Kumar Sukesh S/O Shivanand Poddar ... vs Sri.Shivanand S/O Shrishail ...
2021 Latest Caselaw 3379 Kant

           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

   DATED THIS THE 23RD DAY OF SEPTEMBER 2021

                             BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

                R.P.F.C. No.200019 OF 2016

BETWEEN:

  1. Kumar Sukesh,
     S/o Shivanand Poddar,
     Age: 12 years,
     Occ: Student,

  2. Kumar Keshav,
     S/o Shivanand Poddar,
     Age: 10 years,
     Occ: Student,

  3. Smt.Geeta W/o Shivanand Poddar,
     Age : 33 years,
     Occ: House Hold Work,

       (Since Petitioners 1 & 2 are minors,
        Represented by their natural
        Guardian mother, Petitioner-3)

       All are R/o. Kanamadi,
       Tq. & Dist. Vijaypur-586 138.          .. Petitioners

 ( By Sri Ganesh Kalburgi, Advocate
   For Sri Ameetkumar Deshpande, Advocate )

AND:

Sri Shivanand,
S/o Shrishail Poddar,
                                               RPFC No.200019/2016
                                   2



Age: 41 years,
Occ: Agriculture & Goldsmith,
R/o : Hiremannur,
Tq: Afzalpur,
Dist: Kalaburagi-585 246.                       .. Respondent

 ( By Sri R.S.Lagali, Advocate )

       This Petition is filed under Section 19(4) of Family Court
Act, praying to allow this Revision Petition and set aside the
order dated 12.02.2016, passed in Crl.Misc.No.638/2013, by the
Judge, Family Court, Vijayapura, and pass appropriate orders as
the circumstances of this case require, in the interest of justice.

      This Petition having been heard through Physical
Hearing/Video Conference and reserved for Orders on
06.09.2021, coming on for pronouncement this day, the Court
made the following :
                              ORDER

The present petitioners had filed a petition against the

present respondent in the Court of learned Judge, Family Court,

Vijayapura, (hereinafter for brevity referred to as `Family

Court'), under Section 125 of Code of Criminal Procedure, 1973

(hereinafter for brevity referred to as `Cr.P.C.'), claiming

maintenance from the respondent.

2. The petitioner No.3 is the wife of the respondent, whose

marriage with each other was performed on 28.11.2003 as per

the Hindu customs and traditions. From their marital

relationship, they begot two children i.e., petitioner Nos.1 and 2

herein. The respondent after some time of the marriage, started RPFC No.200019/2016

subjecting petitioner No.3 (his wife) to cruelty and ill-treatment.

He started demanding her to bring additional dowry of a sum of

`2 lakhs. On 12.12.2006, the respondent after abusing,

assaulting and ill-treating petitioner No.3, driven her out of his

house. As such, having no other alternative, the petitioner No.3,

joined by her children i.e., petitioner Nos.1 and 2, has to go to

her parental house. The attempts made for reunion also did

not yield any result. Finally, petitioner No.3 filed a case against

the respondent under the provisions of Protection of Women

from Domestic Violence Act, 2005 (hereinafter for brevity

referred to as `D.V.Act'), before the learned II Addl.J.M.F.C.

Court, Vijayapura, in Crl.Misc.No.156/2008. In the meantime,

she also came to know that the respondent contacted a

second marriage with a lady called Ummawwa. The

respondent filed a divorce petition against petitioner No.3 in

M.C.No.18/2009, before the learned Judge, Family Court,

Vijayapura, which petition came to be allowed by the order

dated 18.10.2010. The petitioner No.3 preferred an appeal

before this Court in M.F.A.No.32170/2010 (FC). The petitioner

No.3 also filed a private complaint against the respondent in

P.C.No.717/2011, before the learned II Addl. J.M.F.C. Court at RPFC No.200019/2016

Vijayapura, for the offence punishable under Section 494 of

Indian Penal Code, 1908. The petitioners herein contended that

the respondent had neglected to maintain them and to provide

them the basic necessities. Stating that the respondent is a

Goldsmith and earning an income of `40,000/- per month from

his avocation, they claimed maintenance of `10,000/- per month

for each of the petitioners payable by the respondent.

