IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1017* DAY OF DECEMBER 2010
BEFORE
THE HON'BLE MR. JUSTICE s.N.sATYANARAyA1§A_
R.P.F.C.NO. I 1 OF 2009
BETWEEN:
Sri.B.R.Viswaprakash,
S/o late Rudrappa,
Civil Engineer,
Bhumjka Constructions,
Aged about 33 Years,
R/0 No."/'37/B, 131 Floor, .
1~"'='1C1'oss, 991 Main, 3m B1ec1;,_'
3" Phase, Opp: Panacea I*I0spi"a'1,5"
Basaveshwara Nagazf, --
BANGALORE -- '29)'
(By
AND: 0 E
.. ..... .. »
' V .W/ 0 B .'P..V"iswa{2rakas11,
Aged about ars.
Residiag at .1x:9.5.2Va'/3,
_ 5'-h Niajn, P,J.E;._:t'ension,
0' _Sri.Jagadeeshgoud Patil 81 Assts,
V. '~ Sri:-M. G. Contractor,
E. 0 [SI''i.~R.B.COf1tI'aCtO1',
0' :§Sri.Prakash Salmai, Adv.)
T L. PETITIONER.
.. RESPONDENT.
*_=!=_*_*_=§=_j=_*
2
This petition is filed under Section 19(4) of the Family
Courts Act, 1984, against the Order dated 1.5.1 1.200′?–passed
in Criminal .MisCellaneous No.247/ 2005 on the
Judge, Family Court, Davangere, partly
filed under Section 125 of Code of « _
This petition coming on I_jIela:1’ing.’ 0′
Court made the following:
o 1ziI.ij:_g
Petitioner herein Vanvd..vvVi’respondent is wife in
Cr1.Miso.No.2él7/20_05 on Family Court,
Davangere, lfilediioy nlajntenanee.
2. Briei” -factsVleadifigglto._this.–~petition are as under:
The” rna,rriage” of the parties to this proceeding was
by their elders on 07.06.2004 at
Da’vai§,gere’, bride and her family was residing at
V that the marriage, they started living together in
* the ‘matrinionial house at Bangalore.
“”1:’§;”
3. The case of wife is that initially for few the
relationship between herself and her husband_I_:w’as’_’
Thereafter difference arose between them».
performance of marital obligation hy ‘
her, marriage was never C()nSLijfI1I_Yiat€d;’- as 11ei4V_hnst1aVr;<i went"
on postponing the nuptiai cerernorrgr, the«rnea.n§whfle, due
to difference between ither::n1other~inA~1aw, wife
was thrown out"? third week of
April, 2005. ijgriegotiations took place
between éddgtofljgsettledtheyidispute. Nothing fruitful
came out 'of V legal notice was sent by the
husband -to calling upon her to join him.
1';_Iri"coif:p1ia'nce~.of themsarne, she went to the house of her
there for two days. Again the pinprix
from rnotherain~1aw started to continue, therefore she came
to Bangalore. Again another notice was sent to her on
to which she issued reply notice.
petition was treated as closed with instructions to both the
parties to iive together cordially with mutual love and
affection. However, subsequentiy the case wasxat
the instance of wife and notice was again issued’ tojjf’n1isb’and,’
who appeared before the Court l)elovv»Vand..vfi1_ed’ L
of objections contending when .0_:ace there was-‘:re}conci1iat.ion
and Crl.Misc.Case is closed, of reeopenirig the same
does not arise. He furtlierr-..cor_iten’ded_ hisuvwife agreed
to come and live with of the case
at first instance, reinsetidd to” coIn’e—-~hacik to matfimoniai
hflmfi “vvasheid with the well Wishers in
the housetof her ‘sister.>tat~.LYelaha11ka on 12.01.2006. In the
said meeting stated that she is not interested in living
her husband, intend to take divorce as she is
Viilage Industries Board and getting
hands”o.me.__”saia;ry, she does not require to go back and live
it Husband suggested they can separate seeking
mutual consent. She did not come fonvard to do
RH
so, instead filed application for reopening of proceedings for
maintenance by swearing to false affidavit.
