Karnataka High Court
Rahul S/O Dundappa Arabali vs Priyanaka And Anr on 8 September, 2023
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NC: 2023:KHC-K:7328
RPFC No. 200027 of 2021
C/W RPFC No. 200033 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REV.PET FAMILY COURT NO.200027 OF 2021
C/W
REV.PET FAMILY COURT NO.200033 OF 2022
IN REV.PET FAMILY COURT NO.200027 OF 2021
BETWEEN:
SRI RAHUL
S/O DUNDAPPA ARABALI
AGED ABOUT: 28 YEARS
OCC: BUSINESS
R/O. INFRONT OF ST STAND, JATH
TQ: JATH
DIST: SANGLI, MAHARASHTRA- 416 416
Digitally signed ...PETITIONER
by SHYAMALA
(BY SRI S.S MAMADAPUR, ADVOCATE)
Location: HIGH
COURT OF AND:
KARNATAKA
1. SMT. PRIYANAKA
W/O RAHUL ARABALI
AGED ABOUT: 27 YEARS
OCC: HOUSEHOLD
R/O. C/O. BASAVARAJ R. HALAKATTI
NEW KUMBARGALLI JORAPUR PETH
DIST: VIJAYPUR- 586 101
2. NAKSHA
S/O RAHUL ARABALI
AGED ABOUT: 04 YEARS
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NC: 2023:KHC-K:7328
RPFC No. 200027 of 2021
C/W RPFC No. 200033 of 2022
OCC: NIL
SINCE MINOR IS REP BY HIS
NATURAL MOTHER M/G
THE RESPONDENT -1
...RESPONDENTS
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE FOR R-1
R-2 IS MINOR U/G OF R-1)
THIS RPFC IS FILED U/S. 19(4) OF THE FAMILY COURTS
ACT, PRAYING TO SET ASIDE THE JUDGMENT DATED
04.08.2021 PASSED BY THE LEARNED I ADDL. PRINCIPAL
JUDGE, FAMILY COURT, VIJAYPUR IN CRL.MISC.425/2019 IN
THE INTEREST OF JUSTICE AND EQUITY.
IN REV.PET FAMILY COURT NO.200033 OF 2022
BETWEEN:
1. PRIYANKA
W/O RAHUL ARBALI
AGE: 28 YEARS
OCC:HOUSEHOLD WORK
R/O. C/O BASAVARAJ R HALKATTI
NEW KUMBARGALLI
JORAPUR PETH
VIJAYAPUR
2. NAKSHA
S/O RAHUL ARBALLI
AGE:5 YEARS, MINOR
REPRESENTED BY NATURAL MOTHER
PETITIONER NO.1
...PETITIONERS
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
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NC: 2023:KHC-K:7328
RPFC No. 200027 of 2021
C/W RPFC No. 200033 of 2022
AND:
RAHUL
S/O DUNDAPPA ARABALLI
AGED ABOUT: 29 YEARS
OCC:BUSINESS
R/O. IN FRONT OF S.T.STAND, JATH
TAL-JATH
DIST: SANGLI
MAHARASTRA- 416 404.
...RESPONDENT
(BY SRI S.S. MAMADAPUR, ADVOCATE)
THIS RPFC IS FILED U/S. 19(4) OF THE FAMILY COURTS
ACT, PRAYING TO JUDGMENT AND ORDER DATED 04.08.2021
PASSED BY THE I ADDL. PRL. JUDGE, FAMILY COURT,
VIJAYAPUR, IN CRL.MISC.NO.425/2019, AND ENHANCE THE
MAINTENANCE AMOUNT, IN THE INTEREST OF JUSTICE AND
EQUITY.
THESE PETITIONS COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The Revision Petition No.200070/2022 is preferred by the husband and RPFC.No.200033/2023 is preferred by -4- NC: 2023:KHC-K:7328 RPFC No. 200027 of 2021 C/W RPFC No. 200033 of 2022 the wife assailing the order dated 04.08.2021 in Crl.Misc.No.425/2019 on the file of the I Addl. Civil Judge, Bagalkot, Vijayapura, whereby the petition filed by the wife seeking maintenance was allowed and the husband was directed to pay a sum of Rs.10,000/- to the wife and Rs.10,000/-to the minor daughter till she attains the age of majority.
2. The wife and son laid claim under Section 125 Cr.P.C. seeking maintenance of Rs.20,000/- each to the petitioners from the husband from the date of the petition before the Family Court which was allowed in part. The husband is seeking to set aside the order of maintenance and the wife is seeking for enhancement of maintenance.
