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IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
ON THE 25 T H DAY OF A PRIL 2018
BEFORE
THE HON’BLE MR. JUSTICE K .N . PHA NEENDRA
R.P.F .C NO.100047/2017
C/W
R.P.F .C NO.100071/2017
IN R.P.F .C NO.100047/2017
BETWEEN :
SHRI BASAVARAJ
S/O SHIVA PPA DHARMAYAT,
AGED 45 YEARS ,
OCC: AGRICULT URE BUSINESS ,
R/AT : NEAR KALM ESHWAR TEMPLE,
NAREEGAL, TQ: RON,
DIST : GADA G-582209.
…PETITIONER
(BY SRI SIDDAPPA SAJJAN, ADVOCATE)
AND:
1. SMT. LATA W/ O BA SAVARAJ DHARMA YAT,
AGE : 36 YEARS, OCC: HOUSEHOLD ,
2. KUMAR. VINAYAK BASAVARAJ DHARMAYAT,
AGE : 11 YEARS, OCC: STUDENT ,
3. KUMAR. VIREESH BASAVARAJ DHARMAYAT,
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AGE : 7 YEARS , OCC: STUD ENT,
SINCE RES P. N O.2 3 ARE MINOR,
REP BY M/G MOTHER RES P.NO.1.
ALL ARE R/ O : KUDEKAR ONI ,
HEBBALLI, TQ: HUBBALLI ,
DIST: DHARWAD-580029.
…RESPONDENTS
(BY SRI P.M .DEVA SHETTY FOR C/R1 TO 3 ADV OCATE)
THIS RPFC IS FI LED UNDER SECTI ON 19( 4) OF
THE FAMILY COURT ACT, PRAYING T O SET ASIDE THE
JUDGMENT PASS ED BY THE COURT OF PRIN CIPAL
JUDGE AND FAMILY COURT AT DHARWAD IN
CRL.MISC.NO.111/ 2014 DATED 25.02.2017.
IN R.P.F .C NO.100071/2017
BETWEEN:
1. SMT. LATA BASAV ARAJ DHARMAYAT,
AGE : 37 YEARS, OCC: HOUSE WIFE,
2. KUMAR. VINAYAK B. D HARMAYAT,
AGE : 12 YEARS, OCC: STUDENT ,
3. KUMAR. V EERESH B. D HARMAYAT,
AGE : 7 YEARS , OCC: NIL,
(AS THE PETITION ERS NO.2 AND 3 A RE
MINORS, THEY ARE REPRES ENTED
BY THEIR NAT URA L GUARDIAN MOTHER
PETITIONER NO.1.
ALL ARE RESIDING AT KUD EKAR ONI ,
HEBBALLI-580001,
TQ: DIST: DHARWAD.
PETITIONERS
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AND:
SHRI BASAVARAJ SHIVAPPA DHARM AYAT,
AGED 45 YEARS , OCC: BUSINESS
AGRICULTURE, R/A : NEAR KALMES HWAR TEMPLE,
NAREEGAL, TQ: RON, DIST : GADAG.
RESPOND ENT
(NOTICE T O RESPONDENT : S ERVED .)
THIS RPFC IS FI LED UNDER SECTI ON 19( 4) OF
THE FAMILY COURT ACT, PRAYING TO MODIFY THE
ORDER DATED 25.02.2017 PAS SED BY THE PRINCIPAL
FAMILY COURT A T DHARWAD IN CRL.MISC.NO.111/
2014.
THESE RPFCS’ COMING ON FOR ADMISSION,
THIS DAY, T HE COURT MADE THE F OLLOWING:
ORDER
Heard the learned counsel for the petitioners,
the learned counsel for the respondents and
perused the records in both the cases.
2. These two revision petitions are arising
out of a common judgment passed by Principal
Judge, Family Court, Dharwad in Crl.Misc.No.111/
2014 dated 25.02.2017.
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3. RPFC No.100047/2017 is filed by the
petitioner (husband) questioning the said
judgment on various grounds. Mainly on the
ground that, the wife is not entitled for any
maintenance because she has voluntarily left the
conjugal company of the husband without any just
and reasonable grounds and there is a order of
restitution of conjugal rights in favour of the
petitioner husband and in spite of that wife did not
join the conjugal company of the husband.
Therefore, by the said conduct the wife forfeited
her right to claim maintenance.
4. Secondly the learned counsel for the
petitioner has raised another ground that, the trial
Court has not properly appreciated the oral and
documentary evidence on record with regard to
the income and avocation of the husband in
assessing the maintenance to be payable to the
wife and two children. Therefore, the said order of
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maintenance if at all the Court comes to the
conclusion that they are entitled for maintenance
is to be appropriately reduced.
