Smt Zuhara vs Mr Abdul Kunhi
2021 Latest Caselaw 3808 Kant

Citation : 2021 Latest Caselaw 3808 Kant
Judgement Date : 10 November, 2021

Karnataka High Court

Smt Zuhara vs Mr Abdul Kunhi on 10 November, 2021

Bench: V Srishananda

                             -1-


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 10TH DAY OF NOVEMBER 2021

                         BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

                CRL.RP NO.858 OF 2015
BETWEEN:

SMT. ZUHARA
W/O ABDULLA
AGED ABOUT 40 YEARS
R/AT DOOR NO.1-17
BAIRIKATTE KANYANA VILLAGE
BANTWALA TALUK
D.K.DISTRICT - 574 279                      ... PETITIONER

(BY SRI. PRASANNA V.R., ADVOCATE)

AND:

MR. ABDUL KUNHI
S/O MOHAMMAD
AGED ABOUT 44 YEARS
R/AT AGRI HOUSE
KANYANA VILLAGE
BANTWALA TALUK
D.K.DISTRICT - 574 279                     ... RESPONDENT

(BY SMT. POOJA KATTIMANI, ADVOCATE)

      THIS CRL.RP IS FILED UNDER SECTION 397(1) READ WITH
401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 27.7.2015 IN CRL.A.NO.272/2012 PASSED BY THE
III ADDL.DIST.AND SESSIONS JUDGE, MANGALURU, D.K.

     THIS CRL.RP COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
                                -2-


                         ORDER

Heard the learned counsel on both sides.

Perused the records.

2. This revision petition is directed against the order

dated 27.07.2015 passed by III Additional District and

Sessions Judge, Dakshina Kannada, Mangaluru, in

Criminal Appeal No.272/2012.

3. The brief facts of the case are as under:

A petition came to be filed under the Protection

of Women from Domestic Violence Act, 2005

(hereinafter referred to as "the PWDV Act" for short)

before the Protection Officer which was referred to the

jurisdictional Magistrate and it was numbered as

Criminal Misc.Case No.158/2011. The matter was

taken by the learned Magistrate and by order dated

20.03.2012, a sum of Rs.10,000/- per month was

ordered to be paid as maintenance to the

petitioner/wife and her children with consequential

arrears.

4. Being aggrieved by the same, the

respondent/husband approached the District Court

challenging the order passed by the learned

Magistrate in Criminal Misc.Case No.158/2011 by way

of an appeal. The learned District Judge, after

securing the records and hearing the parties, allowed

the appeal in Criminal Appeal No.272/2012 and set

aside the order dated 20.03.2012. However, no

orders are passed by the learned District Judge

relating to the pending proceeding before the learned

Magistrate.

5. Sri Prasanna V.R., learned counsel for the

petitioner/wife vehemently contended that the order

of the learned District Judge even without remitting

the matter for fresh consideration in accordance with

law has resulted in grave miscarriage of justice and

sought for allowing the revision petition.

6. Per contra, Ms. Pooja Kattimani, learned counsel

for the respondent/husband supported the impugned

order.

7. In the case on hand, it is an admitted fact that

there is no cordial relationship between the parties.

Keeping in view the strained relationship and having

regard to the fact that the petitioner/wife has been

sent out by the respondent/husband, an application

came to be filed before the Protection Officer under

the provisions of the PWDV Act which was referred by

the Protection Officer to the jurisdictional Magistrate.

Based on the same, the application was registered as

a case in Criminal Misc.Case No.158/2011.

8. The learned Magistrate after taking note of the

relevant aspects and examining the wife as PW.1 and

relying on the documentary evidence which were

exhibited and marked as Exs.P1 to P5(a) allowed the

petition and ordered a sum of Rs.10,000/- per month

to the petitioner/wife and passed the following order:

"The petition filed by the petitioner against the respondent is hereby partly allowed.

The respondent is hereby restrained from committing any act of domestic violence. The respondent is also restrained from aiding or abetting in the commission of acts of domestic violence.

The respondent is also restrained from attempting to communicate in any form, whatsoever, with the petitioner under sections 18(a), (b) and (d) of the Act.

The respondent is directed to pay to the petitioner and her children a sum of Rs.10,000/- per month under section 20(d) of the Act from the date of petition."

9. Being aggrieved by the same, the

respondent/husband preferred an appeal before the

District Court in Criminal Appeal no.272/2012.

10. The main thrust of the contentions of the

respondent/husband was that he was not given an

opportunity to contest the matter. The learned Judge

in the First Appellate Court accepted the appeal

grounds and passed the following order:

            "Criminal        appeal         filed    by        the
      appellant/petitioner    under       Section   29    of   the

Protection of Women from Domestic Violence Act is hereby allowed.

Consequently, the order passed by the Senior Civil Judge & JMFC, Bantwal in Crl.Misc.Case No.158/2011 dated 20.3.2012 is hereby set aside.

Send back the Lower Court Records along with the copy of this Judgment."

11. As could be seen from the order of the learned

Judge in the First Appellate Court, the order of the

learned Magistrate is set aside but the matter is not

remitted for fresh consideration in accordance with

law. Therefore, the order of the learned Judge in the

First Appellate Court cannot be legally sustained

inasmuch as the matter requires reconsideration

before the learned Magistrate in Criminal Misc.Case

No.158/2011 in accordance with law. However, it is

made clear that till such time, the

respondent/husband is required to pay some amount

towards maintenance to the petitioner/wife. With this

direction, the following order is passed:

ORDER

(i) The revision petition is allowed;

(ii) The order dated 27.07.2015 passed by the First Appellate Court in allowing the appeal in Crl.A.No.272/2012 and setting aside the order passed by the learned Magistrate in Criminal Misc.Case No.158/2011 is confirmed but the matter is directed to be reconsidered by the learned Magistrate in accordance with law after affording an opportunity for the respondent/husband to contest the matter.

(iii) In the meantime, the respondent/husband shall pay a sum of Rs.5,000/- per month as interim maintenance to the petitioner/wife till the matter is finally disposed of in

accordance with law. Having regard to the age of the petitioner/wife, the learned Magistrate shall dispose of the main matter on or before 30th April 2022;

(iv) Parties are directed to be present before the learned Magistrate without any further notice on 1st December 2021 and co-operate for early disposal of the matter;