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Karnataka High Court · body

2019 DIGILAW 1851 (KAR)

T. A. Vijaya Kumar v. Sneha Naidu

2019-08-16

B.VEERAPPA

body2019
ORDER : 1. The petitioner-husband has filed the present writ petition against the order dated 07.11.2017 made in M.C.No.4573/2014 on I.A.No.3 allowing the application filed by the wife under Section 24 of the Hindu Marriage Act, 1955 awarding a maintenance of Rs.50,000/- per month from the respondent till the disposal of the MC petition and directing the present petitioner to pay the arrears of maintenance from the date of petition within 60 days from the date of order. 2. The present respondent-wife filed the petition MC No.4573/2014 under the provisions of Section 13(1)(i-a) of the Hindu Marriage Act, 1955 for divorce raising various contentions. The present petitioner who is the respondent before the Family Court filed detailed objections denying the averments made therein and sought for dismissal of the petition. During the pendency of the said petition, the present respondent-wife filed application under Section 24 of the Hindu Marriage Act, 1955 read with Section 151 of C.P.C. to direct the respondent-husband to pay a sum of Rs.2,00,000/- per month as a maintenance and Rs.5,00,000/- towards litigation expenses reiterating the averments made in the petition. The said application was opposed by the husband by filing objections, reiterating the averments made in the statement of objections filed to the main petition. 3. The learned Judge, Family Court considering the application and objections filed by the parties, by the impugned order dated 07.11.2017 allowed I.A.No.3 filed by the wife in part and awarded interim maintenance of Rs.50,000/- per month to be paid by the respondent till the disposal of the petition and also directed to pay the arrears of maintenance from the date of petition till the date of the order within 60 days. Hence, the present writ petition is filed by the husband-petitioner. 4. I have heard the learned counsel for the parties to the lis. 5. Sri H.V. Praveen Gowda, learned counsel appearing for the husband-petitioner has contended that the impugned order passed by the Family Court awarding interim maintenance of Rs.50,000/- per month and directing the present petitioner to pay the arrears from the date of petition till the date of order is erroneous and contrary to the materials on record. The same is liable to be quashed. The same is liable to be quashed. He further contended that the Family Court before passing the interim maintenance has not considered the actuals and factuals of the case, the pleadings and the statement of objections filed by the husband. He would further contend that the learned Judge, Family Court has not come to any definite conclusion regarding income of the husband. Hence, in the absence of definite conclusion of the income of the husband, the impugned order passed by the learned Judge, Family Court awarding an interim maintenance of Rs.50,000/- per month is only on the basis of the assumptions and presumptions and cannot be sustained. 6. He would further contend that the petitioner-husband was receiving rent of Rs.2,00,000/- per month out of the 'Golden Sands' service apartment earlier but the respondent has claimed about Rs.6,00,000/- to Rs.7,00,000/- income out of the said service apartment. He would further contend that the wife has got sufficient means to survive and therefore, the learned Judge, Family Court is not justified in awarding monthly maintenance of Rs.50,000/- without any basis and hence, sought to allow the petition by quashing the impugned order dated 07.11.2017 made in M.C.No.4573/2014 on I.A.No.3. 7. Per contra, Sri Rawley Muddappa, I.P, learned counsel appearing for the caveat/respondent-wife sought to justify the impugned order passed by the learned Judge, Family Court and contended that the respondent is a Real Estate Dealer and very wealthy man. He owns a large number of properties in and around Bengaluru as well as Coffee plantations and lands in Sakleshpura. He continues to live in the luxurious 4 bedroom pent house from where the wife was ousted. The respondent is getting nearly 17 lakhs per month from the rented out apartments and gets revenue from his Coffee plantation and he further contended that the husband is having sufficient means. Taking into consideration, the entire material on record, the learned Judge, Family Court is justified in passing the impugned order. Therefore, he sought to dismiss the present writ petition. 8. Having heard the learned counsel for the parties, it is an undisputed fact that the present respondent who is the petitioner before the Family Court filed petition under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 for divorce raising various contentions. The same is disputed by the husband -present petitioner by filing statement of objections. 