IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

DATED THIS THE 11TH DAY OF MARCH, 2019

PRESENT

THE HON'BLE MR.JUSTICE P.B.BAJANTHRI

AND

THE HON'BLE MR.JUSTICE P.G.M.PATIL

MFA No.30621/2012 (FC)

BETWEEN:

• 1. SMT. URMILA W/O GAJALAPPA YERPULA, AGE: 20 YEARS, OCC: HOUSEHOLD, R/O, C/O BHEEMSHAH JAMADAR, H.NO. LIG, 132, BADEPUR COLONY, SEDAM ROAD, GULBARGA
• 2. MISS. DEEPIKA D/O GAJALAPPA YERPULA AGE: 10 MONTHS, OCC: NIL, U/G OF HER MOTHER, PLAINTIFF NO.1

…APPELLANTS

(BY SRI SHIVANAND PATIL, ADVOCATE)

AND:

GAJALAPPA S/O YELLAPA YERPULA AGE: 32 YEARS, OCC: ASSOCIATE PROFESSOR AT JAYPRAKASH NARYANA COLLEGE OF ENGINEERING, AT POST DHARMAPUR, TQ: NARAYANPET,

... RESPONDENT

(NOTICE TO R1 HELD SUFFICIENT V/C/O DTD 12.01.2015)

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19 OF THE FAMILY COURT ACT, PRAYING TO MODIFY THE JUDGMENT AND DECREE DATED 30.01.2012 PASSED BY THE LEARNED DIST. JUDGE FAMILY COURT AT GULBARGA IN O.S.No.29/2005 AND CONSEQUENTLY BE PLEASED TO GRANT MONTHLY MAINTENANCE OF RS.5,000/- TO EACH OF THE APPELLANTS.

THIS APPEAL COMING ON FOR HEARING THIS DAY, P.B.BAJANTHRI, J., DELIVERED THE FOLLOWING:

JUDGMENT

In this appeal appellants have questioned the validity of the judgment dated 30.01.2012 passed in O.S.No.29/2005 on the file of District Judge, Family Court at Gulbarga.

2. Appellant No.1 and respondent married on 12.03.2004 at Damargidda village at the residence of respondent in accordance with Hindu customs. Out of

wedlock, 2nd appellant was born. After some time, certain domestic issue raised among the 1st appellant and respondent resulted in filing application for restitution of conjugal rights by the respondent in HMOP No.5/2005, which was allowed in favour of the respondent. Simultaneously appellant Nos.1 and 2 filed O.S.No.29/2005 seeking maintenance from the respondent which was decided on 30.01.2012, to the extent that the suit of plaintiff No.1 as against defendant was dismissed and insofar as plaintiff No.2 is concerned, it was ordered that she is entitled to monthly maintenance of Rs.800/- from the respondent from the date of filing of the suit namely with effect from 28.10.2015 till the date of her marriage or till she able to maintain herself. Feeling aggrieved by the judgment dated 30.01.2012, present appeal is filed by appellants.

3. Learned counsel for the appellants vehemently contended that the Family Court has not

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appraised the factual aspect that 1st appellant is also entitled to maintenance. 1st appellant is not in a position to comply the order passed in HMOP No.5/2005, for the reasons that respondent would harass her both oral and physical. That apart, respondent has already contracted second marriage. Therefore, the Family Court has committed an error in not extending maintenance to appellant No.1. Grant of maintenance to appellant No.2 is too meager, when the respondent was drawing salary of Rs.17,223/- as on February 2007. Therefore, both appellants are entitled to maintenance. Appellant No.2 has been extended maintenance of Rs.800/- would be too meager to maintain.

4. None appears for the respondent. Since the matter is of the year 2012, no purpose would be served to adjourn the matter.

5. Crux of the matter in the present appeal is whether the 1st appellant has made out of case seeking maintenance and the 2nd appellant is entitled enhanced maintenance. Whether Family Court has committed error in not extending maintenance to the 1st appellant and grant of meager maintenance to the 2nd appellant.

6. Undisputed facts are that there were certain domestic issues between the 1st appellant and respondent which has resulted in filing of matrimonial cases like HMOP No.5/2005 by the respondent for restitution of conjugal rights which was ordered in his favour. Appellants have also filed suit for monthly maintenance as is evident from the records, the 1st appellant has not joined her husband-respondent. Pursuant to the order passed in HMOP No.5/2005, she has also not preferred any appeal. Even though the contentions have been raised to the extent that respondent would harass the appellant both oral and

physical and he has contracted second marriage, for which the 1st appellant has remedy before appropriate forum under the Hindu Marriage Act. Therefore, no interference is called for in respect of denial of maintenance by the Family Court to the 1st appellant. Accordingly, the Family Court decision denial of maintenance to the 1st appellant is confirmed.

7. The 2nd appellant is entitled enhanced maintenance from Rs.800/- for the reasons that in the month of February 2007, the respondent was drawing salary of a sum of Rs.17,223/-. She is entitled enhanced maintenance of Rs.5,000/- per month from the date of filing suit i.e. 28.10.2005 till the date of her marriage. She is entitled to arrears of maintenance at the rate of Rs.5,000/- per month from 28.10.2005 till date. The same shall be paid by the respondent within a period of two months from the date of receipt of a copy of this order. Thereafter, respondent is hereby directed to continue to pay maintenance at the rate of Rs.7,000/- per month from 1st April 2019 till the date of her marriage.

8. Accordingly, appeal stands allowed in part.

Sd/- JUDGE

Sd/- JUDGE

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