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2025 DAILYLAW 91155 (KAR)

MRS. RASHMI AMANNA v. MR. SANJEETH JOY DEVADATTA

WP/22475/2023 · 2025-08-01

Lalitha Kanneganti

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Judgment text

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- 1 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 22475 OF 2023 (GM-FC) C/W WRIT PETITION NO. 25545 OF 2023 (GM-FC) IN WP No. 22475/2023 BETWEEN: MRS. RASHMI AMANNA W/O MR. SANJEETH JOY DEVADATTA AGED ABOUT 37 YEARS R/AT D-604, PIONEER HERITAGE RESIDENCY - II, OPP. MILAN SUBWAY, SANTACRUZ (W), MUMBAI - 400 054. …PETITIONER (BY SRI. M SUDHAKAR PAI. ADVOCATE) AND: MR. SANJEETH JOY DEVADATTA S/O ARCHIBALD SAMUEL ERIC DEVADATTA AGED 43 YEARS R/AT AMRUTH VILLA, BALMATTA, MANGALURU - 575 002 (D.K.) PRESENTLY R/AT B-303, SMONDO 3.0 NEWTOWN, OFF HOSUR ROAD, ELECTRONIC CITY PHASE - I BENGALURU - 560 100 …RESPONDENT (BY SMT.HALEEMA AMEEN. ADVOCATE) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO-QUASH THE ORDER DTD 07.07.2023 ON I.A.NO.VI IN M.C.NO.494/2021 ON THE FILE OF THE Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 PRINCIPAL JUDGE, FAMILY COURT, DK, MANGALURU VIDE ANNEXURE-E TO THE WRIT PETITION TO THE EXTENT OF NON GRANTING OF MAINTENANCE AS PRAYED FOR IN IA NO.VI AND ALLOW IA.NO.VI IN M.C.NO.494/2021 ON THE FILE OF PRINCIPAL JUDGE, FAMILY COURT, DK, MANGALURU VIDE ANNEXURE-C AND ETC. IN WP NO. 25545/2023 BETWEEN: MRS. RASHMI AMANNA W/O MR. SANJEETH JOY DEVADATTA AGED ABOUT 37 YEARS R/AT D-604, PIONEER HERITAGE REISDENCY-II OPP: MILAN SUBWAY, SANTACRUZ (W), MUMBAI- 400054 ...PETITIONER (BY SRI. M SUDHAKAR PAI. ADVOCATE) AND: MR. SANJEETH JOY DEVADATTA S/O ARCHIBALD SAMUEL ERIC DEVADATTA AGED ABOUT 43 YEARS R/AT AMRUTH VILLA, BALMATTA, MANGALURU-575002 (D.K) PRESENTLY R/AT B-303 SMONDO 3.O NEW TOWN, OFF HOSUR ROAD, ELECTRONIC CITY PHASE I BENGALURU-560100 ...RESPONDENT (BY SMT. HALEEMA AMEEN. ADVOCATE) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD. 07/10/2023, ON I.A. NO. X IN M.C. NO. 494/2021 ON THE FILE OF PRINCIPAL JUDGE, FAMILY COURT, D.K. MANGALURU VIDE ANNEXURE-F AND ETC. THESE PETITIONS, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI - 3 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 ORAL ORDER IN WP.No.22475/2023 Aggrieved by the orders passed in I.A.No.VI dated 07.07.2023, I.A.No.VIII dated 10.07.2023 and I.A.No.IX dated 26.08.2023 in M.C.No.494/2021 by the Principal Judge, Family Court, D.K.Mangaluru, the petitioner/wife is before this Court. 2. The parties are referred to as husband and wife for the sake of convenience. 3. M.C.No.494/2021 is filed by the wife seeking divorce. The husband had filed the counter claim seeking restitution of conjugal rights. The wife had filed I.A.No.VI under Section 36 of the Indian Divorce Act, 1869, seeking interim maintenance of an amount of Rs.80,000/- per month to her son. I.A.No.VIII is filed by the husband under Section 12 of the Guardian and Wards Act, seeking temporary custody and visitation rights in respect of his son. I.A.No.IX is filed by the wife under Section 151 of CPC, with a prayer to record her evidence through video conferencing. - 4 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 I.A.NO.VI 4. The wife had filed I.A.No.VI seeking an amount of Rs.80,000/- towards the maintenance of the child. The Family Court by way of order impugned had granted an amount of Rs.20,000/- per month as interim maintenance towards the expenses of the son. The Family Court had considered the take home salary of both the parties. The take home salary of the husband is around an amount of Rs.91,000/- per month and the take home salary of the wife is an amount of Rs.85,000/- per month. Considering the same, the Family Court had directed the husband to pay an amount of Rs.20,000/- per month. 5. The wife had placed the educational expenses of the son before the Family Court. The yearly school fees is about an amount of Rs.80,000/-, uniform and shoes expenses is around Rs.20,000/-, school books is around Rs.20,000/-, school transport is around Rs.30,000/- and the expenses towards his extracurricular activities is around Rs.25,000/-. It is stated that the son is having interest in piano and she bought him a piano worth more than an amount of Rs.3,50,000/-. It is stated that - 5 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 she is paying the EMI for the property which was purchased jointly. Considering all these aspects, the Family Court had held that maintenance of an amount of Rs.20,000/- per month is sufficient. 6. Learned counsel for the petitioner/wife submits that the Family Court had failed to consider that the wife is living in Mumbai along with her parents and with their support she is able to take care of the child. In a city like Mumbai, an amount of Rs.20,000/- per month towards the maintenance would not be sufficient as from the salary, she has to take care of herself and she has to take care of the child. It is submitted that considering the income of the husband, the Family Court ought to have granted maintenance as sought by the wife. Learned counsel submits that the Family Court had granted maintenance from 01.01.2023. It is submitted that when the maintenance is ordered, it should have been from the date of application but not from the date of order, but in this case the Family Court had directed the husband to pay the maintenance from 01.01.2023. - 6 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 7. Learned counsel for the respondent/husband submits that the wife without even informing him had taken the boy to Mumbai and did not come back. In those facts and circumstances, the Family Court had rightly passed an order directing the husband to pay the maintenance from 01.01.2023. It is submitted that considering the income of both the parties, the Family Court held that a sum of Rs.30,000/- per month as maintenance of minor is sufficient and out of the said Rs.30,000/-, the wife has to bear an amount of Rs.10,000/-, whereas the husband has to bear an amount of Rs.20,000/-. Already the Court had directed the husband to pay more amount than the wife to the son and the Court had proportionally awarded the amount considering the school expenses and extracurricular activities and there is no interference called for with the order passed by the Family Court. 