Karnataka High Court
Shantabai @ Shantavva W/O Shivappa Wali ... vs Shaila W/O Suresh Wali And Anr on 12 July, 2022
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL PETITION NO.201469/2021
BETWEEN:
1. SHANTABAI @ SHANTAVVA
W/O SHIVAPPA WALI
AGE: 73 YEARS
OCC:HOUSEHOLD WORK
R/O SARAWAD
TQ.BABALESHWAR
DIST:VIJAYAPUR - 586 113
2. GIRIMALLA @ GIRIMALLAPPA
S/O SHIVAPPA WALI
AGE: 53 YEARS
OCC:AGRICULTURE
R/O SARAWAD
TQ.BABALESHWAR
DIST:VIJAYAPUR - 586 113
3. INDIRABAI @ INDUBAI
W/O VISHWANATH @ ISHWAR SAWALAGI
AGE: 56 YEARS
OCC: HOUSEHOLD WORK
R/O SARAWAD
TQ.BABALESHWAR
DIST:VIJAYAPUR - 586 113
4. CHANABASAVVA
W/O RAJSHEKHAR YANKANCHI
2
AGE: 53 YEARS
OCC:HOUSEHOLD WORK
R/O SARAWAD
TQ.BABALESHWAR
DIST:VIJAYAPUR - 586 113
5. GURALINGAPPA @ MUTTURAJ
S/O SHIVAPPA WALI
AGE: 38 YEARS
OCC: AGRICULTURE
R/O SARAWAD
TQ.BABALESHWAR
DIST:VIJAYAPUR - 586 113
... PETITIONERS
(BY SRI:BASAVARAJ R MATH, ADVOCATE)
AND:
1. SHAILA
W/O SURESH WALI
AGE:32 YEARS
OCC:HOUSE HOLD WORK
R/O INGALGI, TQ:INDI
DIST:VIJAYAPURA - 586 209
2. SURESH
S/O SHIVAPPA WALI
AGE:42 YEARS
OCC:AGRICULTURE
R/O SARAWAD
TQ.BABALESHWAR
DIST:VIJAYAPUR - 586 113
... RESPONDENTS
(BY SRI: KOUJALAGI CHANDRAKANT, ADV FOR R1;
R2 - SERVED)
3
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO CALL FOR THE RECORDS
AND TO SET ASIDE THE ORDER DATED 06.01.2020 IN
CRL.MISC.NO.588 OF 2017 PASSED BY THE CIVIL JUDGE
AND JMFC AT INDI AND CONSEQUENTLY CONFIRMED
ORDER DATED 16.08.2021 PASSED BY THE LEARNED III
ADDITIONAL SESSIONS JUDGE, AT VIJAYAPUR IN
CRIMINAL REVISION PETITION No.140 OF 2020 IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT PASSED THE
FOLLOWING:
ORDER
The petitioners are before this Court seeking to set aside the order dated 06.01.2020 passed in Crl.Misc.No.588 of 2017 by the learned Civil Judge and JMFC, Indi, which was confirmed by the order dated 16.08.2021 passed in Criminal Revision Petition No.140 of 2020 by the learned III Additional Sessions Judge, Vijayapur.
2. Brief facts of the case are that, respondent No.1 - petitioner has filed an application under Section 125(3) read with Section 157 of Cr.P.C. praying to enforce the order of maintenance and to create charge over the 4 properties, to an extent of 1/7th share of her husband, who is respondent No.2 herein, as shown in the schedule attached to the application. The said application was considered by the Trial Court and the impugned order dated 06.01.2020 was passed which reads as under:
"The Tahasildar Babaleshwar is hereby directed to create charge of Rs.7,19,250/- over the Sy.No.192/2 measuring 6 acres 22 guntas, Sy.No.190/2A measuring 4 acres 23 guntas, Sy.No.327/1 measuring 4 acres 8 guntas, Sy.No.194/1+2 measuring 16 acres 10 guntas situated at Sarawad in resepct of share of respondent No.1.
Further it is hereby ordered that issue attachment of movable properties of Kirana shop situated at property Sl.No.950 in Sarawad village as recovery of maintenance amount."
