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Smt Deepa C Parvathi vs Sri Raghavendra S on 26 April, 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 26TH DAY OF APRIL 2018

BEFORE

THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN

WRIT PETITION No.47440/2017 (GM-FC)
C/W
WRIT PETITION No.43029/2017

IN WRIT PETITION No.47440/2017:

BETWEEN :

SMT. DEEPA C. PARVATHI
W/O. RAGHAVENDRA. S.,
AGED ABOUT 34 YEARS,
R/AT NO.59, 1ST FLOOR,
G. D. PARK EXTENSION,
VYALIKAVAL,
BANGALORE-560 003. … PETITIONER

(BY SRI HEMANTH KUMAR D., ADV.)

AND:

SRI RAGHAVENDRA S
S/O. H. C. SWAMY,
AGED ABOUT 34 YEARS,
R/AT NO.12, 1ST FLOOR, 5TH MAIN,
6TH CROSS, MALLESHPALYA,
BANGALORE-560 075. … RESPONDENT

(BY SRI AMRUTHESH C., ADV.)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226
227 OF THE CONSTITUTION OF INDIA PRAYING TO MODIFY THE
ORDER DATED 18.8.2017 PASSED ON I.A. FILED UNDER
SECTION 24 OF HINDU MARRIAGE ACT IN M.C.NO.833/2016 ON
THE FILE OF THE VI ADDL. PRINCIPAL JUDGE FAMILY COURT
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AT BANGALORE VIDE ANNEXURE-E, BY ALLOWING THE
APPLICATION AS PRAYED AND ETC.

IN WRIT PETITION No.43029/2017:

BETWEEN :

SRI RAGHAVENDRA S
S/O. H. C. SWAMY,
AGED ABOUT 34 YEARS,
R/AT NO.12, 1ST FLOOR, 5TH MAIN,
6TH CROSS, MALLESHPALYA,
BENGALURU-560 075. … PETITIONER

(BY SRI AMRUTHESH C., ADV.)

AND:

SMT. DEEPA C. PARVATHI
D/O. C. P. CHIKKANNA,
AGED ABOUT 34 YEARS,
R/AT NO.59, 1ST FLOOR,
G. D. PARK EXTENSION,
VYALIKAVAL,
BENGALURU-560 003. … RESPONDENT

(BY SRI HEMANTH KUMAR D., ADV.)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET-ASIDE THE
ORDER DATED 18.08.2017 PASSED ON I.A. U/S. 24 OF THE
HINDU MARRIAGE ACT IN M.C.NO.833/2016 ON THE FILE OF VI
ADDL. PRINCIPAL FAMILY JUDGE, BENGALURU, VIDE
ANNEXURE-G AND ETC.

THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE
FOLLOWING :
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ORDER

Both these writ petitions are filed challenging the order

dated 18.08.2017, passed by the VI Additional Principal

Judge, Family Court, Bengaluru, whereby, the learned

Family Court has granted a monthly interim maintenance of

Rs.8,000/- per month, to the respondent-wife, and has also

granted one time litigation expenses of Rs.10,000/- to her.

Therefore, they are being decided by this common order.

The facts are being taken from W.P.No.43029/2017.

W.P.No.43029/2017

2. Briefly the facts of the case are that the petitioner

and respondent were married, on 19.08.2013, in accordance

with the Hindu rites and customs. However, subsequently,

as differences arose between the parties, they left each

other’s company. The respondent filed a divorce petition

against the petitioner on the ground of alleged cruelty. The

petitioner submitted his objections and denied the

averments made in the plaint. During the pendency of

divorce proceedings, the respondent filed an application
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under Section 24 of the Hindu Marriage Act (“the Act”, for

short), for seeking interim maintenance and the litigation

expenses. The petitioner filed objections to the said

application. However, by the impugned order, dated

18.08.2017, the learned Family Court has granted the

interim maintenance, and one time litigation expenses, as

mentioned hereinabove. Hence, this petition before this

Court.

3. Mr. Amrutesh .C, the learned counsel for the

petitioner, has raised the following contentions before this

Court:-

Firstly, relying on the case of Manish Jain v.

Akanksha Jain [AIR 2017 SC 1640], the learned counsel

has pleaded that the Court must take into consideration the

status of the parties in the capacity of the spouse to pay the

maintenance, and whether the applicant has any

independent income sufficient for him/her. Thus, the

maintenance is always dependant on the factual situation.

Thus, the Court is required to mould the relief of
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maintenance, and while determining the quantum, various

factors have to be kept in mind.

