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NC: 2024:KHC:4809 RPFC No. 97 of 2015 C/W RPFC No. 126 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE *15TH DAY OF FEBRUARY, 2024 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR REV.PETITION FAMILY COURT NO.97 OF 2015 C/W REV.PETITION FAMILY COURT NO.126 OF 2016
IN RPFC NO.97/2015 BETWEEN:
SMT. R. GUNAVATHI, W/O R UDAYA KUMAR, AGED 39 YEARS, NO.165, 7TH CROSS, 3RD MAIN, 1ST BLOCK, RAMAKRISHNA NAGAR, MYSORE - 565 001. …PETITIONER (BY SRI. B.M. SANTHOSH, ADVOCATE)
AND:
SRI. R. UDAY KUMAR, S/O LATE RAMU, AGE 55 YEARS, CHIEF CONSERVATOR OF FORESTS, EXECUTIVE DIRECTOR, MYSORE MINERAL LIMITED, M.G. ROAD, BANGALORE - 560 001. …RESPONDENT (BY SMT. GEETHADEVI M.P, ADVOCATE)
THIS RPFC IS FILED UNDER SEC.19(4) OF FAMILY COURTS ACT, AGAINST THE ORDER DATED 20.2.2015 PASSED
*Retyped and replaced vide chamber order dated 06.06.2024 Digitally signed by BASAVARAJU PAVITHRA Location: HIGH COURT OF KARNATAKA
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NC: 2024:KHC:4809 RPFC No. 97 of 2015 C/W RPFC No. 126 of 2016
IN C.MIS NO.454/2012 ON THE FILE OF THE PRL. JUDGE, FAMILY COURT, MYSORE, PARTLY ALLOWING THE PETITION FILED UNDER SEC.125 OF Cr.PC.
IN RPFC NO.126/2016 BETWEEN:
SRI. R. UDAYA KUMAR , SON OF LATE RAMU, AGED ABOUT 60 YEARS, RESIDING AT 'UJWAL', NO.12C, 1ST C MAIN ROAD, MCHS COLONY, HSR LAYOUT, 6TH SECTOR, BENGALURU - 560 102. …PETITIONER (BY SMT. GEETHADEVI M.P, ADVOCATE) AND:
SMT. R. GUNAVATHI, WIFE OF R. UDAYA KUMAR, AGED ABOUT 44 YEARS, RESIDING AT NO.165, 7TH CROSS, 3RD MAIN, 1ST BLOCK, RAMAKRISHNA NAGAR, MYSURU - 570 024 …RESPONDENT (BY SRI. B.M. SANTHOSH, ADVOCATE)
THIS RPFC IS FILED UNDER SEC.19(u) OF FAMILY COURTS ACT., AGAINST THE ORDER DATED 20.02.2015 PASSED IN C.MIS454/2012 ON THE FILE OF THE PRL. JUDGE, FAMILY COURT, MYSORE, PARTLY ALLOWING THE PETITION FILED UNDER SEC.125 OF Cr.P.C., FOR MAINTENANCE.
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NC: 2024:KHC:4809 RPFC No. 97 of 2015 C/W RPFC No. 126 of 2016
THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
RPFC No.97/2015 is filed by the wife and RPFC No.126/2016 is filed by the husband calling in question the order of maintenance granted in C.Mis.No.454/2012 dated 20.02.2015 passed by the Principal Judge, Family Court at Mysuru, thereby granting maintenance amount of Rs.10,000/- per month from the date of petition till the date of order of the Family Court and Rs.20,000/- per month from the date of the order. The wife has filed petition for seeking enhancement. The husband has filed petition for setting aside the said impugned order of maintenance.
The ranks of the parties are stated as per the Family Court for easy reference and convenience.
The relationship between the petitioner and respondent is not disputed as wife and husband. It is
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stated that the petitioner has married the respondent on 17.06.2005 at Mysuru and for the petitioner it is the first marriage and for respondent it is second marriage. It is stated that both petitioner and respondent were living and leading marital life for about five years. The first wife of the respondent has died. Therefore, the respondent has solemnized second marriage with the petitioner. Subsequently, dispute arose between the petitioner and respondent and their relationship has become sour and it is allegation of the petitioner against the respondent that mother of the respondent and respondent have abused and harassed her. Therefore, the petitioner was constrained to leave companionship of the respondent and started to reside separately at Mysuru and therefore, petitioner has filed petition under Section 125 of Cr.P.C. and the Family Court has ordered maintenance amount of Rs.10,000/- per month to the petitioner from the date of the petition till the date of the order and Rs.20,000/- per month from the date of order till lifetime of the petitioner.
