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2008 DIGILAW 84 (KAR)

SMT. M. MENAKA AND ANOTHERS v. SIDDALINGAIAH

2008-02-05

N.K.PATIL

body2008
JUDGMENT N .K. Patil, J. Petitioners, being aggrieved by the impugned judgment and order dated 4th February 2006 in C.Misc.No.322/2000 on the file of the II Additional Principal Judge, Family Court, Bangalore, have presented the instant Revision Petition (Family Court) seeking further enhancement of allowances awarded by way of maintenance by the Family Court on the ground that, the maintenance awarded is inadequate. 2. The undisputed facts of the case are that, the marriage of first petitioner and respondent was solemnized on 8th July 1991 and out of the said wedlock, second petitioner was born on 22nd May 1992 and both the first petitioner and respondent lived together happily. After the birth of the daughter - second petitioner herein, the respondent did not visit to see the first petitioner. In spite of the first petitioner and her parents making several efforts to convince the respondent to take back the petitioners, nothing materialized and respondent refused to heed to their request. Thereafter, the first petitioner and her parents have sent words through their well wishers and made all sincere efforts and persuaded the respondent to take back the petitioners. The said efforts also did not yield any fruit with regard to continuity of the marriage of respondent with first petitioner. Therefore, first petitioner was constrained to stay back in her parental house along with her daughter and at the mercy of her parents. Even thereafter, respondent has failed to take back the petitioners into his home. Therefore, petitioners herein, having no other alternative, were constrained to initiate the proceedings by way of filing the petition under Section 125 of the Code of Criminal Procedure claiming allowances by way of maintenance contending that, the respondent is a Lecturer working at the Pre-University College, Doddaballapur and is getting the salary of more than Rs.12,000/- and that, in spite of having sufficient income, respondent has neglected and refused to maintain the petitioners. The second petitioner is a School going girl and first petitioner has no other source of income of her own. Therefore, the petitioners are entirely dependent upon the parents of first petitioner arid are at the mercy of them. Therefore, she preferred the petition seeking maintenance at the rate of Rs.5,000/- per month to first petitioner and a sum of Rs.1,000/- per month as maintenance to her daughter. Therefore, the petitioners are entirely dependent upon the parents of first petitioner arid are at the mercy of them. Therefore, she preferred the petition seeking maintenance at the rate of Rs.5,000/- per month to first petitioner and a sum of Rs.1,000/- per month as maintenance to her daughter. The respondent has filed the objections and admitted the marriage but contended that, first petitioner was not cordial and she was dictatorial in attitude and has ill-treated him and caused unhappiness to the respondent. Further, respondent has contended that, first petitioner hails from a rich family and she has not taken any care of respondent and she has gone to the matrimonial house without informing the respondent and that, he has made several attempts to bring back the first petitioner but, first petitioner and her brothers influenced the management of the Junior College, where he was working as Lecturer and got him suspended and in fact, they have caused mental agony and not permitted the respondent to discharge his duties as Lecturer in the College where he was working. Due to the tension and mental stress, he became diabetic patient. However, some how respondent managed to get the suspension revoked and was re-instated and is drawing the net salary of Rs. 7 ,330/- per month and has incurred loan of Rs. 80,000/- to perform the marriage of his sister and that, he has to repay the same at the rate of Rs4,000/- per month with interest at the rate of 5% and further availed loan of Rs.50,000/- for his treatment and is repaying the said loan amount at the rate of Rs.2,100/- per month and that he requires a sum of Rs.3,000/- per month for his personal expenses. Further, it is contended that, first petitioner hails from a rich family having sufficient means and that she is working as Teacher in some Schools and there is no need of maintenance for herself and her daughter. Therefore, he contended that, the petition flIed by petitioners was liable to be dismissed. 3. Further, it is contended that, first petitioner hails from a rich family having sufficient means and that she is working as Teacher in some Schools and there is no need of maintenance for herself and her daughter. Therefore, he contended that, the petition flIed by petitioners was liable to be dismissed. 