8. Having heard the learned counsels on either side, perused the entire material on record. This Court has calculated the expenses that are stated by the wife and the expenses of the boy will come approximately around Rs.21,000/- to - 7 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 Rs.22,000/- per month. The Family Court had already directed the husband to pay an amount of Rs.20,000/- per month. As both the parents are equally earning, if the husband is paying an amount of Rs.20,000/-, it is more than half of the expenses of the son and even another Rs.10,000/- is towards the maintenance of the boy. In the considered opinion of this Court, the Family Court had rightly considered the evidence on record and the requirements of the child and rightly granted an amount of Rs.20,000/- per month and this Court finds no reasons to interfere. As far as granting the maintenance from 01.01.2023 is concerned, the Court ought to have granted the maintenance from the date of application, but not from 01.01.2023. Hence, this Court deems it appropriate to modify the order of the Family Court and direct the respondent/husband to pay the maintenance from the date of petition. I.A.No.VIII 9. I.A.No.VIII is filed by the respondent/husband seeking temporary custody and visitation rights of his son. The Family - 8 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 Court by order dated 10.07.2023 had passed the following order: "ORDER I.A. No. VIII is hereby allowed in part. Acting under Section 41 of the Indian Divorce Act, it is held that the petitioner is entitled for interim custody of his son as well as visitation rights as mentioned hereunder: (i) The respondent is entitled for interim custody of his son for a period of 15 days during Summer vacations. (ii) The respondent is also entitled for the interim custody of his son for a period of 5 days either during Christmas vacations or Mid-term vacations, which option is given to the petitioner to chose vacation. (iii) The respondent is entitled for interim custody of his son once in a month on any Sunday preferred by him from morning 9.00 a.m. to 6.00 p.m. at Mumbai. (iv) The respondent is also entitled for visitation rights through virtual mode for a period of 45 minutes on each Wednesday and Sunday in between 7.30 p.m. to 8.30 p.m. (v) The respondent is also entitled for visitation rights through virtual mode for a period of 30 minutes on the birthday of his son as well as his own birthday, if it does not fall either Sunday or Wednesday." 10. Learned counsel for the petitioner/wife submits that the wife is aggrieved by clause Nos.i and ii. In clause Nos.i and ii, there is no clarity and further the boy is having asthma and the Bangalore weather is not suitable for him. Then in clause - 9 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 No.ii, it is stated that the husband is entitled for interim custody during Christmas vacations or Mid-term vacations and in that also there is no clarity. It is submitted that considering the boy's health, the Court may direct the husband to exercise the visitation in Mumbai itself and the order of the Family Court may be modified. 11. Learned counsel appearing for the respondent/ husband submits the Court considering all the aspects had passed a reasonable order and he cannot be expected to go to Mumbai for 15 days and exercise the visitation. 12. Having heard the learned counsels on either side, perused the material on record. The submission of the learned counsel for the wife is that the boy is suffering from Asthma and the weather in Bangalore is not suitable for the child that too in summer. This Court is not able to appreciate the said submission. The boy was born and brought up in Bangalore and just because the boy is staying in Mumbai now, it cannot be said that the weather in Bangalore is not suitable for him. As such, this Court do not find any infirmity with the order passed by the Family Court. However, with regard to the clarification of - 10 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 clause No.i is concerned, the respondent/husband can have the custody of the child during the first 15 days of the Summer vacations. When it comes to clause No.ii, the respondent/husband can exercise the visitation for the first 5 days of the Christmas vacation. I.A.No.IX 13. I.A.No.IX is filed by the wife seeking permission to give evidence via video conferencing. By order dated 26.08.2023, the Family Court had rejected the application filed by the wife. 14. While dismissing the said application, the Family Court had observed that this is not a fit case to allow the wife to give her evidence through video conferencing and the wife has not made out any grounds to exercise the discretion of the Court in her favour and allow her to give evidence through video conferencing. 