Sri. Santosh S/O Pandu Rathod vs Smt. Shridevi And Ors
2021 Latest Caselaw 3512 Kant

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         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

    DATED THIS THE 25th DAY OF OCTOBER, 2021

                        BEFORE

       THE HON'BLE MR.JUSTICE M.G.S.KAMAL

                RPFC No.200120/2019

Between:

Sri.Santosh,
S/o.Pandu Rathod,
Age: 38 years, Occ: Driver,
R/o.Hadagali,
Taluk & Dist: Vijayapur-586 101.
                                      ... Petitioner

(By Sri Shivashankar H.Manur, Advocate)

And:

1. Smt.Shridevi,
W/o.Santosh Rathod,
Maiden name-Smt.Shridevi,
D/o.Sevu Rathod,
Age: 32 years,
Occ: Household work,

2. Kumari Akshata,
D/o.Santosh Rathod,
Age: 13 years,
Occ: Student,

Since minor,
Rep. by her natural guardian
Mother - Respondent No.1.
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3. Kumari Ashwini,
D/o.Snatosh Rathod,
Age: 10 years,
Occ: Student,

Since minor,
Rep. by her natural guardian
Mother - Respondent No.1.

All are r/o.Hadagali,
Taluk & Dist: Vijayapur-586 101.
                                           ... Respondents

(R-1-served,
     R-2 & 3 are minors, Rep. by R-1)


      This RPFC is filed under Section 19(4) of the Family
Courts Act praying to call for the records and thereby set
aside the Judgment dt.01.10.2016 passed by the Judge,
Family Court, Vijayapur in Crl.Misc.No.425/2016 thereby
allowing the revision petition in the interest of justice and
equity.

      This petition coming on for further orders, this day,
the Court made the following:-


                           ORDER

The present petition is filed under Section 19(4) of

the Family Courts Act by the petitioner aggrieved by the

judgment and order dated 01.10.2016 passed in

Crl.Misc.No.425/2016 on the file of the Family Court at

Vijayapur. By the impugned order, the Family Court has

directed the petitioner herein to pay maintenance of

Rs.3,000/- per month to the Respondent No.1 and

Rs.2,500/- per month each to the respondent Nos.1 and 2

respectively. That apart, the Family Court has also

awarded cost of Rs.1,000/- to the respondents.

2. The impugned order has been passed exparte.

3. Learned counsel for the petitioner submitted that

the marriage of the petitioner and the respondent No.1

was solenmised during the year 2000. Out of the

marriage, Respondent No.2 was born. That there were

certain marital dischords resulting in the petitioner filing a

petition under Section 13(1)(i-a) of Hindu Marriage Act

before the Family Judge, Vijayapur in M.C.No.61/2007

against the Respondent No.1 herein. By Judgment and

Order dated 31.03.2008, the Family Judge, Vijayapur

allowed the said petition filed by the petitioner herein

dissolving the marriage of the petitioner with Respondent

No.1. It is further submitted notwithstanding the

dissolution of marriage, the respondent No.1 herein, filed

the petition under Section 125 in Crl.Misc.No.425/2016 on

the file of the Family Court, Vijayapur, seeking relief of

maintenance for herself and Respondent Nos.2 and 3.

4. It is further submitted by the learned counsel for

the petitioner that after dissolution of the marriage,

petitioner and Respondent No.1 have been residing

separately and as such, there is no possibility of

Respondent No.3 having been born from their wedlock

which is already dissolved as above. It is further

submitted that since the impugned order has been passed

in the absence of the petitioner placing him exparte, he

had no opportunity to place these aspects of the matter for

consideration before the Family Court. There was no

notice served on him. Hence, sought for allowing of the

petition.

5. Though notice has been served on the

respondents in this matter, they have remained absent

and there is no representation on their behalf.

6. The impugned order has been passed in the

absence of the petitioner herein. The aforesaid factual

aspects of the matter, viz., the dissolution of marriage of

the petitioner with Respondent No.1 having taken place on

31.03.2008, by virtue of judgment and order passed in

M.C.No.61/2007 on the file of the Family Court at

Vijayapur and the dispute with regard to the paternity of

the Respondent No.3 have not been subjected for

consideration before the Family Judge. Under these facts

and circumstances of the matter, it is just and necessary

that the matter be remanded to the Family Court for

consideration of the case of the petitioner.

7. Though it is contended by the learned counsel for

the petitioner that marriage of the petitioner with the

Respondent No.1 has been dissolved and Respondent No.1

is staying separately, there is no material on record to

show that Respondent No.1 has remarried. In view of this

aspect of the matter, it is made clear that the order of

maintenance passed by the Family Court directing

petitioner to pay the monthly maintenance shall remain in

force and the same is neither modified nor reversed. It is

further made clear that the petitioner herein is at liberty to

seek appropriate order for modification of the impugned

order by filing necessary application before the Family

Court. The Family Court may pass appropriate orders

thereon, considering the facts to be urged therein in

accordance with law.

8. With the above observation, revision petition is

allowed and the matter is remitted back to the Family

Court at Vijayapur, with a direction that the petitioner be

given an opportunity to file objections and to lead

evidence. The Family Court may also provide opportunity

for the respondents herein (who are the petitioners before

the Family Court) to lead rebuttal evidence if any. After

giving sufficient opportunity to the parties, appropriate

orders be passed within a period of six months from the

date of receipt of certified copy of this order. The parties

are directed to appear before the Family Court at Vijayapur

on 18.11.2021

Since despite service of notice of this petition, the

respondents have remained absent and unrepresented,

the Family Court shall issue notice to the respondents

(petitioners) and proceed with the matter in terms of the

direction given above.

Sd/-

JUDGE

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