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Sateesh Kumar Nadivi, vs H S Shakti @ Adiprashakti, on 14 August, 2019

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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH

DATED THIS THE 14th DAY OF AUGUST 2019

BEFORE

THE HON’BLE MR.JUSTICE P.G.M. PATIL

RPFC NO.100045/2014

BETWEEN:

SATEESH KUMAR NADIVI,
S/O LATE NARASHIMHAMURTHY,
AGE: 40 YRS, OCC: BUSINESS,
R/O: HOUSE NO. 7-5-19,
JAWAHAR NAGAR, RAICHUR.
… PETITIONER
(By SRI. S. S. YADRAMI, ADV.)

AND:

SMT. H. S. SHAKTI @ ADIPRASHAKTI,
W/O SATEESH KUMAR,
AGE: 36 YRS, R/O: 2ND CROSS,
LEFT SIDE, KAPPAGAL ROAD,
BELLARY.
… RESPONDENT
(By SRI. GODE NAGARAJ, ADV.)

RPFC FILED UNDER SEC.19(4) OF THE FAMILY
COURT ACT, AGAINST THE JUDGMENT AND ORDER
DTD:25.01.2014, IN CRIMINAL MISCELLANEOUS CASE
NO.106/2013, ON THE FILE OF THE PRINCIPAL JUDGE,
FAMILY COURT, AT BELLARY, PARTLY ALLOWING THE
PETITION FILED U/S.125 OF CR.P.C.
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RESERVED FOR ORDER ON : 23.07.2019.

ORDER PRONOUNCED ON : 14.08.2019.

THIS PETI TION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE
COURT PASSED THE FOLLOWING:

ORDER

The husband being aggrieved by the order dated

25.01.2014 passed in Crl.Misc.No.106/2013 by the Principal

Judge Family Court, Bellary has filed this revision petition.

2. The parties are referred to as per their ranks

before the Family Court as petitioner and respondent.

3. The respondent-wife Smt. H. S. Shakti @

Adiprashakti filed the petition under Section 125 of Code of

Criminal Procedure seeking maintenance of `20,000/- p.m.

from the revision petitioner-husband.

4. It is the case of the petitioner-wife before the

family Court that she is the legally wedded wife of the

respondent and their marriage was performed on
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24.06.2010. After the marriage, they lived happily for a

period of 3 to 4 months. Her parents had given cash of

`3,50,000/- and `50,000/- for purchasing of dress

materials, 2 k.g. of silver articles and 60 grams of gold jewels

as dowry. Thereafter, she went to her parents house for

‘Ashadha Masa’ and then returned to her husband’s house.

Thereafter, the respondent started ill-treating her demanding

additional dowry of `5,00,000/- and gold jewels of

`3,00,000/-. He also demanded a four-wheeler. The

petitioner expressed her inability to provide all these things,

as her parents are poor. The respondent continued to ill-

treat her. On 08.12.2010, the respondent drove her out of

the house and as such, she came back of her parents’ house

at Bellary. Then on 24.10.2012, she issued a legal notice to

the respondent. By that time, the respondent had filed

petition for divorce under false grounds in Matri.C.

No.31/2011 before the family Court, Raichur. The

respondent willfully deserted her without any valid reasons.

She is unable to maintain herself. The respondent is not

paying any maintenance. The respondent is a BE Graduate
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in Textile. He has worked in Scotland for 3 years and he is

running a Textile business in Raichur. His family is having

one jewelry shop by name Shri Guru Jewelers. He is also

doing business under Sanuco Global Manufacturers and

Trading Company (Textiles) at Raichur. He is also having two

houses, plots and agricultural lands and he is getting income

of more than `3,00,000/- per month. The petitioner is in

need of `20,000/- p.m. towards her maintenance.

5. In response of notice, respondent-husband

appeared before the Family Court and filed his objections to

the main petition and has denied all the allegations made

against him. However admitted the marital relationship with

the petitioner. He has contended that he had gone to

Scotland for higher studies and he did not do any job in

Scotland for 3 years. After returning to India, he married the

petitioner. She was always demanding modern dresses,

jewels, cosmetics, wrist watches and other articles from

Scotland, he did not agree for the same. Therefore, she went

to her parents’ house and never bothered to take care of him.

She was not doing domestic work and she was cruel towards
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him and her in-laws. Since January 2011, the petitioner is

taking shelter in her parents’ house. She was sending

threatening messages to him on mobile. Once she threatened

him that she will commit suicide by making allegations

against him. The petitioner herself left the matrimonial home

without any valid reasons. Hence, she is not entitled to any

separate maintenance and prayed for dismissal of the

petition.

