Smt. Shantha Hosagana vs Shri Hanamant and Shri. Rayagond

N.K. Patil, J.—This appeal by the wife arises out of the impugned judgment and decree dated 5.3.2010 passed in O.S. No. 32/2008 on the file of the Learned Judge, Family Court, Bijapur. The Court below awarded a sum of 2.500/- per month as maintenance. Not being satisfied with the amount of maintenance awarded by the Tribunal, the appellant-wife has presented this appeal, seeking enhancement of maintenance. The brief facts of the case are as follows:

It is not in dispute that the appellant and the respondent No. 1 are the husband and wife. Out of wedlock, they have got four children. Due to misunderstanding between the petitioner and the first respondent their relations became strained and the second respondent and other family members started ill-treating the appellant and demanding the appellant to bring money and gold and the first respondent started to have illicit relationship with one Sri. Chandrawwa Doddamani and he has kept her in his house only. At the instigation of the kept mistress the first respondent husband is giving mental and physical torture and taking advantage of the first respondent the kept mistress is behaving abnormally and abusing in filthy language. The matter went to the extent of not providing food to the appellant. She has tolerated all these mental and physical torture arid not providing food every day consistently. Keeping in mind, the welfare of four children giving birth out of the wedlock, being a mother, she made her will power strong for the sake of welfare and well being of the children. The appellant and respondent No. 1 have reached the stage of strange relations. The first respondent and others have assaulted the appellant and broken her hand and drew her out of the house along with her minor daughter Pavitra. Hence, there was no other option for her to go to her parents'' house and started living with her parents. She being a woman she also wants to live with dignity and honour along with other family members. She and her daughter depending on the parents is very difficult and to meet the day to day expenses including incidental expenses. Therefore, she was constrained to file maintenance petition claiming compensation at the rate of 3,000/- per month against the respondent Nos. 1 and 2, husband and the father-in-law, contending that they owned 35 acres of agricultural land out of it major portion of the land is irrigated land and they are financially sound, but they failed to pay the just and reasonable maintenance to the appellant. Having regard to ail the relevant facts and circumstances referred above, she filed the maintenance petition before the Family Court and the Family Court, Bijapur, after conducting through out trial and after appreciation of oral and documentary evidence, allowed the said petition by awarding maintenance of 2,500/- per month. Not being satisfied with the maintenance awarded at the rate of 2,500/- per month, the appellant-wife has presented this appeal, seeking enhancement of maintenance.

The learned counsel appearing for the appellant at the outset submitted that the Court below has committed error in awarding only 2,500/- per month towards maintenance and it is liable to be enhanced as she is finding it difficult to maintain the day to day expenses including incidental expenses and she also wants to live with honour and dignity along with other family members. The tribunal has failed to take into consideration, the property of the husband and the father-in-law. The husband is the only son to his parents and owning 35 acres of land out of which major portion are irrigated land growing banana and grapes with the help of their own tractor. In fact they have produced before the Courts below Exs. P-7 to P-12-RTC Extract and also Exs. P-19 to P-21. When they have got the reasonable income, the Court below ought to have granted reasonable maintenance to the appellant. Therefore, it is submitted that impugned judgment and decree passed by the Court below is liable to be modified by awarding the just and reasonable maintenance to the appellant.

As against this, the learned counsel appearing for the first respondent inter alia contended that the impugned judgment and decree passed by the Court below is after due consideration of the matter available on record and hence, interference by this Court is uncalled for. As a matter of fact, the maintenance awarded at 2,500/- p.m. is on the higher side and is liable to be reduced, having regard to the age, occupation and the source of income of the first respondent.

After careful consideration of the submission of the learned counsel, appearing for both the parties, the only point that arise for our consideration in the instant appeal is:

Whether the appellant has made out a case for enhancement of maintenance or whether the maintenance awarded is just and reasonable?

After careful perusal of the impugned judgment and decree passed by the Court below and after evaluation of the original records specifically with regard to Exs. P-7 to P-12 and Exs. P-19 to P-21, records of right in respect of land owned by the respondent Nos. 1 and 2, it is seen that the total extent of 35 acres of land is owned jointly and majority of the lands are irrigated and crops have been grown by using own tractor and the water from well and it is specifically submitted by the learned counsel appearing for the appellant that in fact the respondent Nos. 1 and 2 are growing sugarcane and also having crop garden and banana and other irrigated crops and they are financially very sound. This aspect of the matter has not been looked into nor considered nor appreciated by the Court below. What is awarded is only 2,500/- per month. The appellant was aged about 37 years as on the date of filing the petition. She has to meet the basic essential needs for survival. In view of non payment of maintenance to the appellant to meet the day to day necessities she has been compelled to file a petition for maintenance. She also has to live with honour and dignity and take care of herself and minor daughter and living with parents at their old age, after marriage without having the love and affection of the children is intolerable. This human touch and natural problems have not been looked into nor considered nor appreciated by the Court below. Taking into consideration, the escalation of prices of essential commodities, on the basic necessities such as food, clothing, shelter, medical, education of minor children including incidental expenses and having regard to the sound financial position of the first respondent in owning land of 35 acres jointly by respondent Nos. 1 and 2, we are of the considered view that we can safely enhance the maintenance having regard to the facts and circumstances of the case as stated supra, to a sum of 4,000/- per month as against 2,500/- awarded by the Court below. Taking all these relevant aspects into consideration, the instant appeal filed by the appellant is allowed in part. The impugned judgment and decree dated 5.3.2010 passed in O.S. No. 32/2008 by the Learned Judge. Family Court, Bijapur is hereby modified by awarding the maintenance of 4,000/- per month instead of 2,500/- per month from the date of filing the appeal i.e., from the month of January 2011.

The first respondent-husband is directed to pay the enhanced maintenance from the month of January 2011 till the month of July 2011 at the rate of 1,500/- per month within two months, equally in monthly installments from the date of receipt of copy of this judgment. It is needless to mention that the first respondent shall pay and continue to pay the maintenance amount of 4,000/- per month regularly on or before 10th of every month.