Karnataka High Court
Aishwaryadevi Shivayya Hiremath vs Sri Shivayya S/O. Shivalingayya ... on 13 February, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.RP No. 100357 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 100357 OF 2022
BETWEEN:
1. AISHWARYADEVI SHIVAYYA HIREMATH
AGE. 32 YEARS, OCC. NIL,
2. KUMAR. KEDARESHWAR S/O. SHIVAYYA HIREMATH
AGE. 08 YEARS,
BOTH R/O. C/O. SHASHIKALA C. HIREMATH,
CHANDRABIMBA NILAY,
SHIVANAND BHARATI NAGAR,
SATYAMARGA, 4TH CROSS,
MURKIBHAVI ROAD,
BAILHONGAL, TQ. BAILHONGAL,
DIST. BELAGAVI-591102
.....PETITIONERS
(BY SRI. NEEL P. PATEL, ADV. FOR
SRI GOURISHANKAR H MOT, ADV.)
AND:
SRI SHIVAYYA S/O. SHIVALINGAYYA HIREMATH
AGE. 33 YEARS, OCC. SERVICE,
SUJATA
SUBHASH R/O. ISHWAR NIVAS, NO.26, CITY PARK,
PAMMAR
NAVANAGAR, HUBBALLI, TQ. HUBBALLI,
Digitally signed by
DIST. DHARWAD-580025
SUJATA SUBHASH
PAMMAR
Location: HIGH
.....RESPONDENT
COURT OF
KARNATAKA,
DHARWAD BENCH,
DHARWAD.
Date: 2023.02.23
(BY SRI. B.G. INDI, ADV. FOR
12:19:06 +0530
SRI K.L. PATIL, ADV.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.PC., SEEKING TO CALL FOR RECORDS
AND TO ALLOW THIS CRIMINAL REVISION PETITION BY SETTING
ASIDE THE ORDER DATED 07.09.2022 PASSED BY THE XI
ADDITIONAL DISTRICT AND SESSIONS JUDGE, AT BELAGAVI IN CRL
R.P.NO.72/2020 BY CONFIRMING THE ORDER DATED 28.01.2020
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CRL.RP No. 100357 of 2022
PASSED BY THE ADDITIONAL CIVIL JDUGE AND JMFC AT
BAILHONGAL IN CRL.MISC NO. 178/2017.
THIS PETITION, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision is filed by the petitioner-wife against the order passed by XI Addl. Sessions Judge, Belagavi in Crl.R.P.No.72/2020 dated 07.09.2022 whereby he has allowed the revision petition filed by the respondent herein by setting aside the maintenance awarded to the present revision petitioner.
2. For the sake of convenience, the parties are referred to with the original rankings occupied by them before the Trial Court.
3. The brief factual matrix leading to the case are that the wife has filed a petition under Section 125 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.', for short) seeking maintenance for herself and her minor child, petitioner No.2 Kedareshwar against the respondent. It is alleged that she is the legally wedded -3- CRL.RP No. 100357 of 2022 wife of respondent and their marriage was solemnized on 12.05.2014 at Veerashaiv Kalyan Mantapa, Navanagar, Hubballi as per the custom prevailed in their community. Out of the said wedlock, the petitioner No.2 Kedareshwar was born. Later on the respondent has neglected the petitioners to maintain them and also subjected them to ill-treatment. Hence, the wife has filed a petition under Section 125 of Cr.P.C. seeking maintenance before the learned Addl. Civil Judge and J.M.F.C., Bailhongal in Crl.Misc.No.178/2017 claiming maintenance of Rs.10,000/- per month to each petitioner.
4. The respondent-husband appeared and contested the matter. However, the relationship between the parties is admitted. Learned Magistrate after appreciating the oral and documentary evidence, has awarded maintenance of Rs.6,000/- to petitioner No.1 wife and Rs.4,000/- to petitioner No.2-son.
5. Against this award of maintenance, the respondent-husband has filed a revision before the learned -4- CRL.RP No. 100357 of 2022 Sessions Judge in Crl.R.P.No.72/2020. The learned Sessions Judge after hearing both the parties has allowed the revision in part and set aside the award of maintenance so far as it relates to petitioner No.1-wife but he confirmed the award of maintenance to minor child.
6. Against this order of the learned Sessions Judge, wife is before this Court by way of this revision petition.
7. Heard the arguments advanced by the learned counsel for revision petitioners and learned counsel for respondent. Perused the records.
8. Learned counsel for revision petitioners would contend that the learned Sessions Judge has set aside the maintenance order only on the sole ground that the petitioner-wife has not complied the order of the Family Court regarding the decree for restitution of conjugal rights and failed to join her husband. It is also asserted that the Trial Court has failed to consider that the -5- CRL.RP No. 100357 of 2022 respondent-husband has not approached the Court with clean hands as during the pendency of petition for restitution of conjugal rights, he has contracted second marriage but concealing this aspect, he prosecuted the petition for restitution of conjugal rights without disclosing his second marriage and this itself is a proper ground for petitioner-wife to refuse to join the company of the respondent-husband. Even otherwise, the husband ought to have filed execution petition or divorce petition on the basis of the decree in the petition for restitution of conjugal rights and it cannot be a ground for rejection of maintenance. Hence, he would seek for allowing the revision by setting aside the impugned order passed by the learned Sessions Judge by restoring the order of the learned Magistrate.