6. He denied the allegations that he
consummate marriage. According to]:
again called upon his wife to’ .c_ome”L_bar.:k 1’n:atriIi1o”I1iair~,
house, she is avoiding the she at
Davangere as stated in with
her brother-ir1–laW,.~Xfirup,alt;sha at Silk Board
Quarters, at working in Khadi
and Villag_e._ Secretary drawing
that there is documentary
evidence to show her Suppressing the same she
V _c-he at her. husband.
proceedings, petitioner ~ wife adduced
evidence as and marked two documents, Exs.P-1 and
‘behalf of respondent, he examined himself as R.W.i
l_’_a__nd.lproduced Exs.Rwl to R4, out of that three documents are
T marked as Exs.R-i to R–3, two of them are photos and
Vv?
7
another is (3.1). Since the respondent w husband d.id not
appear on the date fixed for cross examination, tht;–._Court
below proceeded to close the evidence of “the
petition filed by Wife for maintenance,
evidence of respondent and procehedeldl’tojallovlf
petition granting rnaintenance: in al’stin1 of Liperp
month from 02.12.2005 aWarde’d 2:’%.1,000/»~
towards litigation eXpense_s;t. 0 0 .0 H H
8. Being aggrieved by has come up in
this petition ground that the
Court bellow ‘haslignoredylttieevidence available on record and
believed thellfalsev by Wife, wherein she has
the fact that she is qualified engineer
and proj~ected herself that she has studied upto SSLC and
alsogiven statement that she does not have any income
of her that the Court below has also ignored the
produced by him, Exs.R-I to R3 more
.___’particularly, Ex.R~3, C.D., which clearly disclose that in the
mgtvti
videograph made by Ice Cable Network T .V., of Bangalore
under the name and style of “Nimma Aike”, of
company, where the wife is working has givensn
wherein his wife is introduced as a1’1~ern 30 sent the;s’a_idx2.
organisation. The Court below iiasnipre-eeeded
said petition without looking th:e”‘contents V
therein.
9. It is also his ‘case thatiiiijs that
he is not with her, though
he has expresse.ci:”th_.e_ is his wife who has not
shown interest intercourse with him, she
has no iritention of._ her husband and she is only
“iI1tere.stedE ool1ee’tin.g__tas much money as she can from him
_ stated that the Court below has not
Considered.”whether he is an employee of Bhumika
Copnstructiori or he is its owner as aileged by her wife. He
.._Cor;teri(i_ed that subsequent to marriage he is unemployed and
not have any income of his own and that his wife having
‘w’:=’\.»i
9
stayed away from him without there being any valid reasons,
she is not entitled to any m_air1tenanee for the reason that she
is having income of her own. Therefozre, the order passed by
the Court below is required to be set aside.
10. Initially this matter was disposed of for
of petitioner’s counsel. Subsequently when the was 7
restored and it was taken upsfor fl4r1–al”‘diSpO:S€J..T ”
through the grounds in the l”–‘etitio’1’r-Zarnld also the
findings of the Court below: following
points for consideration: A
1. below was justifled in
= l petitioner ~«» wife is not
‘ ” properly ‘q’Lrali’fied and not employed and also
i-(“not .eapa’i)l”eof maintaining herself?
._ the maintenance awarded. at
V_’»Rs;.3,l000/w per month is just and proper or
” _ does it call for interference of this Court’?
E0
Heard the counsel for petitioner and respondent.
Perused the pieadings and evidence available on record. On
appreciation of the same, in the light of the the
Court below, this Court answer the aforesaid “ford
Consideration, in the negative. for the ” it
REAsoNs”
11. Admittedly marriage’ tietweeri the has taken
place on 07.06.2004. The card produced
by the parties Cdldlrtd discloses that the
respondent a».quaiiiiedV”:AEIeeti’onie Engineer and the
petitioner’-,– husband-~ipst a Eflngmeer. From the records, it
is clearly . petitioner admits there is no
-veonsuvmmation of” «marriage, her allegation is that her
dliusbagid interested in discharging his marital
obligation arid it is also her case that he is an impotent.