3. The respondent in the Family Court after service of

summons, appeared through his counsel and filed his statement

of objections, wherein, though he admitted his relationship with

the petitioners, but, denied that he had subjected the petitioner

No.3 to cruelty or ill-treated the petitioners or even ignored the

petitioners. He also contended that in the petition for dissolution

of marriage i.e., M.C.No.18/2009, he was directed to pay

permanent alimony of `3 lakhs, as such, he has deposited the

said permanent alimony in the Court. Therefore, he is not

required to pay any maintenance to the petitioner.

4. Based on the pleadings of the parties, the Family Court

has framed the following points :

1) Whether the respondent proves that, the present petition filed by the petitioners-1 to 3 for claiming RPFC No.200019/2016

maintenance against him is not maintainable by virtue of the fact that, this Court has already awarded permanent alimony in favour of the petitoners-1 to 3 in M.C.No.18 of 2009, dtd. 18-10-2010?

2) Whether the petitioners-1 to 3 prove that, the respondent has refused and neglected to maintain them even though he is having sufficient means to maintain them?

3) Whether the petitioners-1 to 3 prove that, the petitioner-3 is unable to maintain herself and the petitioners-1 and 2, as such they are entitled for maintenance against the respondent as claimed?

4) What order?

After recording the evidence led by both parties, both oral

and documentary, and after hearing the arguments from both

side, the Family Court answered point No.1 in the affirmative

and observing that point Nos.2 and 3 does not survive for

consideration, rejected the petition filed by the petitioners.

Aggrieved by the same, the petitioners have preferred the

present petition.

5. The respondent is being represented by his learned

counsel.

RPFC No.200019/2016

6. The Family Court records were called for and the same

are placed before the Court.

7. Heard the arguments of learned counsel from both side,

who are present physically in the Court. Perused the materials

placed before this Court, including the impugned order and the

Family Court records.

8. The learned counsel for the petitioners in his brief

argument submitted that for the time being, he would not press

the claim of petitioner No.3 i.e., wife of the respondent and

restricts his claim only for petitioner Nos.1 and 2 against the

respondent. He submitted that the Family Court was at error in

holding that merely because permanent alimony was ordered in

favour of petitioner No.3 and the same is said to be deposited by

the respondent, the other two petitioners, who are admittedly

the children of the respondent, also are not entitled for

maintenance.

9. Learned counsel for the respondent in his argument

submitted that the Family Court has rightly observed that since

petitioner Nos.1 and 2 are also being awarded with the

maintenance of `300/- each per month in Crl.Misc.No.156/2008, RPFC No.200019/2016

they are also not entitled for any maintenance under Section 125

of Cr.P.C.

10. It is not in dispute that the petitioners had filed a

petition under the provisions of D.V.Act, in the Court of learned

II Addl.J.M.F.C., at Vijayapura, in Crl.Misc.No.156/2008, against

the present respondent, wherein the said Court has awarded

interim monthly maintenance at the rate of `500/- in favour of

the present petitioner No.3 and at the rate of `300/- per month

each to petitioner Nos.1 and 2 respectively, which amounts are

payable by the respondent. It is also not in dispute that the

respondent after instituting a case for dissolution of his marriage

with petitioner No.3 in M.C.No.18/2009, has obtained an order of

dissolution of marriage, however, the same is challenged by the

petitioner No.3 in MFA.No.32170/2010 before this Court.

According to the respondent, the permanent alimony of a sum of

`3 lakhs as ordered in the said M.C.No.18/2009 has already been

deposited by him in the Court. According to the petitioners, they

have not withdrawn the said alleged deposit since petitioner No.3

has challenged the order of dissolution of marriage.

11. In the above background, the Family Court observing

that the wife has been granted with permanent alimony, as such, RPFC No.200019/2016

she is not entitled for maintenance under Section 125 of Cr.P.C.

and petitioner Nos.1 and 2 are also being granted some

maintenance, has answered point No.1 in the affirmative,

resulting in the rejection of the petition of the petitioners.

