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2016 DIGILAW 461 (KAR)

G. Pramila v. H. V. Savamdaraju Alias H. V. Raju

2016-06-16

S.N.SATYANARAYANA

body2016
ORDER : S.N. Satyanarayana, J. Petitioners 1 to 3 in Cri. Misc. No. 254/2006 on the file of 11 Additional Principal Judge, Family Court, Bangalore, have come up in this revision petition seeking enhancement of maintenance awarded in the aforesaid proceedings. Admittedly, the proceedings in Crl. Misc. No. 254/2006 is under Section 125 of Cr.P.C. 2. The undisputed facts are that first petitioner Smt. G. Pramila is the wife and petitioners 2 and 3 are the minor daughter and minor son of respondent - Sri. H.V. Savandaraju alias H.V. Raju. The first petitioner and respondent got married on 7.7.1999. In the wedlock, first child was born on 21.5.2000 and second child was born on 2.9.2002. It is stated that first petitioner and respondent along with their children, second and third petitioners were residing together in the matrimonial house. That difference between parties arose in the year 2005, wherein the respondent left matrimonial house on 7.11.2005 after a commotion in the family, which led to discard in the matrimonial relationship of first petitioner and respondent. It is seen that thereafter on 14.11.2015 the respondent filed MC No. 2153/2005 seeking dissolution of his marriage with first petitioner on the ground of cruelty and incompatibility. 3. It is stated that first petitioner - wife was not aware of the proceedings initiated in MC.No.213/2006 against her till she filed a complaint on 21.12.2005. It is stated that said complaint is with reference to allegation of dowry harassment and said complaint was registered as CC No. 19058/2006 for an offence punishable under Section 498-A of IPC. It is further stated that said proceedings in CC.No.19058/2006 culminated in an order of conviction being passed against respondent not only for the offence punishable under Section 498-A of IPC, but also under Sections 3 and 4 of the Dowry Prohibition Act, 1961. In the meanwhile, the petition which was filed by the respondent for the relief of decree of divorce in MC.No.2153/2005 came to be dismissed, which is not pursued by him thereafter. In the meanwhile, the present proceedings in Cri.Misc. No. 254/2006 was commenced in the year 2006 i.e., on 7.4.2006 under Section 125 of Cr.P.C., seeking maintenance at the rate of Rs.15,000/- collectively for the wife and two children. 4. In the proceedings in Crl.Misc. In the meanwhile, the present proceedings in Cri.Misc. No. 254/2006 was commenced in the year 2006 i.e., on 7.4.2006 under Section 125 of Cr.P.C., seeking maintenance at the rate of Rs.15,000/- collectively for the wife and two children. 4. In the proceedings in Crl.Misc. No. 254/2006, on service of notice, the respondent-husband entered appearance, filed statement of objections and brought to the notice of Court below that first petitioner is a graduate with post-graduation degree in Bachelor of Education; she was gainfully employed as a teacher at the relevant point of time and enough source of income to maintain herself; that first petitioner voluntarily left the matrimonial house; he several commitments; with meager salary he to take care of his aged parents and to maintain himself and he no other income, etc. 5. With these rival pleadings, the Court below proceeded to record evidence and thereafter, by formulating the following point for consideration, which are as under: 1. Whether the first petitioner proves that she was subjected to cruelty at the hands of the respondent ? 2. Whether the first petitioner further proves that the respondent refused and neglected to maintain them? 3. Whether the first petitioner proves that she is unable to maintain herself; if so, how much maintenance she and other two petitioners are entitled to from the respondent ? 4. What order? proceeded to allow the miscellaneous petition filed by the petitioners viz., wife and children partially awarding maintenance to second and third petitioners only at the rate of Rs.2,000/- p.m., each from the date of petition and declined to grant any maintenance to first petitioner as she was gainfully employed. The revision petitioners being aggrieved by the said order in denying maintenance to first petitioner-wife and restricting the maintenance to petitioners 2 and 3 at rate of Rs.2,000/- p.m., each, which according to them is meager compared to the salary of respondent and cost of living as well as the need of petitioners 1 to 3, have come up in this revision petition seeking enhancement of the same. 6. In this proceedings, though notice is duly served on respondent, he chosen to remain ex parte. The trail Court record is secured, thereafter, the learned counsel for revision petitioners is heard and the lower court record is perused. 6. In this proceedings, though notice is duly served on respondent, he chosen to remain ex parte. The trail Court record is secured, thereafter, the learned counsel for revision petitioners is heard and the lower court record is perused. On going through the same it is seen that the facts leading to this revision petition so far as it relates to relationship between the parties and their status is more or less same with reference to the order impugned. However, what is seen is that the respondent - husband who was working as a Foreman in a Multinational Company at the relevant time of filing of petition chosen not to take care of his wife and children as stated in the petition before the Court below as well as with reference to evidence adduced on record. 7. The record would disclose that when respondent is said to have deserted his wife and children, he was working as a Foreman in M/s. MICO Industries and was earning net income in a sum of Rs. 11,000/- p.m., as on that date. Thereafter, the documents which are produced in the Court below at Ex.P3, which are the pay-slips of the year 2007-2008 of respondent would indicate that his monthly take home salary or net income was in the range of Rs. 12,000/- to 13,000/- p.m., between the said period i.e., after deducting several deductions from his gross salary, which was consistently double the take home salary. In effect, from out of the salary that respondent was getting, 50% was deducted towards income tax, towards LIC policies, towards loan taken from M/s. MICO Industries Employees Co-operative Society and also with reference to the interest payable thereon, etc. The net result is, around 50% of his gross salary was his net salary. 