15. Learned counsel for the petitioner/wife submits that as the wife is staying in Mumbai, the cross-examination may be done through video conferencing. As we have the rules for the - 11 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 same, it would be convenient for the wife, but the Court without any basis had dismissed the application. 16. Learned counsel appearing for the respondent/ husband submits that with the kind of allegations that are made between the parties, unless and until the cross- examination is done before the Court, lot of injustice would be caused to the husband. 17. Having heard the learned counsels on either side, perused the entire material on record. Though there are video conferencing rules and the parties can make an application for video conferencing, generally, the main witnesses have to be examined in normal course before the Court. The Hon'ble Apex Court in catena of cases has observed that the demeanor of the witness is very important and the Court would be able to understand better if they are examined before the Court. There are certain exceptional circumstances and that too for an evidence of an expert and other witnesses, it could be through video conferencing. But particularly in the matrimonial matters, where the allegations are made against each other, examining before the Court is idle. In the considered opinion of this Court, - 12 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 the Family Court had rightly dismissed the application and this Court finds no reasons to interfere with the well considered order passed by the Family Court. IN WP.No.25545/2023 18. Aggrieved by the order passed in I.A.No.X in M.C.No.494/2021 dated 07.10.2023 by the Principal Judge, Family Court, D.K.Mangaluru, whereby the Family Court had rejected the application filed by the wife, the petitioner/wife is before this Court. 19. The parties are referred to as husband and wife for the sake of convenience. 20. The wife had filed M.C.No.494/2021 seeking divorce on the ground of cruelty. The M.C. is filed in the year 2021. At the time of filing of the chief evidence affidavit by PW.1, this application is filed seeking to amend the pleading. In the affidavit that is filed in support of the I.A., it is stated that some facts were left out while filing of the petition and incorporation of those facts are very important to decide the case. The behavior of the respondent towards his minor child - 13 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 also is required to be added in the petition. There have been some subsequent developments in the case and even those facts are required to be added to the petition since all those facts have a significant bearing on the case. It is stated that most of the significant facts that took place between the wife and the husband are required to be incorporated in this petition and only on the basis of facts, the Court can decide a petition filed for divorce. When it comes to the amendments sought to be incorporated in the petition, it is stated that the husband used to continuously harass her and abuse her. Then she wanted to plead how was the behaviour of the husband with the child. 21. The Family Court by way of order impugned had rejected the application. The Family Court had observed that the learned counsel for the wife during his arguments submits that earlier the counsel for the wife was different and recently he came on record and after interaction with the wife, he came to know that several relevant instances were not pleaded and hence he is constrained to file the present amendment application. The Court had opined that it is not a ground to - 14 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 permit the parties to carry out the amendment, that too after the commencement of the trial. The Court had observed that already the trial has commenced and the petitioner has failed to bring the case under proviso to Order VI Rule 17 of CPC, the question of permitting the wife to carry out the amendment does not arise. Further, it is necessary to keep in mind the hardship that would be caused to the husband if the present amendment is allowed. The husband has already disclosed his defence based on the earlier pleadings and now several fresh allegations have been made against him in the proposed amendment which would definitely affect his defence. After considering all these aspects, the Court had rejected the application. 22. Learned counsel appearing for the petitioner/wife submits that the manner in which the order is passed by the Family Court and the reasons that are given by the Court are contrary to the purpose of Order VI Rule 17 of CPC. It is submitted that in catena of judgments, the Hon'ble Supreme Court had observed that the Courts cannot look at the amendments in a hyper technical manner and the Courts has to - 15 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 look at the substantial justice to the parties. He had relied on the judgment of the Hon'ble Apex Court in case of Dinesh Goyal @ Pappu Vs. Suman Agarwal (Bindal) & Others1 arising out of Special Leave Petition (Civil) No.30324/2019 in paragraph Nos.17 and 18 which reads as follows: "17. Any and all delays in judicial processes should be avoided and minimised to the largest extent possible, and should generally be, and are rightly frowned upon. However, not in all cases can delay determine the fate of a Suit. The defendant submits that the time gap between submitting the written statement to the Suit and the presentation of the application seeking leave to amend is unexplained. If this argument of the defendant is accepted, the question of Will shall remain undecided or at best will be decided with great delay. The trial which has admittedly already commenced, would be stalled by way of a challenge to the framing of issues which, in turn, would not be in consonance with the object of Order VI Rule 17 of CPC which is aimed at preventing multiplicity or multiple avenues of litigation, subsumed under the umbrella of one dispute. 