Karnataka High Court
Ramappa S/O. Hanamantappa Kumkumgar vs Lalita W/O. Ramappa Kumkumgar on 3 October, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 3 r d DAY OF OCTOBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE JAWAD RAHIM
CRIMINAL REVISION PETITION NO. 2046/2012
BETWEEN:
Ramappa, S/o. Hanamantappa
Kumkumgar, Age: 49 years
Occ: Driver, R/o. Hirekeur
Dist: Haveri 581 110
... PETITIONER
(By Sri. S. R. Hegde & Associates, Adv.)
AND:
1. Smt. Lalita, W/o.Ramappa
Kumkumgar, Age: 43 years
Occ: Household work
R/o. Near Darga, Haveri
Dist: Haveri 581 110
2. Miss. Savitri D/o. Ramappa
Kumkumgar, Age: 19 years
Occ: Student
R/o. Near Darga, Haveri
Dist: Haveri 581 110
... RESPONDENTS
(By Sri. V. S. Bhimakkanavar, Adv.)
2
THIS CRIMINAL REVISION PETITION IS
FILED U/S 397 R/W. 401 OF CR.P.C SEEKING
TO SET ASIDE THE ORDER PASSED BY THE
CIVIL JUDGE & JMFC COURT, HAVERI DATED
11.01.2012 IN CRL.MISC.NO.259/2011.
THIS CRIMINAL REVISION PETITION
COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
O R D E R
The petitioner who is the husband of the 1 s t respondent has assailed the order dated 11.01.2012 in CrilMisc.No.259/2011 whereby Fine Levy Warrant (FLW) has been issued to enforce the interim order of maintenance passed n Cri.Misc.No.91/2011.
2. Heard.
3. From what the learned counsel of both sides adverted to, it is evident that Smt. Lalitha along with her daughter - Savitri sought maintenance from the petitioner on the plea he 3 had failed to maintain them. In respect of such relief, they averred that during the matrimony with the 1st respondent, the petitioner begot three daughters Geeta, Radha and Savitri and a son Manjunath. Despite his capacity to maintain them, without responsibility he neglected them. He failed to provide basic needs in life for sustenance compelling the 1st respondent to struggle. However, she managed to survive and in fact married the second daughter. The son-in- law supported the family, who is not in a position to continue such help. The proceedings in Cri.Misc.No.91/2011 is pending decision on merit about the claim of the respondent. On an application for interim maintenance, the trial court directed Rs.4,000/- to be paid, which the petitioner has assailed in CRP No.119/2011 before the District Judge. As the application 4 claiming stay has been granted subject to he (petitioner) depositing Rs.2,500/- per month towards interim maintenance subject to further orders. The interim order also spells out, in case of default, the say will stand vacated and the order of the trial Court will become enforceable. The petitioner did not comply with the said interim order passed in Criminal Revision Petition, consequent to which the respondents obtained FLW to attach his salary before the trial Court. The said order was questioned by the petitioner, consequent to which the trial Court itself has recalled the FLW issued by order dated 24.11.2011 and directed the petitioners to file separate petition under Section 128 of Cr.P.C. The respondents meekly accepted the order of the learned trial Judge and has now filed Crl.Misc.No.259/2011 under Section 128 of Cr.P.C 5 in which FLW has been ordered, assailing which this revision is filed.
4. The contention of the learned counsel for the petitioner is that, the petitioner has no means to maintain them. This issue has been considered by the trial Court and the order under enforcement is an interim order of maintenance. As the petitioner's question in this proceedings is wholly illegality of the FLW issued by the trial Court, we shall consider only this aspect.
5. Whether the order is interim or final order, maintenance that has been enforceable under the Code of Criminal Procedure by virtue of Section 125(3) as also Section 128 of Cr.P.C. Section 128 postulates:
128. Enforcement of order of maintenance.6
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 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.
6. The mode of enforcement has to be ascertained from the language of Section 128 and 125(3) of Cr.P.C which provides, if any person fails without sufficient cause to comply with the order, any such Magistrate may, for every breach 7 of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment of fine.
The only contention stipulated in the proviso is that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the date on which it became due.
7. In this case, the interim order has been passed by the Magistrate on 21.06.2011 and the 8 application for enforcement is filed within one month. The mode of recovery of amount due to be paid as maintenance or interim maintenance is by issuance of warrant as referred in Section 125(3). The learned Magistrate has resorted to such provision and the Revision is devoid of merit.
Hence the revision petition is dismissed.
Sd/-
JUDGE gab/-