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2004 Supreme(Kar) 675
Karnataka High Court
RACHAPPA - Appellant
Versus
SUJATA - Respondent
Decided On : 12-08-04
R.S.A. : 195 of 2004
G.M.Chandrashekar, G.S.Kannur
Headnote:Maintenance
CRIMINAL PROCEDURE CODE, 1973
Section 125 -Maintenance -Award of maintenance -Insufficiency -Can High Court interfere with and award higher maintenance under Second Appeal? Yes. See, Hindu Adoptions and Maintenance Act, 1954.
Maintenance
MARRIAGE AND DIVORCE - Maintenance -Award of maintenance -Insufficiency -Can High Court interfere with and award higher maintenance under Second Appeal? Yes.
[R. Gururajan, J]: The legislature in its wisdom has stated that in a second appeal the High Court, if evidence on record is sufficient, may determine any issue necessary for the disposal of the appeal which has not been determined by the lower appellate court or both by the Court of first instance and the lower appellate court. Determination would mean a finding on issue, and that determination depends upon sufficient evidence. Determination also goes with necessity for the disposal of the appeal. Section 103 would further be made applicable on wrong determination of the issue. In the case on hand, it is found that the second issue of maintenance despite evidence available on record has not been properly determined. The court is not so helpless as argued by the learned counsel even in the absence of any appeal at the instance of the aggrieved party. Determination for the disposal of the appeal need not necessarily mean an appeal by an aggrieved party. Even in an appeal filed by one party, if the necessary issue had not been properly determined, the court can certainly determine that issue to render justice to other party. Therefore, Section 103(a) would provide a power to the Court in certain extraordinary circumstances to determine the said issue after hearing the aggrieved party. While considering the matter, the court has to hear the aggrieved party and in the case on hand the husband is already before the court. He has been heard in the matter. The Court is not granting huge sum. The court is granting huge sum. The Court is granting only such sum which can be sufficient to the sustenance of the woman respondent. Payment of Rs.600.00 per month by the husband would be reasonable as on today. However, the Court has to add a caution that such exercise of power under Section 103 has to be done after careful examination of the material on record.
Award of maintenance
HINDU ADOPTION AND MAINTENANCE ACT, 1956
Section 18 -Award of maintenance -Insufficiency -Can High Court interfere with and award higher maintenance under Second Appeal? Yes.
[R. Gururajan, J]: The legislature in its wisdom has stated that in a second appeal the High Court, if evidence on record is sufficient, may determine any issue necessary for the disposal of the appeal which has not been determined by the lower appellate court or both by the Court of first instance and the lower appellate court. Determination would mean a finding on issue, and that determination depends upon sufficient evidence. Determination also goes with necessity for the disposal of the appeal. Section 103 would further be made applicable on wrong determination of the issue. In the case on hand,it is found that the second issue of maintenance despite evidence available on record has not been properly determined. The court is not so helpless as argued by the learned counsel even in the absence of any appeal at the instance of the aggrieved party. Determination for the disposal of the appeal need not necessarily mean an appeal by an aggrieved party. Even in an appeal filed by one party, if the necessary issue had not been properly determined, the court can certainly determine that issue to render justice to other party. Therefore, Section 103(a) would provide a power to the Court in certain extraordinary circumstances to determine the said issue after hearing the aggrieved party. While considering the matter, the court has to hear the aggrieved party and in the case on hand the husband is already before the court. He has been heard in the matter. The Court is not granting huge sum. The court is granting huge sum. The Court is granting only such sum which can be sufficient to the sustenance of the woman respondent. Payment of Rs.600.00 per month by the husband would be reasonable as on today. However, the Court has to add a caution that such exercise of power under Section 103 has to be done after careful examination of the material on record.
Determination of issue of fact
CIVIL PROCEDURE CODE, 1908 - Section 103 -Determination of issue of fact -Award of maintenance -Insufficiency -Can High Court interfere with and award higher maintenance under Second Appeal? Yes.
[R. Gururajan, J]: The legislature in its wisdom has stated that in a second appeal the High Court, if evidence on record is sufficient, may determine any issue necessary for the disposal of the appeal which has not been determined by the lower appellate court or both by the Court of first instance and the lower appellate court. Determination would mean a finding on issue, and that determination depends upon sufficient evidence. Determination also goes with necessity for the disposal of the appeal. Section 103 would further be made applicable on wrong determination of the issue. In the case on hand, it is found that the second issue of maintenance despite evidence available on record has not been properly determined. The court is not so helpless as argued by the learned counsel even in the absence of any appeal at the instance of the aggrieved party. Determination for the disposal of the appeal need not necessarily mean an appeal by an aggrieved party. Even in an appeal filed by one party, if the necessary issue had not been properly determined, the court can certainly determine that issue to render justice to other party. Therefore, Section 103(a) would provide a power to the Court in certain extraordinary circumstances to determine the said issue after hearing the aggrieved party. While considering the matter, the court has to hear the aggrieved party and in the case on hand the husband is already before the court. He has been heard in the matter. The Court is not granting huge sum. The court is granting huge sum. The Court is granting only such sum which can be sufficient to the sustenance of the woman respondent. Payment of Rs.600.00 per month by the husband would be reasonable as on today. However, the Court has to add a caution that such exercise of power under Section 103 has to be done after careful examination of the material on record.
