J 2021 SCC OnLine Kar 15179 21010125400 Symlawacin 20230103 150637 1 8

SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 1 Tuesday, January 03, 2023

Printed For: Surjit Raiguru, Symbiosis Law School
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2021 SCC OnLine Kar 15179
In the High Court of Karnataka†

(BEFORE P.S. DINESH KUMAR AND SURAJ GOVINDARAJ, JJ.)
A. Chandra Mohan … Appellant;

Versus
G. Buvneshwari … Respondent.
M.F.A. No. 1872 of 2015 (FC)‡
Decided on October 7, 2021
Advocates who appeared in this case :
Sri. H.C. Shivaramu for Sri. Harsha Kumar, Advocates
Sri. H, Rajakumar, Advocate
The Judgment of the Court was delivered by
SURAJ GOVINDARAJ, J.:— The appellant is before this Court seeking for modification
of the Judgment and decree dt. 3.1.2015 passed in M.C. No. 17352010 by III Addl.
Prl. Civil Judge, Family Court, Bangalore by setting aside the permanent alimony
granted to the respondent in the said proceedings.
2. M.C. No. 1735/2010 had been filed by the appellant herein against the
respondent under Section 13(1)(1a) of the Hindu Marriage Act, 1955 [for short ‘the
Act’] seeking dissolution of the marriage solemnized on 11.05.2009 on the ground of
cruelty. The same came to be contested. The Family Court took into account the
submission made by the respondent that she had lost trust, faith and belief in her
husband and she is no longer wished to rejoin the petitioner and continue the
marriage life and further that she was willing for divorce provided permanent alimony
is paid to her.
3. The Family Court coming to a conclusion that the relationship between the
parties having deteriorated to such an extent that it would be impossible for them to
live together, preservation of the marriage being unworkable, the Family court allowed
the petition under Section 13(1)(1a) of the Act and dissolved the marriage between
the appellant and the respondent.
4. The trial Court further awarded Rs. 10 lakhs as permanent alimony to be paid to
the respondent within two months of the said order. The said amount was quantified
by taking into account the fact that petitioner is working as a lecturer in Mechanical
Department, Government Polytechnic college, Mulabagilu, Kolar District, salary
certificate being issued showing gross salary at Rs. 45,398/- and after deduction of Rs.
16,237/-, the take home salary being Rs. 29,161/-.
5. The Family Court considering that the defence advanced by the petitioner as
regards he being required to take care of his mother and he being required to make
payment of the education loan amount taken by his sister, rejected the same on the
ground that his mother was required to be maintained by his father who is alive and
involved in the profession of advocacy. Insofar as his sister's education loan is
concerned, a sum of Rs. 11,520/- being paid by the appellant from 20.07.2011
towards loan amount of Rs. 2,76,450/-. The order having been passed on 13.11.2015,
the Court was of the opinion that the said loan had already had been cleared. The
Family Court being of the further opinion that the respondent is entitled to permanent
alimony, as also Maintenance from her husband to live in the same manner as she
lived with her husband, considering that the appellant was working as a lecturer in the
Government Polytechnic college, awarded a sum of Rs. 10 lakhs as permanent
alimony.
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6. It is aggrieved by the same that the appellant is before this Court.

