Satyabhama W/O Sham Kadam vs Sham S/O Vasudev Kadam
2022 Latest Caselaw 9325 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

            DATED THIS THE 22ND DAY OF JUNE, 2022

                           BEFORE

            THE HON'BLE MR.JUSTICE E.S. INDIRESH

                 RPFC NO.100071 OF 2015

BETWEEN

1.    SATYABHAMA W/O SHAM KADAM
      AGE:55 YEARS, OCCUPATION: HOUSEWIFE


2.    KUMARI SANGEETA D/O SHAM KADAM
      AGE:30 YEARS, OCC. STUDENT

      BOTH R/O & C/O ASHOK MALLAPPA NEELGAR
      HIREBAGEWADI
      TQ AND DIST. BELAGAVI

                                              ... PETITIONERS

(BY SHRI SANTOSH B MALAGOUDAR, ADV.)

AND

SRI SHAM S/O VASUDEV KADAM
AGE:58 YEARS, OCC.SERVICE
R/O ARMY WELFARE HOUSING ORGANISATION
STATION ROAD,BELAGAVI
NOW RESIDING AT CTS NO.799, 1ST CROSS,
SHAHU NAGAR, BELAGAVI,
TQ AND DIST: BELAGAVI
                                              ... RESPONDENT

(BY SHRI RAMESH N MISALE, ADVOCATE)

      THIS RPFC FILED UNDER SEC.19(4) OF THE FAMILY COURT
ACT, AGAINST THE JUDGMENT AND ORDER DTD:10.02.2015, IN
CRL. MISC. NO.403/2011, ON THE FILE OF THE JUDGE FAMILY
COURT, BELAGAVI, PARTLY ALLOWING THE PETITION FILED
U/S.125 OF CR.P.C.
                                  2




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

                         ORDER

This Revision Petition is filed by the petitioners in

Crl.Misc. No. 403 of 2011 on the file of the Family Court,

Belagavi challenging the order dated 10.02.2015,

allowing the petition in part.

2. For the sake of convenience, the parties to

this Revision Petition shall be referred to in terms of their

status and ranking before the Family Court.

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

marriage between the petitioner and respondent was

solemnized on 05.07.1982 at Hirebagewadi, and three

children were born in their wedlock. It is further stated

that the respondent-husband was serving in Military and

used to visit Hirebagewadi. It is the case of the

petitioners that petitioner No.1 made a request to the

respondent-husband to take the family to the place

where he is working, however, respondent was avoiding

and therefore, having find difficulty in taking care of the

family, the petitioners have filed Crl.Misc.No.3 of 2011 on

the file of the Family Court, seeking maintenance.

4. On service of notice the respondent entered

appearance and filed detailed objection denying the

averments made in the petition so also, respondent-

husband disputed the marriage with the petitioner and

therefore, the respondent-husband pleaded in the

objection that the claim made by the petitioners cannot

be accepted. In order to establish their case, petitioner

No.1 was examined as PW1 and adduced 8 documents

and the same were marked as Exs.P1 to P8. On the other

hand, no evidence was adduced on behalf respondent-

husband.

5. The Family Court, after considering the

material on record, by its order dated 10.02.2015,

dismissed the petition insofar as petitioner No.1 is

concerned, however, ordered maintenance of Rs.2,500/-

per month to petitioner No.2. Feeling aggrieved by the

same, the petitioners presented this petition.

6. Heard Sri Santhosh B.Malagoudar, learned

counsel appearing for the petitioner and Sri Ramesh

N.Misale, learned counsel appearing for the respondent.

Perused the records.

7. Sri Santhosh B.Malagoudar, learned counsel

appearing for the petitioner argued that, the finding

recorded by the Family Court, declined to pass order of

maintenance to petitioner No.1 is incorrect as the Family

Court under Section 125 of Code of Criminal Procedure

has no jurisdiction to determine the rights of the parties

and as such, he submitted that the said finding recorded

by the Family Court requires to be re-considered in this

petition. That apart, learned counsel appearing for the

petitioners submitted that petitioner No.2, is a married

daughter and staying at her matrimonial home and

therefore, he sought for interference of this Court in the

impugned order insofar as petitioner No.1 alone is

concerned.

8. Per contra, Sri Ramesh N. Misale, learned

counsel appearing for the respondent sought to justify

the impugned order passed by the Family Court.

9. Heard the learned counsel appearing for the

parties and perused the impugned order. It is submitted

by the learned counsel appearing for the respondent that

petitioner No.1 has not produced any cogent evidence

before the Family Court to prove that she is the legally

wedded wife of respondent. He further contended that

since respondent was in military service, he was not able

to adduce the evidence in the matter and accordingly,

learned counsel appearing for the respondent sought for

remand of the matter, to counter the submission made

by learned counsel appearing for the petitioner. In the

light submission made by the learned counsel appearing

for the parties, the claim made by petitioner No.1 that

she is married the respondent on 05.07.1982 at

Hirebagewadi, however, the respondent disputed the said

marriage. Undisputedly, respondent was working at

military at the relevant point of time and the perusal of

the pleadings on record would indicate that petitioner

No.1 never accompanied the respondent while he was in

service. Since, the petition is filed under Section 125 of

Code of Criminal Procedure, seeking maintenance and

the said proceedings is summary in nature, the Family

Court is not empowered to decide/determine the rights of

the parties ( See.AIR 1999 SC 3348). It is also trite law

that, it the duty of the husband to discharge his

obligations towards his wife and children and therefore,

having accepted the submission made by the learned

counsel appearing for the respondent that, the

respondent-husband was not able to adduce evidence

before the Court to prove his case, I am of the view that,

the matter requires re-consideration by the Family Court,

afresh. In the result, I proceed to pass the following:

ORDER

i) Revision Petition is allowed;

ii) Order dated 10.02.2015 passed in Crl.Misc.No. 403 of 2011 by the Family Court

Belagavi, is set aside and the matter is remanded to the Family Court for fresh consideration;

iii) It is made clear that the Family Court shall complete the entire proceedings within an outer limit of six months from the date of receipt of certified copy of this order after affording reasonable opportunity to both the parties. Liberty is also reserved to the parties to adduce further evidence, if any, before the Family Court.

iv) As the parties to the petition are represented by their respective learned counsel, parties are directed to appear before the Family Court on 12.07.2022 without waiting for further notice in this regard for early disposal of the case.

Sd/-

JUDGE

SB