Karnataka High Court
A C Netravathi vs B S Mallesh on 10 November, 2020
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL PETITION NO.6715 OF 2016
BETWEEN
A.C. Netravathi
W/o B.S. Mallesh
Aged about 30 years
R/at Alagatte Village
Hosadurga Taluk
Chitradurga District-577597.
... Petitioner
(By Sri. Yogesh- Advocate for
Sri. P.H. Virupakshaiah - Advocate)
AND
B.S. Mallesh
S/o Late Shivaiah
Aged about 33 years
R/at Kodihalli Village
Madure Hobli
Doddaballapur Taluk
Bangalore Rural District-561203.
... Respondent
(By Sri L.S. Chikkanagoudar, Advocate)
This Criminal Petition is filed under Section 482 of
the Code of Criminal Procedure, praying to quash the
judgment passed by the Additional Civil Judge and JMFC,
Doddaballapura dated 03.08.2013 in C.Mis.No.105/2009
vide Annexure-E and etc,.
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This Criminal Petition coming on for Hearing,
through video conferencing this day, the court made the
following:
ORDER
This petition is filed by the petitioner / wife seeking to quash the judgment rendered by the Court of the Addl.
Civil Judge & JMFC, Doddaballapura in Crl.Misc.105/2009 dated 3.8.2013 vide Annexure-"E" and so also to quash the order passed by the IV Addl. District & Sessions Judge, Doddaballapura in Crl.RP.No.10005/2013 dated 16.08.2016 vide Annexure-
"K" and consequently to allow the petition filed by her in C.Mis.No.105/2009 seeking maintenance from the respondent Shri B.S. Mallesh, her husband and such other reliefs.
2. Heard the learned counsel Shri Yogesh appearing for the counsel for the petitioner and Shri L.S. Chikkanagoudar for the respondent, who appear through video conferencing.
3. It transpires from the petition that the marriage of the petitioner / wife with the respondent / husband was :3: solemnized on 22.06.2006 at Balehonnur Shaka Matha, Yediyur Kshetra, Kunigal Taluk, Tumkur District. Subsequent to their marriage, they have a child named Shivalingaswamy from their wedlock. It is stated that the petitioner's father had spent more than Rs.2,50,000/- to perform her marriage. Further, it is stated that Rs.50,000/- cash was provided to the respondent / husband along with gold ornaments.
It is stated that subsequent to their marriage, the petitioner / wife started living with the respondent / husband at his native place for a few months and during the said period, it is stated that she had suffered harassment both mentally and physically meted out by her husband. It is stated that she suffered a lot when she lived with the respondent. It is stated that he did not provide basic necessities to lead her life. Thereafter, she became pregnant and as per the prevailing customs in the community, she was taken to her parents place in Alagatte Village, Hosadurga Taluk, Chitradurga District for her delivery. But even after birth of the child, it is :4: stated that the respondent neglected her and did not show any inclination to bring her back to the matrimonial house of the respondent. In this regard, it is stated that there were several negotiations and deliberations at the instance of well-wishers and relatives. Since the petitioner / wife could not maintain herself and her child since she had no income of her own, she was forced to file Crl.Misc.No.105/2009 under Section 125 of the Cr.P.C. before the Civil Judge & JMFC, Doddaballapura on 01.12.2009. In the said petition, the petitioner sought for monthly maintenance of Rs.10,000/- and also litigation expenses of Rs.15,000/-.
The learned Civil Judge passed an order on 08.04.2010 granting interim maintenance of Rs.1,500/- per month to the petitioner, payable by the respondent / husband. However, the respondent did not comply with the said order and has not paid any maintenance to the petitioner till date. In the meanwhile, the respondent / husband had instituted proceedings under the provisions of Section 13(i)(i-a)(i-b) of the Hindu Marriage Act, seeking dissolution of marriage on the file of the Addl. District & :5: Sessions Judge, Fast Track Court-VII, Doddaballapura in M.C.No.5/2009, which came to be allowed by judgment and decree dated 31.1.2011, thus dissolving the marriage.
Aggrieved by the said order, the petitioner / wife preferred MFA No.7624/2013 (M.C.) before this court, which came to be allowed and the matter was remanded to the District and Sessions Judge, Doddaballapura, for fresh consideration. However, the Crl.Misc.No.105/2009 filed by the petitioner / wife under Section 125 of the Cr.P.C. seeking monthly maintenance was dismissed on 03.08.2013. The said order passed in Crl.Misc.No.105/2009 was then challenged by the petitioner before the IV Addl. District and Sessions Judge, Doddaballapura in Crl.R.P.No.10005/2013 along with an application under Section 5 of the Limitation Act seeking condonation of delay of 49 days in preferring the Criminal Revision Petition. However, the said Crl.R.P.No.10005/2013 came to be dismissed along with I.A.No.1 for condonation of delay, as on 30.06/2014.