7. In the appeal filed, the appellant has once again sought to contend that the
claim of the respondent was not maintainable on the ground that the respondent was
acting in a cruel manner towards the petitioner. These contentions are not relevant for
the consideration of the above matter since divorce has already been granted by the
Family Court.
8. As regards the permanent alimony of Rs. 10 lakhs granted, the contention of the
appellant is that it is on the higher side. The appellant is getting a salary of Rs.
45,398/- and after deduction, he gets Rs. 29,161/- and therefore, he is unable to
make payment of a sum of Rs. 10 lakhs.
9. While ordering notice this Court vide its order dt. 1.07.2015 directed the
appellant to deposit a sum of Rs. 10,000/- as litigation expenses and permitted the
respondent to withdraw the same. Vide order dated 31.8.2015 this Court stayed the
operation of the Judgment and decree dt. 3.1.2015 in M.C. No. 1735/2010 by
directing the appellant to deposit a sum of Rs. 2 lakhs within a period of two weeks
thereof and permitted the respondent to withdraw the same. This Court further
directed the appellant to make payment of Rs. 10,000/- p.m. on or before 10th of
every month as interim maintenance. The aforesaid amount of Rs. 2 lakhs was
deposited and a sum of Rs. 10,000/- has been paid on several occasions but not on all
occasions.
10. The respondent upon appearance has filed her objection statement along with
the salary certificate of the appellant dated 7.9.2015 wherein it is stated that the
gross salary of the appellant is Rs. 52,717/- and deduction of Rs. 9,995/- leaving a net
salary of Rs. 42,722/-.
11. An application in I.A. No. 1/2019 has been filed by the respondent seeking for
permission to withdraw the amounts deposited by this Court.
12. IA. No. 1/2020 has been filed by the appellant seeking modification of the
interim order dated 31.8.2015 contending that:
12.1. A sum of Rs. 10,000/- has been paid to the respondent from 11.8.2015 till
21.02.2017. He has also stated that a sum of Rs. 2 lakhs has been deposited
before this Court.
12.2. The respondent is working as a teacher in a school, not in her own name but
in different name.
12.3. The respondent has married one Janardhan and residing with him since last
3½ years and in proof thereof a photograph has been produced along with said
application.
12.4. Apart therefrom a medical certificate has been produced to state that the
father of the appellant is unwell and would require medical treatment.
13. The appellant has also filed an application under Order 1 Rule 10(2) in I.A. No.
2/2020 seeking to implead the school where it is alleged that the respondent is
working and also contended that the respondent is gainfully employed, therefore,
there is no requirement for making payment of any amount to the respondent.
14. The respondent filed her objections to IA-1/2020 contending that:
14.1. The appellant has violated the orders of this Court and has not deposited Rs.
10,000/- awarded as interim Maintenance from 10.04.2017 to 10.03.2020, hence
the request of the appellant cannot be granted when the appellant himself is in
violation of the orders of this Court.
14.2. Respondent is not working as a teacher as alleged or otherwise, she is
residing with her father in his house. Further more, she has not remarried, it is in
fact the appellant who has remarried in February 2015.
14.3. With regard to the photograph produced along with IA-1/2020, the same is a
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morphed, fabricated and manipulated one for the purpose of the case inasmuch
as by removing the photo of the cousin of the respondent and inserting the face
of some man whom she does not even know, false documents are lodged before
this Court.
14.4. As regards the contention of the appellant with regard to the expenses
incurred for the medical expenses of his father, she has stated that the appellant
being a government employee, any and all medical expenses would be
reimbursed and therefore, the same would not be a ground for consideration.
14.5. The respondent's father is 68 years old and her sister who is 33 years old is
physically and mentally disabled. Her father has no source of income nor does
the respondent have any income. Despite orders having been passed by the
Family Court and this Court, the appellant has not made payments of any
monies.
14.6. The appellant's father being a lawyer is abusing process of law depriving the
respondent of her due amounts.
15. As regards I.A. No. 2/2020, in the objections filed by the respondent, she has
categorically stated that she is not working in the said school as alleged or otherwise
and the application is liable to be dismissed.
16. In furtherance of the arguments being heard by this Court the parties were
directed to file their memo of calculation. The respondent has filed her memo of
calculation dt.4.6.2021 in terms thereof it is stated as under:
a) Permanent alimony awarded-Rs. 10 lakhs;
b) Interim maintenance to be paid from 31.08.2015 till 4.8.2015 - 72 months ×
10,000 = Rs. 7,20,000/-.
c) The amount withdrawn by the respondent-Rs. 2,00,000/-
d) The amount withdrawn towards litigation expenses - Rs. 10,000/-.
e) The amount deposited with this Court is Rs. 1,90,000/-
17. The appellant has also filed his memo of calculation as under:
Date D.D. No. Amount
11.08.2015 024251 10,000/-
07.09.2015 024631 1,00,000/-
10.09.2015 024667 1,00,000/-
05.10.2015 001376 10,000/-
07.10.2015 024251 10,000/-
08.12.2015 001397 10,000/-
06.01.2016 001418 10,000/-
05.02.2016 001432 10,000/-
08.03.2016 001432 10,000/-
07.04.2016 001453 10,000/-
