Karnataka High Court
Sharada @ Vani W/O Praveenkumar Patil ... vs Praveenkumar S/O Siddalingappa Patil on 8 September, 2023
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NC: 2023:KHC-K:7327
RPFC No. 200016 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REV.PET FAMILY COURT NO.200016 OF 2022
BETWEEN:
1. SHARADA @ VANI
W/O PRAVEENKUMAR PATIL
AGE: 34 YEARS
OCC: HOUSEHOLD WORK
R/O. KARGIL NAGAR
NEAR MALLIKARJUN ASHRAM
VIJAYAPURA.
2. SHEYAS
D/O PRAVEENKUMAR PATIL
AGE: 12 YEARS
OCC: STUDENT
3. POORVI
Digitally signed D/O PRAVEENKUMAR PATIL
by SHYAMALA
AGE: 9 YEARS
Location: HIGH
COURT OF OCC: STUDENT
KARNATAKA
PETITONER-2 AND 3 ARE MINORS
R/BY THEIR NATURAL MOTHER PETITIONER NO.1
...PETITIONERS
(BY SMT. HEMA L. KULKARNI, ADVOCATE)
AND:
PRAVEENKUMAR
S/O SIDDALINGAPPA PATIL
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NC: 2023:KHC-K:7327
RPFC No. 200016 of 2022
AGE: 41 YEARS
OCC: LIC AGENT
R/O H.NO.76, NAVARASPURA EXTENSION
JALANAGAR, VIJAYAPURA- 586128
...RESPONDENT
(BY SRI S.S. MAMADAPUR, ADVOCATE)
THIS RPFC IS FILED U/S. 19(4) OF THE FAMILY COURTS
ACT, PRAYING TO SET ASIDE THE JUDGMENT DATED
21.01.2022 PASSED BY THE I ADDL. PRL. JUDGE, FAMILY
COURT, VIJAYAPURA IN CRL.MISC.8/2020 AND MODIFY THE
JUDGMENT BY ENCHANCING THE MAINTENANCE AMOUNT TO
THE PETITIONERS AND ALLOW THE PETITION IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This Revision Petition is preferred by the wife assailing the order 21.01.2022 in Crl.Misc. No.8/2020 on the file of the I Addl. Prl. Judge, Family Court, Vijayapura, whereby the petition filed by the wife seeking maintenance was partly allowed dismissing the claim of the wife and allowing the claim of the petitioner awarding maintenance -3- NC: 2023:KHC-K:7327 RPFC No. 200016 of 2022 of Rs.5,000/- each to the children. Aggrieved by the award of maintenance to the wife, the present petition is preferred.
2. Smt. Hema L.Kulkarni, learned counsel for the petitioners and Sri S.S.Mamadapur, learned counsel for the respondent.
3. Learned counsel for the petitioners submits that the reasoning accorded by the Family Court in rejecting the claim of the wife-petitioner No.1 herein is unsustainable and the Family Court has not taken into consideration the material placed by the petitioner - wife before the Court. The sole reasoning by the Family Court for rejecting the claim is that petitioner No.1 is having source of income and she is earning. Hence, she is not entitled for any maintenance from her husband.
4. Per contra, learned counsel for the respondent- husband justifies the order of the Family Court, but however, would contend that the Family Court has only -4- NC: 2023:KHC-K:7327 RPFC No. 200016 of 2022 taken the evidence on affidavit and has not taken the evidence as prescribed under Section 126(2) Cr.P.C., the evidence of the parties and are not admissible.
5. This Court has considered the rival contentions urged by the learned counsel for the parties and perused the material on record.