5. As against this, the wife has also filed a
revision petition in RPFC No.100071/2017 claiming
enhancement of the maintenance on the ground
that the trial Court has not properly considered
the vast properties in the name of the husband
and also his avocation that, he has been running a
automobile shop and also he has sufficient source
of income, as such, she claimed maintenance of an
amount of Rs.25,000/- as a whole to the three
claimants (petitioners before the trial Court).
6. I have heard the arguments of the
learned counsel for the petitioners and the
respondents respectively in both the cases. In
order to avoid confusion and also repetition of
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facts, ranks of the parties as per the ranks before
the trial Court is retained.
7. Before adverting to the facts and points
involved in this case, the learned counsel at the
time of arguments further submitted that, the
husband has closed down the Automobile shop he
was running earlier. In that extent, he produced a
document before the Court issued by the Town
Panchayath, Naregal. Therefore, for all these
reasons, he submits that, the petition filed by the
husband requires to be allowed.
8. It is an undisputed fact that the
petitioners Smt.Lata and two others are the wife
and children respectively of the respondent
husband Sri Basavaraj and the marriage between
the 1 s t petitioner and the respondent took place in
the year 2004 and they lived happily together for
several years and they were blessed with two
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children i.e., petitioners No.2 and 3. It appears,
the 2 n d child born in the year 2014 and thereafter
the rift started between the wife and husband on
the allegations that, the husband has started ill-
treating and harassing her even for flimsy reasons
and he used to abuse her and assault her and not
providing sufficient food to her. Therefore, she
was forced to leave the conjugal company of her
husband, when she was conceived for second time,
the hospital expenditures were also not borne by
the respondent. In spite of her tolerance she could
not able to full on the life with the husband.
Therefore, she started living in her parental
house.
9. She has further stated in her petition
that, he has been running an Automobile Shop and
earning more than Rs.25,000/- per month and he
has got various landed properties and house
properties in Naregal Village and in other areas
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and he is also earning lot of money from the said
lands. In spite of that, the respondent has
neglected and refused to maintain the wife and
children. After wife and children started residing in
the parental house of the petitioner, he did not
make any arrangement for their maintenance
though he was capable of doing so, till the wife
filed the petition before the Court. Therefore, she
claims for maintenance as prayed in the petition.
10. The husband contested the proceedings
taking out the contention that he had been looking
after her, with all love and affection and he denied
all the allegations made by the wife and claims
that, he has only 4 acres 1 gunta of land in his
name and he has been earning only Rs.6800/- per
month from the Automobile shop and he has no
other source of income and the wife left the
conjugal company voluntarily, therefore, they are
not entitled for maintenance.
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11. To prove the said aspects as per the
defence taken by the parties, petitioner No.1
examined herself as PW.1 and examined one more
witness as PW.2 and got marked Exs.P.1 to P.21.
Husband also examined himself as RW.1 and got
marked Exs.R1 to R.8.
12. After appreciating the oral and
documentary evidence on record in detail, the trial
Court has came to the conclusion that the wife and
children are entitled for maintenance of
Rs.11,000/- as a whole (Rs.5,000/- to the wife
and Rs.3,000/- each to two children) and
accordingly allowed the petition in part directing
the respondent to pay maintenance from the date
of petition.
13. The revision petitions are filed under
Section 397 of Cr.P.C, challenging the orders
passed under Section 125 of Cr.P.C. The powers of
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the High Court or the Sessions Court are very
limited, so far as the revisional jurisdiction or
powers are concerned. The Court has to examine
that whether the order of the Trial Court is correct
and legal and whether there is any impropriety in
passing such orders. Only if the Court comes to
the conclusion that, the order of the trial Court
suffers from any illegality or serious irregularities,
which amounts to illegality and Court has passed
the orders without any jurisdiction, in such an
eventualities only while exercising the powers
under revisional jurisdiction the Court can
interfere with such an order.
14. It is also well settled principle of law
that, the trial Court after appreciation of oral and
documentary evidence on record, has passed the
impugned orders, and that view of the trial Court
is also possible on the basis of such materials on
record, even if the Revisional Court comes to the
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different conclusion normally the Revisional Court
should not substitute its view, to the view taken
by the trial Court, as that view is also possible on
the basis of materials on record.
15. Bearing in my mind the above said
principles, as could be seen from the provision
under Section 397, now let me consider, whether
the trial Court has committed any serious legal
error in appreciating the oral and documentary
evidence on record.