05.05.2016 001486 10,000/-
04.06.2016 001498 10,000/-
02.07.2016 001509 10,000/-
.08.2016 083964 10,000/-
12.09.2016 001543 10,000/-
10.10.2016 001581 10,000/-
16.11.2016 001633 10,000/-
23.12.2016 10,000/-
30.01.2017 060762 10,000/-
21.02.2017 060783 10,000/-
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TOTAL 3,80,000/-
18. An examination of the memo of calculation filed by both the parties indicate
that there is no dispute that amount deposited by the appellant is Rs. 3,90,000/- less
Rs. 10,000/- towards litigation expenses, out of which the respondent has withdrawn
Rs. 2,10,000/- leaving balance of Rs. 1,80,000/- in deposit with this Court.
19. Sri. H.C. Shivaramu, learned counsel appearing for the appellant would submit
that the appellant does not have any source of income to make payment of the
alimony directed to be paid. The appellant has dependents whom he needs to lookafter
and as such he submits that the amount of permanent alimony awarded by the Family
Court be reduced. He further submits that the appellant has deposited a sum of Rs.
3,80,000/- with this Court which can be taken into consideration by this Court and
from the balance Rs. 6,20,000/- of the alimony awarded, he submits that the same be
reduced to Rs. 4,00,000/-.
20. Per contra, Sri. Rajakumar, learned counsel for the respondent would submit
that the award of permanent alimony of Rs. 10 lakhs made by the Family Court is
proper and correct. In fact, the earning of the appellant has only gone up and as on
7.09.2015, the appellant's net salary is Rs. 42,722/-. Amount of Rs. 10 lakhs as
alimony which has been awarded is only 20 months salary, which is not too much and
therefore, this Court ought not to interfere with the alimony awarded. He further
submits that the interim Maintenance which has been awarded and paid cannot be
taken into consideration for the purpose of reduction of the alimony. If the appellant
had made payment thereof, there would have been no requirement for this Court to
direct payment of interim Maintenance.
21. The payment of interim Maintenance directed by this Court is only on account of
the appellant being before this Court challenging the alimony awarded. The appellant,
by making payment of the permanent alimony, could have saved the amounts towards
interim Maintenance. The respondent could also have invested the alimony amount
and obtained interest on it. Now the respondent having spent the interim maintenance
awarded, would be left with no security if the alimony is reduced.
22. Heard Sri. Shivaramu, learned counsel or the appellant and H. Rajakumar,
learned counsel for the respondent.
23. The points that would arise for determination of this Court are:
1) Whether the interim Maintenance directed to be paid by the Court while
considering an appeal challenging the permanent alimony granted could
be deducted from the permanent alimony granted?
2) Whether the permanent alimony awarded by the Family court is proper
and correct?
3) What order?
24. ANSWER TO POINT NO. 1: Whether the interim Maintenance directed to
be paid by the Court while considering an appeal challenging the permanent
alimony granted could be deducted from the permanent alimony granted?
24.1. The Family Court had awarded a sum of Rs. 10,00,000/- as permanent
alimony vide its Judgment dt. 3.01.2015 in a proceeding in M.C. No. 1725/2010.
It is the appellant who had approached the Court seeking for divorce. The Family
Court has taken into consideration the salary certificate, etc. and awarded the
aforesaid amount.
24.2. The appellant approached this Court challenging the grant of permanent
alimony and vide order dated 31.08.2015 this Court while staying the operation
and execution of the decree in M.C. No. 1735/2010 had directed deposit of sum
of Rs. 2 lakhs and further amount of Rs. 10,000/- p.m. on or before 10th of every
month as interim Maintenance until further orders.
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24.3. The main argument is that this order has been passed at the behest of the
appellant who had challenged the award of permanent alimony, which challenge
was made on account of the appellant not being ready and willing to make such
payment of permanent alimony. In effect by way of the said order the appellant
who was required to make payment of Rs. 10,00,000/- within two months of
3.01.2015 has continued to retain the said amount by virtue of the orders of this
Court dt. 31.08.2015 thereby retaining the benefit of the said amount.
24.4. The interim Maintenance which had been awarded by this Court was to take
care of the requirement of the respondent pending the decision in the above
matter. In view thereof, the concept of interim Maintenance by the very nature of
the nomenclature of the word ‘interim maintenance’, the same is interim in
nature and not final.
24.5. Section 3(b) in The Hindu Adoptions and Maintenance Act, 1956
(b) “Maintenance” includes-
(i) in all cases, provision for food, clothing, residence, education and medical
attendance and treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of an
incident to her marriage;
24.6. The term ‘maintenance’ is defined in Black's Law Dictionary, (6th Edn., pp.953
-54) thus:
“The furnishing by one person to another, for his or her support, of the means
of living, or food, clothing, shelter, etc., particularly where the legal relation of
the parties is such that one is bound to support the other, as between father and
child or husband and wife”.
24.7. Likewise, the word ‘support’ as defined in the said Dictionary (p. 1439) reads
as under;
“That which furnishes a livelihood; a source or means of living; subsistence,
