IN THE RIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2m'OAI OF sEPTEME3iTéOO9 ;
BEFORE ." 'V
THE HON'BLE Mr. JUSTICE_KTL{fififiJfi§flTHkT
WRIT PETITION No.13@52/?0O8 {§MIfid¥O*u""
WRIT PETITION No:I&5o5[2oO3T}Ofi~TC)
BETWEEN:
w.P.No.13452/2ooa;IIu.
B.N.Niranjan:9/O;flr.EJY1Nagaraj;*-m;
33 years, B/O~fiOg97/2g_i0?1Cr9SSp
12th.Block,{Kuméxa Pazkfweét, "4"
Banga1or¢720,f'v,__ _*_""-,wHf .. PETITIONER
(By Advocaté Sri}K,N¢fiaya1u Assts.)
AND:
C.G.Shivaranjini"d/OIC.M.Gangadharappa,
«.27 yefixsf R/o NO.8f01, 2F Main Road,
. iJf"IB1o6k,"2"'Stage, Nagarabhavi,
'OBanga1o;ee73;«_ .. RESPONDENT
1″(EyHhdfiOcatO”§ri.R.B.Sadashivappa)
A” 3ETwEEm;
~7§p_V.w.P.No}146o5/zeoa:
T”$IQIShivaranjani w/O B.N.Niranjan,
_.d/p”C:M.Gangadharappa,
‘”26 years, R/o No.97/2, 10″‘Cross,
‘”~I2″‘B1ock, K.P.Wast,
gBangalore-20. _ .. PETITIONER
(By Advocate Sri.R.B.Sadashivappa)
6/
AND:
B.R.Niranjan s/o Dr.B.Y.Nagaraj,
33 years, R/o No.97/2, l0″‘Cross,
12″‘Block, Kumara Park West, .;’ ._’z’gy% I
bangalore–20. . _ ‘ 4RESPQVNI.’$E’,NT
W.P.No.13452/08 is fi1e~d'”-under’–Arts”,a2215 1:. 227 of The
Constitution of India to quash/set aside Annexure–D to the
writ petition i.e., the order dated 29.8:2008 passed in MC
No.978/2006 on the file of gIIV.Addl. Prl. Judge, Family
Court, Bangalore and Ibyp’dismissingg the application filed
under Sec.24 of the Hindu Marriageyfictr”
W.P.No.14_603gT.0’8 is ff’iled_un’de.r.V-Arts.226 & 227 of The
Constitution of_Endia to nmdify the impugned order dated
29.8.2008 passed by the $1 Addl;”Family Court, Bangalore on
I.A.5 in__y__MC'”*,No’.378/2006′ “<ri_deV..5Annexure–E and direct the
respondent to pay33s,2Og00O/9 per month towards maintenance
for thef petititnerv and _her minor son and also to pay
Rs.25,000/smtowardsrlegalyexpenses.
These "two. Petitions are coming on for preliminary
_hearing in B–Group this day, the Court made the following:
0 R D E R
"" ?These two petitions are arising out of an order passed
Vi by the II Addl. Family Court at Bangalore passed on I.A.5
"'§ Kin MC fio,§78/2006. For the sake of convenience, parties
'=ficu1d he referred to as per their status before the court
R"uhelow.
‘(iv/2
2. Husband has filed a petition for divorce on the ground
of mental cruelty. Parties have a child who is aged about
four and half years. Both the husband and; wife are
engineers. In the petition filed for divorce wife filed a
–__ /<_&_v, ,
petition for grant of interim nmintenance under Sec.24 of
the Hindu Marriage Act claiminé=~interi¢Ef3¢@ntenance.kof
Rs.20,000/* per month Vand.'r;i§igati§§s_,§s§e;s§; iof
Rs . 25, 000/" per month . In of ' filed
in support of the application she has claified maintenance
not only for her but a1§o.£;g{ré£r¢§i1a. According to the
respondent–wife, =Vher,""husbandgp is T7getting salary of
Rs.75,000/~ per month as he is working as Senior Software
Engineer .§0r. M/s'*¢;é:$eith at Peenya. At the time of
filing the application. child was aged two years old. She
_Fclaim[jaaintonancef en~ the ground. that even though she is
earning. the same is not sufficient to maintain herself and
V to mam-'.ain child.
“tff3.v Husband filed objections contending that wife is also
x’earningfand her net income is Rs.50,000/~. Therefore he
x°~contended ‘that she is not entitled to claim separate
it’-_fiaintenance and he further contends that maintenance of the
spy
“V”awardi–n__g ofi[RvsA.4000/* towards maintenance of the child is
” «i..fjV»’v’a2}V.’s.o on higher side. According to him, out of Rs.4000/-~
W4″
child in Bangalore would not be more than Rs.1000/-~ to
In the circumstances, he requested
Rs.1500/–. per month,
the court to dismiss the petition.
