Karnataka High Court
Ms Deeptee K Barfiwala vs Mr Jignesh Barfiwala on 3 August, 2020
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL PETITION NO. 4001/2019
Between:
Ms. Deeptee K. Barfiwala
Age 43 years
W/o Mr. Jignesh Barfiwala
R/at Apartment # 1131
"Windmills of Your Mind" No.331
Road 5 B, EPIP Zone Whitefield
Bangalore - 560048,
Also at No.G104,
Sudhamani Apartments, Udayapur,
Bengaluru - 560 082.
... Petitioner
(By Sri Premnath N.T., Advocate)
And:
Mr. Jignesh Barfiwala
Age 45 years
S/o Mr. Ramesh Chandra Barfiwala
Permanent Address, Flat No.14,
B-3, Sukumar Society,
Dayaldas Road, Ville Parle,
East Mumbai - 400 057,
Presently working at:
Perpule Headquaters,
Vice President Business Head
17th Cross Road, HSR Layout,
Bangalore - 560 102.
...Respondent
(By Smt. Geetha Devi M.P., Advocate)
2
This Criminal Petition is filed U/S 482 of Cr.P.C.,
praying that this Hon'ble Court may be pleased to quash
the impugned order dated 20.07.2017 vide Annexure-E
passed in Crl.Misc.No.551/2012 on the file of VI
Additional Principal Judge, Family Court, Bengaluru
dismissing for non prosecution and restore the same on
the file of Hon'ble Court to proceed further in accordance
to law.
This Criminal Petition coming for Admission on this
day, the court made the following through video
conference:
O RDER
This petition is filed seeking to quash the
impugned order dated 20.07.2017 vide Annexure-E
passed in Crl.Misc.No.551/2012 on the file of VI
Additional Principal Judge, Family Court, Bengaluru,
thereby dismissing the said petition for non-
prosecution. The petitioner has sought to restore the
petition on the file of the Court below and to proceed
further in accordance with law.
2. The learned counsel for the respondent
has filed statement of objections.
3. I have heard the learned counsel for the
petitioner and learned counsel for the respondent
and perused the material on record.
3
4. The petitioner is the legally wedded wife of
the respondent. It is stated that their marriage took
place as per Hindu rites and customs on 20.01.2003
at Surat, Gujarat. Initially they set up their
matrimonial home at Bengaluru. Later they moved to
United States of America. It is alleged by the
petitioner/wife that since the inception of the
marriage, the respondent husband was periodically
subjecting her to mental and economical abuse etc.,
The petitioner developed medical problems and
thereafter unable to sustain herself she returned to
India and stayed with her parents.
5. It is further stated that petitioner was
constrained to file a case in Crl.Misc No.551/2012
under Section 125 of the Cr.P.C., praying for monthly
maintenance, amongst other reliefs. She also filed
Crl.Misc.No.103/2013 under the provisions of
Protection of Women from Domestic Violence Act, in
the Court of the IV MMTC, Bengaluru and also a
petition in M.C.No.1973/2014 for a decree of divorce.
4
6. Insofar as Crl.Misc.No.551/2012, the VI
Addl. Family Court Judge was pleased to pass an
order dated 09.04.2015 awarding an interim
maintenance of Rs.30,000/- per month and the same
was challenged by the respondent in W.P.No.20178-
20180/2015, which is pending before this Court and
the impugned order passed by the Court below was
stayed with a direction to the husband to pay interim
monthly maintenance at Rs.15,000/- per month.
7. The VI Additional Principal Judge, Family
Court Bengaluru, by order dated 20.07.2017
dismissed Crl.Misc.No.551/2012 for non-
prosecution, since there was no representation by the
petitioner-wife, which order is under challenge in this
petition.
8. The learned counsel appearing for the
petitioner submits that before the trial Court the
matter was set down for adducing evidence of the wife
on the date of passing the impugned order. However,
5
the petitioner had fallen down and her left leg ankle
got twisted, hence she was unable to walk and
required to take necessary medical treatment due to
which she was not present before the Court on
12.07.2017 for her cross-examination. He submits
that immediately after coming to know about passing
of the impugned order, the petitioner had requested
her counsel to file necessary petition for restoration of
the petition. Accordingly, a petition in
Crl.Misc.No.465/2017 was filed on 22.08.2017.
However, the trial Court observed that there is no
provision under the Code of Criminal Procedure for
restoration of a petition filed under Section 125 of
Cr.P.C., which is dismissed for default.
9. The learned counsel for the petitioner
submits that non-appearance of the petitioner and
her counsel before the trial Court was unintentional
and it is for bonafide reasons. He submits that if one
more opportunity is given then the petitioner will
diligently prosecute her petition and the parties may
6
also try for a settlement and therefore seeks to allow
the petition.
10. The learned counsel appearing for the
respondent submits that the petitioner has been
protracting all the cases filed by her in the Court
below. She has deliberately remained absent and not
attended the case with an intention of harassing the
respondent. She has not subjected herself for cross
examination even after five years despite several
opportunities given to her and therefore the petitioner
is not entitle for any reliefs. Accordingly, the learned
counsel seeks to reject the petition.
11. There is no dispute with regard to the
relationship of the parties. Petitioner is the wife of
respondent. She filed a petition under Section 125 of
Cr.P.C., seeking maintenance from her husband.
Initially, the Court below awarded an interim
maintenance of Rs.30,000/- per month to her which
was challenged by the respondent before this Court
in W.P.No.20178-20180/2015 and while granting an
7
interim order this Court has directed the respondent
to pay a monthly maintenance of Rs.15,000/- per
month. However, when the matter was posted for
cross examination before the trial Court, since the
petitioner and her counsel were absent, trial Court
dismissed the petition for non-prosecution.
12. The learned counsel for the petitioner has
submitted that due to unavoidable circumstances,
the petitioner and her counsel could not be present
before the trial Court and non-appearance was not
intentional, but it is for bonafide reasons.
Considering the said submission and keeping in view
that the parties could try for a settlement before the
trial Court, I deem it appropriate to give one more
opportunity to the petitioner to contest the petition
and also to make all efforts for a compromise. Hence,
to meet the ends of justice it is just and proper to set-
aside the order dated 20.07.2017 passed by the trial
Court. The petitioner shall co-operate for the early
disposal of the case. Hence, the following order.
8
ORDER
Petition is allowed.
Impugned order dated 20.07.2017 passed in Crl.Misc.No.551/2012 on the file of VI Additional Principal Judge, Family Court, Bengaluru is hereby set aside.
The Crl.Misc.No.551/2012 shall be restored to its file and the trial Court shall proceed from the stage of cross examination of PW.1, in accordance with law after intimating the parties regarding next date for their appearance.
Sd/-
JUDGE Mkm/-