he-.,.g__When thefiriuptial ceremony is not conducted and when the
.A._e’apahiu1i’ty or otherwise of the husband to have successful
—-.’i’nter?course with the respondent «~ wife not being established,
‘*1
E
11
there is no basis for the respondent — wife to come to a
conclusion that the petitioner herein is impotent. itppisttzlyeariy
seen that after the marriage, respondent has n;ot”stayed.VA4i’or
long time with the petitioner it
immediately after she left the matriinonisi l’
week of April, 2005, notices aé–e’i.gentV”to’Vlier hor_VVhLishandir
on 03.08.2005 and 2é3.O8.2()_()_l5=V:_to_»_p he; ‘»hroth7er–in–1aw’s
address, where she has”‘–rece’iye3d’ j. notices, which
clearly discloses tliatV_.aitei””shc:’ieVf.t fnatrinionial house, she
was residing
12_ It ;;$’:._a1go 3¢§§V11′:’:tiigiat_’fl-ie””photos which was produced at
EXs.R–l andVV”R–_p2 in EX.R–3, which was played by
-this __i’11 thelpiesence of counsel appearing for petitioner
.and.V.respovndent;”‘it is seen that the respondent — wife is seen
in tiie”‘isaid’wfidaeo in an office, where it appears she is
V7.p_.uenj1pp1oye<i the said office. Conversation in the said C.D.,
indicates to a pointed question by an interviewer
…,regarding the personal matters of the said Wife, she tries to
32
avoid the same with the support of her superior officer in the
said office. The photographs at EXs.R–l and R–2 the
C.D., clearly give credence to the contention
petitioner herein to the effect that hiswife, wliojiis
1.7′
Electronic Engineer is gainfully ‘»§3I1’1:*’-_,'”1’l-C).j;’€(‘I§;..’i’ITlV'”a'”V:£
1I’II4:1; in l
Bangalore and as such. she i2(as~.._been’-._resirdi1ig” inv…IE3ariga1or.e’
since the day she left the . l_
13. Now coming to the e’vi,dence of the wife,
though she has stated tii’ai3tiispstitisnef “herein is having a
company of –.1f1oi_”}§rod_uced any documents to
show thatihe ‘is. the company. Per contra, she
has produceii.._4the §:ero:;”copy of income tax return to show
_.–that tile. iricorne .of–Rs_,__l.,~O6,81r7/~ as on that day. Therefore
V’l1e’r’;cor1teritior1_fith.a.t her husband is drawing Rs.30,0G0/– is
nothiriglbut which is obviously stated to influence the
ll”~.»_.uCourt to fix a fat and handsome maintenance to her.
._’i”h’1″oVughout her evidence, it is seen that the same is
,.._i1:icoi;’1sisterit regarding her qualificatioti and her employment.
aw’,-°\
13
When her wedding invitat:ion itself shows that she is a
qualified Electronics Engineer, her contention has
completed only SSLC and that she is unemp_loj}ed
capable of getting any employment _is>utter_. Court.
below has not looked into the coI1dt1Ct;’oI7. .
first. instance, both the partieshad agreed_ live’
together and thereafter it is gorle back on
the undertaking given that she would go
and join the mat7tirrionial::’ that time and
again she was to join the
matflmonjialllvhoittsellgil to stay away from the
same Jtryl =”her legal right for seeking
maintenance from her husband.
“14-… eonduct discloses that she has absolutely no
int_ere_st’ her marital obligation as a wife. The
Court»…belowh:as. ignored all this and in its haste refused to
” suffifcvieht time to permit the petitioner we husband, who is
in the Court below to subject himself for cross
W:
‘n}1%,<igIT.k5*:.1t:s§i'
14
examination and has proceeded to dispose of the petition for
maintenance Without looking into the evidence, is
available on record and thereby committed an €I_’.i'”o’1″.” .;. it
15. The counsel appearing for respondent that.
there is nothing on record to showitliateti’1e’vs}ife'”is'”gatnially .
employed and that she is
assuming that she is en1ploye(i:f,the_V Cou”1*t__l)eloW should
consider whether it 1% or a stray
employment for or :_tn?o’ salne cannot be
the Co11rVt?..Al:)elowl “denied. In support of that,
counsel for has relied upon the following
ltd)’ .199vG.i:E$upreme Court 383 -~ in the matter of Ashok
V1 Addl. Sessions Judge, Varanasi and
lhV._others.’ has relied upon this decision to sate that the
being impotent, is not able to perform his marital
Ml
15
Obligation and therefore the order passed by the Court below
is just and proper.