4. Before the trial court, respondent-wife,'”.he,s’-veiaroduced
her salary certificate which discloses
a gross salary of Rs.49,000/–_mand
Rs.40,000/-‘~. Though the
since he has not denied ,h5r._5 é’e.1_ei~_v 6.00 per
month, even though he notiie any salary
certificate trial court”‘v~pas_siedtorder directing to pay a
sum of Rs.5000/* per month maintenance to the
wife andK.Rs–..49.06;?.._:£e”i:.1§e*.. child. This order is called in
question by’–,4_the on the ground that wife was not
entitlegd” to c§.a_:’Lm maintenance as she was working and
Zulgetting a”fi:saVdI’ary and that the income of her is more than
maintenance. He further contends that
is also earning, same has to be shared equally by
the husband and wife.
fly,
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6%”
6. Wife has filed a separate writ petitionV contending
that maintenance awarded by the trial COl..f’l…’l:”4’¢E,VV’V;§;’:”.S’~,.V”<:2%n lower
side.
7. fiaving heard. the counsel {for lthe;’parties4 ,the ‘only
point to be considered by this court in these two petitions
is that whether the order dpassed. by_ the flcourt below is
required to be confirmed or to be reversed§Ad
8. Counsel for_ the mrespondentinhasfi relied upon the
judgment reportaginifin Agnfihhhfilfifimh MURTHY Vs. AKKELA
SITALAXMI (é90§(%;fi_ci}ilflEl}di?8941) relying upon the
judgment or the Andhraifiradesh high Court he contends that
while dranting:iinaintenance under Sec.24 of the
Hindu Marriace Actgxmaintenance payable to the child cannot
Xbe_QoQ§id9§ed as t e same has to be claimed either under
the ;provisions ‘of Hindu Adoption and. Maintenance Act or
:d’_v under “Sectlfifi def Cr.P.C.. So far as this judgment is
concernedfn same will not appeal to this court for the
, simple reason that interim maintenance payable to the wife
includes the maintenance of a child. It is no doubt true
-thatl a course is open for the minor children either to
d*niclain1 maintenance under Sec.125 of Cr.P.C. or under the
~rs *u”%=és»”r’r’\’S “‘” 51 5′
it—–a’;.-s specific under these two acts that child of two years
A ,
2
cannot be driven to file a separate suit. Since custody
and maintenance of the child has to be in a
divorce petition in the larger interpe_§:i;.,::.
Since it is a judgment of his
only a persuasive value. Both the:”partie_:.-spaere enginepersllby
profession. Husband is earr.-ing month. It
would be unfair for a-‘.§athp.e’r’ thatwhiis child has to
be driven to file a maintenance when
his earning month. Considering the
background of.ithis::flcase..:’_’and _considering the averments made
in pra–lCi–. of Vthe”‘iAa£»fidVavi.t in support of the application
filed _under”‘~ SecV.’v24,:_ am of the view that interim
ma_int.e_nance include-s–«a minor child rs. &=-*3″
{Sou fa;1Ves’~the earnings are concerned, counsel for the
wifeA’–~contend.s_A that in view of recession in IT Industry,
is getting a salary of Rs.40,000/– and the same is
it redu.ced to Rs.20,000/-. Since the trial court was required
consider the post and income on the date of disposal of
application, I am of the opinion that wife does not
require maintenance payable by her husband in View of her
income as on the date of filing of the application and on
the date of disposal of the applica€iQn;m,¢iaoweyer,
considering the background of the=case; though garages age
well to do persons and are earning eao£m§g;;#;f;§fia;de§ing
their status in the society as the child is required to be
brought up by providing all_anenitiesL 1 am bf the opinion
that a sum of Rs.9000/4 awarded by the Family Court towards
the maintenance Of the wifie and child can be considered as
maintenance payabieg byfi the gfathe$_m$o the child .till the
disposal of the case)’ it is a£ga¢d by the counsel for the
wife that ifi”vé§g ég the reduction in her income on account
of recession, naintenancewawarded by the trial court has to
be increased; ” .lf dreally there is any change in the
;circumstances after the disposal of the application, it is
always .open ~£5:_ the wife to file a fresh application
considering gene” subsequent developments and if such an
application is filed it is for the trial court to dispose
“-5: the same in accordance with law after giving reasonable
opportunity to the husband to defend the said application.
flln the circumstances, order passed by the family court is
Vd”mbdified by holding that maintenance awarded in a sum of
at
Rs.9000/- shall be treated as maintenance payable to the
child.
10. Accordingly these two petitions are and a
direction is issued to the family the
main petition within a period otwsix V _ 4′
sziVd,Sdf§owi
:uveE
‘.}.ié/100909