The said order passed in Crl.R.P.No.10005/2013 was challenged before this court by filing :6: Crl.P.No.4706/2014, which came to be allowed by setting aside the order dated 30.06.2014 and consequently allowing the I.A. seeking condonation of delay. Thus, Crl.RP.No.10005/2015 was restored to file. But however, thereafter, on hearing Crl.RP.No.10005/2015, the IV Addl. District and Sessions Judge, Doddaballapura, by his order dated 16.08.2016 dismissed the said Criminal Revision Petition.
4. Aggrieved by the same, the petitioner / wife has preferred the present petition seeking to quash the judgment dated 3.8.2013 in Crl.Misc.No.105/2009 vide Annexure-"E" and the order dated 16.08.2016 passed in Crl.RP.No.10005/2013 vide Annexure-"K".
5. Learned counsel for the petitioner has taken me through the order dated 4.6.2014 passed by a Division Bench of this court in MFA.No.7624/2013 (MC). The said appeal was allowed and the order dated 31.01.2011 passed in M.C.No.5/2009 was set aside and the matter was remanded back to the Trial Court for a fresh consideration after providing an adequate opportunity to :7: the wife to file her additional objection if required and to lead her evidence.
The learned counsel points out to an observation in the order dated 4.6.2014 of the Division Bench of this court that the allegation made against the present petitioner / wife is not substantiated by any evidence. Hence, there is no evidence to show that the petitioner led a debaseful life. When such being the position, the Trial Court was not justified in rejecting grant of interim maintenance under Section 125 Cr.P.C. on the ground that the petitioner was leading a debaseful life. The learned counsel submits that in spite of the observation in the order in MFA No.7624/2013 (MC) of this Court, the Sessions Judge had erred in dismissing the Crl.RP.No.10005/2013 by order dated 16.08.2016.
It is further contended by the learned counsel that though the order dated 31.01.2011 in M.C.No.5/2009 dissolving the marriage between the petitioner and the respondent has been set aside by the said Division Bench order dated 4.6.2014 of this court in MFA.No.7624/2013 (MC), the Addl. Civil Judge & JMFC, Doddaballapura, has :8: erred in dismissing C.Misc.No.105/2009 by his order dated 03.08.2013 for grant of maintenance. Thus, the learned counsel contends that the above orders have resulted in a miscarriage of justice. Hence, he prays this court to quash the judgment dated 3.8.2013 passed by the Addl. Civil Judge & JMFC, Doddaballapura in C.Misc.No.105/2009 vide Annexure-"E" and also to quash the order passed by the IV Addl. District and Sessions Judge, Doddaballapura dated 16.08.2016 in Crl.RP.No.10005/2013 vide Annexure-"K" and consequently allow C.Misc.No.105/2009 and thereby direct the respondent to the petitioner a maintenance of Rs.10,000/- per month and also to pay litigation expenses of Rs.15,000/-.
6. Per contra, learned counsel Shri L.S. Chikkanagoudar for the respondent / husband has taken me through the materials produced by the learned counsel for the petitioner in support of his contention for seeking intervention of the order passed by the Trial Court :9: in C.Misc.No.105/2009 and so also in Crl.RP.No.10005/2013.
He contends that since MFA No.7624/2013 (MC) was allowed by a Division Bench of this court and the case in M.C.No.5/2009 has been remanded to the Addl. District and sessions Judge, Fast Track Court-7, Doddaballapura, the petitioner / wife cannot claim maintenance under Section 125 of the Cr.P.C. However, the counsel for the respondent fairly submits that the case in C.Misc.No.105/2009 be remanded back to the court of the Addl. Civil Judge and JMFC, Doddaballapura.
The learned counsel for the respondent contends that unless the petitioner has established that she has been abandoned by her husband and has become a destitute, the consideration of her petition under Section 125 of the Cr.P.C. for grant of interim maintenance would not arise at all. These are the contentions of the learned counsel for the respondent praying to dismiss the petition filed by the petitioner / wife.