18. Keeping in view the above, along with the fact that without determination of the question of Will and its genuineness, the partition of the Suit property would not be possible, we do not find any infirmity in the order of the High Court, allowing the amendment setting aside refusal of the Trial Court to grant such amendment." 1 2024 INSC 726 - 16 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 23. Relying on this judgment, learned counsel submits that the Family Court ought to have permitted the wife to amend the pleadings and allowed the application. 24. Learned counsel appearing for the respondent submits that the Family Court had considered the fact that the trial has commenced. Once the trial has commenced, it is for the petitioner to aver and prove that in spite of due diligence, these facts could not be brought to the notice of the Court and in view of the provisions of Order VI Rule 17 of CPC, this amendment cannot be allowed and the Family Court had rightly rejected the application and there are no grounds to interfere with the order passed by the Family Court. 25. Having heard the learned counsels on either side, perused the entire material on record. The M.C. is filed in the year 2021. The amendment is sought in the year 2023. The issues are framed and the matter is coming up for the chief affidavit of PW.1 for all practical purposes, the trial has commenced. In the affidavit that is filed in support of the I.A., it is stated that certain facts were not stated and secondly, certain facts have happened during the pendency of the - 17 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 proceedings which are relevant to be brought on record. Before the Family Court, it is submitted by the counsel that the now the new counsel has filed the vakalath and when he came to know certain facts were not pleaded, now by way of this amendment all these things have to be brought on record. These are the two grounds. When an application is filed seeking amendment of the petition, the Family Court has to look at why these particular facts and circumstances could not be brought on record at the earliest point of time and what are the reasonable grounds for not bringing those and if those facts are not brought on record, what would be the hardship caused to the party. At a belated stage, if a particular application is filed seeking amendment to the pleadings, what is the impact of it on the other side, what prejudice would be caused and any kind of admission that is made by the petitioner is taken away by way of amendment and the Court has to always necessarily balance the interests of the parties and at the same time, the Court cannot permit the parties to come up with one application or the other for the purpose of dragging on the proceedings. There is no dispute about the law laid down by the Hon'ble Apex Court in Dinesh Goyal @ Pappu's case referred supra. It - 18 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 has been consistently held by the Hon'ble Supreme Court in several judgments in similar lines. The law has to be applied to the facts and circumstances of the case. Now, in the light of the law that is relied on by the learned counsel and in the light of the settled law, applying it to the facts of the case, the reasons that are stated why they want to amend the pleadings cannot be a ground for this Court to allow the petition. All the facts which were narrated, half of it were in the knowledge of the petitioner as on the date the petition was filed and now by way of amendment, the facts they want to incorporate has happened subsequent to the filing of the petition. In all these matrimonial proceedings, what all happened subsequent to the filing of the proceedings have to be permitted by way of an amendment to the petition, basing on a particular relief sought, then there is no end to the litigation and no matrimonial proceedings can be decided. In view of the above discussion, this Court is of the considered opinion that the Family Court had rightly considered and rejected the application and this Court do not find any reasons to interfere with the well considered order passed by the Family Court. Hence, this Court is passing the following: - 19 - HC-KAR NC: 2025:KHC:29865 WP No. 22475 of 2023 C/W WP No. 25545 of 2023 ORDER i. The order passed in I.A.No.VI in M.C.No.494/2021 dated 07.07.2023 by the Principal Judge, Family Court, D.K.Mangaluru, is modified. As far as the order of the Family Court granting the maintenance from 01.01.2023 is concerned, the respondent/husband is directed to pay the maintenance from the date of petition. ii. The order passed in I.A.No.VIII in M.C.No.494/2021 dated 10.07.2023 by the Principal Judge, Family Court, D.K.Mangaluru, is modified. However, with regard to the clarification of clause No.i is concerned, the respondent/husband can have the custody of the child during the first 15 days of the Summer vacations. iii. When it comes to clause No.ii, the respondent/husband can exercise the visitation for the first 5 days of the Christmas vacation. iv. Accordingly, WP.No.22475/2023 is disposed of. v. WP.No.25545/2023 is dismissed. vi. All I.As. in these petitions shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE MEG List No.: 1 Sl No.: 1