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2018 Supreme(Kar) 566

IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
K.N. Phaneendra, J.
Shri Basavaraj, S/o Shivappa Dharmayat – Petitioner
Versus
Smt. Lata W/o Basavaraj Dharmayat and Ors. – Respondents
R.P.F.C No.100047 & 100071 of 2017
Decided On : 25-04-2018

Advocates Appeared:
For the Petitioner:Sri. Siddappa Sajjan, Advocate
For the Respondent:Sri. P.M. Devashetty, Advocate

Headnote:CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974] - Section 125 - Maintenance - 'Neglect - Meaning - Word neglect itself presupposes that husband is duty bound to maintain wife and children even if they are residing separately - Refusal of maintenance by husband despite knowing that wife has no other source of income also amounts to neglect.

       CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974] - Section 125 - Maintenance - On date of filing maintenance petition marital relationship existing between parties - However, husband and wife not residing together and children also residing with mother - Till filing of maintenance petition no arrangement made by husband for maintaining his wife and children - Although wife left conjugal company of husband it would be his responsibility to take care of children at least - Husband unable to prove that wife was capable to take care of herself and children - Husband cannot be absolved from responsibility to maintain children.

       CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974] - Section 125 - Maintenance - Quantum - Properties belonging to joint family allocated amongst family members - For avoiding share in property to wife husband may have done such arrangement - Husband also running automobiles shop - Mere claim of husband that he did not earn any income from properties and other income insufficient not supported by any evidence - Court required to assess amount of maintenance as per basic needs of wife and children - Considering rising value of grocery, clothing and medical expenses maintenance of Rs. 5,000/- p.m. awarded to wife and Rs. 3,000/- p.m. to each children, held, proper.

       CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974] - Section 125 - Maintenance - Husband challenging grant of maintenance on ground that despite order of restitution of conjugal rights wife leaving his company voluntarily - Mere grant of restitution of conjugal rights, is not sufficient to deny maintenance to wife - Wife required to establish neglect and refusal on part of husband to maintain her - Relationship between spouses strained and mutual altercation existing between them as per Trial Court on appreciation of evidence - Wife leaving conjugal company of husband due to inconvenience - Maintenance cannot be denied to wife.

ORDER :

Heard the learned counsel for the petitioners, the learned counsel for the respondents and perused the records in both the cases.

2. These two revision petitions are arising out of a common judgment passed by Principal Judge, Family Court, Dharwad in Crl.Misc.No.111/2014 dated 25.02.2017.

3. RPFC No.100047/2017 is filed by the petitioner (husband) questioning the said judgment on various grounds. Mainly on the ground that, the wife is not entitled for any maintenance because she has voluntarily left the conjugal company of the husband without any just and reasonable grounds and there is a order of restitution of conjugal rights in favour of the petitioner husband and in spite of that wife did not join the conjugal company of the husband. Therefore, by the said conduct the wife forfeited her right to claim maintenance.

4. Secondly the learned counsel for the petitioner has raised another ground that, the trial Court has not properly appreciated the oral and documentary evidence on record with regard to the income and avocation of the husband in assessing the maintenance to be payable to the wife and two children. Therefore, the said order of maintenance if at all the Court comes to the conclusion that they are entitled for maintenance is to be appropriately reduced.

5. As against this, the wife has also filed a revision petition in RPFC No.100071/2017 claiming enhancement of the maintenance on the ground that the trial Court has not properly considered the vast properties in the name of the husband and also his avocation that, he has been running a automobile shop and also he has sufficient source of income, as such, she claimed maintenance of an amount of Rs.25,000/- as a whole to the three claimants (petitioners before the trial Court).

6. I have heard the arguments of the learned counsel for the petitioners and the respondents respectively in both the cases. In order to avoid confusion and also repetition of facts, ranks of the parties as per the ranks before the trial Court is retained.

7. Before adverting to the facts and points involved in this case, the learned counsel at the time of arguments further submitted that, the husband has closed down the Automobile shop he was running earlier. In that extent, he produced a document before the Court issued by the Town Panchayath, Naregal. Therefore, for all these reasons, he submits that, the petition filed by the husband requires to be allowed.

8. It is an undisputed fact that the petitioners Smt.Lata and two others are the wife and children respectively of the respondent husband Sri Basavaraj and the marriage between the 1st petitioner and the respondent took place in the year 2004 and they lived happily together for several years and they were blessed with two children i.e., petitioners No.2 and 3. It appears, the 2nd child born in the year 2014 and thereafter the rift started between the wife and husband on the allegations that, the husband has started ill-treating and harassing her even for flimsy reasons and he used to abuse her and assault her and not providing sufficient food to her. Therefore, she was forced to leave the conjugal company of her husband, when she was conceived for second time, the hospital expenditures were also not borne by the respondent. In spite of her tolerance she could not able to full on the life with the husband. Therefore, she started living in her parental house.

9. She has further stated in her petition that, he has been running an Automobile Shop and earning more than Rs.25,000/- per month and he has got various landed properties and house properties in Naregal Village and in other areas and he is also earning lot of money from the said lands. In spite of that, the respondent has neglected and refused to maintain the wife and children. After wife and children started residing in the parental house of the petitioner, he did not make any arrangement for their maintenance though he was capable of doing so, till the wife filed the petition befor
























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