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2013 DIGILAW 847 (KAR)

M. S. Mahadevaiah v. Pankaja Kumari, Abhilasha and Dikshitha

2013-07-25

B.MANOHAR, N.K.PATIL

body2013
ORDER N.K. Patil, J.—The petitioner in this revision petition challenging the legality and correctness of the order dated 18-8-2010 made in C. Misc. No. 429/2006 passed by the Family Court, Mysore directing the petitioner to pay maintenance of Rs. 4,000/- in favour of the first respondent and Rs. 2,500/- each to the respondents 2 and 3, has filed this revision petition. The first respondent in this revision petition is the wife and respondents 2 and 3 are the children of the petitioner. The marriage between the petitioner and first respondent was solemnized on 6-7-1987 at Madarahalli village as per their customs and usages. After the marriage, the petitioner and first respondent started their marital life at Mysore. Out of their wedlock, respondents 2 and 3 and another son by name M.M. Harish were born. In view of difference of opinion between the husband and wife, the first respondent separated from the petitioner and started living along with her parents. The allegation of the first respondent is that the petitioner ill-treated her and thrown her out of the marital house. In view of that, the first respondent and her three children filed a petition under Section 125 of Cr.P.C. claiming maintenance of Rs. 500/- each in Crl. Misc. No. 613/1998 before the Family Court at Mysore. The Family court by its order dated 21-9-2000 awarded maintenance of Rs. 500/- each to the first respondent and three children. Being aggrieved by the order dated 21-9-2000, the petitioner filed a revision petition in RPFC No. 172/2000 before this court challenging the same on various grounds. This Court allowed the said revision petition and remanded the matter back to the Family Court to reconsider the same afresh and pass appropriate orders in accordance with law. After remand, the Family Court on reconsidering the matter afresh, by its order dated 7-2-2006 awarded maintenance of Rs. 500/- each to the wife and three children. The said order has become final. Originally, the maintenance petition was filed in the year 1998. In view of escalation of price in the cost of living, the wife and her two children filed the Misc. Petition No. 429/2000 under Section 127 of the Cr.P.C. seeking enhancement of maintenance. In the said petition it was contended that the petitioner is getting salary of about Rs. Originally, the maintenance petition was filed in the year 1998. In view of escalation of price in the cost of living, the wife and her two children filed the Misc. Petition No. 429/2000 under Section 127 of the Cr.P.C. seeking enhancement of maintenance. In the said petition it was contended that the petitioner is getting salary of about Rs. 35,000/- p.m. Apart from that he has constructed the house in T. Narasipura by taking loan from Hindustan Petroleum Corporation and let out to three tenants and he gets the rent from the said building. He also owns 4 acres 2 guntas of agricultural land at Madarahalli village and 4 acres 6 guntas of land at Mooguru Village, which are water-fed lands growing paddy out of which, he earns more than Rs. 2,00,000/- p.a. from the agriculture. He has got sufficient means to pay the maintenance and sought for enhancement of maintenance at the rate of Rs. 5,000/- p.m. to the wife and Rs. 3,000/- p.m. each to two children who are studying, since her first son has completed his degree. 2. In pursuance to the notice issued by the Family Court, the petitioner herein entered appearance and filed objection statement denying the averments made in the petition and contended that he is getting salary of Rs. 19,000/- p.m., since lie has availed housing loan, major portion of the salary is deducted towards the loan. Apart from that, he is suffering from the old-age diseases and he has to take care of his ailing age-old mother. Hence, he is not in a position to pay the enhanced compensation. Further he also contended that he has filed a petition under Section 9 of the Hindu Marriage Act seeking for restitution of conjugal rights in M.C. No. 28/2001 on the file of the Civil Judge (Sr. Dn.) T. Narasipura and contended that he is ready and willing to take back his wife and children. Hence, sought for dismissal of the petition seeking enhancement of maintenance. 3. The respondents herein in order to prove their case, examined the first respondent-wife as P.W. 1 in C. Misc. No. 429/2006 and got marked the documents as Ex. P1 to Ex. P. 8 and the petitioner-husband got examined himself as R.W. 1 and also examined one Ravalaiah as R.W. 2 and got marked the documents as Ex. R1 to Ex. R30. 4. No. 429/2006 and got marked the documents as Ex. P1 to Ex. P. 8 and the petitioner-husband got examined himself as R.W. 1 and also examined one Ravalaiah as R.W. 2 and got marked the documents as Ex. R1 to Ex. R30. 4. On the basis of the pleadings of the parties and on the basis of the oral and documentary evidence adduced by the parties, the Family Court by its order dated 18-8-2010 allowed the C. Misc. No. 429/2006 holding that the first respondent is entitled for enhanced maintenance at the rate of Rs. 4,000/- and respondents 2 and 3 are entitled for enhanced maintenance of Rs. 2,500/- each per month and Rs. 10,000/- towards the cost of litigation. Being aggrieved by the order dated 18-8-2010, the present revision petition is filed. 5. Sri. S.V. Angadi, learned counsel appearing for the revision petitioner contended that the order passed by the Family Court is contrary to law. The revision petitioner is working as a Class-IV Employee at LPG filling Center. The major portion of his salary is deducted towards the housing loan raised for construction of the house at T. Narasipura for his wife and children. He is also suffering from old-age diseases and shortly he is due for retirement. He is ready and willing to take back his wife and children. He is not in a position to pay the maintenance and sought for setting aside the same by allowing the revision petition. 