Karnataka High Court
Channabasanagouda S/O Ninganagouda ... vs Manjula W/O Channabasanagouda Patil on 21 March, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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CRL.P No. 102104 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 21ST DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR JUSTICE HEMANT
CHANDANGOUDAR
CRIMINAL PETITION NO. 102104 OF 2021 (482-)
BETWEEN:
1. CHANNABASANAGOUDA
S/O NINGANAGOUDA PATIL
AGE. ABOUT 41 YEARS, OCC. COOLIE,
R/O. HOSUR-581193,
TQ. SHIGGAON, DIST. HAVERI.
...PETITIONER
(BY SRI. Y R JOGI, ADVOCATE)
AND:
1. SMT. MANJULA
W/O CHANNABASANAGOUDA PATIL
AND D/O. NAGAPPA MALLAPPA KARIYANNAVAR
AGE. 32 YEARS,
Digitally signed
by V N
BADIGER
OCC. HOUSEHOLD AND BUSINESS,
Location:
DHARWAD R/O. DESAI GALLI,
Date:
2022.03.25
11:45:51 +0530 HAVERI-581110.
...RESPONDENT
(BY SRI SHIVASAI M. PATIL, ADVOCATE)
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CRL.P No. 102104 of 2021
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C., SEEKING TO QUASH THE ORDER PASSED IN
CRL.MISC.NO.42/2021 BY THE FAMILY COURT, HAVERI,
ON 02.09.2021 ISSUED FLW AGAINST PETITIONER
AND 04.10.2021 ISSUED FLW AGAINST
RESPONDENT/PETITIONER THROUGH S.P. HAVERI AS
PER ANNEXURE-D.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
By order dated 09.03.2021, the family Court, Havery in Crl.Misc.No.16/2020 granted maintenance of Rs.6,000/- to the respondent herein payable by the petitioner under Section 125 of Cr.P.C., 1973.
2. In pursuance of the order passed by the Family Court, the respondent filed an application under Section 128 of Cr.P.C. for enforcement of order passed by the Family Court granting monthly maintenance in favour of the respondent. The learned Magistrate by order dated -3- CRL.P No. 102104 of 2021 02.09.2021 issued the Fine Levy Warrant (FLW) for the recovery of Rs.4,92,000/- against the petitioner herein. Taking exception to the same this petition is filed.
3. Learned counsel appearing for the petitioner submits that the application filed by the petitioner under Section 128 of Cr.P.C. is barred by limitation, since the application was filed beyond a period of 12 months from the date on which monthly maintenance payable by the petitioner to the respondent became due. He further submits that under Section 128 of Cr.P.C. the learned Magistrate has no power to issue Fine Levy Warrant (FLW) and as such the impugned order passed by the learned Magistrate is not sustainable in law.
4. On the other hand, learned counsel appearing for the respondent submits that though the application is filed under Section 128 of Cr.P.C. the learned Magistrate by exercising the power under Section 125(3) of Cr.P.C. has rightly issued the Fine Levy Warrant (FLW) in -4- CRL.P No. 102104 of 2021 pursuance of the order passed by the Family Court granting monthly maintenance of Rs.6,000/- in favour of the respondent. He further submits that the application seeking enforcement of the order passed by the Family Court was filed within 1 year from the date on which it became due. Hence, he submits that the application filed by the respondent is not barred by limitation.
5. I have considered the submissions made by the learned counsel for the parties.
6. The Family Court, Haveri by order dated 09.03.2021 granted monthly maintenance of Rs.6,000/- to the respondent herein payable by the petitioner. The respondent file an application seeking for enforcement of the order passed by the Family Court on 30.03.2021. The respondent was required to filed an application for recovery of amount due within 1 year from the date on which it become due. The Family Court passed the order on 09.03.2021 and the application seeking for recovery of -5- CRL.P No. 102104 of 2021 the amount due was filed on 30.03.2021. Hence, the application filed by the respondent was within 1 year from the date of which it became due as specified under proviso to Section 125(3) of Cr.P.C.. Hence the submission of learned counsel for the petitioner that the application filed by the respondent is barred by limitation is not acceptable. The decision relied upon by the petitioner counsel in Cr.P.No.8113/2015 is not applicable to the facts of the case, since the application was filed within 1 year from the date on which the amount became due.
7. Section 125(3) of Cr.P.C. specifies that if any person fails to comply with the order without sufficient cause, the learned Magistrate may issue a warrant for levying amount due in a manner provided for levying fine. Though the application was filed under Section 128 of Cr.P.C. for enforcement of order of maintenance, the proceedings cannot be said to have vitiated, since the source of power to issue Fine Levy Warrant (FLW) is provided under Section 125(3) of Cr.P.C. It is a trite law -6- CRL.P No. 102104 of 2021 that the wrong mentioning of the provision of law does not invalidate the proceedings of the source of power is traceable. Hence the submission of the learned counsel for the petitioner submits that the Fine Levy Warrant (FLW) issued by the learned Magistrate is one without authority of law is not acceptable. Accordingly, I pass the following:
ORDER
i) This criminal petition is dismissed.
ii) Respondent is permitted to withdraw the amount deposited by the petitioner in pursuance of the order passed by this Court on 07.12.2021.
iii) The petitioner is granted 3 months time to deposit the balance monthly maintenance payable to the respondent in pursuance of the order dated 09.03.2021 passed by the Family Court, Haveri in Crl.Misc.No.16/2020.-7- CRL.P No. 102104 of 2021
iv) In view of disposal of the matter, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.
Sd/-
JUDGE SSP