3. The said order was called in question by these petitioners who are the family members of respondent No.2, in Criminal Revision Petition No.140 of 2020 before the learned III Additional Sessions Judge, Vijaypura. The 5 said revision petition came to be dismissed vide order dated 16.08.2021 confirming the order passed by the learned Magistrate. Being aggrieved by the same, the petitioners are before this Court.
4. Heard the learned counsel for the petitioners. Perused the materials on record.
5. Learned counsel for the petitioners submits that initially respondent No.1 - wife and another filed petition under the provisions of Domestic Violence Act by filing Crl.Misc.No.372 of 2013 against respondent No.2 claiming maintenance and the Trial Court allowed the said petition and directed the husband-respondent No.2 to pay maintenance of Rs.5,000/- each per month from the date of filing of the petition. It is stated that respondent No.2 herein had not paid the amount towards maintenance and an amount of Rs.7,19,250/- was due to be paid. Therefore, an application under Section 125(3) of Cr.P.C. came to be filed against respondent No.2. An application was filed seeking to create charge over the schedule properties 6 which are all family properties. The Trial Court blindly allowed the application creating charge over the family properties and also created charge over the movable properties in the Kirana shop which was run by petitioner No.1 herein. Therefore, it is contended by the learned counsel for the petitioners that the petitioners are not parties for maintenance proceedings and no notice was issued to them before passing the impugned order. Therefore, the impugned order suffers from illegality.
6. Learned counsel places his reliance on the decision of the Hon'ble Apex Court in Rajnesh Vs Neha 1 and Others , to contend that to enforce the order of maintenance, the proceedings will have to be initiated under Section 128 of Cr.P.C. Learned counsel further submitted that Section 128 of Cr.P.C. refers to enforcement of the order of maintenance against the persons who are parties to such maintenance proceedings and against whom the order of maintenance was passed. 1 (2021) 2 SCC 324 7 Therefore, it is contended that the petitioners are not the parties to the maintenance proceedings and the impugned order passed by the Trial Court for creating charge over the family properties is illegal, perverse and the same is liable to be set aside.
7. Per contra, learned counsel for respondent No.1 - wife opposing the petition submitted that respondent No.1 claimed maintenance from respondent No.2 in the year 2013. Since then nothing has been paid to the wife and the minor child for their maintenance. Therefore, respondent No.1 approached the Trial Court to enforce the order granting maintenance under Section 125(3) of Cr.P.C. On the basis of the said application, the impugned order came to be passed to create charge over the agricultural properties to the extent of Rs.7,19,250/-, to the extent of share of respondent No.2 herein who is her husband. An order of attachment of movable properties in the kirana shop situated in property Sl.No.950 at Sarawad village was also ordered for recovery 8 of the maintenance amount. There is no illegality in the order passed by the learned Magistrate. The petitioners have no locus-standi to challenge the same. Therefore, he prays for dismissal of the petition.
8. In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the impugned order passed by the Trial Court which is confirmed by the Appellate Court is liable to be quashed invoking inherent power under Section 482 of Cr.P.C.?"
My answer to the above point is in 'Negative' for the following:
REASONS
9. The petitioners are the family members of respondent No.2 i.e., husband of respondent No.1. The respondents are having minor child. It is not in dispute that the learned Magistrate awarded maintenance directing respondent No.2 to pay Rs.5,000/- per month to each of 9 the petitioners therein i.e., his wife and minor child. Inspite of that, nothing has been paid by him. When an application was moved before the Trial Court under Section 125(3) of Cr.P.C., the impugned order came to be passed on 06.01.2020 directing the Tahsildar, Babaleshwar to create charge for an amount of Rs.7,19,250/- on the agricultural properties mentioned in the order to the extent of the share of respondent No.2 i.e., husband before the Trial Court and also issued warrant of attachment of the movable property found in Kirana Shop situated at Sarawad village for recovery of maintenance amount. The said order is being challenged before this Court by the petitioners.
10. The petitioners are said to be the family members of respondent No.2 - husband of respondent No1. Admittedly, respondent No.2 has not challenged the impugned order dated 06.01.2020. It is stated that till date since from 2013, no maintenance amount is paid. The wife and minor child are present before the Court and 10 submit that no maintenance amount is paid by the husband till date. Even though respondent No.2 is served with the notice of this Court, he remained absent.