Judicial conscience
CIVIL PROCEDURE CODE, 1908 - Section 103 -Judicial conscience -Award of maintenance -Insufficiency -Can High Court interfere with and award higher maintenance under Second Appeal? Yes.
[R. Gururajan, J]: The legislature in its wisdom has stated that in a second appeal the High Court, if evidence on record is sufficient, may determine any issue necessary for the disposal of the appeal which has not been determined by the lower appellate court or both by the Court of first instance and the lower appellate court. Determination would mean a finding on issue, and that determination depends upon sufficient evidence. Determination also goes with necessity for the disposal of the appeal. Section 103 would further be made applicable on wrong determination of the issue. In the case on hand, it is found that the second issue of maintenance despite evidence available on record has not been properly determined. The court is not so helpless as argued by the learned counsel even in the absence of any appeal at the instance of the aggrieved party. Determination for the disposal of the appeal need not necessarily mean an appeal by an aggrieved party. Even in an appeal filed by one party, if the necessary issue had not been properly determined, the court can certainly determine that issue to render justice to other party. Therefore, Section 103(a) would provide a power to the Court in certain extraordinary circumstances to determine the said issue after hearing the aggrieved party. While considering the matter, the court has to hear the aggrieved party and in the case on hand the husband is already before the court. He has been heard in the matter. The Court is not granting huge sum. The court is granting huge sum. The Court is granting only such sum which can be sufficient to the sustenance of the woman respondent. Payment of Rs.600.00 per month by the husband would be reasonable as on today. However, the Court has to add a caution that such exercise of power under Section 103 has to be done after careful examination of the material on record.
( 1 ) THIS appeal is by defendants and they are before me challenging the judgment and decree dated 23-12-1995 passed in O. S. No. 125 of 1990 by the learned Munsiff, Basavana Bagewadi, confirmed in appeal No. RA 30 of 1993 by an order dated 30-1-2004 passed by the learned Civil judge (Senior Division), Basavana Bagewadi.
( 2 ) FACTS in brief are as follows: Respondent-Sujatha, wife of rachappa Kotagi filed O. S. No. 125 of 1990 seeking maintenance on the ground that she is the legally wedded wife of the first appellant. She states that she gave birth to a female child through first appellant. She stated that she had suffered ill-treatment and ultimately she was driven out of her matrimonial home. Matter was contested. Learned Trial judge decreed the suit and granted maintenance of Rs. 300. 00 per month. The said order was unsuccessfully challenged before the appellate Court. Concurrent findings of both the Courts are challenged in this appeal.
( 3 ) SRI Kannur, learned Counsel for the appellants would argue that the impugned orders require my interference. He says that no issue as such was framed in terms of the Hindu Adoptions and Maintenance Act, 1954 and that therefore both the orders suffer from infirmity.
( 4 ) IN the course of arguments, a question was posed to the learned counsel as to whether this Court has jurisdiction under Section 100 of the CPC, 1908 to ennance tne maintenance.
( 5 ) LEARNED Counsel in response to the query put by the Court argued at great length to say that the jurisdiction of this Court is very limited under Section 100 of the CPC. This Court can only accept or reject the appeal in the event of no question of law arising in the judgment in question. This Court cannot in the absence of any appeal at the instance of other party can reconsider the findings given by the Courts below. He says that this Court is to consider only an appeal filed by a litigant and this Court cannot extend its jurisdiction by way of enhancement of compensation in the matter by way of granting an additional relief to the litigant in the absence of any appeal at the instance of that party.
( 6 ) AFTER hearing I have carefully perused the impugned order.
( 7 ) MATERIAL facts would reveal that the respondent claiming to be wife filed a suit seeking for maintenance. Learned Trial Judge framed six issues and he has answered them in para 6 of his judgment. Learned Trial Judge after noticing the evidence on record has chosen to give a finding that the respondent-plaintiff is the wife of first defendant. He has also considered the evidence with regard to Issue 3 and he has answered the same in the affirmative. Ultimately he has granted a sum of Rs. 300. 00 to the respondent-wife. This order was challenged before the Appellate Judge. Learned Appellate Judge has framed four points for consideration, and, thereafter he has chosen to accept the finding of the learned Trial Judge. He has confirmed the order passed by the learned Trial Judge. No issue under Hindu Law is necessary in the given set of facts.
( 8 ) AFTER hearing the learned Counsel and on the facts and circumstances of the case, it cannot be said that there is no marriage at all as argued by the learned Counsel. Both the Courts have accepted the marriage issue in favour of the plaintiff-respondent. Orders are based on facts.
( 9 ) I find from the records that the maintenance by way of a sum of rs. 300. 00 has been granted to the wife. Respondent is staying with her parents. It is on record that the appellants seems to have some property in terms of the finding on Issue 2. Rs. 300. 00 in these hard days, to say the least, is meaningless even to have one meal a day. In these hard days, Rs. 300. 00 in my view is as good as no maintenance at all in terms of the maintenance laws. Maintenance is granted to keep his/her body and soul together. With a sum of Rs. 300. 00, I do not think that there is any possibility for anybody to maintain body and soul together. T