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7. In the context of the contentions taken by the learned counsel for the petitioner / wife and so also the counter made by the learned counsel for the respondent / husband, it is seen that the marriage of the petitioner and the respondent was performed on 22.06.2006. Subsequent to their marriage, petitioner was blessed with a boy child named Shivalingaswamy. However, the petitioner A.C. Netravathi along with her son was staying in her parents' house situated in Alagatte Village, Hosadurga Taluk, Chitradurga District. She had gone to her parents' house for the sake of her delivery. But even after birth of the child, the respondent had neglected her and did not show any inclination to take her back to the matrimonial house. Though there were several negotiations and deliberations at the instance of well- wishers and relatives, the respondent was not willing to take back his wife. Since the petitioner could not maintain herself along with her child since she had no income of her own, she filed Crl.Misc.No.105/2009 under Section 125 of the Cr.P.C. before the Civil Judge & JMFC, Doddaballapura on 01.12.2009 seeking for grant of : 11 : interim maintenance. The learned Civil Judge passed an order on 08.04.2010 granting interim maintenance of Rs.1,500/- per month to the petitioner, payable by the respondent / husband. However, the respondent did not comply with the said order, but he instituted proceedings under the provisions of Section 13(i)(i-a)(i-b) of the Hindu Marriage Act, seeking dissolution of marriage on the file of the Addl. District & Sessions Judge, Fast Track Court-VII, Doddaballapura in M.C.No.5/2009, which came to be allowed by judgment and decree dated 31.1.2011, thus dissolving the marriage.
Aggrieved by the said order, the petitioner preferred MFA No.7624/2013 (M.C.) before this court, which came to be allowed and the matter was remanded to the District and Sessions Judge, Doddaballapura, for fresh consideration. However, the Crl.Misc.No.105/2009 filed by the petitioner / wife under Section 125 of the Cr.P.C. seeking monthly maintenance was dismissed on 03.08.2013. The said order passed in Crl.Misc.No.105/2009 was then challenged by the petitioner before the IV Addl. District and Sessions Judge, : 12 : Doddaballapura in Crl.R.P.No.10005/2013 along with an application under Section 5 of the Limitation Act seeking condonation of delay of 49 days in preferring the Criminal Revision Petition. However, the said Crl.R.P.No.10005/2013 came to be dismissed along with I.A.No.1 as on 30.06/2014. The order passed in Crl.R.P.No.10005/2013 was challenged before this court by filing Crl.P.No.4706/2014, which came to be allowed by setting aside the order dated 30.06.2014 and consequently allowing the I.A. seeking condonation of delay. Thus, Crl.RP.No.10005/2015 was restored to file. But however, again on hearing Crl.RP.No.10005/2015, the IV Addl. District and Sessions Judge, Doddaballapura, by his order dated 16.08.2016 dismissed the said Criminal Revision Petition on the ground that the wife is not entitled to maintenance from her husband if she is living a debaseful life and further if she refuses to live with her husband without any specific reason.
It is seen that the petitioner's parents had given Rs.50,000/- to the respondent is cash during her marriage and also had spent an amount of Rs.2,50,000/- : 13 : for performing her marriage. However, in this petition, it does not arise to dwell into the issues in between the spouses. M.C.No.5/2009 has already been restored to file and has been remanded to the Trial Court where the petitioner is required to file her additional objection if necessary and to lead her evidence. Hence, the divorce proceedings between the petitioner and respondent is pending, which would be decided in the usual course. The matter relates to spouses dispute. Subsequent to her marriage, the petitioner has given birth to a male child. The respondent having not taken her back to his house after her delivery, she has become a destitute along with her child and is not in a position to maintain herself and her child. Therefore, it is desirable to consider the petition filed by her for grant of maintenance in accordance with law. Accordingly, I proceed to pass the following:
ORDER The petition filed by the petitioner under Section 482 Cr.P.C. is hereby allowed. Consequently, the order dated 3.8.2013 passed in Crl.Misc.No.105/2009 vide Annexure-
"E" and the order dated 16.08.2016 passed in : 14 : Crl.RP.No.10005/2013 vide Annexure-"K" are hereby quashed.
The case in Crl.Misc.No.105/2009 relating to grant of maintenance is restored to file and is remanded back to the court of the Addl. Civil Judge and JMFC, Doddaballapura. The said court shall give an opportunity to both the parties and shall dispose of the same on merits, in accordance with law, keeping open all contentions of the petitioner as well as the respondent. Since it is a case of the year 2009, the learned Addl. Civil Judge and JMFC, Doddaballapura shall dispose of the case in Crl.Misc.No.105/2009 within a period of six months from the date of receipt of a copy of this order.
Registry of this court is directed to forward copy of this order to the court of Additional Civil Judge and JMFC, Doddaballapura for compliance.
Ordered accordingly.
Sd/-
JUDGE KS