Dr Vaijinath Biradar S/O Nagendra ... vs Balika W/O Dr. Vaijinath Biradar
2021 Latest Caselaw 6974 Kant

        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

   DATED THIS THE 21ST DAY OF DECEMBER 2021

                        BEFORE

      THE HON'BLE MR. JUSTICE H.P.SANDESH

              CRL. RP. No.200065/2020

BETWEEN

DR VAIJINATH BIRADAR
S/O NAGENDRA BIRADAR
AGE: 49 YEARS
OCC: GYNAECOLOGIST, R/O BAJOLGA
TQ. BHALKI, NOW AT BRIMS
TEACHING HOSPITAL BIDAR
TQ. AND DIST. BIDAR-585401.
                                          ...PETITIONER

(By Sri. JAIRAJ K. BUKKA, ADV.,)

AND

BALIKA W/O DR. VAIJINATH BIRADAR
AGE: 40 YEARS
OCC: HOUSEHOLD, R/O BAJOLGA
TQ. BHALKI, NOW AT BRIMS MEDICAL COLLEGE
NEAR KHB COLONY, BIDAR
TQ. AND DIST. BIDAR-585401.
                                       ... RESPONDENT

(BY SRI. HANMANTHRAYA SINDOL, ADV.,)

     THIS CRL.RP IS FILED U/S 397 CR.P.C PRAYING TO CALL
FOR RECORDS, ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENT PASSED BY THE ADDL. DIST. AND SESSIONS JUDGE
IN CRIMINAL APPEAL NO.49/2018 DATED 28.08.2018 AND
THEREBY ALSO BE PLEASED TO SET ASIDE THE ORDER PASSED
                                 2


BY THE 2ND ADDL. CIVIL JUDGE AND JMFC-II BIDAR, DATED
09.09.2016.

     THIS CRL.RP COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:

                          ORDER

Heard the learned counsel appearing for the

petitioner.

2. The present petition is filed under Section 397

of Cr.P.C., praying to set aside the judgment passed by

the Additional District & Sessions Judge in Criminal Appeal

No.49/2016 dated 28.08.2018 and also the order passed

by the II Additional Civil Judge & JMFC-II, Bidar in

Crl.Misc.No.3044/2016 dated 07.09.2016, granting the

interim maintenance of Rs.8,000/- by the Trial Court and

enhance the same by the appellate Court for an amount of

Rs.15,000/- per month.

3. The factual matrix of the case is that the

respondent herein has approached the Trial Court seeking

for an interim maintenance when an application is filed

under Section 12 of the Protection of Woman from

Domestic Violence Act, 2005. The learned Magistrate

taking into note of the economical condition of the

petitioner herein directed to pay an amount of Rs.8,000/-

per month and in the affidavit it is stated that the

petitioner herein is working as Gynaecologist at Dr.Bavagi

Nursing Home, Private hospital and getting salary of

Rs.2,50,000/- p.m. and also having his own clinic near

Ambedkar Circle, Bidar and getting income of

Rs.1,00,000/- and he has his own house at Bhalki getting

rent of Rs.2,00,000/- p.a. and also having 30 acres of

land. The Trial Court taking into note of the affidavit and

also the marriage was taken place on 28.05.1993 awarded

monthly maintenance of Rs.8,000/- as interim

maintenance. Being aggrieved by the said order, the

respondent herein has approached the appellate Court by

filing an appeal in Criminal Appeal No.49/2016.

4. The appellate Court after hearing both the

Counsel allowed the appeal and enhanced the interim

maintenance to Rs.15,000/- per month, coming to the

conclusion that the petitioner herein is working as

gynaecologist; also working as Assistant Professor at

BRIMS, Bidar and earning salary of Rs.90,000/- per month

and also having private practice. It is also observed that

there is no material available on record with regard to

respondent doing any private practice, but having taken

note of the fact that he is a senior doctor and doing a

private hospital comes to the conclusion that the sons are

grown up and they have to lead their own life and she

cannot depend on her sons for living a standard of life and

Rs.8,000/- is insufficient and it needs to be enhanced and

the same is enhanced to Rs.15,000/-. Hence, the present

petition is filed by the petitioner herein.

5. The main contention of the learned counsel for

the petitioner before this Court is that the respondent

herein is owning the land about 20 acres and getting

handsome income from the landed property and both the

Courts have committed an error in coming to the

conclusion that the petitioner is earning a salary of

Rs.90,000/- per month and the income from the private

practice and also from the property and the reasoning

given by both the Courts are not in conformity with any

documentary evidence. The learned counsel also would

submit that only he was getting an amount of Rs.70,000/-

after deduction and in order to substantiate his contention

along with this petition no documents are produced before

the Court except producing the order passed by the trial

Court as well as the appellate Court and the fact that the

petitioner is working as gynaecologist, which is not in

dispute and the appellate Court also taken note of his

salary details and also taken note of the fact that the

children are grown up. When such being the facts and

circumstances of the case, I do not find any error in

granting the interim maintenance of Rs.15,000/- per

month. Hence, I do not find any merit in the petition to

interfere with the findings of the Trial Court and there is no

merit to reduce the interim maintenance as ordered by the

appellate Court and to set aside the order of both the Trial

Court as well as the appellate Court.

6. In view of the discussions made above, I pass

the following:

ORDER

The petition is dismissed.

Sd/-

JUDGE cp*