SRI M S SHYAM SUNDER vs SMT VIJAYALAKSHMI SUNDER

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 25TH DAY OF JUNE, 2018

BEFORE

THE HON’BLE MR. JUSTICE ARAVIND KUMAR

WRIT PETITION NOs. 17395 OF 2018 & 24205/2018 (GM- FC)

BETWEEN:

Sri M.S. Shyam Sunder Aged about 47 years S/o. M.S.Seshadri R/at. ‘D’ Block, S-6, 2nd Floor Himagiri Green Forest Apartment Ist Cross Road, Silver Oak Layout J.P.Nagar 7th Phase Bengaluru-560 078 Represented by his GPA Holder M.S.Seshadri Aged about 76 years S/o. S.M.S.Chari

…Petitioner (By Sri Prasanna Shetty, Advocate)

AND:

Smt Vijayalakshmi Sunder Aged about 43 years W/o. M.S.Shayam Sunder D/o. S.R.Veereraghavan R/at. No.A-108

2 Ground Floor, Block ‘A’ Nandi Woods Apartments Yelenahalli, Off Bannergatta Road Bengaluru-560 076. ...Respondent (By Sri Mujtaba.H, Advocate)

These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated:17.02.2018 passed by the IVth Additional Principal Judge, Family Court at Bengaluru, in M.C.No.1620/2015(Annexure-A) and call for the records in M.C.No.1620/2015 on the file of IVth Additional Principal Judge, Family Court at Bangalore and etc.,

These writ petitions coming on for Preliminary Hearing this day, the Court made the following:

ORDER

Heard Sri Prasanna Shetty, learned counsel appearing for petitioner and Sri Mujtaba H., learned counsel appearing for caveator/respondent.

The only point which arises for consideration in this petition is: Whether the maintenance awarded by the Trial Court to the respondent herein and her

3 children @ Rs.25,000/- p.m. pendente lite along with Rs.15,000/- towards litigation expenses has to be sustained, modified or set aside?

Perusal of the records would disclose that marriage of petitioner and respondent came to be solemnized on 12.05.1997 and after a period of seventeen years, differences of opinion arose between them resulting in both parties residing separately and children born out of wedlock namely three children, out of which two are residing with the respondent and one with the petitioner. A petition in M.C.No.1620/2015 has been filed under Section 13 (1) (i) & (i-a) of the Hindu Marriage Act, 1955 (for short ‘the Act’) by the respondent herein seeking dissolution of marriage solemnized on 12.05.1997 on the grounds set out in the petition. Said petition is being resisted to by the petitioner by filing detailed statement of objections.

4 4. During the pendency of said proceedings, an interlocutory application under Section 24 of the Act came to be filed by the respondent herein seeking payment of maintenance of Rs.75,000/- p.m. to her and her two minor children and Rs.50,000/- towards litigation expenses and said application came to be resisted to by the petitioner by filing statement of objections and learned Trial Judge by order dated 14.07.2018 allowed the application in part and has directed the petitioner herein to pay pendente lite monthly maintenance at the rate of Rs.25,000/- to the petitioner and her two minor children and has also directed the petitioner herein to pay Rs.15,000/- to the respondent towards litigation expenses.

Perusal of records would also disclose that undoubtedly there was no salary certificate of the petitioner produced by the petitioner or his income tax returns, which would have reflected the actual salary or income of the

5 petitioner. However, what swayed in the mind of the Trial Judge as could be seen from the impugned order is the fact that statement of accounts produced by the petitioner himself namely, his bank account revealed that he owned several properties and some of the properties are standing in the joint name of petitioner and his family members and certain properties are standing in the name of petitioner alone. As such, learned Trial Judge has arrived at a conclusion that petitioner cannot be absolved of his legal liability to maintain his wife and children by paying maintenance and he is financially well of to pay maintenance.

Learned counsel appearing for the respondent herein also does not dispute the fact that petitioner is paying educational expenses of minor children who are in custody of the respondent herein.

It is not in dispute that first son is residing with the petitioner herein. In other words, maintenance to which

6 the respondent herein would be entitled to claim is towards the maintenance of her two minor children namely, son and a daughter who are aged 17 years and 10 years respectively. Since petitioner is taking care of the educational expenses of his son and Sri Prasanna Shetty, learned counsel for the petitioner has fairly submitted that expenses of the minor children apart from educational expenses namely, incidental expenses like purchasing of uniform, books, clothes, expenses towards entertainment would also be paid by the petitioner. In that view of the matter, this Court is of the considered view that the maintenance awarded by the Trial Judge if marginally reduced, it would suffice particularly when petitioner is without any avocation and there being no positive material or evidence with regard to the actual income earned by him from the immovable properties owned by him.

Thus, taking into consideration the number of properties which are owned by the petitioner which would

7 definitely fetch substantial income as opined by the Trial Judge, the maintenance awarded by the Trial Judge at the rate of Rs.25,000/- p.m., if reduced to Rs.15,000/-, it would meet the ends of justice particularly in view of the submission made at the bar by the learned counsel appearing for the petitioner that petitioner undertaking to pay the expenses of the minor children towards their uniform, clothing, books, medical expenses and other incidental expenses.

Hence, the following:

ORDER 1) Writ petitions are hereby allowed in part.

2) Order passed in MC No.1620/2015 on the file of the IV Addl. Prl. Judge, Family Court, Bengaluru, is hereby modified and in substitution of the maintenance awarded, it is hereby ordered that petitioner shall pay

8 maintenance to minor children - son and daughter @ 15,000/- p.m. who are residing with respondent herein from the date of the application and order directing the petitioner to pay litigation expenses is hereby set aside.

3) Arrears of maintenance, if any, shall be paid within two weeks from today.

Ordered accordingly.

SD/- JUDGE SA

SRI M S SHYAM SUNDER vs. SMT VIJAYALAKSHMI SUNDER