Sri.Imamsab S/O Dawalsab ... vs Davalsab Imamsab Killedar
2022 Latest Caselaw 10743 Kant

                           -1-




                                  RPFC No. 100035 of 2019


IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 13TH DAY OF JULY, 2022

                         BEFORE
         THE HON'BLE MR JUSTICE E.S.INDIRESH
       REV.PET FAMILY COURT NO.100035 OF 2019
BETWEEN:

1.   SRI. IMAMSAB S/O DAWALSAB KILLEDAR
     AGE: 72 YEARS, OCC: NIL DUE TO OLD AGE,
     R/O KANAVI, TQ: DIST: GADAG-582103

2.   SMT. SHAINAJBEGUM W/O IMAMSAB KILLEDAR,
     AGE: 67 YEARS, OCC : HOUSEHOLD WORK,
     R/O KANAVI TQ: DIST: GADAG

                                            ...PETITIONERS

(BY SRI. GANESH RAIBAGI, ADVOCATE)

AND:

1.   DAVALSAB IMAMSAB KILLEDAR
     AGE:42 YEARS, OCC:RESERVE POLICE,
     R/.O. CHIEF COMMAND INDIA
     RESERVE BATTALION HOSALLI,
     POST:MUNIRABAD - 583 234.
     TQ: and DIST: KOPPAL

2.   BASHUSAB IMAMSAB KILLEDAR,
     AGE:32 YEARS, OCC:AGRICULTURE,
     R/O. KANAVI, TQ: and DIST:GADAG - 582 103.



                                          ...RESPONDENTS

(BY SRI. VISHWANATH HEGDE, ADVOCATE)
                               -2-




                                     RPFC No. 100035 of 2019


     THIS RPFC IS FILED UNDER SECTION 19(4) OF THE
FAMILY COURTS ACT, AGAINST THE JUDGMENT AND ORDER
DATED 06.12.2018 IN CRL.MISC. NO.172/2017 ON THE FILE
OF   THE     PRINCIPAL   JUDGE,     FAMILY    COURT,       GADAG,
DISMISSING THE PETITION FILED UNDER SECTION 125.OF
CR.P.C.

     THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:

                             ORDER

This Revision Petition is filed by the petitioners in Crl.

Misc. No.172/2017 on the file of the Principal Judge,

Family Court, Gadag, challenging the order dated

06.12.2018, dismissing the petition.

2. For the sake of convenience the parties to this

revision petition are referred to as per their ranking before

the Family Court.

3. It is the case of the petitioners that, the

respondents are the sons of the petitioners and they have

neglected and have not provided adequate basic facilities

to the petitioners and as such, the petitioners have filed

RPFC No. 100035 of 2019

Crl. Misc. No.172/2017 before the Family Court, seeking

maintenance under Section 125 of Cr.P.C.

4. On service of notice, the respondent entered

appearance and filed objections denying the averments

made in the petition. However, it is the case of the

respondent No.1 that the petitioners are colluding with the

respondent No.2 and the petitioners and the respondents

have got landed property bearing Survey No.41 and 89

and accordingly sought for dismissal of the petition.

5. In order to prove their case, the petitioner No.1

was examined as P.W.1 and got marked 16 documents

and the same were marked as Ex.P.1 to Ex.P.16. The

respondents have examined 02 witnesses as R.W.1 and

R.W.2 and marked 39 documents as Ex.R1 to Ex.R39. The

Family Court after considering the material on record by

its order dated 06.12.2018, dismissed the petition.

RPFC No. 100035 of 2019

6. I have heard Sri. Ganesh Raibagi, learned

counsel appearing for the petitioner and Sri. Vishwanath

Hegde, learned counsel for the respondent No.1.

7. Learned counsel appearing for the petitioners,

argued that, the petitioners have produced Ex.P.1 and

Ex.P.2 - Salary certificates of the respondent No.1,

however, the said aspect has not been considered by the

Family Court and taking into consideration the medical

treatment met by the petitioner No.1 in the Hospital and

he further submitted that the Family Court on erroneous

consideration of the factual aspects, dismissed the petition

which requires to be interfered with in this petition. On the

other hand, learned counsel for the respondent No.1

sought to justify the impugned order.

8. The Family court taking into consideration the

fact that, the petitioner No.1 has executed the Gift Deed in

favour of the respondent No.2 in respect of the land

bearing Survey No.41 and the land bearing Survey No.89

was converted for non-agricultural purpose and formed

RPFC No. 100035 of 2019

layout and arrived at a conclusion to decline the grant of

maintenance in favour of the petitioners. However, taking

into consideration the evidence adduced by the parties,

particularly looking into the evidence of the P.W.1,

wherein, though there is a dispute with regard to the

claiming property in respect of the schedule properties by

the parties as mentioned in the impugned order, however,

it is bounden duty of the children to look after their

parents. The said aspect has not been properly considered

by the Family Court within the scope of Section 125 of

Cr.P.C. May be I find force in the submission made by the

learned counsel appearing for the respondent that certain

properties have been gifted in favour of the respondent

No.2 who is also the son of the petitioners herein,

however, that itself is not a ground to deny the

maintenance from the respondent No.1. In that view of

the matter, since the petition is dismissed by the Family

Court, in the ends of justice, it is a fit case to remand the

matter to the Family Court to consider the case on merits,

RPFC No. 100035 of 2019

taking into consideration the scope and ambit of Section

125 of Cr.P.C. In the result, I pass the following:

ORDER

(i) The petition is allowed.

(ii) The order dated 06.12.2018 in Crl. Misc.

No.172/2017 on the file of the Principal Judge Family Court, Gadag, is set aside and the matter is remitted to the Family court for fresh consideration, taking into account the scope of Section 125 of Cr.P.C.

(iii) The Family Court shall issue notice to the parties and on their appearance, conclude the proceedings at the earliest.

Sd/-

JUDGE

SVH