6. On the other hand, Smt. M.R. Vanaja learned counsel appearing for the respondents argued in support of the order passed by the Family Court and contended that as per the latest salary certificate of the revision petitioner, it is seen that the revision petitioner is drawing salary of Rs. 38,394/- p.m. The deduction insofar as the housing loan is only Rs. 1,874/- p.m. Earlier the children were studying in primary school, now they are studying in High School and college. The first respondent has taken loan for the purpose of education of her children. The maintenance awarded by the Family Court is on the lower side and sought for dismissal of the revision petition. 7. We have carefully considered the arguments addressed by the parties and perused the order passed by the Family court and other relevant records. 8. The records clearly disclose that the first respondent had filed C. Misc. The maintenance awarded by the Family Court is on the lower side and sought for dismissal of the revision petition. 7. We have carefully considered the arguments addressed by the parties and perused the order passed by the Family court and other relevant records. 8. The records clearly disclose that the first respondent had filed C. Misc. No. 613/1998 seeking maintenance of Rs. 500/- each to the wife and three children. Since the maximum amount that can be awarded under Section 125 of Cr.P.C. is only Rs. 500/-, the maximum maintenance has been claimed. The maintenance awarded in C. Misc. No. 613/1998 was challenged in RPFC No. 172/2000 before this Court. This court remanded the matter to the Family Court for reconsideration. However, directed the revision petitioner to pay maintenance at the rate of Rs. 500/- each to the wife and three children, during the pendency of the petition before the Family Court. After remand, the Family Court reconsidered the matter afresh and directed the revision petitioner to pay the maintenance at the rate of Rs. 500/- p.m. each to the wife and three children. In view of increase in the cost of living; hike in the price of the commodities; huge expenses of education of her children and also in view of the amendment of Section 125 of Cr.P.C., the first respondent filed a Miscellaneous petition under Section 127 of Cr.P.C. seeking enhancement of maintenance. The records further disclose that the revision petitioner has not spent any money for bringing up his children and also for their education. At the time of filing the maintenance petition in the year 1998, the three children were studying in primary school. Now, the first son has completed his Degree and another son and a daughter are studying in colleges. The first respondent has taken loan for the purpose of giving education to her children. In view of that, a petition was filed seeking enhancement of maintenance. The Revision petitioner admitted that he has not taken care of the wife and three children. For the last 15 years, the wife and children are living separately. He also admitted that major portion of the salary is deducted towards the housing loan and the treatment of his age-old mother and also for his treatment. The records produced by the parties clearly disclose that as on 2010, the revision petitioner was getting salary of Rs. For the last 15 years, the wife and children are living separately. He also admitted that major portion of the salary is deducted towards the housing loan and the treatment of his age-old mother and also for his treatment. The records produced by the parties clearly disclose that as on 2010, the revision petitioner was getting salary of Rs. 38,394/- p.m. out of that, Rs. 1,874/- was deducted towards the housing loan. However, his mother died during the pendency of the enhancement petition. Apart from that Ex. R5 and Ex. R7 produced by the revision petitioner clearly disclose that he has purchased some moist soap and crèmes and he has not spent money on any medicines for his treatment. Further the records clearly disclose that he has got 4 acres 2 guntas of land at Madarahalli and 4 acres 6 guntas of land at Mooguru village which are water-fed lands and he is growing paddy. The house constructed by him was let out to three tenants and he is getting handful of rents from that building. Though the revision petitioner contended that the first respondent is gainfully employed in a factory and getting monthly salary of Rs. 5,000/-, no document has been produced to show that she is gainfully employed. The respondents 2 and 3 are now studying degree and the first respondent has to pay huge fees for their education. The petitioner himself admitted that he has not spent any money towards the education of his children. The revision petitioner is in a position to pay the enhanced maintenance for his wife and children. He was a permanent resident of Mysore City. Further, in M.C. No. 28/2001 filed by the revision petitioner seeking for restitution conjugal rights, the Trial Court directed the revision petitioner to set up the matrimonial house at Mysore, as it will be convenient both to the revision petitioner as well as the first respondent and the school going children and directed to pay Rs. 5,000/- towards maintenance and house keeping. In spite of the order passed by the Trial Court, the petitioner has failed to set up a house at Mysore. On the other hand, he has challenged the said order in MFA No. 7442/2010 before this court. 5,000/- towards maintenance and house keeping. In spite of the order passed by the Trial Court, the petitioner has failed to set up a house at Mysore. On the other hand, he has challenged the said order in MFA No. 7442/2010 before this court. The conduct of the revision petitioner clearly disclose that in order to harass his wife and children, though he has capacity to pay the enhanced maintenance and also set up a matrimonial house at Mysore, he has filed this revision petition. Taking into consideration all these aspects of the matter and also the oral and documentary evidence, we find that there is no infirmity or irregularity in the order passed by the Family Court enhancing the maintenance. The revision petitioner has not made out a case to interfere with the said order. The revision petitioner is liable to pay cost of this revision petition for unnecessarily dragging the respondents from pillar to post. Accordingly, we pass the following: ORDER The revision petition is dismissed with a cost of Rs. 10,000/- payable by the appellant to the respondents, within a period of four weeks from the date of receipt of a copy of this order, failing which, the respondents are at liberty to recover the same from the appellant, in accordance with law.