3. The main grievance of the petitioner - husband is that, the concerned court while deciding the petition of the wife for maintenance has taken the evidence by way of affidavit of parties, which is not permissible where a petition was filed under sec 125 Cr.P.C and is not in accordance with the procedure prescribed under section -5- NC: 2023:KHC-K:7328 RPFC No. 200027 of 2021 C/W RPFC No. 200033 of 2022 126 Cr.P.C and the Family Court having not followed the procedure as contemplated under the provision of Sec.126(2) and Sec.247 of Cr.P.C. In support of this contention, the learned counsel relied on the decision of the co-ordinate Bench of this in the case of Shri Ujwal vs. Smt. Bharati & another1 (Shri Ujwal) and in the case of Sri Somashekaraiah vs. Smt.Parvatamma2 (Somashekaraiah)
4. Per contra, learned counsel appearing for the respondent-wife and son would justify the judgment and decree of the trial Court and would contend that the law relating to grant of maintenance is enacted under the provisions of Section 125 Cr.P.C. and the said proceedings are summary proceedings which are civil in nature and both the modes are legally permissible, and would contend that the impugned order cannot be set aside merely on the ground that evidence on affidavit is considered by Family Court while passing the order.
1 2018 (3) KCCR 2536 2 2019 (3) KCCR 2406 -6- NC: 2023:KHC-K:7328 RPFC No. 200027 of 2021 C/W RPFC No. 200033 of 2022
5. This Court has carefully considered the rival contentions urged by learned counsel for the parties and perused the material on record.
6. The fact that the petitioner as well as the respondent have filed evidence by way of affidavit is not in dispute. Section 126(2) Cr.P.C. enumerates as under:
"126. Procedure.--(1) xxxx (2) All evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:
Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to -7- NC: 2023:KHC-K:7328 RPFC No. 200027 of 2021 C/W RPFC No. 200033 of 2022 payment of costs to the opposite party as the Magistrate may think just and proper."
7. Section 274 of Cr.P.C reads as under:
274. Record in summons-cases and inquiries.--(1) In all summons-cases tried before a Magistrate, in all inquiries under sections 145 to 148 (both inclusive), and in all proceedings under section 446 otherwise than in the course of a trial, the Magistrate shall, as the examination of each witness proceeds, make a memorandum of the substance of the evidence in the language of the Court:
Provided that if the Magistrate is unable to make such memorandum himself, he shall, after recording the reason of his inability, cause such memorandum to be made in writing or from his dictation in open Court.
(2) Such memorandum shall be signed by the Magistrate and shall form part of the record."
8. Careful consideration of Sections 126(2) and 274 Cr.P.C. envisages that the permitted mode of leading evidence of the parties in such cases is by speaking from the witness box i.e., by examination-in-chief and by cross- -8-
NC: 2023:KHC-K:7328 RPFC No. 200027 of 2021 C/W RPFC No. 200033 of 2022 examination. The other modes of practice are not legally permissible and the Co-ordinate Bench of this Court in the case of Shri Ujwal placing reliance on judgment of the Bombay High Court, in the cases of Anil Ambashankar Joshi vs. Reena Anil Joshi & another3 and decision of this court in Gayathri vs. Ramesh4, has held that if the proceedings are instituted in the Criminal Court and they are governed by the provisions of Code of Criminal Procedure, then such proceedings necessarily are and have to be treated as a criminal proceedings only, regardless of there outcome, as intended by the Parliament in its legislative wisdom.
9. In light of the facts and circumstances of the case and for the foregoing reasons, this Court opines that it is appropriate to allow the matters and they need to be reconsidered by the Family Court. Accordingly, this Court pass the following:
3
2016 SCC Online Bom.9872 4 ILR 1993 Kar. 1857 -9- NC: 2023:KHC-K:7328 RPFC No. 200027 of 2021 C/W RPFC No. 200033 of 2022 ORDER
(i) Revision Petitions are allowed.
(ii) The impugned judgment and order dated 04.08.2021 in Crl.Misc.No.425/2019 passed by the I Addl. Prl. Judge, Family Court, Vijayapura is set aside.
(iii) The matters are remitted to the I Addl. Prl.
Judge, Family Court, Vijayapura for fresh consideration after affording sufficient and reasonable opportunity to the parties to adduce additional evidence in the manner mentioned above by entering into the witness box.
(iv) This Court vide order dated 05.10.2021 granted interim order staying the impugned order subject to the petitioner depositing monthly maintenance of Rs.7,000/- to respondent No.1 and Rs.5,000/- to respondent No.2, which order shall continue
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NC: 2023:KHC-K:7328 RPFC No. 200027 of 2021 C/W RPFC No. 200033 of 2022 and the petitioner-husband to pay the said amount of monthly maintenance till the remanded matter is adjudicated finally by the Family Court.
(v) Parties are directed to appear before the Family Court on 27/09/2023.
(vi) Registry is directed to return the original documents filed by the respondent - wife.
Sd/-
JUDGE S List No.: 1 Sl No.: 45