6. The Co-ordinate Bench of this Court in the case of case of Shri Ujwal vs. Smt. Bharati & another1 (Shri Ujwal) and in the case of Sri Somashekaraiah vs. Smt.Parvatamma2 (Somashekaraiah) has held that if the proceedings are instituted in the Criminal Court and they are governed by the provisions of Code of Criminal Procedure, then such proceedings necessarily and have to be treated as a criminal proceedings only, regardless of there outcome, as intended by the Parliament in its legislative wisdom and has also held that the Family Court placing reliance on the affidavit of evidence by both the 1 2018 (3) KCCR 2536 2 2019(3) KCCR 2406 -5- NC: 2023:KHC-K:7327 RPFC No. 200016 of 2022 parties is not in accordance with the provisions of Sections 126 and 274 Cr.P.C. and there is clear violation of the procedure. Sections 126(2) and Section 274 of the Cr.P.C. are as under:
"126. Procedure.-- xxxx (2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:
Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper."-6-
NC: 2023:KHC-K:7327 RPFC No. 200016 of 2022
274. Record in summons-cases and inquiries.--(1) In all summons-cases tried before a Magistrate, in all inquiries under sections 145 to 148 (both inclusive), and in all proceedings under section 446 otherwise than in the course of a trial, the Magistrate shall, as the examination of each witness proceeds, make a memorandum of the substance of the evidence in the language of the Court: Provided that if the Magistrate is unable to make such memorandum himself, he shall, after recording the reason of his inability, cause such memorandum to be made in writing or from his dictation in open Court. (2) Such memorandum shall be signed by the Magistrate and shall form part of the record."
7. The Bombay High Court in the case of Anil Ambashankar Joshi Vs. Reena Anil Joshi and Another3 wherein at para Nos. 7, 8 and 9 held as under;
"7...... The issue that arises in the above petition is as to whether recourse could be taken to Order 18 Rule 4 of the CPC in the matter of filing of an affidavit of evidence in a proceeding under Section 125 of the Cr.P.C. In so far as Section 125 of the Cr.P.C is concerned, the same finds a place in 3 2016 SCC Online Bom.9872 -7- NC: 2023:KHC-K:7327 RPFC No. 200016 of 2022 Chapter IX of the Cr.P.C. The said provision is followed by Section 126. In so far as Section 126 of the Cr.P.C is concerned, the same postulates that all evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, meaning thereby that the witness would have to depose in the presence of the person against whom maintenance is sought. Hence in terms of Section 126 of the Cr.P.C., the evidence in a proceeding under Section in 125 of Cr.P.C. would have to be recorded in the manner prescribed for a summons case. In so far as the proceedings before the Family Court are concerned, the same are regulated by Section 10 of the Family Court's Act........".
8. A plain reading of Sub-Section (2) of Section 10 of the Family Court's Act makes it absolutely clear that the provisions of the Cr.P.C. or rules made thereunder, shall apply to the proceedings under Chapter IX of that Code be fore a Family Court, if that be so, the procedure as contemplated in Section 126 and Section 274 of the Cr.P.C. would have to be adopted in so far as evidence to be recorded in the said Section 125 proceedings are concerned.
9. .....In so far as the Judgment in Aruna @ Survana's case (supra) is concerned, it has been -8- NC: 2023:KHC-K:7327 RPFC No. 200016 of 2022 held by the Learned Single Judge of the Karnataka High Court that Section 126( 2) of the Cr.P.C makes it clear that all evidence in respect of Section 125 of the Cr.P.C. shall have to be recorded in the manner prescribed for a summons case and that the procedure prescribed for recording of evidence in summons case as found in Section 274 of the Cr.P.C would have to be followed "
8. Plain reading of the procedure to be followed by the Family Court in recording the evidence is prescribed in Section 126(2) Cr.P.C. and in light of the judgments stated supra, the procedure to be followed under Section 126 of Cr.P.C. is no longer res integra. In the present facts and circumstances of the case, the evidence of the parties are taken by way of evidence, which is contrary to the procedure to be followed in the Code of Criminal Procedure. This Court having no other option in view of the procedural lapses under Section 126(2) Cr.P.C., the matter needs to be remitted back to the Family Court only to the extent of considering the claim of petitioner No.1- wife.-9-
NC: 2023:KHC-K:7327 RPFC No. 200016 of 2022
9. For the foregoing reasons, this Court pass the following:
ORDER
(i) Revision petition is allowed.
(ii) The impugned order passed by the I Additional Principal Judge, Family Court, Vijayapura in respect of petitioner No.1 is hereby set aside.
(iii) The matter is remitted back to the I Additional Principal Judge, Family Court, Vijayapur for fresh consideration after affording sufficient and reasonable opportunity to the parties to adduce their additional evidence as per the procedure prescribed under Section 126 Cr.P.C. by entering into the witness box.
(iv) Parties are directed to appear before the Family Court, Vijayapura on 27/09/2023.
Sd/-
JUDGE S List No.: 1 Sl No.: 47