6. The petitioner-wife in support of her claim got

examined herself as PW1 and got marked 22 documents at

Ex.P1 to P22. The respondent got examined himself as RW1

and got examined one more witness as RW2 and got marked

6 documents at Exs.R1 to R6.

7. The learned Judge of the family Court after

hearing both the parties passed the impugned order

awarding maintenance of `15,000/- p.m. to the petitioner

against the respondent from the date of the order during her

life time or till she re-marries.

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8. The husband being aggrieved by the impugned

order has filed this revision petition on the ground that the

order passed by the Court below is bad in law for the

reasons that it was passed without considering oral and

documentary evidence on record. The revision petitioner has

stated that he studied in Scotland and he started the Textile

business by raising loan from the Financial Institution, he

sustained huge loss, he closed the said business. Therefore,

the impugned order is liable to be set aside.

9. Heard the learned counsel for the petitioner and

the respondent.

10. A short question which arise for consideration

before this Court is, as to whether the petitioner has made

out grounds that the maintenance awarded by the Court

below is liable to be set aside or reduced.

11. The learned counsel for the revision petitioner

submitted that the respondent wife has stated in her

evidence before the family Court that she require `10,000/-

p.m. for her maintenance. However, the family Court has
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awarded maintenance of `15,000/- p.m., which is perverse

and against the material on record.

12. The learned counsel further submitted that the

revision petitioner borrowed loan of `23,00,000/- for his

business and as he suffered loss in the business, he closed

the said business 3 years back and that he did not have any

property.

13. Learned counsel further submitted that the

interim maintenance is also awarded under Section 24 of the

Hindu Marriage Act in the divorce petition filed by the

husband and therefore the wife-respondent herein is not

entitled to claim maintenance under Section 125 of Cr.P.C.

In support of his contention, the learned counsel has relied

on the judgment in the case of Sanjay Kumar Sinha Vs.

Asha Kumari Anr. reported in 2018(1) Matrimonial

Law Judgment (SC) 451.

14. Learned counsel further submitted that the

revision petitioner has filed zero income return under the
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SectionIncome Tax Act as per Ex.P21. Therefore the impugned order

is liable to be set aside.

15. Per contra learned counsel for the respondent-

wife submitted that the revision petitioner-husband filed

divorce petition just after 4 months of the marriage, which

was dismissed. The interim maintenance awarded in the said

case was also not paid by the revision petitioner to the

respondent-wife, as he challenged the same before this Court

in writ petition and obtained order of stay. Thereafter the

revision petitioner filed second petition for divorce, which

was also dismissed and now he has filed miscellaneous first

appeal against the said judgment and decree which is

pending before the High Court of Karnataka, Kalburgi

Bench.

16. Learned counsel further submitted that the

revision petitioner worked for 3 years in Scotland and

thereafter he started his own business by availing loan of

`23,00,000/-. Further he has not disclosed his income

before the Court below. The very contention of the revision
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petitioner that he has repaid entire loan of `23,00,000/- goes

to show that he is capable of paying maintenance as

awarded by the family Court.

17. The learned counsel further submitted that the

respondent-wife has stated in her evidence that she requires

`10,000/- p.m. which is minimum for her maintenance.

However, the Court has to award maintenance to the wife,

keeping in mind the standard of living and status of the

husband and in that view of the matter, the order of

maintenance awarded by the family Court is on the lower

side. However, she has not sought for enhancement for the

present.

18. The relationship between the revision petitioner and

respondent is admitted. Their marriage was solemnized on

24.06.2010, is admitted. It is also admitted that just after 4

months of the marriage, the husband filed divorce petition

against the wife on the file of family Court, Raichur in

Matri.C. No.31/2011, which was later re-numbered as

Matri.C. No.106/2013. The copy of the petition in the said
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case is produced, which goes to show that revision petitioner

herein has pleaded in paragraph 2 of the petition that he

studied Clothing Management at Herriot Watt University,

Scotland (U.K.) and he did job in Scotland for 3 years. He

has further stated that he is from a very reputed business

family at Raichur. Now the revision petitioner is denying all

these things. He has contended that he went to Scotland

only for higher studies and never did any job, which is

against his own pleadings in Matri.C. No.31/2011. It is true

that respondent-wife has stated in her evidence before the

trial Court that, she is in need of `10,000/- p.m. for her bare

necessity. This evidence of the wife has to be further

considered in view of her next statement that maintenance of

`7,000/- p.m. was also awarded in the matrimonial case

filed by the husband for divorce. Therefore, the statement

made by the wife that she is in need of `10,000/- p.m. for

maintenance cannot be considered in isolation. On the other

hand, the revision petitioner has stated that he went to

Scotland only for studies and he did not do job there which
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cannot be accepted in view of his own pleadings in Matri.C.

