Karnataka High Court
Smt Vinoda vs H Raju @ Rajappa on 21 September, 2022
-1-
RPFC NO. 184 OF 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REVISION PETITION FAMILY COURT NO.184 OF 2014
BETWEEN:
1. SMT VINODA
W/O H.RAJU,
AGED ABOUT 32 YEARS,
HOUSE HOLD WORK,
C/O RANGAPPA,
RETD. POST MASTER,
P & T QUARTERS,
DAVANAGERE-577 001.
2. MASTER ASHRITH
S/O H.RAJU,
SINCE PETITIONER NO.2
IS A MINOR, REPRESENTED BY HIS NATURAL
MOTHER, PETITIONER NO.1 SMT.VINODA.
...PETITIONERS
(BY SMT. ARCHANA K M, AMICUS CURIAE)
Digitally signed by AND:
ARUN KUMAR M S
Location: High
Court of Karnataka H RAJU @ RAJAPPA
S/O HALAPPA,
AGED ABOUT 41 YEARS,
COOLIE,
R/O KATTALAGERE VILLAGE,
CHANNAGIRI TALUK-577213
DAVANAGERE DISTRICT.
...RESPONDENT
(BY SRI.C R SANDESH, AMICUS CURIAE)
-2-
RPFC NO. 184 OF 2014
THIS RPFC IS FILED U/S 19(4) OF FAMILY COURTS ACT,
AGAINST THE ORDER DATED 27.10.14 PASSED IN
Crl.Misc.No.103/2013 ON THE FILE OF JUDGE, FAMILY COURT,
DAVANAGERE, ALLOWING THE PETITION FOR CANCELLATION
OF MAINTENANCE.
THIS PETITION COMING ON FOR HEARING THIS DAY THE
COURT MADE THE FOLLOWING:
ORDER
This Revision Petition is filed by the respondents in Crl.Misc. No.103 of 2013, on the file of the Family Court, Davanagere, challenging the order dated 27th October, 2014, allowing the petition by canceling the order dated 13th July, 2017 in Crl.Misc. No.18 of 2006 by the Family Court.
2. For the sake of convenience, the parties in this petition are referred to with their status and rank before the Family Court.
3. It is the case of petitioners in Crl.Misc. No.18 of 2006 that the marriage between the petitioner No.2 and respondent therein was solemnized on 07th April, 2002 at Kattalagere village, Channagiri Taluk and in their wedlock, petitioner No.1 was born. In view of the family rift, the petitioners have left the matrimonial home and as such, residing separately from the respondent-husband and accordingly, petitioners have filed -3- RPFC NO. 184 OF 2014 Crl.Misc.No.18 of 2006 seeking maintenance. The said petition was contested by the respondent-husband by filing objection. The Family Court, after considering the material on record, by its order dated 13th July, 2007 directed the respondent- husband to pay monthly maintenance to Rs.500/- to petitioner No.1 and Rs.800/- to petitioner No.2, and further Rs.1,000/- was awarded towards litigation expenses. The said order is challenged by the respondent-husband by filing application under Section 127(3)(b)(1) of Code of Criminal Procedure and the said petition was contested by the petitioner-wife and their child. The Family Court, after considering the material on record, cancelled the award of maintenance dated made in Crl.Misc.No 18 of 2006. Feeling aggrieved by the same, the petitioner wife and the child have presented this Revision Petition.
4. This Court, by order dated 08th January, 2021 appointed Smt. Archana K M, learned Advocate as Amicus Curiae to defend the case of the petitioners. Thereafter, by order dated 08th February, 2021, appointed Sri C.R. Sandesh, learned Advocate as amicus curiae on behalf of the respondent. -4-
RPFC NO. 184 OF 2014
5. Heard Smt. Archana, for the petitioner and Sri C.R. Sandesh for respondent.
6. Smt. Archana, appearing on behalf of the petitioners herein, invited the attention of the Court to the finding recorded by the Family Court and submitted that the reasons assigned by the Family Court cancelling the award of maintenance made by Family Court in Crl.Misc.No.103 of 2013 is incorrect. She further contended that the finding recorded by the Family Court that, the petitioners herein are not entitled for maintenance in terms of the settlement between the parties, is contrary to the public policy in terms of Section 23 of Contract Act and sought for interference by this Court.
7. Per contra, Sri C.R. Sandesh appearing for respondent sought to justify the impugned order passed by the Family Court.
8. In the light of the submission made by learned counsel Amicus Curiae for the parties, it is not in dispute that the petitioner No.1 is the wife of the respondent and in their wedlock petitioner No.2 herein is born. Careful consideration of records indicate that the marriage between the petitioner No.1 -5- RPFC NO. 184 OF 2014 and respondent was dissolved in MC No.215 of 2012 by order dated 13th November, 2013 (Exhibit P7) on the file of the Family Court, Davanagere. That apart, in the claim petition made by the wife and child in Crl.Misc.No.18 of 2006, the Family Court awarded maintenance and the same was interfered with the Family Court in Crl.Misc.No.103 of 2013 on the ground that there is settlement between the parties. The Family Court has recorded the finding with regard to the fact that the parties have settled the matter by way of agreement; and on the other hand, at paragraph 11 of the impugned order, the Family Court has pointed out that there is no specific reference in Exhibits P2 and P3 that the said documents are executed in full and final settlement of parties. It is well established principle in law that any such agreement with regard to the claim made by the parties under Section 125 or 127 of Code of Criminal Procedure should be within the parameters of scope and ambit of the said provisions. In that view of the matter, the finding recorded by the Family Court in Crl.Misc.No.103 of 2013 that the petitioner No.1-wife has waived off the maintenance despite the petitioner No.1 having stated that no such agreement has been entered into between -6- RPFC NO. 184 OF 2014 the parties, is contrary to law declared by Hon'ble Apex Court in the case of FERRODOUS ESTATES (PVT.) LTD. v. P.GOPIRATHNAM (DEAD) AND OTHERS reported in AIR 2020 SC 5051.
9. The Hon'ble Supreme Court, in the case of FUZLUNBI v. K. KHADER VALI reported in AIR 1980 SC 1730, has observed that, "the saga of Fazlunbi, who had earlier secured an order for maintenance in her favour Under Section 125 Cr. P.C. which was cancelled Under Section 127(3)(b) Cr.P.C., by three courts, tier upon tier in the vertical system, by concurrent misinterpretation of the relevant provision, constitutes the kernel of her legal grievance. If her plea has substance, social justice has been jettisoned by judicial process and a just and lawful claim due to a woman in distress has been denied heartlessly and lawlessly. We say 'heartlessly', because no sensitive judge with empathy for the weaker sex could have callously cancelled an order for a monthly allowance already made in her favour, as has been done here."
10. It also well established principle in law that payment of maintenance by husband to wife is a social measure under -7- RPFC NO. 184 OF 2014 Article 15(3) of Constitution of India and since Article 15 comes within in purview of the law declared by Hon'ble Supreme Court in the case of BASHESHAR NATH v. THE COMMISSIONER OF INCOME TAX reported in AIR 1959 SC 149, wherein it is held that fundamental rights cannot be waived off and it is the duty of the State as well as the citizens to safeguard the so called fundamental principles enumerated under Part III of the Constitution of India. In that view of the matter, Revision Petition is allowed and order dated 27th October, 2014 passed in Crl.Misc.No.103 of 2103 is set aside.
The assistance rendered by Smt. Archana and Sri C.R. Sandesh, learned Amicus Curiae, is placed on record.
Sd/-
JUDGE LNN List No.: 1 Sl No.: 40