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2020 DIGILAW 771 (KAR)

Sangeetha W/o Rakesh Jain v. Rakesh S/O Kushalchand Jain

2020-03-19

S.R.KRISHNA KUMAR

body2020
ORDER: This Writ Petition by the petitioner-wife is directed against the impugned order dated 05.11.2019 passed by the III Addl. Principal Judge, Family Court, Bengaluru allowing I.A.No.3 filed by the petitioner-wife under Section 24 of the Hindu Marriage Act, 1955 seeking maintenance, litigation expenses, medical expenses, educational expenses, etc. from the respondent-husband in favour of the petitioner and their minor son Havish Jain who was born during the year 2010. 2. I have heard the learned counsel for the petitioner and perused the material on record. 3. The respondent-husband having been served with the notice of this Writ Petition has chosen to remain unrepresented. 4. A perusal of the material on record including the impugned order will indicate that it is not in dispute that the petitioner and respondent got married on 06.07.2006 and from out of their wedlock, a male child Havish Jain was born in the year 2010. The impugned order passed by the Trial Court arises out of proceedings in M.C.No.4744/2016 filed by the respondent-husband against the petitioner-wife under Section 13 (ia) and 13(ib) of Hindu Marriage Act, 1955 seeking dissolution of their marriage by a decree of divorce and for other reliefs. The petitioner-wife not only contested the divorce petition but also filed I.A.No.3 under Section 24 of Hindu Marriage Act, 1955 seeking maintenance, litigation expenses, medical expenses, educational expenses, etc. from the respondent-husband in favour of herself and their minor son who is undisputedly under the custody of the petitioner. It is also not in dispute that the respondent-husband is residing at Mumbai and the petitioner-wife and their minor son are residing at her parental home at Bengaluru. 5. Before the Family Court, it was contended by the petitioner-wife that the respondent-husband was doing business and running two medical shops in addition to other business and had good source of income. It was also contended that the petitioner-wife was unemployed and was residing in her parental home and did not have any source of income for her livelihood. It is further contended that the respondent-husband has neglected the petitioner-wife as well as their minor son and was not paying any maintenance either in favour of the petitioner-wife or to the minor son towards his maintenance, educational expenses and medical expenses. Putting forth these contentions, the petitioner-wife filed I.A.No.3 before the III Addl. Principal Judge, Family Court, Bengaluru as stated supra. 6. Putting forth these contentions, the petitioner-wife filed I.A.No.3 before the III Addl. Principal Judge, Family Court, Bengaluru as stated supra. 6. The respondent-husband opposed the said application. After hearing the parties, the Family Court, Bengaluru allowed the application in I.A.No.3 in part thereby directing the respondent-husband to pay monthly maintenance of Rs.25,000/p.m. in favour of the petitioner-wife and Rs.10,000/p.m. in favour of the minor son. The Family Court also directed the respondent-husband to pay Rs.10,000/towards litigation expenses. By impugned order, the Family Court directed the respondent-husband to pay the aforesaid sums in favour of the petitioner-wife and the minor son for the period of 6 months from the date of the order or till the disposal of the petition whichever was earlier. 7. Aggrieved by the impugned order insofar as it relates to the quantum of maintenance and other sums awarded by the Family Court as well as the directions issued by the Family Court in respect of period for which the said sums has been ordered by the Family Court, the petitioner-wife is before this Court by way of the present petition. 8. I have heard the learned counsel for the petitioner and perused the material on record. As stated above, the respondent-husband having been served, he has chosen to remain unrepresented. 9. Learned counsel for the petitioner submits that it was not in dispute that the respondent-husband was doing business and running two medical shops in Mumbai. It was also not in dispute that the petitioner-wife and her minor son were residing in the house of her parents at Bengaluru and that she was unemployed and did not have any source of income for her livelihood. Under these circumstances it is contended that, having regard to increasing cost of living and the rate of inflation, the quantum of maintenance awarded by the Family Court, Bengaluru is inadequate, insufficient and meager and the same deserves to be enhanced by this Court. 10. Secondly, it is contended that the Family Court, Bengaluru committed an error in directing the respondent-husband to pay maintenance from the date of the impugned order instead of from the date of institution of the proceedings before the Family Court. In this context, learned counsel for the petitioner placed reliance upon the decision of this Court in the case of Prahlad Narasimha Joshi Vs. In this context, learned counsel for the petitioner placed reliance upon the decision of this Court in the case of Prahlad Narasimha Joshi Vs. Vedavathi @ Leelavathi reported in 2001 (4) KCCR 2315 and the decision of the division Bench of this Court in the case of N.Subramanyam Vs. M.G.Saraswathi reported in AIR 1964 KANT 38 in order to contend that notwithstanding the fact that the application under Section 24 of Hindu Marriage Act seeking interim maintenance and other reliefs’ was filed subsequent to institution of the proceedings before the Family Court, it was open for the Court to direct the respondent-husband to pay interim maintenance and other sums from the date of institution of the proceedings itself and it was not necessary that payment of the said sums is to be restricted to from the date of the order. It is therefore contended that the impugned order passed by the Family Court, Bengaluru directing the respondent-husband to pay the interim maintenance and other sums from the date of the impugned order deserves to be set aside. 