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2019 DIGILAW 1601 (KAR)

Manjula v. Prakash

2019-07-05

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The petitioners being aggrieved by the Judgment and order dated 16.08.2017 passed in Criminal Miscellaneous No.220 of 2015 by the Principal Judge, Family Court, Hubballi have filed this revision petition. 2. The brief facts of the case are as follows : Petitioner No.1 and respondent are wife and husband and their marriage took place on 18.06.2012 as per the rituals of Jain community. The respondent is the second husband of the petitioner No.1. Petitioner No.1 after giving divorce to her first husband married the respondent. The petitioner No.2 is the daughter of petitioner No.1 born through her first husband and petitioner No.3 was born out of the wedlock of petitioner No.1 and respondent. After the marriage petitioner No.1 joined the company of the respondent and led happy marital life with the respondent at Sirsi and after some days the respondent-husband changed his attitude and started harassing the 1st petitioner to keep away the 2nd petitioner from him. Thereafter, the respondent consented to keep the 2nd petitioner with her. Thereafter, the respondent against the will of the petitioner No.1 admitted the petitioner No.2 in a hostel accordingly she was admitted in the Vivekananda Nithika and Adhyathmika Vidya Kendra situated in Gonur taluk Sirsi. Subsequently, the 2nd petitioner became sick due to separation from the 1st petitioner as she could not adjust with the environment in the Hostel. Petitioner No.1 further stated that after the birth of petitioner No.3 the respondent started hating the petitioner No.2 and harassing the petitioner No.2 as she is not the daughter of the respondent and the respondent has forgotten the promise made by him at the time of marriage with petitioner No.1 that he will look after the petitioner No.2 as his own child. Due to the continuous harassment of the respondent the 1st petitioner was unable to lead the normal life with the respondent. Therefore she started staying separately along with her two children. She is unable to maintain herself and her children as she has no source of income. 3. Respondent-Husband is a business man having agriculture land and tyre business at Sirsi and getting income of Rs.30,000/- per month and getting income of Rs.20,000/- per month from the rented house and also having own house for residence and he has no liabilities. Therefore, he is capable of paying maintenance of Rs.10,000/- per month to each of the petitioners. 3. Respondent-Husband is a business man having agriculture land and tyre business at Sirsi and getting income of Rs.30,000/- per month and getting income of Rs.20,000/- per month from the rented house and also having own house for residence and he has no liabilities. Therefore, he is capable of paying maintenance of Rs.10,000/- per month to each of the petitioners. On these facts, petitioners approached the Family Court, Hubballi seeking maintenance amount of Rs.30,000/- p.m. from the respondent-husband. 4. Respondent appeared in the petition and filed his objections. He has denied the allegations made in the petition. His family members opposed the marriage with petitioner No.1; he has denied that he developed enmity with petitioner Nos.1 and 2. He has further stated that petitioner No.1 herself deserted him and quarreled with the respondent, abused him in filthy language and lodged false complaint against him. He has denied that he is businessman and earning Rs.30,000/- per month and getting Rs.20,000/- per month rent from the house and also another Rs.30,000/- per year from the agriculture. Petitioner No.1 has voluntarily left his company and therefore he is not liable to pay maintenance. He has further stated that she has received permanent alimony of Rs.1,00,000/- from his first husband. He is getting Rs.8,000/- per month rent from the ancestral property and therefore he is not in a position to pay the separate maintenance to the petitioners and prayed for dismissal of the petition. 5. In order to prove their claim, petitioner No.1- wife herself was examined as PW-1 and her father was examined as PW-2. She has got marked 15 documents as Ex.P-1 to Ex.P-15. The respondent-husband got examined himself as R.W.-1 and got marked 41 documents as Ex.R.-1 to Ex.R.-41. The learned Judge of the Family Court after hearing both the parties passed the impugned order by which he rejected the claim for maintenance in respect of petitioner Nos.1 and 2 and awarded maintenance amount of Rs.1,000/- per month to the 3rd petitioner from the date of order till she attains the age of majority. 6. The petitioners being aggrieved by the impugned order have filed this revision petition claiming the maintenance. 7. Heard the learned counsels for the revision petitioners and for respondent. 8. 6. The petitioners being aggrieved by the impugned order have filed this revision petition claiming the maintenance. 7. Heard the learned counsels for the revision petitioners and for respondent. 8. A short question which arises for consideration before this Court is as to whether the petitioners have made out grounds for awarding maintenance amount to the 1st and 2nd petitioners and also for enhancement of maintenance to the 3rd petitioner. 9. The learned counsel for the revision petitioners submitted that the maintenance awarded to the 3rd petitioner at the rate of Rs.1,000/- per month is too meager and she cannot be maintained out of the said amount and that the respondent is getting sufficient income, therefore, it is necessary to enhance the maintenance amount awarded to respondent No.3. 10. The learned counsel for the respondent-husband submitted that absolutely there is no evidence to prove the income of the respondent and therefore on the consideration of the material on record the Family Court has properly awarded the maintenance amount of Rs.1,000/- to the 3rd petitioner and claim of petitioner Nos.1 and 2 was rejected for the reasons recorded by it. 11. Sofar as the claim of petitioner Nos.1 and 2 seeking maintenance from the respondent is concerned the Family Court has observed that the 1st petitioner has admitted in the course of her cross-examination that she has received permanent alimony of Rs.1,00,000/- from her first husband-Vinod and it is also admitted that petitioner No.2 is her daughter born through the first husband and on this ground the claim of maintenance in respect of petitioner Nos.1 and 2 was rejected. This Court holds that the rejection of the claim of petitioner Nos.1 and 2 is proper and does not call interference. 12. Sofar as the claim in respect of petitioner No.3 is concerned, she is admittedly daughter born out of the wedlock of petitioner No.1 and respondent and she is in the care and custody of petitioner Nos.1 and she was aged about two years as on the date of filing of the claim petition. The evidence on record goes to show that the respondent-husband has admitted that he was getting rent of Rs.8,000/- per month from the ancestral property. However, he has not stated as to his earnings from business or any other source and also from agriculture. The evidence on record goes to show that the respondent-husband has admitted that he was getting rent of Rs.8,000/- per month from the ancestral property. However, he has not stated as to his earnings from business or any other source and also from agriculture. Petitioner No.1 has produced photographs of the respondent-husband's house, shops owned by the respondent at Ex.P-14, these photographs are not denied by the respondent. The respondent has not disclosed his income from other sources. Considering the material on record, it is just and necessary to award the maintenance amount of Rs.4,000/- per month to the petitioner No.3 till her marriage after attaining the age of majority. The point for consideration in this petition is answered accordingly. In the result, this Court proceed to pass the following : ORDER The revision petition is allowed in part. The maintenance amount to the 3rd respondent is enhanced to Rs.4,000/- per month from the date of this order. Respondent is directed to pay the maintenance amount of Rs.4,000/- per month to the 3rd petitioner till the date of her marriage after attaining the age of majority.