SMT. PAYAL KHATTRI v. SRI. VAIBHAV

DAUGHTER OF SHRI KANTI KUMAR JAIN, AGED ABOUT 47 YEARS, PERMANENT RESIDENT OF PURVA SEASONS H-1103, NAGWARA PALYA, CV RAMAN NAGAR, BENGALURU 560093 PRESENTLY RESIDING AT NO 82, BAYSHORE ROAD, 26-29 COSTA DEL SOL, SINGAPORE 469993 (BY SRI.M.B.ANIRUDH, ADVOCATE) AND:

1. SRI. VAIBHAV SON OF SHRI GOPALJEE KHATTRI, AGED ABOUT 44 YEARS, PERMANENT RESIDENT OF A-29 KAMLA NAGAR, AGRA 282004 PRESENTLY RESIDING IN THE CARE OF ARNOLD KLINGENFUSS MATTHES AT TENGSTR 33, MUNICH 80796, GERMANY …APPELLANT …RESPONDENT - 2 - NC: 2026:KHC:26753-DB MFA No. 1542 of 2024 HC-KAR THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED 20.12.2023 PASSED IN M.C.NO. 543/2022 ON THE FILE OF THE II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, DISMISSING THE PETITION FILED UNDER SECTION 13(1) (i) OF THE HINDU MARRIAGE ACT, ETC. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE D K SINGH HON'BLE MR. JUSTICE T.M.NADAF ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE D K SINGH) The present appeal has been filed under Section 19 of the Family Courts Act, 1984, impugning the judgment and decree dated 20.12.2023 passed by the II Additional Principal Judge, Family Court, at Bangalore, M.C.No.543/2022.

2. The said M.C.No.543/2022 was filed by the appellant herein under Section 13(1)(ia) r/w Sections 25, 26 and 27 of the Hindu Marriage Act, 1955 (for short 'the Act').

3. The marriage between the appellant and the respondent was performed on 06.12.2004 in Agra and registered on

01.01.2005 in Pune. Both parties are highly qualified, - 3 - NC: 2026:KHC:26753-DB MFA No. 1542 of 2024 HC-KAR professional and well employed. The couple resided in India until February 2010.

3. The appellant after sometime found an employment in Singapore and she moved out to Singapore. The respondent/husband joined appellant/wife Singapore on dependent visa. A male child was born on

08.02.2017 out of the wedlock in Singapore. The parties after marriage lived together in Singapore for 10 long i.e. from February 2010 to 2020. The respondent/husband moved to Germany to pursue his career. The appellant got herself transferred to Germany to join her husband and they started living in Germany along with their son. As per the allegations leveled by the appellant in the divorce petition, respondent/husband had developed an extra marital affair with a German lady Dr.Milla Lysenko. When the appellant came to know about the extra marital affair of her husband with the said Dr. Milla Lysenko, she came back to Singapore along with her son. On the basis of these allegations, she filed a - 4 - NC: 2026:KHC:26753-DB MFA No. 1542 of 2024 HC-KAR divorce petition before the Family Court. Along with the divorce petition she also claimed permanent alimony of Rs.2,00,00,000/- (Rupees Two Crores Only) to maintain the child. The appellant is at present in USA gainfully employed.

4. Inasmuch as the husband remained ex parte in the proceedings before the Family Court. The learned Family Court framed the following issues :- "1. Whether the petitioner is entitled for the relief claimed under Section 13(1)(i)(ia)(ib) R/w Sections 25, 26 and 27 of the Hindu Marriage Act ?

2. What order or decree?"

5. So far as point No.1 is concerned, the Trial Court has held that the appellant was entitled for dissolution of marriage under Section 13(1)(ia) and (ib) of the Act. However, the petition under Section 13(1)(i) of the Act was dismissed. The marriage registration certificate has been ordered to be cancelled in view of the judgment that was passed by the Family Court. Appellant has been - 5 - NC: 2026:KHC:26753-DB MFA No. 1542 of 2024 HC-KAR granted liberty to file separate petition claiming permanent alimony and custody of minor son.

6. So far as the question of custody of the minor son is concerned, admittedly, the son is with the appellant/ mother through out. Therefore, we fail to understand that why the prayer for permanent custody of the child was made.

7. Be that as it may, the custody is already with the appellant and therefore, she is not required to file any separate petition for custody of the child under the Guardianship and Wards Act.

8. So far as the question of permanent alimony is concerned, the Family Court has already given liberty. In the absence of evidence led by the appellant before the Family Court, the Family Court has observed at paragraph 19 of the impugned order as under :- "19. The petitioner has sought permanent alimony of Rs.2 Crore from the respondent - 6 - NC: 2026:KHC:26753-DB MFA No. 1542 of 2024 HC-KAR No.1. She has failed to submit her affidavit of assets liabilities with supportive documents. There are no documents before the Court to know the qualification, occupation and income of the petitioner. At the same time, she has not produced the materials to show prima facie the income of the respondent No.1. So, the petitioner is at liberty to file separate petition claiming alimony from the respondent No.1"

9. When the appellant herself failed to produce any evidence before the Family Court with regard to the qualification, occupation, her income and the income of her husband, the Family Court could not have fixed any alimony. However, liberty has been reserved to file a separate petition for permanent alimony.

10. We are of the view, that there is no error on facts or law which warrants interference in the impugned judgment and decree dated 20.12.2023 passed in M.C.No.543/2022. We therefore, dismiss this appeal. - 7 - NC: 2026:KHC:26753-DB MFA No. 1542 of 2024 HC-KAR

11. However, if a separate proceedings are filed for permanent alimony, the appellant is at liberty to raise all contentions. Sd/- (D K SINGH) JUDGE Sd/- (T.M.NADAF) JUDGE NG CT: SN List No.: 1 Sl No.: 8