No.31/2011.

19. The revision petitioner has mainly contended

that he suffered loss in his business and therefore he repaid

the entire loan of `23,00,000/- borrowed by him for his

business and now he is working in some concern and getting

salary of `8,000/- p.m. and therefore he is not capable of

paying the maintenance awarded by the family Court. This

contention was not taken before the family Court by the

revision petitioner. He has only denied the allegations made

by the petitioner that he is doing Textile business and

earning `3,00,000/- p.m. and that he is having two houses,

plots and agricultural lands and family business in the name

of Shri Guru Jewelers. The very fact that the revision

petitioner closed the business and repaid the entire loan of

`23,00,000/- goes to show that he is capable of paying

maintenance as awarded by the family Court.

20. The petitioner wife had claimed maintenance of

`20,000/- p.m. However, the family Court on the
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consideration of the material on record has awarded

`15,000/-p.m. It is also on record that the revision petitioner

husband filed Matri.C. No.31/2011 just after 4 months of

the marriage seeking decree of divorce on the ground of

cruelty and the said petition was subsequently dismissed. It

is also not disputed that interim maintenance of `10,000/-

p.m. was awarded in the said case under Section 24 of the

Hindu Marriage Act. He did not pay the same and therefore

the wife filed execution petition for the recovery of the

interim maintenance and thereafter the revision petitioner

filed writ petition before this Court and got stayed the

proceedings in the execution case. It is also not disputed

that subsequently, the revision petitioner filed MC

No.45/2017 before the family Court, Raichur for divorce on

the same grounds of cruelty and the said petition was

dismissed by the family Court, Raichur on 28.04.2018 and

therefore as on the date of awarding maintenance in the

present case and even as on this date, the respondent wife is

getting maintenance only as per the order passed in her
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petition filed under Section 125 of Cr.P.C. namely the

present petition.

21. Under these circumstances, the judgment relied

on the learned counsel for the revision petitioner in the case

of Sanjay Kumar Sinha stated supra, has to be considered.

22. As can be seen in the said case, the Hon’ble

Supreme Court considered the facts that the husband had

filed the divorce petition under Section 13 of the Hindu

Marriage Act against the wife and in that proceedings the

wife had filed application under Section 24 of the Act for

interim maintenance. The family Court awarded `8,000/-

p.m. to the wife and `4,000/- p.m. to the minor daughter as

interim maintenance and `2,500/- towards litigation

expenses. At the same time, the wife had also filed the

application under Section 125 of Cr.P.C. seeking

maintenance before other family Court in which

maintenance of `4,000/- p.m. to the wife and `2,000/- p.m.

to the minor daughter was awarded. Under those

circumstances, the Hon’ble Supreme Court while disposing
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of the matter held that firstly the family Court has to decide

the main divorce case, secondly, consequent upon passing of

maintenance order under Section 24 of the Act, the order

passed by the family Court under Section 125 of Cr.P.C.

stands superseded and now no longer holds the field. Indeed

this fact is conceded by the learned counsel appearing for

the respondent wife. Therefore, the observations made by the

Hon’ble Supreme Court are based on the facts in the said

case and no law is laid down in the said case stating that the

order passed under Section 125 of Cr.P.C. mergers with the

order under Section 24 of the Hindu Marriage Act which is in

the nature of interim relief. Therefore this decision will not

help that revision petitioner herein. Admittedly no

matrimonial case is pending between revision petitioner and

the respondent as of now and as on this date no interim

maintenance is awarded and paid by the revision petitioner

under Section 24 of the Hindu Marriage Act. On the other

hand, the order passed under Section 24 of the Hindu

Marriage Act in Matri.C.No.31/2011 awarding interim

maintenance of `10,000/- p.m. was never paid by the
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revision petitioner and when the respondent filed the

execution petition for the recovery of the said interim

maintenance, he filed writ petition before the High Court and

got stayed the execution proceedings.

23. Under these circumstances, the submission

made on behalf of the revision petitioner that the respondent

wife is not entitled to seek separate maintenance under

Section 125 of Cr.P.C in view of the order passed under

Section 24 of the Hindu Marriage Act has no merit and the

same is liable to be rejected and further it is necessary to

observe that the order passed under Section 24 of the Hindu

Marriage Act is in the nature of interim order and it subsists

till the disposal of the main petition. Thereafter the wife

cannot seek interim maintenance in the case, however

permanent alimony can be sought for. The Hon’ble Supreme

Court in the case of Sanjay Kumar Sinha stated supra has

also observed that depending upon the outcome of the main

case, an appropriate order towards permanent maintenance

and arrears also to be passed. Therefore the contention of

the revision petitioner husband that the respondent is not
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entitled to seek maintenance under Section 125 of Cr.P.C. in

view of the order passed under Section 24 of the Hindu

Marriage Act is rejected.

