Smt. Supriya W/O Rajshekhar Patil vs Rajshekhar S/O Shankreppa Patil
2021 Latest Caselaw 5753 Kant

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         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH
  DATED THIS THE 08TH DAY OF DECEMBER, 2021
                       BEFORE
        THE HON'BLE MR.JUSTICE M.G.S.KAMAL
                RPFC.No.200016/2020
BETWEEN:
SMT. SUPRIYA W/O RAJSHEKHAR PATIL
AGE: 36 YEARS OCC: HOUSEHOLD
R/O: KUKUNDA VILLAGE TQ: SEDAM
DIST: KALABURAGI.
                                      ... PETITIONER
(BY SRI. GANESH NAIK, ADVOCATE)

AND:

RAJSHEKHAR S/O SHANKREPPA PATIL
AGE: 47 YEARS OCC: AGRICULTURE
R/O: KUKUNDA VILLAGE TQ: SEDAM
DIST: KALABURAGI - 585 102.
                                    ... RESPONDENT

(BY SRI. NARENDRA REDDY, ADVOCATE)

       THIS CIVIL PETITION IS FILED UNDER SECTION 19
(4) OF THE FAMILY COURTS ACT, 1984 PRAYING TO SET-
ASIDE THE IMPUGNED ORDER DATED 07.01.2020 PASSED
BY THE DISTRICT JUDGE FAMILY COURT AT KALABURAGI
IN CRL.MISC.NO.55/2019 AND AWARD MAINTENANCE TO
THE PETITIONER AS PRAYED FOR.

       THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:-
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                          ORDER

The present petition is filed by the wife against the

order dated 07.01.2020 passed in Crl.Misc.No.55/2019 by

the District Judge, Family Court at Kalaburagi.

2. The brief facts leading upto filing of this

petition are that the marriage of the petitioner with

respondent was solemnized on 01.04.2007 at Sedam as

per their customs and rituals prevailing in their

community. Out of their wedlock, two children were born.

It is stated that the respondent had started ill-treating the

petitioner mentally and physically on and from June, 2017

insisting her to bring dowry from her parental house. That

the petitioner was subjected to physically and mentally

harassment by the respondent and his family members,

she was made to starve. However, the petitioner tolerated

all the ill-treatment only with a hope of leading good abd

happily marriage life. That on 28.06.2017, the petitioner

was driven out of the house and since then she is residing

with her uncle Amrutrao at Kalaburagi and the respondent

- husband is attempting to contract second marriage. That

the respondent/husband is not providing any maintenance

for the petitioner despite several requests made by her

and he is also not taking the petitioner back to the

matrimonial home and she has no source of income to

manage and maintain herself. That the respondent owns

120 acres of fertile land in Sedam taluka and is getting

income of Rs.30,00,000/- per annum and he is also

carrying on money lending business. Therefore, she filed a

petition seeking maintenance from the

respondent/husband.

3. The respondent/husband filed objections

denying the averments made in the petition. He contended

that he is taking care of the children, who are with him.

He contended that the petitioner/wife had developed illicit

relationship with one Sangappa S/o. Chandappa Pujari and

she was neglecting the respondent and his children. That

she was always talking over the mobile phone with said

Sangappa. That once she was caught red handed by him

while she having illicit relationship with said person and

thereafter she profusely apologized for her behavior. The

respondent did not reveal this matter to any of the family

members in order to maintain image in the society.

However, in spite of leniency shown by the respondent,

she continued her illicit relationship with the said person

and his advice did not yield any result.

4. The petitioner/wife examined herself as PW.1

and exhibited 29 documents as per Exs.P1 to P29. The

respondent/husband examined himself as RW.1 and

marked 7 documents as Exs.R1 to R7.

5. The Family Court after considering the material

evidence made available, dismissed the petition filed by

the petitioner/wife. Aggrieved by the same, the present

petition is filed for setting aside the impugned order.

6. The learned counsel for the petitioner/wife

drawing attention of this Court to the reasoning given by

the Family Court at paragraph No.8 of the impugned

judgment, submits that without there being any evidence

or proof on record, the Family Court has erroneously held

that the petitioner was having illicit relationship with one

Sangappa on 09.06.2017 and she was caught red handed

by the respondent/husband. Thus, he submits that the said

reasoning resulting in rejection of the petition has caused

miscarriage of justice requiring interference by this Court.

7. The learned counsel for the respondent-

husband submits that under the facts and circumstances of

the case, it has to be noticed that no responsible husband

would make such a grave allegation against his wife

without there being such an act existing. He submits that

the very same statement was made by the respondent-

husband in his objections and he has stood by the same in

his evidence and the cross examination. This would

suggest that the said allegation was true and correct.

Therefore, he submits that the conclusion arrived at by the

Family Court cannot be found fault with. Hence, he seeks

for dismissal of the petition.

8. Heard the learned counsel for the parties.

9. The only point that arises for consideration in

this petition is:

"Whether the petitioner has made out a case for interference with the order passed by the Family Court?"

10. The marriage between the parties and they

staying away separately is not in dispute. The Family Court

at paragraph No.8 of the impugned judgment referring to

the cross examination of the petitioner, more particularly,

the suggestions made during to her the cross examination

with regard to the petitioner getting caught red handed by

the respondent while having illicit relationship with one

Sangappa and thereafter she apologizing with the

respondent and also with regard to the admission made by

the petitioner/wife of she making calls to the respondent

enquiring about his whereabouts, has observed that the

said two aspects would be sufficient to infer that the

petitioner was having illicit relationship with said Sangappa

as on 09.06.2017. Only based on the aforesaid reasoning,

the Family court has come to the conclusion that there is

prima facie material to show that the petitioner was living

an adulterous life with one Sangappa and she has

continued the said relationship with the said Sangappa

even after the respondent/husband asking her to

discontinue and to lead marital life with him.

11. Thus, in the facts and circumstances of the

case, particularly in the absence of any acceptable

evidence produced by the respondent/husband in

justification of his allegations, the above reasoning of the

Family Court cannot be countenanced. The respondent-

husband except making averments of petitioner getting

caught red handed on 09.06.2017 when he saw the

petitioner having illicit relationship with said Sangappa

through the window of his house, had not produced any

independent material evidence. The allegations of this

grave nature cannot be accepted only on the averments

made by a person. The Family Court has thus committed

error in relying upon the self serving statement of the

respondent/husband without there being any other

material evidence and thereby concluding that the

petitioner/wife was leading adulterous life. Thus, the order

passed by the Family Court suffers from illegality. In the

facts and circumstances of the case, this Court is of the

considered view that the parties be provided with an

opportunity to lead further evidence in the matter in

justifying/proving/defending their respective allegations

and thereafter pass appropriate order in accordance with

law.

12. With the aforesaid observations, the point

raised above is answered and the following:

ORDER

a) The RPFC.No.200016/2020 is allowed.

b) The order passed by the Family Court dated

07.01.2020 in Crl.Misc.No.55/2019 is set

aside.

c) The matter is remitted to the Family Court,

Kalaburagi.

  d) The   Family      Court   shall       provide   sufficient

     opportunity       to   the       petitioner     and    the

respondent to lead further evidence in the

matter and dispose off the matter thereafter in

accordance with law as expeditiously as

possible.

e) The parties shall appear before the Family

Court, Kalaburagi on 10.01.2022 without

further notice.

Sd/-

JUDGE

KJJ/Srt