Karnataka High Court
P.Kailash Jain S/O. Late L.Prakashmal ... vs Smt.Komal W/O. Kailash Jain on 31 July, 2018
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF JULY 2018
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL PETITION NO.201286/2016
Between:
1. P. Kailash Jain
S/o L. Prakashmal Jain
Age: 30 years
Occ: Business of property
Developers and Flat Promoter
R/o Old No.17, Mulla Sahib Street
First Floor Sowcarpet
Chennai - 600 079
2. L. Prakashmal Jain Alias Prakesh Kotari
S/o Late Lalchand
Aged about 60 years
Occ: Managing Director
Gurudev Foundations Pvt. Ltd.
Property Developers and Flat Promoters
R/o Old No.17, Sowcarpet
Chennai - 600 079
3. Manish Jain S/o Prakashmal Jain
Aged about 26 years
Occ: Student studying C.A. & C.S.
R/o Old No.17, Sowcarpet
Chennai - 600 079
... Petitioners
(By Sri Ajay Kumar Ashok Kumar, Advocate)
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And:
Smt. Komal W/o Kailash Jain
Age: 27 years, Occ: Household
R/o H.No.11-1-25/c "Navakar"
Mahatma Gandhi Chowk, Raichur
... Respondent
(By Sri Shivanand Patil, Advocate)
This Criminal petition is filed under Section 482 of
Cr.P.C., praying to allow the petition and quash the order
passed on 05.10.2015 by the II-Additional District and
Sessions Judge, Raichur, in Criminal Appeal No.22/2015
and quash the order passed on 25.04.2015 by the Principal
Civil Judge and JMFC-II, Raichur, in Crl.Misc. No.75/2013.
This petition coming on for Admission, this day, the
Court made the following:
ORDER
The petitioner has sought for quashing of the order passed by the learned IInd Additional District and Sessions Judge, Raichur dated 05.10.2015 in Criminal Appeal No.22/2015 and also for quashing of the order passed in Criminal Miscellaneous No.75/2013 dated 25.04.2015 by the Principal Civil Judge and JMFC-II, Raichur.
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2. The trial Court in Criminal Miscellaneous No.75/2013 has allowed the petition filed by the respondent herein under Sections 12, 18, 19, 20, 22 and 23 of the Protection of Women from Domestic Violence Act (hereinafter referred to as 'PWDV Act), wherein the trial Court has granted maintenance of Rs.4,000/- per month to the petitioner from the date of petition and also ordered for return of Stridhana Property i.e., a gold chain, bracelet and marriage ring in all weighing 5 tolas which were presented by the petitioner's parents to the respondent No.1 at the time of the marriage. The said order was passed after due contest by the respondents.
3. Being aggrieved by the said order, the petitioner therein Smt. Komal filed an appeal in Criminal Appeal No.22/2015, seeking for enhancement of the maintenance. However, the petitioners herein have not challenged the order of the learned Magistrate. 4 In the above said criminal appeal, the appellate Court after due contest by the respondents has enhanced the maintenance from Rs.4,000/- to Rs.10,000/- per month to be payable by the husband to the appellant from the date of the petition and also ordered for adjustment of the said amount in the maintenance awarded by the Family Court etc. Being aggrieved by the said order passed by the appellate Court, the present petition is filed by the petitioners.
4. It is the contention of the learned counsel for the petitioners that, subsequent to disposal of the criminal appeal, before the Family Court, the wife has made some admissions, which is sufficient to refuse maintenance to her. Therefore, he would like to rely upon the evidence of the respondent herein for the purpose of seeking alteration, modification or revocation of the order passed by the appellate Court. 5
5. Looking to the above said facts and circumstances, the petitioner mainly relies upon subsequent event that has occurred before the Family Court. It is also worth to mention here that, the appellate Court has already mentioned the same that the maintenance awarded by the appellate Court is adjustable in the maintenance awarded by the Family Court and the maintenance enhanced by the appellate Court includes the maintenance and/or interim maintenance already awarded to the petitioner by the Family Court Raichur in a proceedings under Section 125 of Cr.P.C. or in any Divorce Case. Therefore, the said order passed by the Domestic Violence Court is subject to the decision of the Family Court.
6. Even otherwise, if the petitioners rely upon any subsequent event taken place and on the ground of changed circumstances they would like to attack the order of the learned Magistrate or the order passed by 6 the appellate Court, they can choose the forum before the Magistrate Court itself in view of the specific and special provision provided under the PWDV Act. The special provision under Section 25 of the PWDV Act reads as follows:
"25. Duration and alteration of orders.-(1) A protection order made under section 18 shall be in force till the aggrieved person applies for discharge.
(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate."
7. Section 25(2) of the PWDV Act empowers the Magistrate to alter, modify or revoke any order passed under the said Act, on the basis of any changed circumstances.
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8. Under the above said circumstances, I do not find any strong reasons as such to interfere with the order passed by the learned IInd Additional District and Sessions Judge, Raichur in Criminal Appeal No.22/2015 in enhancing the maintenance. Therefore, this petition is liable to be dismissed with liberty to the petitioners to invoke the provisions under Section 25 of the PWDV Act and if so advised, to make necessary petition before the JMFC-II Court at Raichur, who has passed the order in Criminal Miscellaneous No.75/2013 for alteration, modification or revocation of that order including the order passed by the appellate Court in Criminal Appeal No.22/2015.
Sd/-
JUDGE LG