Smt.Channamma @ Chandrika vs Sri.Basavaraj S/O Sattyappam ...
2022 Latest Caselaw 8569 Kant

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                                   RPFC No. 100038 of 2018


     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

          DATED THIS THE 10TH DAY OF JUNE, 2022

                          BEFORE
           THE HON'BLE MR JUSTICE E.S.INDIRESH
       REV.PET FAMILY COURT NO. 100038 OF 2018 (-)
BETWEEN:

1.   SMT.CHANNAMMA @ CHANDRIKA
     W/O BASAVARAJ BELERI
     AGE:35 YEARS,OCC:NIL
     R/O HATALAGERI,NEAR SATYAMMA DEVI TEMPLE
     TQ and DIST:GADAG

2.   KUM SANGEETA D/O BASAVARAJ BELERI
     AGE:14 YEARS OCC:STUDENT
     R/O HATALAGERI,NEAR SATYAMMA DEVI TEMPLE
     TQ and DIST:GADAG

3.   KUM GANESH D/O BASAVARAJ BELERI
     AGE:13 YEARS,OCC:STUDENT
     R/O HATALAGERI,
     NEAR SATYAMMA DEVI TEMPLE
     TQ and DIST:GADAG

4.   KUM KARTIK D/O BASAVARAJ BELERI
     AGE:10 YEARS,OCC:STUDENT
     R/O HATALAGERI,
     NEAR SATYAMMA DEVI TEMPLE
     TQ 7 DIST:GADAG



                                                ...PETITIONERS

(BY SRI. M C HUKKERI.,ADVOCATE)

AND:

1.   SRI.BASAVARAJ S/O SATTYAPPAM BELERI
     AGE:40YEARS,OCC:DRIVER,
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                                       RPFC No. 100038 of 2018


     R/O HATALAGEI,ABBIGERIYAVAR ONI,
     TQ and DIST:GADAG



                                                    ...RESPONDENT

(BY SRI. S S KOLIWAD.,ADVOCATE)

      THIS RPFC FILED UNDER SEC.19(4) OF THE FAMILY COURT
ACT, AGAINST THE JUDGMENT AND ORDER DTD:27.01.2018, IN
CRL.MISC. NO.109/2017, ON THE FILE OF THE PRINCIPAL JUDGE,
FAMILY   COURT GADAG, DISMISSING THE PETITION FILED UNDER
SEC.125 OF CR.P.C.

      THIS PETITION IS COMING ON FOR ADMISSION THIS DAY THE
COURT MADE THE FOLLOWING:


                             ORDER

This Revision Petition is filed by the petitioners, assailing

the order dated 27/02/2018 in Crl.Misc.No.109/2017 on the file

of the Prl. Judge, Family Court, Gadag, dismissing the petition.

2. For the sake of convenience, the parties to this Revision

Petition are referred to with their rank before the Family Court.

3. It is the case of the petitioner No.1 that she is the legally

wedded wife of the respondent and their marriage was

solemnized in Krishnapur village at Savanur taluk and in their

wedlock, petitioner Nos.2 to 4 were born. It is further stated in

RPFC No. 100038 of 2018

the petition that the respondent was not taking care of the

needs of petitioners and accordingly, petitioner No.1 left the

matrimonial home and started residing with the parents. Hence,

petitioners have filed Crl.Misc.No.109/2017, seeking

maintenance.

4. On service of notice, respondent entered appearance and

filed detailed objections denying the claim petition. In order to

prove their case, the petitioners have examined two witnesses

as PW.1 and PW.2 and produced one document and the same

was marked as Ex.P.1. The respondent examined three

witnesses as RW.1 to RW.3 and produced three documents and

the same were marked as EX.R.1 to EX.R.3. The Family Court,

after considering the material on record, by order dated

27/2/2018, dismissed the petition. Feeling aggrieved by the

order of the Family Court, the petitioners have presented this

petition.

5. I have heard Sri.M.C.Hukkeri, learned counsel for the

petitioners and Sri.S.S.Koliwad, learned counsel for the

respondent.

RPFC No. 100038 of 2018

6. Sri.M.C.Hukkeri, learned counsel for the petitioner

contended that denying the maintenance to the petitioners by

the Family Court on the grounds that the respondent-husband

has no capacity to give maintenance, is incorrect and

accordingly, he sought for allowing the Revision Petition.

7. Per contra, Sri.S.S.Koliwad, learned counsel for the

respondent sought to justify the impugned order passed by the

Family Court.

8. In the light of the submissions made by the learned

counsel for the parties and taking into consideration of the

finding recorded by the Family Court, it is not in dispute that the

petitioner No.1 married the respondent and in their wedlock,

petitioner Nos. 2 to 4 were born. Perusal of the finding recorded

by the Family Court would indicate that the respondent was

working as a driver and also having immovable properties.

Taking into consideration of the fact that the respondent herein

is having immovable properties, I am of the view that, the trial

Court has committed error in dismissing the petition as the

impugned order is contrary to the law declared by the Hon'ble

Apex Court in the case of Rajathi V/s. C.Ganesan reported in

RPFC No. 100038 of 2018

AIR 1999 SCC 2374, wherein it is well established principle in

law that it is the obligation on the part of the husband to

maintain wife and children and husband/father cannot take

ground that he has no means to pay the maintenance. In that

view of the matter, I am of the view that, it is a fit case to

remand the matter to the Family Court for fresh consideration

after affording opportunity to both the sides. Hence, I pass the

following:

ORDER

i) Revision Petition is allowed in part.

ii) Order dated 27/02/2018 in Crl.Misc. No.109/2017

on the file of the Family Court, Gadag is set aside and

the matter is remitted back to the Family Court for fresh

disposal after affording opportunity to the parties.

iii) In view of the fact that learned counsel for the

parties have represented through their counsel and as

such parties are directed to appear before the Family

Court on 28/6/2022 without awaiting further notice from

the Family Court.

RPFC No. 100038 of 2018

iv) The Family Court is directed to dispose of the

petition within six months from the date of the receipt of

certified copy this order.

v) It is further ordered that the respondent shall pay

maintenance of Rs.3,000/- per month to the petitioner

No.1-wife till the conclusion of the proceedings.

Sd/-

JUDGE

Vb/-