Karnataka High Court
Palaksha @ Prashanth vs Smt Pushpa @ Ganavi on 8 December, 2023
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CRL.RP No. 1193 of 2023
NC: 2023:KHC:44521
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.1193 OF 2023
BETWEEN:
PALAKSHA @ PRASHANTH
S/O RAJU O K
AGED ABOUT 32 YEARS
R/AT BOMMANAKERE VILLAGE
HETTUR, SAKALESHPURA TALUK
HASSAN DISTRICT
PRESENTLY R/AT C/O MANJUNATH
KARADIGALA, HETTUR HOBLI
SAKALESHPURA TALUK
HASSAN DISTRICT - 573 134
...PETITIONER
(BY SRI. K RAVISHANKAR.,ADVOCATE)
AND:
SMT PUSHPA @ GANAVI
Digitally signed W/O PRAKASHA @ PRASHANTH
by REKHA R
Location: High AGED ABOUT 27 YEARS
Court of D/O CHANRASHEKAR @ DODDEGOWDA
Karnataka
R/AT VANAGURU, HOSALLI
HETTUR HOBLI, SAKALESHPURA TALUK
HASSAN DISTRICT - 573 134
...RESPONDENT
(BY SRI. RAMACHANDRA M, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO a) SET ASIDE THE IMPUGNED ORDER
DATED 28.06.2023 PASSED IN CRL.A.NO.59/2022 PASSED BY
PRINCIPAL DISTRICT AND SESSIONS JUDGE HASSAN
DISMISSING THE APPEAL ON THE GROUNDS OF DELAY AND
ALSO; b) SET ASIDE IMPUGNED ORDER DATED 16.01.2019
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CRL.RP No. 1193 of 2023
NC: 2023:KHC:44521
PASSED IN CRL.MISC.NO.12/2019 PENDING ON THE FILE OF
THE ADDITIONAL CIVIL JUDGE AND JMFC SAKALESHPUR,
GRANTING MAINTENANCE OF RS.3000/- UNDER SECTION 23
OF PWDV ACT 2005 IN THE INTEREST OF JUSTICE.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition filed under Section 397 r/w 401 of Cr.P.C is by the husband, challenging dismissal of his appeal by the Session Court on the ground of delay, wherein he had challenged the order of the trial Court, granting ex-parte maintenance in favour of the wife, at the rate of Rs.3000/- p.m, from the date of petition pending disposal of the same.
2. The grievance of the petitioner/husband is that the Sessions Court has erred in dismissing the appeal filed by him on the ground of delay without deciding the merit, despite he giving justifiable reasons for the delay. So far as merits of the case is concerned, petitioner/husband has contended that the trial Court has erred in granting ex- parte maintenance in the absence of there being affidavit -3- CRL.RP No. 1193 of 2023 NC: 2023:KHC:44521 of assets and liabilities filed by the respondent/wife, despite directions by the Hon'ble Supreme Court in Rajnish Vs Neha (Rajnish)1. Even today the respondent has not come forward to file the statement of assets and liabilities.
3. Notice of this petition was issued to the respondent/wife. The concerned police have submitted report that when they went to the address, the mother of respondent informed that respondent is in Bengaluru and she refused to receive the notice. Therefore, the concerned police have fixed the notice on her house and produced the Photograph.
4. Simultaneously, notice was also ordered to be served on the respondent by hand. However, petitioner has filed affidavit stating that respondent refused to receive the notice.
5. However, the respondent has appeared through counsel.
1 2020 SCC online 903 -4- CRL.RP No. 1193 of 2023 NC: 2023:KHC:44521
6. Heard arguments of both sides and perused the record.
7. Respondent/wife filed Crl.Misc.12/2019 under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (for short 'DV Act'), seeking various relief. She also filed application under Section 23 seeking interim maintenance. Though the trial Court is having power to grant ex-parte maintenance order dated 16.01.2019, the trial Court has partly allowed the application granting ex-parte maintenance at the rate of Rs.3000/- p.m. The proper course available to the trial Court was to grant ex-parte maintenance, pending disposal of the application and provide opportunity to the husband to file objections. In the light of decision of the Hon'ble Supreme Court in Rajnish, the trial Court was also required to call upon both parties to file affidavit of their assets and liabilities and based on the same to decide the application. Despite calling the grant of maintenance as ex-parte maintenance, the trial Court has -5- CRL.RP No. 1193 of 2023 NC: 2023:KHC:44521 disposed of the entire application without providing opportunity to the husband.
8. So far as Session Court is concerned, it has dismiss the entire appeal on the ground of delay and thereby denying opportunity to the husband to file objections and to contest the application. In the above facts and circumstances, this Court is of the considered opinion that matter requires reconsideration by the trial Court. The trial Court shall direct the parties to file affidavit of the assets and liabilities and after taking into consideration the same, to pass order on application filed under Section 23 (2) of DV Act. However, it is made clear that till order passed on merits on the application filed under Section 23(2) of DV act, the husband shall continue to pay interim maintenance at the rate of Rs.3000/- p.m and also pay the arrears. In the result, the petition succeeds and accordingly the following:
ORDER
(i) Petition filed under Section 397 r/w 401 CRPC is allowed. -6- CRL.RP No. 1193 of 2023
NC: 2023:KHC:44521
(ii) The order dated 28.06.2023 in Crl.A.No.59/2022 on the file of Prl.District and Sessions Judge, Hassan and order dated 16.01.2019 in Crl.Misc.No.12/2019 on the file of Addl.Civil Judge & JMFC, Sakleshpur are set aside.
(iii) The trial Court is directed to decide application under Section 23(2) of DV Act, after directing both parties to file affidavit of assets and liabilities as required by the Hon'ble Supreme Court in Rajnish case.
(iv) However, the petitioner herein who is respondent before the trial Court shall continue to pay interim maintenance at the rate of Rs.3000/- p.m to the respondent herein who is petitioner before the trial Court and shall also pay the entire arrears.
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NC: 2023:KHC:44521
(v) Both petitioner and respondent herein shall appear before the trial Court on 22.12.2023, without waiting for any further notice. They shall file affidavits of their assets and liabilities (if already not filed) within one week from 22.12.2023.
(vi) The trial Court shall dispose of the application under Section 23(2) of DV Acts at the earliest, within an outer limit of two months from 22.12.2023. Both parties shall cooperate with the trial Court in disposing of the said application.
Sd/-
JUDGE RR List No.: 1 Sl No.: 35