, R/AT FLAT NO.310, EAST SPRINGS SEASONS APARTMENT, R.M.V. 2ND STAGE, BHOOPASANDRA, BANGALORE-560 094.
PRESENTLY AT: DOOR NO.917, K.R. PURAM, PRASHANTHINILAYA, HASSAN-573 201.
... PETITIONER (BY SRI. SHARATH S. GOGI FOR SRI. SANTHOSH S. GOGI, ADVOCATES)
AND:
SMT. DIVYA M.K., W/O. DR. PRAVEEN KUMAR, AGED ABOUT 37 YEARS, R/AT NO.314, 2ND MAIN, 3RD PHASE, MANJUNATHANAGAR, NEAR PUSHPANJALI, BANGALORE-560 010.
PRESENTLY AT:
NO.12, 7TH MAIN, MANJUNATHA NAGAR, BENGALURU-560 079.
.. RESPONDENT
(BY SRI. NATARAJA BALLAL A., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 22.10.2018 PASSED BY THE LEARNED III ADDL. FAMILY JUDGE, IN M.C. NO.656/2015 ON I.A. NO.42 AT ANNEXURE-K AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner/husband who is a practicing doctor filed the present writ petition for issue of writ of certiorari to quash the Order dated 22.10.2018 passed by the learned III Additional Family Judge, made in MC No.656/2012, allowing I.A.No.4 in part, awarding the interim maintenance of Rs.15,000/- per month to the respondent/wife from the date of petition i.e., from 23.01.2016 till disposal of the petition and Rs.10,000/- towards one time litigation expenses.
The petitioner/husband has filed the petition under Section 13 (1)(ia) of the Hindu Marriage Act, 1955
to dissolve the marriage between the petitioner and respondent solemnized on 04.04.2014 at Adichunchanagiri Srikshetra, Belur, Nagamangala Taluk, whereas the respondent/wife has filed the written statement/objection denying the averments made in the petition. During the pendancy of the proceedings, the respondent/wife filed an application under Section 24 of the Hindu Marriage Act, 1955 for interim maintenance of Rs.25,000/- per month and a sum of Rs.10,000/- per month towards litigation expenses till disposal of the petition. Reiterating the averments made in the statement of objection, the said application was resisted by the petitioner/husband by filing objections.
Considering the application and objections, the Family Court by its impugned Order dated 22.10.2018, allowed I.A.No.4 in part and awarded interim maintenance of Rs.15,000/- per month from the date of petition i.e., from 23.01.2016 till disposal of the petition and Rs.10,000/- towards one time litigation expenses. Hence, the present writ petition is filed.
I have heard the learned counsel for the parties to the lis.
Sri. Sharath S. Gogi for Sri. Santhosh S. Gogi, learned counsel for the petitioner vehemently contended that the impugned order passed by the Hon’ble Family Court, awarding interim maintenance of Rs.15,000/- per month and Rs.10,000/- towards one time litigation expenses is without any basis. He would further contend that the family court erred in holding that the petitioner has not produced any documents to show that the respondent/wife has source of income to maintain herself despite there being a bank statement showing that she was earning and she is capable of earning and maintain herself. He would further contend that the Family Court erred in recording the finding that it is the burden on the petitioner to show the income of the respondent rather to show the income proof and has allowed the I.A. He further contended that the Family Court erred in holding that the Ex.P-2 the bank statement extract in dwhich the last drawn salary of the
respondent was in the month of April 2015 and as such the respondent is not employed and not having any regular source of income subsequent to April 2015 ignoring the fact that the statement pertains only to one bank and she could receive her salary by way of cash or by operating from another bank account. Therefore, he sought to allow the writ petition by quashing the impugned order passed by the Family Court.
Per contra, Sri. Nataraja Ballal A., learned counsel for the respondent/wife sought to justify the impugned order passed by the Family Court and contended that the petitioner filed the petition for divorce under the provision of Section 13(1)(ia) of the Hindu Marriage Act, 1955 against the wife. During the pendancy of the petition, the wife filed an application specifically stated in her affidavit that she has no source of income to maintain herself as on the date of application filed. It is bounden duty of the husband to maintain the wife and wife has to lead her life with dignity on par with the husband. In the absence of
material to show that the respondent/wife was earning, the Family Court has proceeded to award interim maintenance of Rs.15,000/- per month to the respondent/wife from the date of petition till disposal of the case and Rs.10,000/- towards one time litigation expenses holding that the petitioner is a doctor by profession and has sufficient means. Therefore, he sought to dismiss the petition.
Having heard the learned counsel for the parties, the only point that arises for consideration in this writ petition is:
“whether the petitioner/husband has made out the case to interfere with the impugned order passed by the Family Court awarding the interim maintenance of Rs.15,000/- and one time litigation expenses of Rs.10,000/- to the respondent/wife, in the facts and circumstances of the present case?”
