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Smt. Lata Basavaraj Dharmayat vs Shri. Baavaraj Shivappa … on 25 April, 2018

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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/ –

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