8. The material on record would also disclose that first petitioner - wife was gainfully employed as a teacher earlier to marriage. Subsequently, after the discord between husband and wife in 2006, she taken a job in State Government. However, prior to that whether she was working elsewhere or not is not seen from the records. Therefore, what could be presumed is, considering the qualification and the past record of first petitioner being a school teacher, she would have continued to be in service. Hence, the allegation of she being continued to be in service cannot be disbelieved. However, prior to that whether she was working elsewhere or not is not seen from the records. Therefore, what could be presumed is, considering the qualification and the past record of first petitioner being a school teacher, she would have continued to be in service. Hence, the allegation of she being continued to be in service cannot be disbelieved. Consequently, in the facts and circumstances, the finding of Court below in holding that only the children are entitled to maintenance appears to be just and proper. 9. Now, coming to the petition so far as it pertains to children - revision petitioners 2 and 3, the second revision petitioner, who is a daughter was aged about 6 years at the time of filing of petition for maintenance and third revision petitioner was aged about 3 years. Incidentally, as on this day, the second revision petitioner is aged about 16 years and third revision petitioner is aged about 13 years. It is stated by the learned counsel for petitioners that second revision petitioner completed 10th standard and she to be admitted to 11th standard or Pre-University this year. Whereas, the third revision petitioner who is aged about 13 years is studying in 8th standard. The maintenance which is sought for them is for the period from the date of Criminal Miscellaneous Petition in Crl.Misc. No. 254/2006 to this date i.e., for a period of 10 years. 10. Accordingly, to calculate the maintenance if the material available on record is looked into it is seen that the net income of respondent that was in the range of Rs.11,000/- p.m., as on 2005 increased to Rs. 13,000/- as on 2008. Thereafter, what was his income is not made available to this Court. However, the oral submissions of learned Counsel for revision petitioners is to the effect that he is earning a sum of above Rs.70,000/- p.m., for which she not produced any document to substantiate the same. The learned counsel would also submit that the respondent is happily married for the second time. But we are not concerned with said aspect in this revision petition. 11. On going through the material on record, this Court find that as on the year 2006 the gross income of respondent was in the range of Rs.20,000/- to Rs.22,000/- p.m., however the net income was in the range of Rs. 10,000/- to Rs. But we are not concerned with said aspect in this revision petition. 11. On going through the material on record, this Court find that as on the year 2006 the gross income of respondent was in the range of Rs.20,000/- to Rs.22,000/- p.m., however the net income was in the range of Rs. 10,000/- to Rs. 12,000/- p.m. During that period the maintenance for each child would be in the range of around Rs.7,000/- p.m., i.e., for school fees, transportation from house to school and back, uniform, food, clothing and other miscellaneous expenses. In the instant case, considering the fact that first revision petitioner was a working woman, this Court is of the opinion that children are entitled to be maintained by both the parents. Therefore, this Court would hold that responsibility of father would be 50% of the expenses of each child. Therefore, the responsibility of respondent towards each child for maintenance would be in the range of Rs.3,500/- p.m., from the date of petition i.e., in the year 2006 to till 31.12.2011. 12. Now coming to the maintenance to be awarded from 1.1.2012, considering the fact that children by then would have stepped into the level of middle school with more expenses towards education expenses, increase in the other expenses and reduction in money value, the maintenance which is required for each child would be in the range of Rs. 14,000/- p.m. In other words, the share of respondent being 50% would be Rs.7,000/- p.m., for each child from 1.1.2012 to this day, which the respondent is required to pay. So far as maintenance for first revision petitioner - wife is concerned, this Court would not like to disturb the finding rendered by the Court below in accepting that she is gainfully employed and being capable of maintaining herself, she is not entitled to any maintenance. 13. In the result, this revision petition is allowed in part. The order dated 7.1.2012 passed in Crl.Misc. No.254/2006 on the file of II Additional Principal Judge, Family Court, Bangalore is modified in directing the respondent husband to pay maintenance to his children i.e., revision petitioners 2 and 3 herein at the rale of Rs.3,500/- p.m., to each of them from the date of petition in Crl.Misc. No. 254/2006 till 31.12.2011 and at the rate of Rs.7,000/- p.m., to each of them from 1.1.2012 to this day. 14. No. 254/2006 till 31.12.2011 and at the rate of Rs.7,000/- p.m., to each of them from 1.1.2012 to this day. 14. At this juncture, Smt. Geetha Devi, learned counsel appearing for the revision petitioners would submit that second petitioner would be stepping into the college in next two years i.e., after studying 11th and 12th standard or Pre-university level she need to get admitted to professional college to pursue her studies either in engineering or in medicine or any other degree, which would cost enormous amount towards educational expenses and maintenance. Similarly, the third revision petitioner, minor son who is in higher secondary school i.e., studying in 8th standard would also need additional expenses similar to the one which would be met to his sister. Therefore, it is made clear that the maintenance amount which is now modified is only till filing of a petition under Section 127(3) of Cr.P.C., seeking enhancement. Accordingly, liberty is reserved to petitioners for filing a petition under Section 127(3) of Cr.P.C., before the Court below seeking enhancement of maintenance of second and third revision petitioners, also for the marriage expenses of second petitioner and further education of third petitioner. 15. Further, in view of the apprehension expressed by learned counsel for revision petitioners that in spite of conveying the order of this Court, if the respondent-husband refuse to respond to the same, liberty is also reserved to the revision petitioners to seek attachment of the salary of respondent from his employer M/s. MICO Industries or any other company in which he would be working at the relevant time. As and when such application is filed, the Court below is directed to consider the same favourably at the earliest.