3. The Family Court after going through the petition filed by petitioners, after considering the objections filed by respondent, after framing necessary points for consideration and after considering the oral and documentary evidence and other relevant material available on file, has answered point No.1 partly in affirmative and point No.2 as per the final order and allowed the petition with costs of Rs.1,000/- and directed the respondent to pay a sum of Rs.1,500/- per month to first petitioner and a sum of Rs.500/- per month to second petitioner towards their maintenance from the date of the order apart from paying the arrears of interim maintenance granted vide order dated 5th February 2002 till the date of the said order. Further, the Family Court observed that, first petitioner is entitled for maintenance during her life time and second petitioner is entitled for maintenance till she is married. Further, the Family Court directed the respondent to pay the future maintenance on or before 10th of every month. Assailing the correctness of the inadequate allowance awarded by way of maintenance by the Family Court, petitioners herein felt necessitated to present the instant revision petition seeking enhancement of maintenance. 4. I have heard learned counsel appearing for petitioners and learned counsel appearing for respondent. 5. After careful evaluation of the original records available on file including the salary certificate issued by Kongadiyappa Pre-University College, Doddaballapur and the impugned order passed by Family Court, it emerges that, the Trial Court has considered all the relevant factors into consideration and thereafter, after critical evaluation of the oral and documentary evidence, by assigning cogent reasons has arrived at awarding the allowance by way of maintenance at the rate of Rs.1,500/- per month in respect of first petitioner and a sum of Rs.500/- in respect of second petitioner. After carefully going through the awarding of allowances by way of maintenance, I am of the view that, the Family Court has slightly erred in arriving at the said figure in as much as the Family Court has not taken into consideration the salary Certificate issued by the Pre University College where he is working. From the said Salary Certificate, it can be seen that, the total gross salary is Rs.12,041/- per month, out of which, Rs.1,280/- is deducted towards the relevant heads such as LIC, PF, EF,GI, PT but the Trial Court has given much importance on the statements made by respondent that, he has availed loan of Rs.80,000/- for performing the marriage of his sister and a sum of Rs.50,000/- for his treatment without any justification for the reason that, respondent has not produced any authenticated documentary evidence to show that from which Bank or Co-operative Society or Financial Corporation, he has availed loan. Except taking this stand in the statement objections, he has not produced an iota of document in substantiation of the said statement. Therefore, the same cannot be accepted and in this context, the Family Court ought to have looked into carefully the necessities of the minor daughter who is staying with the parental house of her mother, the cost of food, clothes, medicine and other sundry expenses etc. and also the fact that, the first petitioner has to take care of the minor daughter, give education by paying fees, and provide a conducive atmosphere for her study etc. These aspect of the matter have been completely lost sight of the fact by the Trial Court. In this area, the Family Court has slipped into error and awarded the lesser maintenance than required by petitioners. Therefore, I am of the view that, the impugned judgment and decree passed by Family Court is liable to be modified by awarding a little higher allowances by way of maintenance keeping in view all the aforesaid relevant factors, and taking a pragmatic approach, having regard to the status of the parties, the cost of living and to provide all the infrastructure that is required for living in the society as ordinary human being and also keeping in view the net salary drawn by petitioner, which comes to more than Rs.10,500/- and without taking into consideration the future enhancement of his salary and increase in DA and HRA. Therefore, having regard to all these aspects, I am of the considered view that, ends of justice would be met, if a just and reasonable sum of Rs. 2000/- per month to the first petitioner and a sum of Rs.1,500/-to the second petitioner is awarded. 6. In the light of the facts and circumstances of the case, as stated above, the revision petition (Family Court) filed by petitioners is hereby disposed of with the following modifications: I] The first petitioner is entitled to allowances by way of maintenance at the rate of Rs.2,000/(Rupees Two Thousand Only) per month from the date of filing the petition viz. 1st December 2006 and is entitled to maintenance till she remarries,’ II] The second petitioner is entitled to allowances by way of maintenance at the rate of Rs.1,500/- per month from 1st December 2006 till she is married; III] The respondent is hereby directed to pay the future maintenance, as aforesaid on or before 10th of every month without fail. 7. With this modification, the instant Revision Petition (Family Court) filed by petitioner is disposed of.