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2019 Supreme(Kar) 1199
IN THE HIGH COURT OF KARNATAKA
B. VEERAPPA, J.
Col Subodh M.R. - Appellant
Versus
M.S. Preeth D/o Belliappa B.B. - Respondent
Writ Petition No. 47299 of 2014
Decided On : 24-06-2019
B.S. Raghu Prasad, Adv., Prabhugoud B. Tumbigi, Adv.
The legal principle established is that an application for enhancement of maintenance under Section 25(2) of the Hindu Marriage Act can be considered if there is a change in circumstances, and objections raised to stall the proceedings may not be justified.
Headnote:
Maintenance - Hindu Marriage Act - Section 25(2)
Fact of the Case:
The petitioner-husband filed a Writ Petition against the order dismissing his application for enhancement of maintenance filed by the respondent-wife under Section 25(2) of the Hindu Marriage Act, 1955. The petitioner contended that the application was not maintainable as the matter had been settled and decreed previously.
Finding of the Court:
The court found that the application under Section 25(2) could be considered if there was a change in circumstances, and the objections raised by the petitioner were deemed as stalling the proceedings. The court dismissed the Writ Petition and allowed the Family Court to decide the application under Section 25(2) with reference to the objections raised.
Issues: The main issue was the maintainability of the application for enhancement of maintenance under Section 25(2) of the Hindu Marriage Act, considering the previous settlement and decree.
Ratio Decidendi: The court emphasized that the provision under Section 25(2) allows for variation, modification, or rescission of an order if there is a change in circumstances. The objections raised by the petitioner were considered as stalling the proceedings, and the court allowed the Family Court to decide the application based on the changed circumstances.
Final Decision: The Writ Petition was dismissed, and the Family Court was given the authority to decide the application under Section 25(2) of the Hindu Marriage Act with reference to the objections raised.
JUDGMENT :
B. Veerappa, J.
The petitioner-husband has filed the present Writ Petition against the order on IA No.5 dated 8.9.2014 passed in MC No.2595/2007 dismissing the application filed by the petitioner-husband against the alleged respondent - divorcee/divorced wife.
2. The respondent-wife filed MC No.2595/2007 under the provision of Section 13(1)(i)(a) of Hindu Marriage Act, 1955 [hereinafter referred to as 'Act' for short] seeking divorce urging various contentions. The same was opposed by the petitioner-husband by filing objections.
3. During the pendency of the said Matrimonial Case, both the parties have filed Memorandum of Settlement u/s.89 of CPC read with Rules 24 and 25 of the Karnataka Civil Procedure (Mediation) Rules, 2007, before the Family Court. On 15.9.2008, in terms of the Memorandum of Settlement between the parties, Matrimonial case came to be decreed. Thereafter, the wife (respondent herein) filed C.Mis.No.203/2011 u/s.127 of the Cr.P.C. claiming for enhancement of maintenance from Rs.10,000/- to Rs.50,000/- per month and litigation expenses of Rs.15,000/- from her husband (petitioner herein). The said C.Misc. Petition was opposed by filing objections. The trial Court in view of the application IA No.IV filed by the present petitioner came to be rejected as not maintainable, the application IA No.IV came to be allowed and C.Misc. 203/2011 filed by the wife-respondent u/s.127 of Cr.P.C. claiming enhancement of maintenance came to be dismissed. According to the petitioner, the said order has reached finality.
4. Thereafter, the respondent-wife filed an application u/s.25(2) of the Act for enhancement of maintenance from Rs.10,000/- to Rs.60,000/- per month in a disposed of matter, urging various contentions. The present petitioner filed objections to the said application and specifically contended that the very application filed u/s.25(2) of the Act is not maintainable and the respondent-wife was not entitled for any further enhancement. It is further contended that the present application filed only to harass the petitioner. Once the matter was settled before the Mediation Centre and decree came to be passed, the same cannot be re-opened except in a case of fraud if any alleged or non execution of the compromise decree. In the absence of the same, the present application is not maintainable.
5. Even before consideration of the application filed u/s.25(2) of the Act, on the objections raised, the present petitioner filed one more application IA No.V to dismiss the application filed u/s.25(2) as not maintainable. The family court by the impugned order, dismissed the application IA No.V filed by the present petitioner u/s.151 of CPC.
Hence, the present Writ Petition.
6. I have heard the learned counsel for the parties to the lis.
7. Sri B.S. Raghu Prasad, learned counsel for the petitioner vehemently contended that the impugned order passed by the Family Court rejecting the application IA No.V filed by the petitioner is erroneous and contrary to the materials on record. He would further contended that the family court failed to notice that in a disposed of matter, on the basis of the compromise petition which came to be attained finality, an application under sub section (2) of Section 25 of the Act is not maintainable. The Family Court ought to have rejected the application. He would further contended that when once the decree came to be passed, with the consent of all the parties in Mediation u/s.89 of the CPC, by way of an application under Section 25(2) of the Act for enhancement of maintenance cannot be revoked and the same has to be considered by the Family Court. He would further contend that the Family Court ought to have allowed the application filed by the present petitioner. Therefore, he sought to allow the Writ Petition.
8. Per contra Sri Prabhugoud B. Tumbigi, for Ms. Rachita Nanaiah, learned counsel for the respondent sought to justify the impugned order of the Family Court rejecting the application
