Karnataka High Court
Mohammed Ghouse vs Smt. Sabira Banu on 29 November, 2021
Bench: V Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.802/2020
BETWEEN
MOHAMMED GHOUSE
S/O HUSSAIN SAB
AGED ABOUT 36 YEARS
R/O THIMMAPURA EXTENSION
ANNAVATTI, SORABA TALUK
...PETITIONER
(BY SRI NAIK NARAYAN MASTAPPA, ADVOCATE)
AND
SMT. SABIRA BANU
W/O MOHAMMED GHOUSE
AGED ABOUT 32 YEARS
R/AT WAGAR ROAD
ALDUR VILLAGE
MUDIGERE TALUK
CHIKAMANGALUR DISTRICT- 577 550
...RESPONDENT
(BY SMT SABIRA BANU, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 01.02.2017 IN CRL.MISC.NO.276/2013 PASSED BY
THE SENIOR CIVIL JUDGE AND JMFC, SORABA AND SET
2
ASIDE THE JUDGMENT AND ORDER DATED 10.04.2018 IN
CRL.A.NO.24/2017 PASSED BY THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA SITTING
AT SAGAR.
THIS CRIMINAL REVISION PETITION COMING ON
FOR ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Though this matter is listed for orders today, with
the consent of both the parties, the matter is taken up for
final disposal.
2. Heard Sri Naik Narayan, learned counsel for
the Revision Petitioner and Smt. Sabina Banu, learned
counsel for the respondent and perused the records.
3. This Revision Petition is filed against the order
passed in the Criminal Appeal No.24/2017, whereby the
order passed in Crl. Misc. No.276/2013 dated 01.02.2017
came to be confirmed.
4. The brief facts of the case are as under:
On account of matrimonial dispute, pending between
the parties, the wife approached the jurisdictional
Magistrate under Section 12 of the Protection of Women
from Domestic Violence Act, 2005 (hereinafter referred to
as 'the DV Act' for short) contending that she is the legally
wedded wife of Sri Mohammed Ghouse. Because of the
differences in the matrimonial relationship, she was thrown
out of the domestic set up and therefore, approached the
jurisdictional Magistrate. On contest, jurisdictional
Magistrate allowed the petition and awarded a sum of
Rs.6,000/- per month as the maintenance, to be paid by
the Revision Petitioner from the date of petition. The said
order was challenged by the husband in Criminal Appeal
No.24/2017.
5. Learned Judge in the first Appellate Court after
considering the rival contentions of the parties, confirmed
the order passed by the Trial Magistrate by dismissing the
appeal.
6. Sri Naik Narayan, learned counsel for the
Revision Petitioner submits that in fact the husband has
filed a petition for restitution for conjugal rights in
O.S.No.34/2017, on the file of the Family Court,
Shivamogga and learned Judge in the said Court by
judgment dated 10.12.2018, on contest, allowed the
petition filed by the husband and granted restitution for
conjugal rights. Even though, there is a decree of
restitution for conjugal rights in favour of the Revision
Petitioner, there is no compliance by the respondent/wife
nor she appealed against the said judgment and therefore,
the order of maintenance awarded by the Trial Magistrate
confirmed by the first Appellate Court needs to be set
aside. He also pointed out that on one hand, the wife is not
joining the husband in pursuance of the order passed by
the learned Judge in the Family Court in OS No.34/2017
but insisting for the payment of maintenance. He further
pointed out that to recover the maintenance, she has
approached the Court and Court has issued coercive steps
to execute the order passed by the Trial Magistrate and
confirmed by the first Appellate Court. He also pointed out
that the wife has filed a false criminal case under Section
498(A) IPC against the Revision Petitioner, which on
contest, came to be dismissed by order dated 26.02.2021
and therefore, it should be understood that the wife is
interested in only money and not discharging the
responsibilities of a dutiful wife and therefore, sought for
allowing the Revision Petition.
7. Before this court, though served with the
notice, the wife has remained absent.
8. In the background of the above factual
aspects, when the impugned orders are perused, it is
established that the parties are not seeing eye to eye and
they are living separately almost from past eight years.
Admittedly, there is a decree of restitution for conjugal
rights passed in the year December 2018. The husband
can take advantage of non compliance of the decree and
file a petition for divorce against the wife. It is also to be
noted that since the parties are Muslims by community,
the other ground of filing a false criminal case is available
and obtained necessary orders of divorce. In the said
proceedings, definitely, there will be an issue as to
awarding permanent alimony. If the husband is permitted
to raise all grounds urged in this Revision Petition including
filing of the false criminal case while deciding the
permanent alimony, ends of justice would be met. The
provisions of the DV Act is made only to protect the
women from the domestic violence. The learned Magistrate
using his discretion and taken note of the factual aspects
of the matter, allowed the maintenance in a sum of
Rs.6,000/- per month, which was confirmed by the first
Appellate Court. When two Courts are factually held that
there is a domestic violence and respondent is entitled for
the protection from lawful authorities, this Court having
regard to the scope of the revision, cannot reinvestigate
the said aspect of the matter. However, this Court noticed
that restitution for conjugal rights filed by the husband
being allowed and criminal case filed by the wife being
dismissed, the learned Judge, who will be seized up the
matter, and the intended divorce petition shall take note of
the above facts appropriately and pass appropriate orders
while deciding the permanent alimony.
With the above observations, the Revision Petition is
disposed of.
Sd/-
JUDGE
KA*