Secondly, in the objections filed by the petitioner,

although the petitioner had admitted that the he is working

for Dallas Technologies, but in the written arguments,

submitted by the petitioner, to the application filed by the

respondent, he had clearly stated that he is not a regular

employee of Dallas Technologies. He is working on freelance

basis on the Projects required by Dallas Technologies. Thus,

he is not receiving monthly salary. Moreover, he is not on

the Rolls of employees of Dallas Technologies. Despite the

said statement made by the petitioner, the learned Family

court has observed that “the respondent has admitted that

he is working for the Dallas Technologies”. Therefore, the

learned Family Court has misread the statement made by

the petitioner.

Thirdly, after passing of the impugned order, the

petitioner has discovered that the respondent wife has

sufficient means to support herself, and the respondent
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No.2. Thus, the respondent has not approached the Family

Court with clean hands. Therefore, the impugned order

deserves to be set aside by this court.

4. On the other hand, Mr. Hemanth Kumar, the

learned counsel for the respondent-wife, submits that

although the petitioner may have pleaded that he is not on

the rolls of Dallas Technologies, although he may have

pleaded that he is working as a free lance employee in the

said company, but he has not submitted any documentary

evidence to support his pleas. Moreover, neither in his

objections, nor in his written statement, he has revealed the

income earned by him. According to the learned counsel,

this point has been duly noted by the learned Family Court.

Therefore, the learned Family Court was justified in ignoring

these pleas raised by the petitioner as there was lack of

documentary evidence to buttress the same. Hence,

according to the learned counsel, the learned Family court

was justified in concluding that the petitioner was earning

about Rs.1 Lakh per month.

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Secondly, since the respondent-wife is aggrieved by the

grant of merely Rs.8,000/- per month, she has already filed

a writ petition for seeking enhancement of the interim

maintenance amount.

Thirdly, this court has to consider the legality, or

illegality of the impugned order as on the date on which the

order was pronounced. Since no plea was raised, and no

evidence was submitted that respondent had sufficient

means, the said plea cannot be accepted by this court, as it

is a new plea based on facts.

5. Heard the learned counsel for the parties, and

perused the impugned order, and examined the record

submitted before this court.

6. A bare perusal of the written statement field by the

petitioner clearly reveals that the petitioner had admitted the

fact that “he is working for Dallas Technologies”. Thus, at

the time of filing the written statement, the petitioner had

not clarified as to the nature of his employment, whether he

was a regular employee, or a free lance employee, as claimed
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by him subsequently. Although in his written arguments,

the petitioner subsequently claims that he is not on the

regular rolls of Dallas Technologies, but he is merely working

with Dallas Technologies on free lance basis. But, even the

said plea has not been supported by any documentary

evidence.

7. It is, indeed, trite to state that a plea has to be

supported by documentary evidence as the statement made

by the litigants cannot be taken as gospel truth.

8. According to Section 106 of the Evidence Act, if a

peculiar fact is known to a party, it is for the party to reveal

the said fact. Obviously as to what was the income earned

by the petitioner would be a fact well-known to him, it was

for him to reveal this fact in his written statement. But he

has failed to do so. Thus, it is a material fact that petitioner

is intentionally hiding from the Family Court. Therefore, the

learned Family Court could have only made a good judgment

assessment of the income that the petitioner may be earning

from Dallas Technologies. Considering the fact that the
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petitioner is working in a Software Company, considering the

fact that those who are employed by the Software Companies

are well paid, the assessment made by the learned Family

Court that the petitioner must be earning Rs.1 Lakh per

month cannot be said to be misplaced.

9. It is the duty of the Appellate Court to see whether

the impugned order is legal, or illegal one, on the basis of

pleas and evidence produced by the parties before the Court

prior to passing the impugned order. Prior to passing of the

impugned order, the petitioner did not plead that the

respondent-wife had sufficient means to support herself.

Moreover, he did not submit any evidence to establish the

said fact. Therefore, a new plea cannot be raise by the

learned counsel for the petitioner for the first time before the

Appellate Court.

10. For the reasons stated above, this court does not

find any illegality in the impugned order. Therefore,

W.P.No.43029/2017 is hereby dismissed. No order as to

costs.

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W.P.No.47440/2017:

The respondent-wife, as the petitioner, has challenged

the impugned order, and has sought for enhancement of the

maintenance amount.

11. Mr. Hemanth Kumar, the learned counsel for the

petitioner, submits that even according to the learned Family

Court, the respondent is presumed to be earning Rupees

One Lakh per month, as he was working for Dallas

Technologies, a Software Company. Yet, despite taking the

income as Rs.1 Lakh per month, the learned Family court

has granted an interim maintenance of merely Rs.8,000/-

per month.

