Karnataka High Court
Smt. Huligewwa @ Huligemma vs Hanumanthappa on 5 November, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
CRL.P.No.102043/2017
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R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL PETITION NO.102043/2017
BETWEEN:
1. SMT. HULIGEWWA @ HULIGEMMA
W/O HANUMANTHAPPA METI,
AGE: ABOUT 42 YEARS,
OCC: HOUSEHOLD WORK AND AGRICULTURE,
R/O: KINNAL-583230, TQ AND DIST: KOPPAL.
2. MANJUNATH S/O HANUMANTHAPPA METI
AGE: ABOUT 17 YEARS, MINOR,
REP. BY NATURAL GUARDIAN MOTHER,
R/O: KINNAL-583230, TQ AND DIST: KOPPAL.
...PETITIONERS
(BY SRI. M M PATIL, ADVOCATE)
AND:
HANUMANTHAPPA, S/O SANNA YALLAPPA METI,
AGE: 45 YEARS, OCC: DRIVER,
R/O: KINNAL-583230,
TQ AND DIST: KOPPAL,
NOW R/O SMT. SAVITRI @ BHARATI,
D/O RANGAPPA UPPAR,
DISTRICT POLICE QUARTERS BALLARI,
TQ AND DIST: BALLARI.
...RESPONDENT
(BY SRI. DEEPAK C. MAGNUR, ADVOCATE)
CRL.P.No.102043/2017
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THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 CR.P.C. PRAYING TO QUASH THE IMPUGNED ORDER
PASSED BY THE CIVIL JUDGE AND J.M.F.C. COURT, KOPPAL
IN CRIMINAL MISC.NO.67/2011 DATED 21.03.2017 AND
DIRECT THE RESPONDENT TO PAY THE ARREARS OF
MAINTENANCE TO THE PETITIONERS.
THIS PETITION COMING ON FOR ADMISSION
THROUGH PHYSICAL HEARING/VIDEO CONFERENCING
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present petitioners had filed a Criminal Misc. No.67/2011 in the Court of Civil Judge and J.M.F.C. Court, Koppal (hereinafter referred to as 'the trial Court', for brevity), against the present respondent under Section 128 of the Criminal Procedure Code, seeking arrears of maintenance amount from 01.03.2010 to 01.03.2011 as per the order said to be passed in Criminal Misc. No.126/2006.
2. The trial Court by its order dated 21.03.2017 dismissed the said petition, challenging which order the petitioners in the trial Court have preferred the present petition.
CRL.P.No.102043/2017:3:
3. The respondent is being represented by his counsel. Learned counsel from both side are present physically in the Court.
4. Though this matter is listed for admission, with the consent of both side, the same is taken up for final disposal.
5. Heard the arguments from both side and perused the material placed before this Court.
6. It is not in dispute that the present petitioners have instituted a petition under Section 125 of Cr.P.C. against the present respondent in Criminal Misc. No.126/2006, in the trial Court, which after contest was partly allowed on 27.08.2007 and the respondent was directed to pay monthly maintenance of `1,000/- to the petitioner No.1 and `500/- to the petitioner No.2 from the date of the petition. Subsequent to that, the present Criminal Misc. No.67/2011 under Section 128 Cr.P.C. was filed by the CRL.P.No.102043/2017 :4: petitioners seeking arrears of maintenance, which according to them was amounting to a sum of `18,000/-.
The said petition was contested by the respondent on the ground that the competent Civil Court has held that there was no marital relationship between the petitioner No.1 and the respondent, as such, the petitioners cannot claim any maintenance. To hold that the petitioners cannot claim any maintenance, the trial Court relied upon Section 127(2) of Cr.P.C.
7. Learned counsel for the petitioners in his argument submitted that, in a petition under Section 128 Cr.P.C., the trial Court cannot go into re- appreciating the merit of the order passed under Section 125 Cr.P.C. If at all the party is aggrieved by the order passed on a petition under Section 125 Cr.P.C., he has to prefer the revision or an appeal as provided under the law, but he cannot make use of Section 128 Cr.P.C. CRL.P.No.102043/2017 :5:
8. Per contra, learned counsel for the respondent in his argument submitted that, the Court can cancel the maintenance granted by exercising the power under Section 127(2) Cr.P.C., as such, the impugned order sustains.
9. Section 128 Cr.P.C. reads as below:
"128. Enforcement of order of maintenance.
A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance or as the case may be expenses, due."
A reading of the above Section clearly go to show that, the role of the trial Court under Section 128 Cr.P.C. is very limited and confined only for enforcement of the CRL.P.No.102043/2017 :6: order of maintenance. If at all it is brought to the notice of the trial Court that the order of granting maintenance under Section 125 Cr.P.C. requires any revisit, in such an event, a necessary application or petition may required to be filed under the relevant provision of law, may be even under Section 127(2) Cr.P.C. also.
Section 127(2) Cr.P.C. reads as below:
"127. Alteration in allowance.
(1) xxxxxx (2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
(3) xxxxxx (4) xxxxxx"
10. Admittedly, in the instant case, the order awarding maintenance in Criminal Misc. No.126/2006 has not been challenged till date. The petitioners in Criminal Misc.No.67/2011 had only sought for arrears of maintenance by filing a petition under Section 128 CRL.P.No.102043/2017 :7: Cr.P.C. In such a proceeding, the trial Court ought not to have proceeded to exercise its power under Section 127(2) Cr.P.C, in the absence of any specific application or request made invoking the said provision of law and in the absence of any opportunity being given to the petitioner, who would be aggrieved by passing any order under Section 127(2) Cr.P.C. Whereas, in the instant case, without there being any specific request made under Section 127(2) Cr.P.C. for cancellation of the order of maintenance and also without giving any opportunity to the petitioners and hearing them as to why the order of maintenance, which was in force in their favour, be cancelled, straight away the trial Court has proceeded to cancel the maintenance showing that it has invoked its power under Section 127(2) Cr.P.C.
11. Thus, the procedure adopted by the trial Court being detrimental to the interest of the parties and unknown to law, I have no hesitation in holding that the CRL.P.No.102043/2017 :8: impugned order does not sustain. As such, I proceed to pass the following:
ORDER Petition is allowed in part. The order dated 21.03.2017 passed by the trial Court in Criminal Misc.No.67/2011 is set aside and the matter is remanded to the trial Court with a direction to dispose of the matter afresh in accordance with law at the earliest.
In order to avoid any further delay, both the parties herein are directed to appear before the trial Court without anticipating any fresh summons or notice on 30.11.2020 at 11.00 am.
In view of disposal of the main petition, I.A.1/2020 does not survive for consideration.
Sd/-
JUDGE gab