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Being aggrieved by the grant of maintenance amount, the husband has preferred the petition for setting aside the said order and wife has preferred petition for seeking enhancement of maintenance amount. During the pendency of the petitions, both petitioner and respondent have filed their respective affidavits of assets, income and liabilities along with supporting documents.
Heard arguments of learned counsel for both the parties and perused the records.
Learned counsel for the petitioner – wife submitted that for the petitioner it is first marriage with the respondent and for the respondent it is second marriage. It is submitted that though the petitioner is a MBA graduate and did her PH.D and before her marriage, she was working as a Lecturer in college and after marriage, as per the instructions of the respondent – husband, she has left the said job and started to reside
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along with the respondent. Therefore, petitioner does not have any source of income for her maintenance and even now, petitioner is age bar and she will not get any job. Hence her dependence is completely on the maintenance to be given by the respondent. It is further submitted that the respondent is a retired Indian Forest Service (IFS) Officer and was working as an Additional Principal Chief Conservator of Forest and retired from the service and now, the respondent is receiving pension amount of Rs.88,875/-. It is further submitted that the respondent is having his own self acquired property i.e., house at HSR layout, Bengaluru. After the order passed by the Family Court, the respondent has transferred the said property in the name of his son and is residing in the said house. But on the other hand, the petitioner does not have any home and now, she is residing in rented house. Further, the respondent is having sites at Bengaluru and Mysuru and is also having a residential home at Mysuru, wherein mother of the respondent is residing. But on the other hand, petitioner does not have any source of income and
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properties. Therefore, the respondent being financially viable person has to maintain his wife. The maintenance granted by the Family Court is very meagre and is disproportionate to the income of the respondent. She further submitted that the respondent has filed income tax returns and for the assessment year 2022-2023, his gross total income is Rs.23,37,030/- and after deduction, his total income is Rs.22,87,030/-. Therefore, the respondent is financially capable person. Hence prays to enhance the maintenance amount to the petitioner.
Learned counsel for the petitioner - wife places reliance on the following citations of the Hon’ble Supreme Court – i.
(2000) 3 Supreme Court Cases 180 between Rohtash Singh vs. Ramendri (SMT) and others; ii.
(2018) 12 SCC 199 between Shailja vs. Khobbanna.
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On the other hand, learned counsel for the respondent submitted that the petition filed by the petitioner – wife under Section 125 of the Cr.P.C. is not maintainable since she has voluntarily deserted the companionship of the respondent – husband and thus, as per Section 125 (4) of the Cr.P.C. where it is proved that wife voluntarily and on her own will has deserted the respondent – husband, then the maintenance petition is not maintainable. Even in the cross-examination, specific question was asked to the petitioner whether she is willing to join the husband but the petitioner has refused to reside along with her husband. Therefore, even when the respondent – husband offered the petitioner to join with him but the petitioner refused the same. It proves that it is a will full desertion by the petitioner and hence, she is not entitled for maintenance. She further submitted that the petitioner wife is a well qualified in her education and she has done her graduation in MBA with PH.D. and she is able to get any suitable job/profession/avocation. Therefore, the petitioner is not entitled for maintenance.
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She further submitted that on the other hand, the respondent is a retired official and now, he is living with his pension of Rs.79,000/- per month and this amount is not sufficient for sustaining in life since he is suffering from old age ailments and beside he has to look after his old aged mother residing at Mysuru.
Therefore, the respondent is not a financially viable person, whereas the petitioner is able bodied person and having well educational background having done MBA and Ph.D. Therefore, prays to set aside the order passed by the Family Court.
Further the health condition of the respondent- husband is not good and he is under medication and not able bodied person. Therefore, expecting maintenance by the respondent-husband is not correct. Therefore, on all these grounds prays to set aside the order of maintenance passed by the Family Court.
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Learned counsel for the respondent-husband places reliance on the citations of the Hon’ble Supreme Court as follows: 1.
