Karnataka High Court
Sri. Santosh S/O Pandu Rathod vs Smt. Shridevi And Ors on 25 October, 2021
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25th DAY OF OCTOBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
RPFC No.200120/2019
Between:
Sri.Santosh,
S/o.Pandu Rathod,
Age: 38 years, Occ: Driver,
R/o.Hadagali,
Taluk & Dist: Vijayapur-586 101.
... Petitioner
(By Sri Shivashankar H.Manur, Advocate)
And:
1. Smt.Shridevi,
W/o.Santosh Rathod,
Maiden name-Smt.Shridevi,
D/o.Sevu Rathod,
Age: 32 years,
Occ: Household work,
2. Kumari Akshata,
D/o.Santosh Rathod,
Age: 13 years,
Occ: Student,
Since minor,
Rep. by her natural guardian
Mother - Respondent No.1.
2
3. Kumari Ashwini,
D/o.Snatosh Rathod,
Age: 10 years,
Occ: Student,
Since minor,
Rep. by her natural guardian
Mother - Respondent No.1.
All are r/o.Hadagali,
Taluk & Dist: Vijayapur-586 101.
... Respondents
(R-1-served,
R-2 & 3 are minors, Rep. by R-1)
This RPFC is filed under Section 19(4) of the Family
Courts Act praying to call for the records and thereby set
aside the Judgment dt.01.10.2016 passed by the Judge,
Family Court, Vijayapur in Crl.Misc.No.425/2016 thereby
allowing the revision petition in the interest of justice and
equity.
This petition coming on for further orders, this day,
the Court made the following:-
ORDER
The present petition is filed under Section 19(4) of the Family Courts Act by the petitioner aggrieved by the judgment and order dated 01.10.2016 passed in Crl.Misc.No.425/2016 on the file of the Family Court at Vijayapur. By the impugned order, the Family Court has directed the petitioner herein to pay maintenance of 3 Rs.3,000/- per month to the Respondent No.1 and Rs.2,500/- per month each to the respondent Nos.1 and 2 respectively. That apart, the Family Court has also awarded cost of Rs.1,000/- to the respondents.
2. The impugned order has been passed exparte.
3. Learned counsel for the petitioner submitted that the marriage of the petitioner and the respondent No.1 was solenmised during the year 2000. Out of the marriage, Respondent No.2 was born. That there were certain marital dischords resulting in the petitioner filing a petition under Section 13(1)(i-a) of Hindu Marriage Act before the Family Judge, Vijayapur in M.C.No.61/2007 against the Respondent No.1 herein. By Judgment and Order dated 31.03.2008, the Family Judge, Vijayapur allowed the said petition filed by the petitioner herein dissolving the marriage of the petitioner with Respondent No.1. It is further submitted notwithstanding the dissolution of marriage, the respondent No.1 herein, filed the petition under Section 125 in Crl.Misc.No.425/2016 on 4 the file of the Family Court, Vijayapur, seeking relief of maintenance for herself and Respondent Nos.2 and 3.
4. It is further submitted by the learned counsel for the petitioner that after dissolution of the marriage, petitioner and Respondent No.1 have been residing separately and as such, there is no possibility of Respondent No.3 having been born from their wedlock which is already dissolved as above. It is further submitted that since the impugned order has been passed in the absence of the petitioner placing him exparte, he had no opportunity to place these aspects of the matter for consideration before the Family Court. There was no notice served on him. Hence, sought for allowing of the petition.
5. Though notice has been served on the respondents in this matter, they have remained absent and there is no representation on their behalf.
6. The impugned order has been passed in the absence of the petitioner herein. The aforesaid factual 5 aspects of the matter, viz., the dissolution of marriage of the petitioner with Respondent No.1 having taken place on 31.03.2008, by virtue of judgment and order passed in M.C.No.61/2007 on the file of the Family Court at Vijayapur and the dispute with regard to the paternity of the Respondent No.3 have not been subjected for consideration before the Family Judge. Under these facts and circumstances of the matter, it is just and necessary that the matter be remanded to the Family Court for consideration of the case of the petitioner.
7. Though it is contended by the learned counsel for the petitioner that marriage of the petitioner with the Respondent No.1 has been dissolved and Respondent No.1 is staying separately, there is no material on record to show that Respondent No.1 has remarried. In view of this aspect of the matter, it is made clear that the order of maintenance passed by the Family Court directing petitioner to pay the monthly maintenance shall remain in force and the same is neither modified nor reversed. It is further made clear that the petitioner herein is at liberty to 6 seek appropriate order for modification of the impugned order by filing necessary application before the Family Court. The Family Court may pass appropriate orders thereon, considering the facts to be urged therein in accordance with law.
8. With the above observation, revision petition is allowed and the matter is remitted back to the Family Court at Vijayapur, with a direction that the petitioner be given an opportunity to file objections and to lead evidence. The Family Court may also provide opportunity for the respondents herein (who are the petitioners before the Family Court) to lead rebuttal evidence if any. After giving sufficient opportunity to the parties, appropriate orders be passed within a period of six months from the date of receipt of certified copy of this order. The parties are directed to appear before the Family Court at Vijayapur on 18.11.2021 Since despite service of notice of this petition, the respondents have remained absent and unrepresented, 7 the Family Court shall issue notice to the respondents (petitioners) and proceed with the matter in terms of the direction given above.
Sd/-
JUDGE bnv