16. Admitted facts as I have already noted
that, the relationship between the parties, as on
the date of the petition, the husband and wife
were not residing together and children were also
residing along with their mother, and till the filing
of the petition no arrangement had been made by
the husband for the maintenance of his wife and
children. It is quite understandable that, if the
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wife left the conjugal company of the husband
having two children, at least till the point that the
husband takes back his wife and children, it is his
responsibility to take care of children at least. In
this particular case it is not the case of the
respondent husband that, at least he made any
arrangement to maintain the children and wife. He
has not placed any material to show that, the wife
was so affluent that, she can take care of the
children. Even any affluency of the wife in no
manner absolve the responsibility of the husband.
17. Now come to the main contention that,
the husband has filed the petition for restitution of
conjugal rights and in spite of a direction by the
competent Court by granting decree of restitution
of conjugal rights, the wife has not join the
conjugal company of the husband. In this context,
it is worth to mention here that, the learned
counsel for the petitioner wife has submitted that,
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being aggrieved by the decree granted by the
Court granting restitution of conjugal rights, the
wife has preferred an appeal, and the same is
pending. Therefore the aspect of granting conjugal
rights is not yet logically and fully concluded.
18. I have no dispute so far as the
principles laid down in the decision cited by the
learned counsel for the petitioner which says that,
if the restitution of conjugal rights decree is
granted and it is established before the Court that
the wife is at fault not joining the conjugal
company of the husband then she is not entitled to
claim maintenance. But in all the cases the same
principle cannot be applied. It all depends upon
the facts and circumstances of each case. Merely
granting a decree for restitution of conjugal rights
is not sufficient to deny the maintenance to the
wife. If for any reasons the wife is able to
establish before the maintenance Court that, the
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said decree granted by the Court is not based on
the sufficient appreciation of facts and separate
factual aspects have been produced before the
maintenance Court for appreciation. Therefore, in
spite of the decree for restitution of conjugal
rights, if the maintenance Court has got sufficient
evidence before it, to come to an independent
conclusion that, there was neglect and refusal by
the husband then, definitely the maintenance
Court can grant maintenance to the wife.
19. In this context the object of Section 125
of Cr.P.C., is also to be taken into consideration.
The main object is that, till the wife joins the
conjugal company of the husband or the lis
between the husband and wife is completely
decided the vagrancy of the wife and children
should be avoided. They should not suffer from
starvation or they should be alive for the purpose
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of reaching the logical conclusion with regard to
their dispute.
20. Therefore in that context the wife and
children should not be made to suffer if at all the
Court is of the opinion that, the husband has
capable of maintaining his wife and children. In
this context the trial Court has independently
appreciated the oral evidence adduced by both the
parties and it has came to the conclusion on facts
that, the relationship between the husband and
wife was not so good when they were residing
together and there was mutual altercation between
them and there was some inconvenience to the
wife to continue the conjugal relationship,
therefore she left the company of the husband.
Therefore the Court solely relying upon the decree
for restitution of conjugal rights, cannot simply
brush aside the evidence placed by the husband
and wife before the Court but that requires to be
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independently appreciated by the Court with a
pinch of salt. In fact the factual aspects of the
case has been in detail discussed by the learned
Judge at paragraph Nos.18 and 19 of its judgment
and it has came to an independent conclusion
that, the wife has got some reasons to reside
separately from the husband and she has
established neglect and refusal by the husband.
The words neglect and refusal used in Sec.125 of
Cr.P.C., clearly disclose that the words or coined
in such a manner in section 125 of Cr.P.C., there
need not be proof of any harassment and ill-
treatment etc., neglect word itself is presupposes
that, if the wife and children are residing
separately, when the husband is duty bound to
maintain them, if he don’t maintain them that
itself amounts to neglecting them and in spite of
repeated request by them. In spite of knowing
fully well that, they have no other source of
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income, if he leaves them in larch that amounts to
refusal to maintaining them. If this particular
neglect and refusal is proved in a criminal Court
irrespective of the decree of restitution of conjugal
rights or irrespective of other aspects in existence
in favour of the husband, for the purpose of
accomplishing the broad object of Section 125, the
Court can still grant maintenance in favour of the
wife. Even if the Court comes to the conclusion
that there was some default on the part of the
wife maintenance can be granted to avoid the wife
from leading any illegal life, and to avoid vagrancy
which are the main object of Section 125 of
Cr.P.C. Therefore I am of the opinion though some
default has been established on the part of the
wife as rightly held by the trial Court it will not
totally absolve the wife from claiming
maintenance, and absolve the husband from
maintaining his wife.