(2003) 11 SCC 303 PARA 19-20- DEB NARAYAN HALDER- VS- ANUSHREE HALDER
2008 SCC ONLINE BOM 1732 SANJAY SUDHKAR BHOSALE- VS- KHRISTINA SANJAY BHOSALE
2016 SCC ONLIN 6368 ANIL-VS-SMT. SUNITA
WP.NO.24226 OF 2022 SRI.N. GIRISH –V- SMT M KUSUMA
ILR 2005 KAR 4981 DR E SHANTHI VS DR H K VASUDEV
RAJNESH VS NEHA
(2021) 2 SCC 324
It is not disputed that the respondent was serving as an Additional Principal Chief Conservator of Forest a Class I Officer in Karnataka State and retired from the said post. The petitioner is an MBA graduate with Ph.D qualification. Before marriage, the petitioner was serving as a guest lecturer in the college and after marriage, the petitioner has left the said job and started to live marital
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life with the respondent in Bangalore. During pendency of the revision petitions before this Court, both the petitioner and respondent have filed their respective affidavit of assets, income and liabilities. During pendency of the petition, this Court has called for report from the police department in order to ascertain whether the petitioner is working, but it is the report of the police that upon the allegation made by the respondent that the petitioner is working in two colleges and the police has clarified that the petitioner is not working in the said two colleges. It is the submission of the learned counsel for the respondent- husband that the petitioner may be working in some other colleges considering that she is an MBA graduate and having Ph.D. But to this aspect, there is no material placed till today by the respondent-husband, either the petitioner is working somewhere in the college or in any company and receiving salary or income.
In these types of cases, the evidence is to be appreciated on the theory of preponderance of
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probabilities rather approaching the theory of beyond reasonable doubt. What is meant by appreciating of evidence on the theory of preponderance of probabilities is upon perusal of evidence, then what impression is created in the mind of the Court and upon making analysis of the evidence what would be the income of wife and husband is to be assessed by making some guess work based on the evidence in the case. For this, the affidavit of assets, income and liabilities filed by both the parties and evidence led before the Family Court gives picture in this regard. Just because, the wife is able bodied person and well qualified education woman that cannot fetch earning or income to her. On the contrary, the respondent- husband being Class I Officer being served in the Indian Forest Service (IFS) and was in a high rank of position in his service serving in the State Government and even after retirement, he need not do any work, but his earning can be assessed through his pension and through his assets, income and liabilities. This principle is also applicable for
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making assessment of earning of income of the petitioner- wife also.
The citations relied upon by the learned counsel for the respondent-husband in Girish’s case (stated supra) is with reference to observing that the husband is able bodied person and he is capable of earning and was earning, therefore, in that context, it was ordered. Therefore, just because, the wife is physically fit and able bodied person cannot be a reason to reject the application filed for maintenance. Therefore, the said factual matrix involved in the above stated case and in the present case, the above stated case is not applicable to the present case. It is pleaded that the petitioner-wife is able bodied person and can earn income. The affidavit filed by the husband proves the fact that his monthly income is Rs.88,875/- by way of pension. The respondent is an Income Tax assessee and consequently, has filed income tax returns from for the year 2006-07 to 2022-23. The income tax returns for the assessment year 2022-23
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shows the total income of the respondent as Rs.22,87,030/- per annum. It is submitted that the income shown in the said return is not a regular income, but having issued return from mutual fund and that is occasional one and not regular and whatever amount received in that year is shown in the income tax return. However, for the assessment year 2020-21 as produced by the respondent himself with his affidavit of assets, income and liabilities that the total income shown as Rs.14,19,400/- per year. Therefore, from these income tax returns, it is proved that the respondent is a financially viable person. Further the affidavit of assets, income and liabilities produced by the respondent-husband proves that he has self acquired property at HSR Layout, Bengaluru, but it is gifted to his son vide gift deed dated 07.06.2006 and the reason shown is that his son is working in a private college as an assistant professor with fixed emoluments of Rs.36,000/- per month. Hence, he does not get UGC scale as he has not done Ph.D graduation, therefore, in order to help his son gifted the said self
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acquired house to his son. It is noted here that the said gift made on 07.06.2016 after the order passed by the Family Court. Therefore, from his own declaration of the respondent, it is proved that the respondent is a financially capable person.
