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2014 DIGILAW 852 (KAR)

K. Srikantaiah v. B. S. Nagarathna

2014-09-25

A.V.CHANDRASHEKARA, K.L.MANJUNATH

body2014
JUDGMENT K.L. Manjunath, J. 1. These two appeals arise out of the order passed by the I Addl. Principal Judge, Family Court, Bangalore dated 16.07.2011 passed in M.C. No. 616 of 2002. Heard the learned counsel for both the parties. 2. Smt. B.S. Nagarathna alias B.S. Rathna W/o. K. Srikantaiah filed a petition for grant of decree of judicial separation under Section 10 of the Hindu Marriage Act, 1955 and has also sought for permanent alimony by creating charge over the schedule 'A' property to the suit. The marriage between them was solemnized on 12.05.1967 at Bhadravathi. Thereafter, they lived happily in Bangalore till 1972. They have a daughter by name S. Jyotsna, born on 07.06.1970. At the time of marriage husband was working in MICO. For the benefit of her husband her father set up a factory at his costs in the name and style 'Tool Engineers Services' at Magadi Road, Bangalore in the year 1971. Thehusband left his job and started looking up the factory set up by his father-in-law. In the year 1973 or 1974 one Nirmala Devi, who was then aged about 18 years was appointed as a Clerk in the said factory. Later, he developed illicit relationship with the said lady. On account of the same husband started ill-treating his wife for no fault of her. Since 1973 the husband is living in adultery with Nirmala Devi. On account of such illicit relationship she has given birth to a male child Vikram. Therefore, the wife filed the petition for judicial separation. 3. The case was contested by the husband and evidence was also let in by the parties. According to the petitioner - Nagarathna, she was suffering from various ailments and is under constant medical treatment. The trial court after appreciating the evidence on record allowed the petition on the ground of adultery, cruelty and desertion and awarded permanent alimony of Rs. 5 lakhs and also granted decree of judicial separation, Charge is also created on plaint 'C' schedule property. Challenging the legality and correctness of the judgment and decree passed by the Family Court on 16.07.2011 the husband has filed first appeal in MFA No. 8396 of 2011. 5 lakhs and also granted decree of judicial separation, Charge is also created on plaint 'C' schedule property. Challenging the legality and correctness of the judgment and decree passed by the Family Court on 16.07.2011 the husband has filed first appeal in MFA No. 8396 of 2011. The wife also aggrieved by the judgment and decree filed MFA No. 1454 of 2012 contending that permanent alimony awarded is not sufficient and not commensurate with the income of the husband and the expenses being incurred by her for medical treatment, future medicine and also maintenance. 4. At the first instance, we are of the view that the trial court has committed an error in allowing the petition on the ground of adultery, cruelty and desertion and also granting of decree of judicial separation. We are also of the view that considering the evidence let in by the parties the quantum of permanent alimony at Rs. 5 lakhs is on the lower side. The trial court has not assigned proper reasons, when once decree of divorce is granted on the ground of adultery, cruelty and desertion, the court could not have exercised its power to grant judicial separation under Section 10 of the Hindu Marriage Act, 1955. It is not the case of the petitioner that the marriage solemnized between the parties has to be dissolved by way of judgment of divorce on the ground of adultery, cruelty and desertion. Only on the very ground the order of the trial court is required to be set aside and remand the matter for trial court to consider the matter in accordance with law. We are also of the view that Rs. 5 lakhs paid by the husband to the wife shall be treated towards her medical expenses and other incidental expenses subject to the result of the MC petition and we direct the Family Court to re-assess the evidence and permit both the parties to let fresh evidence on all the grounds including maintenance to be awarded to the wife. In the result, these appeals are disposed of. The order passed by the I Addl. In the result, these appeals are disposed of. The order passed by the I Addl. Principal Judge, Family Court, Bangalore dated 16.07.2011 passed in M.C. No. 616 of 2002, is hereby set aside and the parties are directed to appear before the trial court on 11.11.2014 and the Family Court is directed to dispose of the petition within six months from the date of receipt of the copy of the judgment. If necessity arises the parties are permitted to amend their pleadings.