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21. Therefore, so far as that aspect is
concerned, though there is a decree for restitution
of conjugal rights, which is still not logically
concluded is not sufficient to deny the
maintenance to the wife. So far as the children are
concerned, the husband has no say that he cannot
give any maintenance to the children. It is only a
decree against the wife not against the children.
Under the above said circumstances, the first
point raised by the learned counsel is not available
to the respondent so far as this case is concerned.
22. The other revision petition where the
wife has claimed enhancement of maintenance and
in the revision petition of the husband he sought
for reducing of the maintenance they should be
taken together for consideration, because they
raise common question of facts.
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23. On careful perusal of the judgment of
the trial Court, it has categorically stated about
the pleadings of evidence the parties, wife has
categorically stated in her petition that, many
number of properties are there. Totally the
husband has got more than 20 acres of land. The
survey numbers with specific extents have also
been stated and he has also got a house in
Naregal. There is no dispute with regard to the
wife is not having any avocation. Though the
husband has stated that he has got a land bearing
Sy.No.1089/2 to the extent of 4 acres 1 gunta but
he has not denied so far as the existence of other
survey numbers which are in the name of his
father, brothers and other members of the family.
It is his case that, he has executed some gift
deeds in favour of his brothers. He was
categorically suggested with a suggestion that he
has executed gift deeds in respect of some family
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properties in favour of his brothers, he has not
denied the same and he has also not explained for
what reason he has executed the gift deeds in
favour of his brothers. So, the facts remains thus,
these are all the properties available to the joint
family of the husband and they have allocated
some of the properties among themselves for their
convenience. In the absence of any sufficient
materials to show that for what reasons those gift
deeds have been executed by him as rightly
observed by the trial Court that he might have
done that for the purpose of avoiding any share in
the property to the wife and children and also if
possible to avoid paying maintenance to his wife
and children.
24. Looking to the above said facts and
circumstances the affluency of the husband in
having so much of properties and avocation that
he has been running a Automobile shop are all not
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disputed facts. Therefore when it is shown to the
Court that, there are certain properties in
existence and the avocation of the husband also
not in disputed, it shifts the responsibility on the
husband to show what exactly his income on
meticulously leading evidence before the Court.
Merely in a vague manner saying that he is not at
all reaping any income from the agriculture land
and he has been earning only Rs.6,000/- to
Rs.8,000/- per month is not sufficient. In such an
eventuality if the wife and husband have not
specifically adduced any evidence with regard to
what exactly the income of the husband or the
husband has not shown what exactly his income
then the Court has to assess the maintenance as
per the basic needs of the wife and children.
25. Therefore, looking to the above said
facts and circumstances though the husband has
produced some documents before this Court that
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he has close down the said Automobile shop for
the present but it goes without saying he is
capable of doing such business though he has
closed down the said shop. For what purpose he
has closed down the said shop is also not stated
and that document remained as unproved
document because it is neither produced in
accordance with law by necessary application nor
the said document can be relied upon by this
Court.
26. Looking to the above said facts and
circumstances the Court has awarded Rs.5,000/-
to the wife and Rs.3,000/- each to the children.
Nowadays the rising values of grocery, clothing
and medical expenses, the said award in my
opinion at any stretch of imagination when
compared to the affluency of the husband be said
as exorbitant. The wife also has produced certain
documents Exs.P.1 to P.3 to show that they have
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spent some amount for taking care of their health.
That also clearly discloses that they have spent
some money for their day today expenses
including medical expenditure. Therefore, in view
of the above said facts and circumstances, I don’t
find any strong reason to interfere with the order
of the trial Court.
27. The wife has also not placed any
sufficient materials as to what exactly the total
income out of the agricultural properties and what
is the share of the husband and how he is
cultivating the said land in what manner and what
exactly the income of the husband from the
Automobile shop, all those things are not
meticulously placed before the Court.
28. Therefore, considering the basic needs
of the petitioners the Court has ordered
reasonable maintenance to the wife and children.
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Therefore, there is no question of enhancing the
maintenance also nor it can be reduced as prayed
by the husband. With these observations, I don’t
find any strong reasons to interfere with the
judgment of the Trial Court. Hence, both the
revision petitions are liable to be dismissed,
accordingly dismissed.
29. However, it is left open to the parties on
the basis of any changed circumstances both of
them are at liberty to approach the trial Court
either for reduction of the maintenance or for
enhancement.
SD/-
JUDGE
E M/ –