8. Having heard the learned counsel for the parties, it is an undisputed fact that the present respondent who is the petitioner before the Family Court filed petition under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 for divorce raising various contentions. The same is disputed by the husband -present petitioner by filing statement of objections. It is also not in dispute that during the pendency of the petition, the present respondent has filed an application under Section 24 of the Hindu Marriage Act, 1955 for directing the present petitioner-husband to pay a sum of Rs.2,00,000/- per month as maintenance and Rs.5,00,000/- towards litigation expenses reiterating the averments made in the petition. The same is disputed by the husband by filing objections. While considering the application and objections, the learned Family Judge has framed the point for consideration as: "Whether the petitioner has made out reasonable grounds to allow the present application?" 9. The learned Judge, Family Court considering the pleadings of both the parties and arguments advanced, has held that the present petitioner has retained some share in 'B' and 'C schedule properties and also properties from the family partition deed entered into between the children and still the respondent-present petitioner has got some other properties though he has been saying that the Coffee plantation and the construction of the temple belongs to the trust and he is residing in the said estate to complete the said temple. It is very important to note that the Coffee is a commercial crop which has got its own market value in the national market. Even a person who is having a very small acre of plantation will also get good profit in these years and also recorded the finding that the very prime properties were only settled in between themselves. When such being the case, by considering the fact that this respondent was a developer and also a coffee planter and by considering his status and also by considering the status of this petitioner, the learned Judge, Family Court was of the opinion that an amount of Rs.50,000/- per month will have to be awarded as monthly maintenance and Rs. 1,00,000/- towards the litigation expenses. 10. The learned Judge, Family Court has come to the conclusion that an amount of Rs.50,000/- to be paid as monthly maintenance to the wife by the husband and Rs. 1,00,000/- towards the litigation expenses. 10. The learned Judge, Family Court has come to the conclusion that an amount of Rs.50,000/- to be paid as monthly maintenance to the wife by the husband and Rs. 1,00,000/- towards the litigation expenses without any basis. The learned Judge has not come to any definite conclusion as to what is the income of the petitioner-husband and what is the maintenance the respondent-wife is entitled for is not forthcoming. The findings at para 14 and para 15 recorded by the learned Judge, Family Court is only presumptions and assumptions and no documents were referred. In the absence of any definite conclusion in respect of the income of the husband and entitlement of the wife to the monthly maintenance, merely, the husband is a developer and also a coffee planter and even a person who is having a very small acre of plantation will also get good profits in these years would not be the ground to grant Rs.50,000/- as monthly maintenance to the wife. 11. Absolutely there are no reasons assigned to by the learned Judge, Family Court to come to that conclusion. It is no doubt true that the wife is entitled for maintenance during pendente lite of proceedings under the provisions of Section 24 of the Hindu Marriage Act, 1955 and that itself is not a ground to award maintenance whatever the Court feels without any basis. Ultimately, the Court is required to take into consideration the income of the parties before deciding the quantum of interim maintenance and Court should also come to the conclusion with respect to the need of the applicant and paying capacity of the non applicant i.e., husband. In the absence of such findings, the impugned order passed by the learned Judge, Family Court cannot be sustained. Though learned counsel appearing for the parties raised several contentions before this Court about the income of the wife and the income of the husband, this Court resisted to record any findings, since, it is the duty of the learned Judge, Family Court to decide the income of the husband and requirement of the wife and capacity of the husband to pay the maintenance. In the absence of the same, the impugned order passed by the Family Court cannot be sustained. 12. In the absence of the same, the impugned order passed by the Family Court cannot be sustained. 12. For the reasons stated above, the writ petition is allowed and the impugned order passed by the learned Judge, Family Court dated 11.07.2017 made in M.C.No.4573/2014 on I.A.No.3 under Section 24 of the Hindu Marriage Act, 1955 is hereby quashed. The matter is remitted back to the Family Court to reconsider the application filed by the wife under Section 24 of the Hindu Marriage Act, 1955 and decide the application taking into consideration the income of the parties, quantum payable to the wife and capacity of the husband to pay the maintenance and pass appropriate orders strictly in accordance with law, within the period of three months from the date of receipt of the application. 13. It is made clear that it is open for both the parties to produce the relevant documents to prove their respective income in accordance with law.