sustenance, maintenance, or living. In a broad sense the term includes all such
means of living as would enable one to live in the degree of comfort suitable and
becoming to his station of life. It is said to include anything requisite to housing,
feeding, clothing, health, propar recreation, vacation, traveling expense, or other
proper cognate purposes; also proper care, nursing and medical attendance in
sickness and suitable burial at death”.
24.8. In Pradeep Kumar Kapoor v. Ms. Shailja Kapoor, AIR 1989 Del 10, the High
Court of Delhi interpreted ‘maintenance’ and ‘support’ under Section 24 of the
Hindu Marriage Act, 1955 and observed;
“Under Section 24 of the Act, the Court has to see if the applicant who may
either be wife or husband has no independent income sufficient for her or his
support and the necessary expenses of the proceeding, and then award expenses
of the proceeding and such sum every month, having regard to the applicant's
own income and the income of the respondent which may seem to the Court to
be reasonable.
This section may be contrasted with Section 25 of the Act which deals with
permanent alimony and Maintenance.
Under Section 25, the Court may order the respondent to pay to the applicant
for her or his Maintenance and support, till her or his lifetime, either a lumpsum
amount or such monthly or periodical sum, having regard to the respondent's
own income and other property, if any, and the income and other property of the
applicant, the conduct of the parties and other circumstances of the case, which
the Court might deem just. It may be noticed that heading of Section 24 of the
Act is “Maintenance pendente lite and expenses of proceedings”. The section,
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however, does not use the word “maintenance”, but, to me, it appears that the
words “support” and “maintenance” are synonymous, “Support” means “to
provide money for a person to live on”, like “he supports a family” or “he
supports his old mother” Maintenance is “an act of maintaining”, i.e. to support
with money. For example, “he is too poor to maintain his family”. It may be
useful at this stage to refer to the definition of “maintenance” as given in the
Hindu Adoptions and Maintenance Act, 1956 (for short “the Act of 1956)”. Under
Section 3 of that Act, “maintenance” includes-(i) in all cases, provision for food,
clothing, residence, education and medical attendance and treatment; (ii) in the
case of an unmarried daughter also the reasonable expenses of and incident to
her marriage. I would, therefore, think that when we talk of Maintenance and
support, the definition of “maintenance” as given in the Act of 1956 should be
adopted. Section 18 of the Act of 1956 also refers to Maintenance of wife and
gives the circumstances under which a Hindu wife is entitled to live separately
from her husband without forfeiting her claim to maintenance”.
24.9. Interim or pendente lite maintenance and alimony are distinct from each
other and though all of them or few of them can be awarded, it cannot be said
that they would overlap each other.
24.10. Interim Maintenance is awarded pending the finalization of the permanent
maintenance to be awarded. Once maintenance is finalised and awarded, the
same may operate from the date it is awarded or date back to the petition with
due deduction for interim maintenance already paid. Apart from maintenance
alimony could also be awarded. Though there could be an overlap between
interim and permanent maintenance, maintenance and alimony operate
differently and there is no overlap. Thus, the interim Maintenance awarded by
this Court cannot be taken into consideration for the purpose of deduction of a
permanent alimony awarded by the Family Court.
24.11. The permanent alimony is awarded by a Court so that the wife has a corpus
for herself which she could invest, earn returns by way of interest which would
take care of her well being.
24.12. In the case of Maintenance, either permanent or interim, a steady amount
would have to be paid by the husband to the wife on monthly basis, hence, the
wife is not concerned with anything else apart from receiving the money from the
husband.
24.13. In the case of permanent alimony, the return on investment on the
permanent alimony could be spent by the wife. In case of Maintenance, the
entire money could be spent or invested by the wife.
24.14. In the aforesaid circumstances, the interim Maintenance having been
awarded for the upkeep and well being of the wife, it cannot be contended that
the said amount has to be deducted from the permanent Alimony to be granted.
24.15. Thus, we answer Point No. 1 by holding that irrespective of grant of interim
Maintenance during the pendency of the proceedings, the permanent alimony if
ordered by the Family Court and challenged before this Court, the interim
Maintenance paid cannot be deducted from the permanent alimony awarded.
25. ANSWER TO POINT No. 2: Whether the permanent alimony awarded by
the Family court is proper and correct?
25.1. When the Family Court passed its order, the salary certificate of the appellant
which was before the Family Court indicated that the appellant was drawing an
amount of Rs. 49,398/- as his gross salary, there being a deduction of Rs.
16,237/- and take home salary being Rs. 29,161/-.
25.2. The respondent upon appearance filed her objections and along with said
objections a salary certificate issued by Government of Karnataka, Department of
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Technical Education, the Principal, Govt. Polytechnic College, Mulabagilu, has