Considering the affidavit and evidence placed by the petitioner and upon appreciating other evidence on record, it is not proved that the petitioner though she is a MBA graduate with Ph.D., but she is not employee in any college or company and earning income. The petitioner might have been working as a guest lecturer, but it was before the marriage with the respondent and after the marriage, the petitioner has quit the said job. Hence, the petitioner does not have her own source of income. Though the respondent –husband in his affidavit stated that the petitioner is working as a lecturer in Manasa Gangotri College at Mysore, but it is not substantiated by any documentary evidence. As discussed above, this Court has got report from the police to ascertain whether the
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petitioner is working in any college as submitted by the respondent, but the police report indicate that the petitioner is not working in the said two colleges as alleged by the respondent. Further also there is no evidence by the respondent that the petitioner is working in any other college or in any company. Therefore, it is proved that the petitioner is employment less woman.
Learned counsel for the petitioner-wife has filed a memo along with the statement of accounts of the petitioner in Punjab National Bank in support of the said affidavit of assets and liabilities. Learned counsel for the respondent-husband by pointing to this memo along with the bank statement submitted that there is sufficient bank transaction by the petitioner which proves that the petitioner must have been working somewhere else and thus, receiving income. But upon considering the bank statement filed along with the memo, it also includes credit of maintenance amount of Rs.20,000/- granted by the Family Court. There are so many withdrawals and
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deposits and quite naturally, when the transaction is made through online or Paytm or Gpay etc., the withdrawals and deposits is shown in the bank statement making the statement at lengthy. Furthermore, it is submitted that during Covid-19 period, the respondent has not paid maintenance amount of Rs.20,000/- as ordered by the Family Court. Thus, the petitioner was constrained to take hand loan from relatives and friends to sustain in life and it is credited to her account through online payment.
Learned counsel for the respondent submitted that the statement of account maintained in Punjab National Bank and the extract of account produced along with affidavit of assets and liabilities of the petitioner shows many lengthy transactions and from the year 2021 to 2024. Therefore, submitted that the petitioner is receiving huge amount, which shows that the petitioner is financially viable person to maintain herself and hence, she is not entitled for maintenance.
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To this point, as a counter, learned counsel for the petitioner – wife submitted that brother of the petitioner is residing in Canada and the old aged mother of the petitioner and herself are residing at Mysuru and the petitioner is looking after her old aged mother and for which, the brother of the petitioner is sending money from Canada and therefore, this amount does not belong to the petitioner but is maintenance amount transferred by her brother to the mother. For this, there is no evidence produced and also in the affidavit, this fact is not stated. The respondent has not produced evidence to prove that the petitioner is working in some college or company and receiving a lucrative income. It is submitted that now, the petitioner is 52 years old and at this age, the petitioner is not able to get any suitable employment even though she is qualified and has got good educational background i.e., having Ph.D. and MBA. Therefore, there is no proof that petitioner is working some where else and earning income. In this regard, the financial viability of the petitioner whether she has source of income for maintaining herself
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is to be considered on all its preponderance of probabilities. It is submitted that during Covid – 19 period respondent has not paid amount and this is not objected by the respondent. After some months, the respondent might have started to continue to pay the maintenance amount but during that Covid-19 period, petitioner was constrained to raise loan from her relatives and that amount would have been reflected in her account. The fact that brother of the petitioner is residing at Canada is also not disputed by the respondent but this fact might not have been stated in the affidavit. Therefore, considering all these evidence on record and affidavits of assets and liabilities and considering that the petitioner does not have any source of income whereas the respondent is a retired Additional Principal Chief Conservator of Forest and is receiving monthly income of pension of Rs.88,875/- per month as per his own affidavit, hence it is proved that the petitioner does not have any employment and has no source of income. Therefore, considering all these evidence and materials on record, it is proved that
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respondent is financially viable person. On other hand, petitioner does not have any employment and source of income. Furthermore, the respondent has purchased site at HSR layout and constructed the house and he is now residing therein but now respondent has gifted the said house to his son. But it is not disputed that respondent is residing in the said house whereas, the petitioner does not have any independent house and is still residing in the rented house. Therefore, upon considering all the evidence on record, the petitioner is entitled to maintenance amount from the respondent. In this regard, the findings given by the Family Court that respondent is a financially capable person whereas, petitioner is not a financially viable person is correct. But whether the maintenance amount should be granted to the petitioner or not is the question to be considered and whether the Family Court is correct in assessing the quantum of maintenance payable to the petitioner.