11. Learned counsel for the petitioners submits that petition under Section 128 of Cr.P.C., should have been filed as per the finding of the Hon'ble Apex Court in Rajnesh's case (supra). The Hon'ble Apex Court considered the facts of the case where the wife and the minor son were awarded with interim maintenance of Rs.15,000/- per month for the wife and Rs.5,000/- to the minor son by the Family Court under Section 125 Cr.P.C. against the respondent. The said order of the Family Court was challenged by the husband by filing writ petition before the High Court of Bombay. The High Court dismissed the writ petition and confirmed the order passed by the Family Court. Against the said order, the husband approached the Supreme Court by filing criminal appeal. The Supreme Court considered the same and an order was passed on 14.08.2018 and further order dated 11.09.2019 11 whereunder, the husband was directed to pay arrears of maintenance in all Rs.5,00,000/-. Out of the same, only a portion of the amount was paid by the husband. The Supreme Court passed the order providing final opportunity to the husband to make payment of the balance maintenance amount by 30.11.2019, failing which, the husband was warned to ensure proceedings of contempt of Court Act for wilful disobedience with the orders passed by the Court.
12. The Hon'ble Apex Court considered and discussed at length about the plight of helpless wife and children in getting maintenance from the husband, parents etc., the difficulty in getting the order under various enactments including one under Section 125 of Cr.P.C. It also discussed about various issues which arise for consideration in application for grant of maintenance/interim maintenance and thought it fit to frame guidelines to ensure that there is uniformity or consistency in deciding the matter. The senior counsel is 12 appointed as Amicus Curiae to assist the Court in this regard.
13. The Hon'ble Apex Court considered Section 125 of Cr.P.C. as the proceedings are summary in nature and also referred to its decision in Bhuwan Mohan Singh Vs 2 Meena and Others , wherein the Court held that Section 125 of Cr.P.C. was conceived to ameliorate the agony, anguish, financial suffering of a woman who had left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children. Since it is the sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical labour, if he is able-bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute.
14. The Hon'ble Apex Court observed that in the absence of a uniform regime, there is a vast variance in 2 (2015) 6 SCC 353 13 the practice adopted by the Family Courts in the Country, with respect to the date from which the maintenance must be awarded and discussed several decisions in that regard. It has arrived at a conclusion that even though a judicial discretion is conferred upon the Court to grant maintenance either from the date of application or from the date of order under Section 125(2) of Cr.P.C., held it would be appropriate to grant maintenance from the date of application in all cases, including under Section 125 of Cr.P.C.
15. The Hon'ble Apex Court observed that there is significant delay in disposal of the applications for interim maintenance and therefore, it was held that maintenance is to be awarded from the date of application. In order to bring uniformity and consistency in the orders passed by all Courts, by directing that maintenance be awarded from the date on which the application was made before the concerned Court. It is held that right to claim maintenance must date back to the date of filing the application, since 14 the period during which the maintenance proceedings remained pending is not within the control of the applicant.
16. The Hon'ble Apex Court also considered the difficulty in enforcement of the order of such maintenance awarded by the Courts in various enactments including the one under Section 125 of Cr.P.C. and passed several directions by exercising its power under Article 142 of the Constitution of India. It is held that the enforcement/execution of order of maintenance, an order of decree of maintenance may be enforced under Section 28A of Hindu Marriage Act, Section 20(6) of DV Act and Section 128 of Cr.P.C., as may be applicable. It is also held that the order of maintenance can be enforced as a money decree of a Civil Court as per the provisions of CPC, more particularly, Sections 51, 55, 58, 60 read with Order XXI. However, it is made clear that the facts observed by this Court are too exhaustive and the Court can exercise its discretion to consider any other factor which may be 15 necessary or of relevance in the facts and circumstances of the case.