24. The Courts while awarding maintenance under

Section 125 of Cr.P.C. have to consider the earning capacity

of the husband and his status in the society. The Hon’ble

Supreme Court in the case of Bhuwan Mohan Singh Vs.

Meena and Ors. reported in AIR 2014 SC 2875 has held as

follows:

“Section 125 was conceived to ameliorate the
agony, anguish, financial suffering of a woman
who left her matrimonial home for the reasons
provided in the provision so that some suitable
arrangements can be made by the Court and she
can sustain herself and also her children if they
are with her. The concept of sustenance does not
necessarily mean to lead the life of an animal,
feel like an unperson to be thrown away from
grace and roam for her basic maintenance some
where else. She is entitled in law to lead a life in
the similar manner as she would have lived in the
house of her husband. That is where the status
and strata come into play, and that is where the
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obligations of the husband, in case of a wife,
become a prominent one. In a proceeding of this
nature, the husband cannot take subterfuges to
deprive her of the benefit of living with dignity.
Regard being had to the solemn pledge at the
time of marriage and also in consonance with the
statutory law that governs the field, it is the
obligation of the husband to see that the wife
does not become a destitute, a beggar. A situation
is not to be maladroitly created whereunder she
is compelled to resign to her fate and think of life
“dust unto dust”. It is totally impermissible. In
fact, it is the sacrosanct duty to render the
financial support even if the husband is required
to earn money with physical labour, if he is able
bodied. There is no escape route unless there is
an order from the Court that the wife is not
entitled to get maintenance from the husband on
any legally permissible grounds.”

25. Therefore the wife is entitled in law to lead life in

the similar manner as she lived in the house of the husband

that is where the status strata come into play and that

where the obligations of the husband in case of wife become

prominent one. The husband cannot deprive her of her

benefit of living with dignity. Keeping in mind these
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principles, the family Court on the basis of the material on

record, held that the respondent husband is capable of

earning sufficient income from his business and the fact that

he worked in Scotland for 3 years and borrowed loan of

`23,00,000/- for doing Textile Business and that there is

also family jewelry business held that the petitioner wife is

entitled for maintenance to lead her life in the same

standard of living of her husband and his status in the

society. It is admitted that the revision petitioner husband is

a BE graduate in Clothing Management and he did his

education at Herriot Watt University, Scotland (U.K.) and he

did job there for 3 years. Under these circumstances,

awarding maintenance of `15,000/- p.m. to the wife

considering the material on record cannot be held perverse

or capricious.

26. The statement made by the wife in her evidence

that she requires `10,000/- p.m. cannot be construed as

maximum for her maintenance, but it has to be construed as

minimum for her maintenance, on consideration of the

standard of living of the husband and his status in the
19

society, that he is a BE graduate in Clothing Management at

Herriot Watt University, Scotland (U.K.) and having family

business in jewels, awarding maintenance of `15,000/- p.m.

to the respondent wife cannot be held as excessive and

beyond the capacity of the revision petitioner. On the other

hand, the material on record goes to show that the revision

petitioner has made two attempts to get decree of divorce

against the respondent and has also never paid the

maintenance awarded in those proceedings. Even after filing

revision petition, the revision petitioner was not regular in

paying the maintenance. The record goes to show that

immediately after filing this revision petition, interim stay

was granted subject to payment of `5,000/- p.m. to the

respondent. The respondent has filed memo of calculation

during the course of this revision petition stating that the

revision petitioner has not paid arrears of maintenance even

as directed by this Court. Subsequently, the revision

petitioner has made certain payments to respondent towards

arrears of the maintenance.

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27. Under these circumstances, this Court holds

that revision petitioner has not at all made out any grounds

either to set aside the impugned order or to reduce the

maintenance awarded by the family Court.

28. The point for consideration is answered

accordingly. In the result, this Court proceed to pass the

following:

ORDER

The revision petition filed is hereby dismissed with

costs of `5,000/-. Consequently the order dated 25.01.2014

passed in Criminal Miscellaneous Case No.106/2013 on the

file of the Principal Judge, Family Court, Bellary is hereby

confirmed.

Sd/-

JUDGE

KGK

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