Karnataka High Court
Sri B T Shivkumar vs Smt B G Geetha on 9 October, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 09TH DAY OF OCTOBER, 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.798 OF 2012
BETWEEN:
Sri. B.T. Shivkumar,
Son of BV Thimme Gowda,
40 years, residing at B. Kalahalli Village,
Kasaba Hobli, Valagere Menasa Post,
Mandya District.
...PETITIONER
(By Shri. N.S. Sanjay Gowda, Advocate)
AND:
1. Smt. B.G. Geetha,
Wife of Kumara,
29 years,
2. Kum. Bimba,
Daughter of Smt. BG Geetha,
9 years,
3. Master Hrithik,
Son of Smt. BG Geetha,
7 years,
2
Respondents 2 and 3 are minors
and are hence represented by their mother,
Smt. BG Geetha, the 1st respondent
All are resident of Honaganahalli Village,
Chinakurali Hobli, Pandavapura Taluk,
Mandya District. ...RESPONDENTS
(By Shri. V.N. Madhava Reddy, Advocate)
*****
This Criminal Revision Petition is filed under Section
397 of the Code of Criminal Procedure, 1973, by the advocate
for the petitioner praying to set aside the order dated
26.05.2012 passed by the Presiding Officer, Fast Track Court,
Srirangapatna in Crl.R.P.No.251/2010 and also the order dated
30.09.2010 passed by the Civil Judge (Jr.Dn.) and Judicial
Magistrate First Class, Srirangapatna in Crl.Misc.No.165/2009
and thereby reject the claim for maintenance made by the
respondents in its totality.
This petition coming on for Admission this day, the court
made the following:
ORDER
Heard the learned counsel for the petitioner and the learned counsel for the respondents.
2. The petitioner is the husband who resists an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.', for 3 brevity) on the footing that the respondent by her own admission, has remarried several years ago and it is the contention of the petitioner that the son who is claimed to be born to the petitioner, is in fact born in remarriage to the respondent with one Kumar of Puttasomanahalli. In this regard, an affidavit filed in a civil suit between the respondent and the petitioner in O.S.No.389/2010 before the Court of the Civil Judge, Krishnarajapet is produced to indicate that the respondent has stated on oath that she has married Kumar of Puttasomanahalli about six years prior to the date of affidavit. It is this aspect which is emphasized by the learned counsel for the petitioner to declare that he is not obliged to provide any maintenance to the respondent who claims to be living with another man.
3. While the learned counsel for the respondent would point out that there has been no divorce as between the petitioner and the respondent, in which event a question of second marriage does not arise. The stray sentence in the 4 affidavit said to be highlighted, would not be relevant in these proceedings. The context in which such a statement is made is not evident, as there is no evidence to demonstrate that the respondent has indeed remarried. It would be unfair and unjust to proceed on the footing that the respondent has now remarried only on the face of the so-called affidavit which has been produced and would submit that the court below having negated the contention which may have been urged before the Lower Court, cannot also be found fault with in the absence of any cogent evidence as regards the alleged remarriage of the respondent notwithstanding that there has been no divorce as between the petitioner and the respondent.
4. In this light of the matter namely that when there is a sworn statement of the respondent which is a matter of record in a pending civil suit and that having been produced as evidence of the respondent having remarried and which has not been denied in the course of proceeding under Section 125 Cr.P.C., it is necessary to examine whether the respondent is 5 indeed living with another man, even if the marriage was invalid. For, if that is so, she would not be entitled to maintenance in the light of the tenor of Section 25 of the Hindu Marriage Act, 1955. But, to proceed on the footing that she is either living with another man or "remarried" as stated in the affidavit, would require to be enquired into. Since there is no endeavour in this regard by either of the parties before the court below, the matter is remanded to enable the parties to adduce evidence on that aspect of the matter as stated above and it is for the court below to decide the matter afresh on the basis of such evidence that may be brought on record.
With that observation, the petition is allowed in part. The judgment of the court below is set-aside and the matter is remanded to the Appellate Court for further evidence and judgment.
Sd/-
JUDGE KS