It is undisputed fact that there is no dispute with regard to the relationship between the petitioner and respondent as husband and wife. It is also not in
dispute that the petitioner is a doctor by profession, practicing from last 15 years as Artho Dentist.
It is a specific case of the respondent/wife that she has no independent source of income to maintain herself and she is entitled for interim maintenance from her husband to maintain herself. The petitioner/ husband is having sufficient means and he is capable to pay her the maintenance. Though the learned counsel for the petitioner/husband made an attempt to persuade this court that the respondent/wife is also educated and earning sufficient means and she is not entitled for maintenance, the fact remains that as on the date of filing of the application by the respondent/wife for maintenance i.e., 23.01.2016, the petitioner has not produced any material documents to prove that as on the date, she was either employed or earning. The Family Court considering the arguments advanced by the learned counsel for the petitioner, specifically recorded the finding that the Ex.P-1 is a letter written by the Chief Manager, Karnataka Bank, Malleswaram Branch,
Bangalore, Ex.P-2 is a bank Account Extract of the respondent. On perusal of Ex.P-2, this court observed that the last payment of salary to the respondent was in the month of April 2015 i.e., on 04.04.2015. There are no entries in Ex.P-2 with regard to subsequent payment of salary to the respondent. Therefore, it appears that the respondent is not employed and not having any regular source of income subsequent to April 2015.
Though the learned counsel has taken a specific ground in the present writ petition that the Family Court granted maintenance ignoring the income subsequent to April 2015, the fact that the said statement pertains to only one bank account, she could receive her salary by way of cash or by operating from any other account. Except the grounds urged in the present writ petition, no materials are produced before this Court and it was not prohibited to obtain such material/document from any bank or to produce any material to show that the respondent/wife was operating one more bank account and receiving her salary by way
of cash or by operating from another account. No such materials are produced before this Court.
It is the specific case of the respondent/wife that the application is filed for interim maintenance, the petitioner/husband is an Artho-dentist by profession and he visits more than 50 clinics in Bangalore and other places, he is working as Artho-dentist since 15 years and out of his income, he has purchased the house which is now transferred to the name of his mother and daughter. The fact that the petitioner/husband visits 50 clinics has been clearly admitted by him in O.S.No.286/2014 – the suit for injunction filed against the respondent/wife and the petitioner/husband is having the monthly income of more than Rs.2 Lakhs from his profession and the petitioner has filed many cases against the respondent. Therefore, she is entitled for interim maintenance. Though an attempt is made out by the learned counsel for the petitioner by producing income tax returns verification form for the years 2016-17, 2017-18 and 2018-19, no other details are produced. Admittedly,
these income tax returns were not produced before the Family Court.
The assertion made by the learned counsel for the respondent/wife that the petitioner is an Artho- Dentist, having experience of more than 15 years, he is working as a consultant Artho-dentist, he visits 50 clinics in a month in Bangalore and other places in the State of Karnataka from last 15 years is not disputed and he has admitted the same in his evidence by way of affidavit in O.S.No.286/2014. The said statement is disputed in the objection filed that the matter requires adjudication between the parties. While granting the interim maintenance, the Family Court prima-facie came to the conclusion, the background of both the parties, the source of income and awarded the interim maintenance. 13. The provision of Section 24 of the Hindu Marriage Act, 1955 depicts that “Wherein any proceeding under this Act, it appears to the Court that either that wife or the husband, as the case may be, has no independent
income sufficient for her or his support and the necessary expenses on the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.”
The plain reading of the aforesaid provisions makes it clear that the Court is required to take into consideration the income of the parties before deciding the quantum of interim maintenance. The Court has to keep in view the income of the applicant and paying capacity of the non-applicant.
Taking into consideration the petitioner is an Artho-Dentist, having more than 15 years of experience and he visits 50 clinics in a month in Bangalore and other parts of the State of Karnataka and taking into consideration the wife has no source of income and the petitioner/husband has not produced any materials before the Court that the respondent is also having sufficient income and she is not entitled for any
maintenance as contemplated under Section 24 of the Hindu Marriage Act, 1955, this court is of the considered opinion that the petitioner/husband has to pay an interim maintenance of Rs.15,000/- per month to the respondent/wife and Rs.10,000/- towards one time litigation expenses, taking into consideration the background of the parties that the wife has to live with dignity on par with the husband who is a doctor in the Society. Therefore, the Family Court is justified in awarding Rs.15,000/- per month and Rs.10,000/- towards one time litigation expenses. The petitioner has not made out any case to interfere with the impugned order passed by the Family Court in exercise of power under Article 227 of Constitution of India. Accordingly, the writ petition is dismissed.
Sd/- JUDGE
snc ct-jlr