Karnataka High Court
Sri Dhimankarmakar vs Smt Jhumakarmakar on 4 March, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.1427/2021
BETWEEN:
SRI DHIMANKARMAKAR,
S/O DHIRENDRANATH KARMAKAR,
AGED ABOUT 45 YEARS,
R/AT:FLAT NO.402, 4TH FLOOR,
BHIKSHU APARTMENTS, NO.16,
2ND CROSS, GOKUL 1ST STAGE,
1ST PHASE, MATHIKERE,
BENGALURU-560 054.
... PETITIONER
(BY SRI CHANDRASHEKAR PATIL, ADVOCATE APPEARING
THROUGH VIDEO CONFERENCING)
AND:
SMT. JHUMAKARMAKAR,
W/O DHIMAN KARMAKAR,
AGAED ABOUT 42 YEARS,
R/AT: FLAT NO.402, 4TH FLOOR,
BHIKSHU APARTMENTS, NO.16,
2ND CROSS, GOKUL 1ST STAGE,
1ST PHASE, MATHIKERE,
BENGALURU-560 054.
... RESPONDENT
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W SECTION 401 OF CR.P.C., PRAYING TO
SET ASIDE THE IMPUGNED ORDER DT: 06.03.2019 PASSED
BY THE METROPOLITAN MAGISTRATE, TRAFFIC COURT-II,
BENGALURU, IN CRL.MISC.No.173/2014 ANNEXURE-A AND
JUDGMENT DATED 08.10.2020 PASSED BY THE HON'BLE
LXIV ADDL. CITY CIVIL AND SESSIONS JUDGE, AT
2
BENGALURU IN CRL.A.No.1097/2019 ANNEXURE-B BY
ALLOWING THIS RP AND ETC.,
THIS CRIMINAL REVISION PETITION COMING ON
FOR ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel appearing for the petitioner.
This matter is listed for admission.
The factual matrix of the case is that the respondent has filed C.Mis.No.173/2014 seeking maintenance invoking Section 12 of the Protection of Women from Domestic Violence Act, 2005. Both the parties had appeared before the trial Court. The matter was contested and the respondent herein has been examined as PW.1 and also examined one more witness as P.W.2 and got marked the documents as Exs.P.1 to P.10. The petitioner herein was examined as R.W.1 and got marked the documents as Exs.R1 to R.18. The trial Court after having considered the material on record has awarded an amount of Rs.12,000/- per month in favour of wife and also Rs.5,000/- per month in favour of minor son and also 3 comes to the conclusion that the petitioner's husband is working as software engineer and earning Rs.1,50,000/- per month. The petitioner has not produced any document to show that the respondent is earning Rs.1,50,000/- per month and at the same time, the petitioner not denied that he is not having any source of income nor denied the averments of respondent. Taking note of the said aspect into consideration, the trial Court awarded an amount of Rs.12,000/- in favour of wife and also Rs.5,000/- to the minor son along with his school expenses. Being aggrieved by the same, the petitioner herein preferred an appeal in Crl.A.No.1097/2019 before the Appellate Court. The Appellate Court on re-consideration of the material available on record has dismissed the appeal. Hence, the revision petition is filed before this Court.
2. Learned counsel appearing for the petitioner has vehemently contended that the respondent is staying along with the petitioner herein and this petitioner herein filed M.C.No.3927/2014 wherein also 4 Rs.5,000/- was granted as maintenance. In spite of respondent has clearly admitted in the cross- examination about the facilities and freedom she has in the matrimonial home, the court below has committed an error in awarding Rs.12,000/- in favour of wife and Rs.5,000/- in favour of minor son and the very order passed by the trial Court is perverse and it requires interference.
3. Having heard the learned counsel appearing for the petitioner and on perusal of the material on record, the finding of the trial Court is very clear that this petitioner is earning Rs.1,50,000/- per month and the same is not disputed by the petitioner herein. Even he has not denied the averments made in the petition regarding the income is concerned. The record reveals that he has been examined as R.W.1 and he has produced the documents at Exs.R1 to R18 and those documents are with regard to medical certificate, cancellation of air tickets, booking of air ticket, medical prescription and certified copy of legal notice, but not 5 placed any document with regard to his salary. Hence, it is clear that he has conceded his salary details.
4. Such being the factual aspect, taking into consideration the salary of the petitioner as Rs.1,50,000/- per month, awarding of Rs.12,000/- in favour of wife and Rs.5,000/- in favour of minor son is not an exorbitant amount. Hence, I do not find any ground to invoke Section 397 r/w 401 of Cr.P.C., to interfere with the order of the trial Court. Apart from that, the Appellate Court in Paragraph No.15 has reconsidered the material. Taking into consideration the facts and material on record, the Appellate Court came to the conclusion that the impugned order is sustainable in law and there are no grounds to interfere with the findings of the trial Court.
5. Having considered the material on record and also the grounds urged in the petition and admittedly, the petitioner's counsel submitted that M.C.No.3927/2014 filed by him was already rejected, wherein maintenance of Rs.5,000/- was awarded. The 6 Hon'ble Apex Court has also categorically held that when maintenance is claimed, it is the duty on both the parties to file affidavit regarding source of income, but in the case on hand, admittedly, the petitioner's wife is not working and she is a housewife and the revision petitioner is working as software engineer. When such being the factual aspect, it is not a fit case to invoke Section 397 r/w 401 of Cr.P.C., to interfere with the findings of the trial Court.
6. In view of the discussions made above, I pass the following ORDER Criminal revision petition is dismissed. In view of dismissal of petition, I.A.No.1/2022 does not survive for consideration and it is dismissed.
Sd/-
JUDGE PB