9. Per contra, learned counsel for respondent- husband would contend that the revision petitioner-wife is an Engineer graduate and she is capable of maintaining -6- CRL.RP No. 100357 of 2022 herself. Hence, he would seek for dismissal of the revision petition.
10. Learned counsel for revision petitioners has also filed an application under Section 391 of Cr.P.C. in I.A.No.2/2022 for production of additional documents pertaining to second marriage of the respondent-husband and document pertaining to the respondent purchasing a new brand car Vitara Brezza on 26.10.2017 and contended that he is capable of maintaining his wife as he is financially sound.
11. Having heard the arguments and perusing the documents, now the following points would arise for my consideration:
1) Whether the order of the learned Sessions Judge in Crl.R.P.No.72/2020 is erroneous, arbitrary and suffers from any infirmity so as to call for any interference by this Court?
2) Whether I.A.No.2/2022 needs to be allowed?-7- CRL.RP No. 100357 of 2022
12. Having heard the arguments and perusing the records, it is evident that there is no serious dispute of the fact that the revision petitioner-wife is married to the respondent in the year 2014 and out of the said wedlock, a male child was born by name Kedareshwar. The relationship between the parties is undisputed. Further the learned Magistrate has granted maintenance of Rs.4,000/- to the child and revision in this regard by the husband was dismissed. Hence, so far as it relates to minor child, the maintenance order has reached finality. The learned Magistrate has awarded monthly maintenance of Rs.6,000/- to the wife but the learned Sessions Judge has reversed it on the ground that in spite of decree for restitution of conjugal rights, the wife did not join her husband and further it is asserted that she is an engineering graduate.
13. The restitution of conjugal rights petition was filed on 25.11.2016 and it was disposed of on 12.12.2018 which is not under serious dispute. The documents sought -8- CRL.RP No. 100357 of 2022 to be produced with I.A.No.2/2022 disclose that the respondent/husband herein has contracted the second marriage with one Akshata @ Kavita D/o. Dundayya Hanchinamani on 27.05.2017 itself. This document regarding marriage was not challenged and it is a marriage certificate issued by the Registrar of Marriages at Hukkeri. Admittedly, the marriage between revision petitioner and the respondent is still in force. He had also filed a petition for restitution of conjugal rights and it was allowed subsequently in 2018. But in between itself, the respondent has contracted second marriage during the subsistence of first marriage. Hence, it is evident that the respondent-husband herein has obtained the decree for restitution of conjugal rights by playing fraud on the Court. The learned Sessions Judge only on the basis of decree of restitution of conjugal rights has proceeded to reject the maintenance in respect of wife which is improper and in view of the conduct of the husband, she has got every right to stay away from her husband.
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14. The other contention raised by the learned counsel for respondent-husband is that the petitioner-wife is an engineering graduate and capable of maintaining herself. But he has not produced any piece of evidence to show that the petitioner-wife is employed. It is the duty of husband to maintain his wife. Further, the records also disclose that the respondent was working in ICICI Bank and drawing a salary of Rs.40,000/- p.m. No doubt, he has resigned the said job but his resignation would be only on the basis of he getting a better offer which he is not prepared to disclose before the Court. Even the document at Sl.No.3 produced along with I.A.No.2/2022 disclose that he has purchased a brand new car Vitara Brezza on 26.10.2017 and it is evident that he is financially sound.
15. The maintenance awarded was only Rs.6,000/-. Further the wife is supposed to live with status on par with that of her husband. Under such circumstances, grant of maintenance at Rs.6,000/- to wife cannot be said to be exorbitant. The respondent-husband is liable to pay the
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CRL.RP No. 100357 of 2022maintenance and his conduct itself disclose that he has not approached the Court with clean hands. Further he has contracted second marriage during the subsistence of first marriage. Under such circumstances, the approach of the learned Sessions Judge is erroneous and arbitrary and as such his order has led to miscarriage of justice. Hence, the order of the learned Sessions Judge calls for interference by setting aside the same and restoring the order of the learned Magistrate. Accordingly, both the points under consideration are answered in the affirmative and as such, the revision petition needs to be allowed. Accordingly, I proceed to pass the following:
ORDER I.A.No.2/2022 is allowed and the revision petitioner is permitted to produce the additional documents annexed to I.A.No.2/2022.
The revision petition is allowed.
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The impugned order passed by XI Addl. Sessions Judge, Belagavi in Crl.R.P.No.72/2020 dated 07.09.2022 is set aside.
The order passed by the Addl. Civil Judge and J.M.F.C., Bailhongal dated 28.01.2020 in Crl.Misc.No.178/2017 stands restored.
In view of the disposal of revision petition, I.A.No.1/2022 does not survive for consideration and accordingly it stands disposed of.
Sd/-
JUDGE NAA List No.: 1 Sl No.: 22