11. It was also contended that the Family Court erred in directing the respondent-husband to pay the said sums only for a period of six months from the date of the order or till completion of proceedings whichever was earlier. In this context, the learned counsel submits that the respondent-husband was unnecessarily protracting the matter and as such, if the order directing the respondent-husband to pay the said sums is restricted and limited only to the period of 6 months, the petitioner and her minor son would not be in a position to maintain themselves after expiry of the said 6 months and this would result in irreparable loss, injury and hardship to the petitioner-wife and her son. 12. Lastly, the learned counsel for the petitioner submits that having regard to the aforesaid facts and circumstances which indicate that the petitioner-wife did not have any source of income for her livelihood coupled with the fact that medical expenses have been incurred by the petitioner-wife towards treatment of her minor son, the Family Court committed an error in not granting any amount towards medical expenses which is borne out from the material on record comprising of medical bills, prescriptions etc. It is also contended that the respondent-husband had originally filed the divorce petition before the Family Court, Mumbai and the petitioner-wife herein having had to approach the Apex Court to seek transfer of the proceedings to Bengaluru where she was residing, the petitioner-wife would be entitled to litigation expenses also from the respondent-husband. 13. I have given my anxious consideration to the submission made by the learned counsel for the petitioner and perused the material on record. 14. As rightly contended by the learned counsel for the petitioner, the material on record clearly indicates that the respondent-husband is doing business and running two medical shops at Mumbai. The petitioner-wife is unemployed and is residing at Bengaluru in parental home along with her minor son. Under these circumstances, in the light of the decisions of this Court referred to supra, the Family Court committed an error in restricting the liability of the respondent-husband to pay interim maintenance and other amounts from the date of the order instead of from the date of the application I.A.No.3 filed by the petitioner under Section 24 of the Hindu Marriage Act. So also, the Family Court committed an error in restricting the period for payment only to 6 months from the date of the order instead of till the disposal of the petition. Under these circumstances, I am of the considered opinion that the respondent-husband having filed a petition for divorce against the petitioner-wife in the year 2014, he would be liable to pay interim maintenance, litigation expenses etc. in favour of the petitioner-wife and her minor son from 28.05.2018 onwards on which I.A.No.3 was filed and to continue to pay the same till disposal of the petition in M.C.No.4744/2016 pending before the III Addl. Pr Judge, Family Court, Bengaluru. 15. Insofar as the litigation expenses and medical expenses are concerned, having regard to the expenses incurred by the petitioner-wife towards litigation since the application was originally filed in Mumbai and transferred as M.C.No.4744/2016 to Bengaluru, I am of the view that the respondent would be liable to pay Rs.25,000/towards litigation expenses and a sum of Rs.55,000/towards medical expenses as can be seen from the material on record. 16. 16. So also, having regard to the galloping the rate of inflation and the steep increase in the cost of living, the petitioner-wife would be entitled to Rs.35,000/p.m. towards monthly maintenance and a sum of Rs.15,000/p.m. towards monthly maintenance of her minor son who is undisputedly studying in Bishop Cotton Boys School, Bengaluru, which is a premier institution in Bengaluru. 17. In the result, I pass the following: ORDER (i) This writ petition is partly allowed. (ii) The impugned order dated 05.11.2019 on I.A.No.3 passed in MVC.No.4744/2016 by the III Addl. Principal Judge, Family Court, Bengaluru is hereby modified. (iii) Respondent-husband is hereby directed to pay interim monthly maintenance of Rs.35,000/in favour of the petitioner-wife. (iv) Respondent is also directed to pay interim monthly maintenance of Rs.15,000/ in favour of his minor son, Havish Jain. (v) It is made clear that the respondent is directed to pay both the aforesaid monthly interim maintenance amounts in favour of the petitioner-wife as well as thier minor son Havish Jain, from 28.05.2018 on which day I.A.No.3 was filed and to continue to pay the same till disposal of M.C.No.4744/2016 pending before the III Addl. Principal Judge, Family Court, Bengaluru. (vi) Respondent is also directed to pay litigation expenses in a sum of Rs.25,000/to the petitioner-wife. The respondent is also directed to pay Rs.55,000/towards medical expenses for the minor son. (vii) The respondent-husband is directed the entire arrears payable to the petitioner-wife and their minor son in terms of this order within a period of eight weeks from today. The petition stands partly allowed in the above terms.