12. The petitioners have restricted the present petition

only for the claim of petitioner Nos.1 and 2. The learned counsel

for the petitioners has submitted that he would not press the

petition of petitioner No.3 for the time being, reserving liberty to

take appropriate legal action if necessity arises in future and in

accordance with law.

13. No doubt, the petitioner Nos.1 and 2 are said to have

been awarded with maintenance at the rate of `300/- per month

each payable to them by the respondent in

Crl.Misc.No.156/2008, however, the same would not restrain

them from claiming maintenance under Section 125 of Cr.P.C.

But, in such a case, the Court dealing with their subsequent

petition filed under Section 125 of Cr.P.C., has to take note of

the amount awarded to the petitioners before it in another

proceeding, which in the instant case, is in Crl.Misc.No.156/2008

filed under D.V.Act.

RPFC No.200019/2016

14. Our Hon'ble Apex Court in its judgment in Rajnesh -vs-

Neha and another, reported in (2021) 2 SCC 324, has observed

that though the wife can simultaneously claim maintenance

under different enactments, but, it would be inequitable to direct

husband to pay the maintenance awarded in each of the said

proceedings, independent of the relief granted in a previous

proceeding. It further observed that, adjustment is permissible

and adjustment can be allowed of the lower amount against the

higher amount. The Court would take into consideration the

maintenance already awarded in the previous proceeding and

grant an adjustment or set-off of the said amount. It further

observed that, while deciding quantum of maintenance in

subsequent proceeding, Civil Court/Family Court shall take into

account maintenance awarded in any previously instituted

proceeding and determine the maintenance payable to the

claimant. In such a case, the Magistrate if awards any further

amount over and above the maintenance already awarded in

other proceedings, he has to record reasons in writing for the

same. The Magistrate cannot ignore maintenance awarded in

other legal proceedings.

RPFC No.200019/2016

15. In the light of the said finding, the mere fact that

petitioner Nos.1 and 2 were awarded with maintenance in

Crl.Misc.No.156/2008 under the provisions of D.V.Act, that itself

would not act as a bar for those petitioners from claiming

maintenance under Section 125 of Cr.P.C. However, as observed

by Hon'ble Apex Court in Rajnesh's case (supra), the Magistrate,

if awards any further amount over and above the maintenance

already awarded in other proceedings, he has to record reasons

in writing for the same. In the instant case, the learned Family

Court Judge did not discuss the point as to whether the

petitioners were eligible for higher maintenance than what they

were said to be getting vide order passed in

Crl.Misc.No.156/2008. Without considering the said aspect,

merely because the petitioners were said to have been awarded

with some quantum as maintenance in Crl.Misc.No.156/2008

under the provisions of D.V.Act, the learned Family Court Judge

rejected the petition of the petitioners, which in the light of the

judgment of Hon'ble Apex Court in Rajnesh's case (supra), is not

justifiable.

16. Accordingly, I proceed to pass the following order:

RPFC No.200019/2016

ORDER

The Petition filed by petitioner Nos.1 and 2 is

allowed in-part. The order dated 12.02.2016, passed by the

learned Judge, Family Court, Vijayapura, in

Crl.Misc.No.638/2013, as against petitioner Nos.1 and 2 herein is

set aside and the matter is remanded to the Family Court,

Vijayapura, for the reconsideration of the matter in accordance

with law.

The petition of petitioner No.3 is dismissed as not

pressed, however, reserving liberty to her to take appropriate

steps in accordance with law if she is advised so.

In order to avoid any further delay, both the parties are

directed to appear before the said Family Court, Vijayapura, in

Crl.Misc.No.638/2013, on 18.10.2021 and participate in the

proceedings without anticipating any summons or notice from

the said Court.

Considering the age of the Criminal Miscellaneous Petition,

which is of the year 2013, the early disposal of the said matter

by the Family Court, but, not later than four months from the

date of appearance of the parties, which is on 18.10.2021, is

highly appreciated.

RPFC No.200019/2016

Registry to transmit a copy of this order along with the

Family Court records to the concerned Family Court forthwith.

Sd/-

JUDGE

bk/