Manjunath vs Smt.Ashwini Alias Radha
2022 Latest Caselaw 7741 Kant

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                                                        RPFC No. 100073 of 2019


                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 31ST DAY OF MAY, 2022

                                            BEFORE
                              THE HON'BLE MR JUSTICE E.S.INDIRESH
                           REV.PET FAMILY COURT NO. 100073 OF 2019 (-)
                   BETWEEN:

                   MANJUNATH
                   S/O SANNAFAKIRAPPA BALLARY
                   AGE: 30 YEARS, OCC: COOLIE,
                   R/O DOMBARMATTUR
                   TQ: SAVANUR, DT: HAVERI-581111
                                                                 ...PETITIONER
                   (BY SRI. P G MOGALI, ADVOCATE)

                   AND:

                   1.    SMT.ASHWINI ALIAS RADHA
                         W/O MANJUNATH BALLARY
                         AGE: 27 YEARS,
                         OCC: HOUSEHOLD and BEAUTY PARLOR BUSINESS
                         R/O HUCHCHESWARA NAGAR
                         BATCH NO.2 BETAGERI
                         TQ and DIST: GADAG-582102
                   2.    KUMARI. PRIYANKA
SHIVAKUMAR
HIREMATH                 D/O MANJUNATH BALLARY
Digitally signed
                         AGE: 6 YEARS, OCC: NIL
by SHIVAKUMAR
HIREMATH
Date: 2022.06.03
03:07:59 -0700     3.    KUMARI MAHASHREE
                         D/O MANJUNATH BALLARY
                         AGE: 3 YEARS, OCC: NIL,
                         RESPONDENT NO. 2 and 3 ARE
                         R/O HUCHCHASHWARA NAGAR
                         BATCH NO.2, BETAGERI
                         TQ and DIST: GADAG-582102

                                                              ...RESPONDENTS

                   (NOTICE TO R1 - HELD SUFFICIENT;
                    R2 & R3 - MINORS REP. BY R1)
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                                          RPFC No. 100073 of 2019


     THIS RPFC IS FILED UNDER SEC.19(4) OF THE FAMILY
COURT ACT, AGAINST THE JUDGMENT AND ORDER
DTD:03.08.2018, IN CRL.MISC. NO.187/2017, ON THE FILE OF
THE PRINCIPAL JUDGE, FAMILY COURT, GADAG, PARTLY
ALLOWING THE PETITION FILED UNDER SEC.125 OF CR.P.C.

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

                               ORDER

This Revision Petition is filed by the respondent in

Crl.Misc.No.187/2017 on the file of the Principal Judge, Family

Court, Gadag, challenging the order dated 03.08.2018 granting

maintenance to the petitioners therein.

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

Petition are referred to with their rank and status before the Family

Court.

3. The relevant facts for adjudication of this petition are

that, petitioner No.1 claims to be the wife of respondent and their

marriage was solemnized on 30.05.2013 at Dambur Mattur village

in Savanur taluk. It is further stated in the claim petition that,

petitioners No.2 and 3 were born in their wedlock. According to the

petitioners, respondent is running Cyber Café at Vasaratti village

and earning handful of amount, despite having immovable

RPFC No. 100073 of 2019

properties. It is further averred in the claim petition that, there is

matrimonial dispute between the parties on account of treating the

petitioners in a cruel manner and as such, the petitioner No.1 has

left the matrimonial home and residing in her parental house.

4. On service of notice, respondent entered appearance

and filed detailed objections denying the allegations made by the

petitioner and accordingly, sought for dismissal of the claim

petition.

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

examined as PW1 and she has produced one document and same

was marked as Ex.P1. On the other hand, respondent was

examined as RW1 and two documents produced by him were

marked as Exs.R1 and R2. The Family Court after considering the

material on record, by order dated 03.08.2018 allowed the claim

petition in part and directed the respondent to pay a monthly

maintenance of `1,000/- each to the petitioners and feeling

aggrieved by the same, respondent husband has presented this

Revision Petition.

6. I have heard Sri. P. G. Mogali, learned counsel

RPFC No. 100073 of 2019

appearing for the petitioner. Notice to respondents is held sufficient

and no representation has been made on behalf of the

respondents.

7. Sri. P. G. Mogali, learned counsel appearing for the

petitioner argued that the appreciation of evidence by the Family

Court with regard to Exs.R1 and R2 is incorrect as the petitioner

herein has filed M.C.No.8/2017 (which came to be renumbered as

M.C.No.79/2017) on the file of the Senior Civil Judge an JMFC,

Shiggaon under Section 9 of the Hindu Marriage Act and the said

petition came to be allowed by order dated 03.07.2018, whereby

respondent No.1 - wife was directed to join the petitioner herein

forthwith.

8. He also filed a memo along with the order dated

17.01.2020 passed in MC No.47/2019 on the file of the Senior Civil

Judge and JMFC, Shiggaon (itinerary Court, Savanur) whereby the

petitioner herein has filed M.C.No.47/2019 under Section 13

(1)(1A)(1B) of the Hindu Marriage Act seeking dissolution of

marriage. The said petition came to be allowed by the said Court

by order dated 17.01.2020, dissolving the marriage between the

petitioner herein and respondent No.1. Therefore, he contended

RPFC No. 100073 of 2019

that the finding recorded by the Family Court requires to be

reconsidered.

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

counsel appearing for the petitioner and on perusal of the finding

recorded by the family Court, it is not in dispute that the marriage

between the petitioner and respondent No.1 was solemnized on

30.05.2013 at Dambur, Mattur village, Savanur taluk. It is also not

in dispute that the respondents No.2 and 3 are the children born in

their wedlock. The only core question to be considered in this

petition is whether the respondents herein are entitled for

maintenance in view of the orders passed by the competent courts

in M.C.No.79/2017 and M.C.No.47/2019.

10. It is forthcoming in the records that M.C.No.79/2017

(old M.C. No.8/2017) was filed by the petitioner herein under

Section 9 of the Hindu Marriage Act and the Family Court, by order

dated 03.08.2018 directed respondent No.1 herein to continue the

conjugal rights and the said order was produced as Ex.R2. I have

also carefully examined the finding recorded by the Family Court in

M.C.No.79/2017 and M.C. No.47/2019, whereby the competent

Judge of Family Court, Shiggaon, has dissolved the marriage as

RPFC No. 100073 of 2019

per the order dated 17.01.2020. In that view of the matter, without

going into the merits of the case, in view of the subsequent events,

I am of the view that the impugned order dated 03.08.2018 requires

to be set aside by remanding the matter to the Family Court for

fresh consideration taking into account the totality of the

circumstances narrated above.

11. In the result, following order is passed:

ORDER

i. Revision Petition is allowed;

ii. Order dated 03.08.2018 passed in Crl.Misc.No.187/2017 on the file of the Principal Judge, Family Court, Gadag is set aside by remitting the matter to the Family Court for fresh consideration, after affording fullest opportunity of hearing to the parties;

iii. The Family Court, Gadag is directed to dispose of the petition at the earliest taking into account the fact that the proceedings under Section 125 Cr.P.C. is a summary proceedings.

Sd/-

JUDGE gab