been produced which indicates the gross salary to be Rs. 52,717/- and net salary
to be Rs. 42,722/-. This certificate is dated 7.9.2015. Thus between the
certificate which was available before the Family Court dt. February 2014 and the
one produced before this Court dt. August 2015 would indicate huge increase in
the salary of the appellant. No rejoinder has been filed to the objections filed by
the respondent nor is the salary certificate controverted by the appellant by filing
any pleadings or by production of any other salary certificate.
25.3. The contention of Sri. H.C. Shivaramu, learned counsel for the appellant is
that the respondent is also earning and therefore, the respondent is not entitled
for any alimony or Maintenance. Such a contention is contrary to law. Even a
working wife who is earning is entitled to alimony in terms of the decision of the
Apex Court in Moumita Roy Choudhary v. Abhijith Chatterjee [AIR 2014 Ori 5].
Though the appellant has contended that the respondent is working, as also
contended that the respondent is not working in her own name but in another
name, no document or evidence has been produced by the appellant to establish
this fact.
25.4. The appellant has also sought to contend that the respondent is married to
one Janardhan, which fact has been denied by the respondent. In fact the
respondent has made serious allegation against the appellant as regards the
appellant having fabricated or manipulated a photograph of hers with someone
to contend that the respondent has married. The appellant has though made
various allegations as regards the respondent being married and residing in a
particular house, etc, apart from mere allegations there is nothing which the
appellant has placed on record to support this claim. Such a conduct on part of
the appellant is completely unbecoming and making such baseless allegation
would also amount to an abuse of process of law.
25.5. Taking into consideration that the appellant's income is Rs. 42,722/- as on
7.09.2015, we are of the considered opinion that the permanent alimony of Rs.
10,00,000/- which was awarded by the Family Court does not require any
interference.
26. POINT NO. 3: What order?
26.1. The appellant is directed to make payment of Rs. 10,00,000/- as permanent
alimony to the respondent within a period of three months from today, if not paid
within that time, the same shall bear interest at the rate of 12% p.a.
26.2. The appellant shall also make payment of the balance interim maintenance
from 10.4.2017 till date at the rate of Rs. 10,000/- p.m. until the payment of the
permanent alimony to the respondent.
26.3. The respondent is permitted to withdraw the amounts deposited before this
Court.
26.4. In view thereof, IA-1/2019 for withdrawal of the amounts filed by the
respondent is allowed.
26.5. IA-1/2020 for modification of the order dated 31.8.2015 is rejected. IA-
2/2020 for impleading respondent No. 2 also stands rejected.
26.6. IA-2/2015 for condonation of delay of 17 days in filing the appeal is allowed.
Delay condoned.
26.7. The appeal is dismissed.
———
† Principal Bench at Bengaluru
‡ This MFA is filed U/S 19(1) of the Family Courts Act against the Judgment and Decree dated : 03.01.2015
passed in M.C No. 1735/2010 on the file of the III Additional Principal Judge, Family Court, Bangalore, allowing
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the petition filed U/Sec.13(1)(IA) of the Hindu Marriage Act for dissolution of marriage.
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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Tuesday, January 03, 2023

2021 SCC OnLine Kar 15179

In the High Court of Karnataka†

A. Chandra Mohan … Appellant;

6. It is aggrieved by the same that the appellant is before this Court.

Technical Education, the Principal, Govt. Polytechnic College, Mulabagilu, has

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