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It is submission made by the learned counsel for the respondent that the respondent is not physically abled person, is a retired official and senior citizen and he is not able to give maintenance to the wife cannot be accepted. The respondent – husband being an Additional Principal Chief Conservator of Forest, who has occupied highest cadre in serving the Government of Karnataka, need not do any physical labour work in his life. The respondent has traveled foreign tour, which means the respondent is a financially viable person. The respondent is having his own house as per his affidavit and the mother of the respondent is having own house at Mysuru and the respondent is the only living son to his mother and after her demise, he is inherited the said house in Mysuru. Therefore, upon analyzing all these evidence on record and the affidavit of assets, income and liabilities, comparatively, the financial position of the respondent is better to the petitioner. Having multiple degrees and qualifications alone is not sufficient to say that the petitioner is working in some institution or in any company
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and getting lucrative salary. The petitioner was working as a Guest Lecturer before marriage and after marriage she has left the job as per instructions of her husband. It is not disputed that now, the petitioner is aged 52 years and at this age, she cannot get employment. She may give freelance lecture on temporary basis but it not permanent source of income. Therefore, upon considering the entire case on record, as discussed above, the respondent is directed to pay maintenance to the petitioner.
Learned counsel for the respondent submitted that during the cross-examination of the petitioner, she refused to join the companionship of the respondent. Therefore, as per her submission, it is admitted that petitioner herself has deserted the husband on her own will. As per Section 125 (4) of Cr.P.C., the petitioner is not entitled for maintenance.
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Upon considering this, when the relationship of the petitioner and respondent has developed to the stage of filing complaint before police against her husband, then it is not possible for the wife to join his companionship and to live with him. The complaint lodged by the petitioner before the police might have been ended in filing final ‘B’ report but the fact that the petitioner has lodged the complaint to the police against her own husband shows strained relationship between them and it cannot be expected that petitioner may join the respondent. Under these circumstances, just because petitioner refused to go along with the respondent when deposed in the course of cross-examination that does not mean that petitioner has voluntarily left the home of the respondent. Further, there are many allegations by the petitioner against her husband and mother-in-law. Therefore, this cannot be said that without having any reason the petitioner has left the respondent’s house. On these reasons, having difference in factual matrix in the instant case and in the case cited
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by the learned counsel for the respondent, the above said judgments are not helpful to the case of the respondent.
Therefore, having considered all the evidence on record and affidavit of assets, income and liabilities as discussed above in detail, it is proved that respondent is financially viable person to give maintenance to the petitioner. At the same time, the petitioner is unemployed person having no source of income. Thus, she is entitled for receiving maintenance from the respondent – husband. As the son of the respondent is working as Lecturer therefore, the respondent need not maintain his son. The respondent is residing in his own house along with his son and beside that the respondent is having right of inheritance in his mother’s house at Mysuru. Therefore, maintenance amount granted by the Family Court is found to be on lesser side. Considering the factors that the petitioner is constrained to live in rented house and having no source of income and unemployed woman, it is just and
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proper to direct the respondent – husband to pay monthly maintenance amount of Rs.30,000/- per month to the petitioner till her lifetime or till she remarries. Therefore, the revision petition filed by the husband is liable to be dismissed and the revision petition filed by the petitioner – wife is liable to be allowed. Hence, I proceed to pass the following:- ORDER i. RPFC No.97/2015 filed by the wife is allowed and RPFC No.126/2016 filed by the husband is hereby dismissed. ii. The order passed in C.Mis.No.454/2012 dated 20.02.2015 passed by the Principal Judge, Family Court at Mysuru, is hereby modified to the extent that the respondent – wife is entitled for maintenance amount of Rs.30,000/- per month from the date of petition till her lifetime or till she remarries.
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iii. The respondent – husband is directed to pay litigation expenses of Rs.10,000/- to the petitioner – wife. iv. No order as to costs. v. The respondent - husband shall pay entire arrears amount within a period of three months from today and continue to pay monthly maintenance as awarded above without fail.
Sd/- JUDGE
MH:Para 1 to 8, 17 to 22 PB: Para 9 to 16 List No.: 1 Sl No.: 3 CT: BHK