Karnataka High Court
Smt. Jayashree Urf Bhangaravva ... vs Jagadish S/O.Basaanneppa Durgad, on 30 November, 2012
Author: N.Ananda
Bench: N. Ananda
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IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 30TH DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR JUSTICE N. ANANDA
CRL.P.8148/10 C/W CRL.P.8147/10
IN CRL.P.8148/2010:
BETWEEN:
1. Smt Jayashree urf Bhangaravva
Jagadish Durgad, aged major.
Occ: Nil, R/o Aladktti,
Tq:Haveri, Dist: Haveri.
Now at Haveri.
2. Kumar Vinayak S/o Jagadish Durgad.
Aged 10 years, Occ: Student.
Minor guardian natural Mother
Smt.Jayashree urf Bhangaravva Durgad.
W/o Jagdish Durgad. ... Petitioners
(By Sri.I. G. Gachchinamath, Adv.)
AND:
Jagadish S/o Basaanneppa Durgad.
Age 35 years. Occ: Agriculture.
R/o Aladakatti, Tq: Haveri.
Dist: Haveri. .. Respondent
(By Sri.F.V. Patil, Adv.)
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This criminal petition is filed under Section 482 of
the Code of Criminal Procedure, praying to set-aside the
impugned order dated 21.11.2005 made in Crl.Misc.87/97
passed by the Principal Civil Judge (Jr.Dn) and JMFC,
Haveri, and also the impugned order dated 19.6.2010
made in Crl.R.P.157/2005 passed by the District and
Sessions Judge, Fast Track Court, Haveri, etc.
IN CRL.P.8147/10:
BETWEEN:
1. Smt Jayashree urf Bhangaravva
Jagadish Durgad, aged major.
Occ: Nil, R/o Aladkatti,
Tq:Haveri, Dist: Haveri.
Now at Haveri.
2. Kumar Vinayak S/o Jagadish Durgad.
Aged 10 years, Occ: Student.
Minor guardian natural Mother
Smt.Jayashree urf Bhangaravva Durgad.
W/o Jagdish Durgad. ... Petitioners
(By Sri.I. G. Gachhinamath, Adv.)
AND:
Jagadish S/o Basaanneppa Durgad.
Age 35 years. Occ: Agriculture.
R/o Aladakatti, Tq: Haveri.
Dist: Haveri. .. Respondent
(By Sri.F.V. Patil, Adv.)
This criminal petition is filed under Section 482 of
the Code of Criminal Procedure, praying to set-aside the
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impugned order dated 21.11.2005 made in Crl.Misc.87/97
passed by the Principal Civil Judge (Jr.Dn) and JMFC,
Haveri, and also the impugned order dated 19.6.2010
made in Crl.R.P.18/2006 passed by the District and
Sessions Judge, Fast Track Court, Haveri, etc.
These criminal petitions coming on for hearing this
day, the Court, made the following common order:
ORDER
The petitioner Jayashree is the wife of respondent Jagadish. The 2nd petitioner Kumar Vinayak is their son. The respondent had refused and neglected to maintain petitioners. Therefore, 1st petitioner for herself and also on behalf of 2nd petitioner filed maintenance petition under Section 125 Cr.P.C. against respondent.
The respondent resisted the petition inter alia contending that, petitioner has been living in adultery with one Mahadevappa (examined as PW.2). The learned Trial Judge rejected the maintenance petition as it relates to I- petitioner and granted maintenance of Rs.1000/- per month to 2nd petitioner.
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2. The I-petitioner aggrieved by rejection of her claim for maintenance and the respondent aggrieved by the grant of maintenance to 2nd petitioner (his son) were before the Revisional Court. The learned judge of the revisional court confirmed the order of trial Court as it relates to rejection of maintenance claim of I-petitioner and reduced the maintenance allowance granted to 2nd petitioner from Rs.1000/- per month to Rs.500/- per month. Therefore, the petitioners and respondent are before this Court.
3. The learned trial Judge has rejected maintenance claim of I-petitioner on the ground that she has been living in adultery with one Mahadevappa (examined as PW.2).
4. The learned Counsel for petitioners would submit that, respondent-Jagadish had filed M.C.24/1995 seeking for divorce alleging that I-petitioner has been living in adultery with one Mahadevappa. In fact, said 5 Mahadevappa was arraigned as respondent No.2 in MC.24/95. The learned Civil Judge (Sr.Dn.), Haveri, has dismissed M.C.24/95 on merits. The learned Civil Judge has recorded a specific finding that petitioner (1st respondent herein) has failed to prove that his wife (1st petitioner herein) was living in adultery with Mahadevappa. Aggrieved by the same, respondent herein had filed MFA.21237/2008 which came to be dismissed by this Court on 23.5.2012.
5. The learned trial Judge has rejected the maintenance claim of 1st petitioner on the ground that she has been living in adultery with the said Mahadevappa. When such finding was recorded by the learned Trial Judge, M.C.24/95 was pending. After decision of the trial Court, the petition M.C.24/95 was dismissed holding that respondent has failed to prove that 1st petitioner was living in adultery with one Mahadevappa. The appeal filed by respondent in MFA.21237/2008 was dismissed on 6 23.5.2012. Therefore, it is necessary to remand the case to the Trial Court for reconsideration of the claim of 1st petitioner in the light of the order passed in M.C.24/95 confirmed by this Court in MFA.21237/08.
6. The duty of respondent to maintain 2nd petitioner is not dependent on the aforesaid proceedings. Therefore, there is no need to reconsider right of 2nd petitioner to receive maintenance from respondent.
The learned trial Judge having regard to cost of living and having regard to the fact that respondent is a diploma holder and a civil contractor, had awarded maintenance to 2nd petitioner at the rate of Rs.1,000/- per month.
The learned Judge of the revisional Court has held that 2nd petitioner is being looked after by PW.2 Mahadevappa and also as 1st petitioner has inherited certain properties from her parents, reduced the rate of maintenance from Rs.1000/- per month to Rs.500/- per month. In my considered opinion, the order of learned 7 Judge of revisional Court is perverse. The 1st respondent being father of 2nd petitioner is legally bound to maintain 2nd petitioner. He cannot expect that 2nd petitioner shall be maintained by Mahadevappa or somebody else. There is no evidence to prove that 1st petitioner has got properties from her father. Even otherwise, if 1st petitioner has some interest in the land held by her father, that cannot be a ground for the respondent to shift liability on 1st petitioner.
7. Therefore, the order of learned Judge of revisional Court as it relates to reduction of maintenance allowance granted to 2nd petitioner is set aside and order of trial Court is restored.
8. In the result, I pass the following:
ORDER Both petitions are accepted in-part. The impugned orders as they relate to rejection of maintenance claim made by 1st petitioner are set aside. The order of 8 revisional court in Cr.Rev.P.18/2006 is set aside. The order of trial Court is restored. The respondent herein shall pay maintenance to 2nd petitioner in terms of the order made by learned Magistrate in Crl. Misc.87/97.
The learned Magistrate shall reconsider the maintenance claim of I-petitioner by taking into consideration the judgment made in M.C.24/95 confirmed by this Court in MFA.21237/08.
Both parties are at liberty to adduce further evidence.
The pendency of Crl.Misc.87/97 cannot be a ground for respondent to refuse or withhold payment of maintenance allowance to 2nd petitioner. If respondent does not pay maintenance allowance to 2nd petitioner (his son) in terms of order passed in Crl.Misc.87/97, the 1st petitioner on behalf of 2nd petitioner can enforce the order.
Sd/-
JUDGE Sub/