17. In the present case, the learned Civil Judge and JMFC, Indi considered the application filed under Section 125(3) read with Section 157 of Cr.P.C. seeking enforcement of order of maintenance and to create charge over the property owned by respondent No.2 to the extent of his 1/7 share shown in the schedule attached to the application. It is held that in spite of passing of the order, grant of interim maintenance in favour of the wife and minor child, the husband has failed to pay maintenance and total amount of Rs.7,19,250/- was due from him from January 2020.
18. Considering all the facts and circumstances of the case, the Trial Court proceeded to pass the impugned order by rejecting the contention raised by the husband contending that Section 125(3) of Cr.P.C. cannot be made use of to attach properties shown in the schedule properties attached to the application. It was contended 16 before the Trial Court that the property was owned by the joint family and the other members of the family are also having interest over the property. The Trial Court discussed this contention at length and held in para 12 as under:-
"12. As per the provisions of 125(3) of Cr.P.C. which permits the register to follow the procedure prescribed U/s 421 of Cr.P.C.
for levy of money for recovery of maintenance. Sec.421 of Cr.P.C. provides for attachment or sale of any movable property, the issuance of such warrant for attachment of salary or movable of property. Therefore, it is necessary to know the object in making the provision in chapter 9 of Cr.P.C with respect to maintenance and its recovery. It cannot be doubted that the said provision is inserted to enable the deserted wives, children and aged parents to secure monetary relief from those who having financial capacity, have failed to maintain them. The provisions are undoubtedly for the speedy and quick remedy for a wife to claim maintenance when discarded and, being unable to maintain 17 herself is in dire need of financial assistance. The provisions in respect of maintenance and its recovery are, therefore required to be construed in such a manner so as to prove beneficial to those for, whom they are enacted and so as to fulfill the desired object."
This finding of the Trial Court is in no way contraverted or disputed by the learned counsel for the petitioners.
19. Learned counsel for the petitioners submitted that these petitioners were not served with any notice before passing the impugned order attaching the property mentioned in the schedule. Admittedly, these petitioners are not parties in the proceedings before the Trial Court. The respondent No.2 alone is party who was contesting the petition. He contested the application before the Trial Court by taking all possible defence. After considering such contention, the Trial Court by way of impugned order ordered for attachment of the properties in respect of share of respondent No.1. It also ordered attachment of 18 movable properties of kirana shop situated at Sarawad village for the purpose of recovering maintenance amount. No illegality is pointed out by the learned counsel for the petitioners in passing the impugned order except saying that the Hon'ble Apex Court in Rajnesh (supra) held that purpose to invoke Section 128 of Cr.P.C. The observations made by the Hon'ble Apex Court with regard to Section 128 of Cr.P.C. is not under the circumstances referred to above.
20. It is pertinent to note that respondent No.2 has not challenged the impugned order. But on the other hand, the family members who are petitioners herein have challenging the same. As per the impugned order only share of respondent No.1 before the Trial Court was ordered to be attached. It is not made clear that how the interest of these petitioners are at stake if the impugned order is implemented. If at all, respondent No.2 herein is aggrieved, he could have approached the Court seeking necessary relief. He cannot play hide and seek by not 19 providing any maintenance to his wife and minor child, that too, when huge amount of Rs.7,19,250/- was due towards interim maintenance ordered by the Trial Court. The conduct of respondent No.2 is also considered by the Trial Court and rightly so. Even before this Court, respondent No.2 conveniently remained absent even after service of notice.
21. Learned counsel for the petitioners contended that kirana shop situated at Sarawad village against which warrant of attachment of movable property was issued belongs to one of the petitioners. However, no materials are placed before the Court in support of the same. On 04.07.2022, after addressing the arguments for some time, learned counsel for the petitioners sought for time to produce copy of licence in respect of said kirana shop in question. But the same is not produced before the Court till date. Under such circumstances, I do not find any merit in the contention of the petitioners. Hence, I answer 20 the above point in negative and proceed to pass the following:
ORDER The petition is dismissed.
The impugned order dated 06.01.2020 passed in Crl.Misc.No.588 of 2017 by the learned Civil Judge and JMFC, Indi, which was confirmed by the order dated 16.08.2021 passed in Criminal Revision Petition No.140 of 2020 by the learned III Additional Sessions Judge, Vijayapur, is hereby confirmed.
Sd/-
JUDGE *bgn/- & NB*