(b) He has further reiied upon the in
1991 CRI.L.J. 2357 in the matter of
Singh Vs. Vi Additional Sessions
wherein the Allahabad High CO’:.;fL hasheld t1i’a;t.,i:exé}eriT;i§i%i1ef;t’
the wife is an educated she. uiaemployed,
maintenance cannot be.._.’V:ref1j_VsedV because she is
educated and capable of
(0) He thewdecision reported in 1981
CRI.L.J. in the Virnal Vs. Sukumar Anna Patil
and another arid..,e(‘:hvterid that when there finding of fact that
i’ti’adV”neg1ecte’dand refused to raaintain wife, she is
entitled to
(d) in judgment of this Court in the matter of
Vs. Aravinda Tejas Chandra reported in
KCCR 2245, wherein it is clarified. that maintain
WM]
16
cannot be equated to capable of earning for herself and where
the capacity to earn and unable to maintain is distinguished.
Counsel appearing for respondent — wife relied qion __tE.tese
judgments and stated that in the iighi of §
maintenance awarded by the ‘i1_tto
consideration that the ht1sband”‘is :iInpotent not
completed his maritai obligation___ai1d also not–r1iairitair1ed his
wife is rightly appreciated loelow and awarded
maintenance, which Cannot’
16. Per cont.ra;*vcoiirise}:_a._1§’11ea:fi1ig» ioruiietitioner M husband
has relied of this Court reported in
2007(4) matter of Abbaiah Vs. Byrappa
Rwherein ____ this Court has dealt the aspect of
“supp:~esgmg~i ilniaterial information and the right of the
partiesto see’1{_e€1uital)le relief under such circumstances. in
mattevrpfy Sri.Jagadish Patii Vs. The State of Karnataka
reported in 2007(4) KCCR SN 307, wherein this
‘ has dealt with the rights of the parties who approached
Li $1
17
the Court, must approach the Court with clean hands and
state the true facts before the Court.
17. On appreciation of pleadings and contentions.:rais’ed_””oy. 4_
both the parties and also the docuInen’ts¢aVfajlah1e’.on j
it is clearly seen that the respon(ienf1?§1er_eir1,
in the Court below is a qualified::Electron.ic has no
interest in living with her” matfin’1onial house,
having deserted on her failed to the
series of request and join him,
has proceeded to-“‘file””the’7fijresent’petition for maintenance.
The Legislators éwiisddorii while enacting the Hindu
Marriage Act;vena.cted provision ernpowering the wife
,.-to seek~3’.maintenan’ce,…_wl1en she is ignored by her husband,
the same -as a matter of right by the petitioner herein
to fulfil the marital obligation towards
she is trying to make use of the marriage as a
of additional income for her. Though she is gainfully
. –..ernpioyed, she has suppressed the same, sworn to false
“””\
18
affidavit to the Court below and tried to project herself as a
helpiess wornan to extract maintenance by the Vypetitioner
herein, which conduct of the “respondent is ljiighly”de_pl.or:abIe.
Therefore, this Court hold that withfimthe
respondent herein has not established tliat she “is”n.o’i,:capa_ble
of maintaining herself.
18. It is also seen that i. not given
sufficient opportunity to Court below, who
is petitioner herein; __to to substantiate
his case. the matter back
to the to the Trial Court to give
permission to._bicthV”partiesto produce additional documents,
also to leadevidence in support of their case. After
.suf£iC~isent”vopportunity to both the parties, the Trial
Courf of the petition filed by the wife,
_ respondent under Section 125 of Cr.P.C., on its merits.
avoid any further delay in this matter in reissue of
..__riotiee to parties in the remanded proceedings, the counsel
£4,/VI’
iiCi\#XeVe C
I9
appearing for “both parfies are directed to appear before Trial
Court on 17.01.2011. On that day, ihe Presiding…Cfiicer of
F amily Court, Davangere, shali fix the date e0n\_re:rii’eiitvj’to’ botifil
parties to file additional pleadings §oc1i–.the11£$:,.
also to iead further evidence, if
and thereafter dispose of ‘V
Registry is directed ‘to of Trial
Court; to Family Courti ‘4i:tié’:ae(1i_ate1y to see that
the records are a\*.ailvabie_’ fiavangere, to call
the same ifi *
Sd/-1
Iudgg