Secondly, admittedly, the petitioner-wife has no source

of income, as she is unemployed. Due to her financial

constraints, she is living with her aged parents. Thus, she

continues to be a financial burden upon her parents.

Thirdly, considering the high cost of living expenditure

in Bengaluru, the payment of Rs.8,000/- per month is
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insufficient for a woman, to survive for the entire month.

Therefore the interim maintenance should be enhanced by

this Court.

12. On the other hand, Mr. Amrutesh .C, the learned

counsel for the respondent-husband has vehemently

contended that the petitioner’s father has large number of

properties from where the petitioner’s father is deriving

substantial rental income. According to the decree passed

by the learned Civil Judge in O.S.No.5009/1992, the

petitioner is a co-joint owner of some of the schedule

properties. Thus, she has sufficient means to survive on the

rental income received by her father. Thus, the interim

maintenance of Rs.8,000/- is more than sufficient for the

petitioner to live in.

Secondly, the respondent does not have a regular job,

as according to the respondent, he is working on free lance

basis for Dallas Technologies, a Software Company.

Therefore, it is extremely difficult for him to bear the

financial burden of having to pay an interim maintenance of
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Rs.8,000/- per month to the petitioner. Thus, the impugned

order should not be set aside by this court. Hence, the

learned counsel has supported the impugned order.

13. According to the petitioner, she is unemployed and

due to her financial constraints, she is forced to live with her

aged parents. Although the learned counsel for the

respondent has claimed that the petitioner does have a share

in the properties belonging to the family, but there is no

documentary evidence to establish the fact that the

petitioner is receiving any share of the rental amount

received by her parents. According to the statement made

by the respondent in the objection filed by him, the

properties mentioned, belong to the petitioner’s father and it

is the petitioner’s father who is receiving the rental amount

from the property. In the absence of any documentary proof

that petitioner is, indeed, receiving the rental amount, the

plea raised by the learned counsel for respondent cannot be

accepted that petitioner has sufficient means to support

herself.

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14. A bare perusal of the impugned order clearly

reveals that the respondent had admitted that he is working

in Dallas Technologies, in the written statement. Although,

subsequently, he has tried to plead that he is not on the

regular rolls of Dallas Technologies, but such a plea is not

supported by any documentary evidence so far. He has not

produced any document at the time when the impugned

order was passed. Therefore, the contention raised by the

learned counsel for respondent that the respondent is not on

the regular rolls of Dallas Technologies cannot be accepted

by this court.

15. Repeatedly, the Hon’ble Supreme Court has opined

that a husband is legally and morally bound to maintain the

wife, and poverty is not a defence in a maintenance case.

Even those who are poor continue to maintain their wife.

Therefore, the plea that the petitioner is unemployed, and,

thus, unable to support the wife is a plea that needs to be

uttered only to be rejected by this court.
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16. On the basis of the admission made by the

respondent that he is, indeed, working at Dallas

Technologies, the learned Family Court was justified in

presuming that he may be earning Rs.1 Lakh per month.

While the Family Court has drawn such conclusion, the

Family Court has ignored the fact that Bengaluru, happens

to be one of the costliest cities in the country. Moreover, it

has given only a small fraction of the income earned by the

respondent i.e., merely Rs.8,000/- per month to the

petitioner. Considering the fact that after the 7th Pay

commission has been introduced, even a Group -‘D’

employee earns more than Rs.8,000/- per month. Yet, the

petitioner is not even paid the minimum salary of a

Group-‘D’ employee, in order to maintain her body and soul.

Therefore, obviously, the interim maintenance paid to her is

on the lower side.

17. For the reasons stated above W.P.No.47440/2017

is hereby allowed. The impugned order is modified to the

extent that the respondent is directed to pay maintenance o

Rs.15,000/- per month to the petitioner.
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18. The learned counsel for the respondent submits

that in compliance of the order dated 18.08.2017, the

respondent has been paying Rs.5,000/- to the petitioner,

during the pendency of the present writ petition. Therefore,

the respondent is directed to pay the balance amount of

Rs.10,000/- per month to the petitioner from the date of

passing the interim order till the present.

19. It is hereby clarified that any observation made by

this court are only prima-facie in nature. The said

observation shall not influence, one way or the other, and

are not binding on the Family Court. This court hopes that

the Family Court would assess the evidence objectively and

pass its order strictly in accordance with law.

Sd/-

JUDGE
Np/-

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