N Rajappa vs Smt Laxmidevi
2022 Latest Caselaw 11682 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 09TH DAY OF SEPTEMBER, 2022

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

  REVISION PETITION FAMILY COURT NO.149 OF 2022

BETWEEN:

N. RAJAPPA
S/O MR. NINGAPPA
AGED ABOUT 47 YEARS
OCC: AGRICULTURIST
R/O BAIRANAHALLI VILLAGE
NALLUR HOBLI, CHANNAGIRI TALUK
DAVANAGERE DISTRICT-577 213.

                                            ...PETITIONER

(BY SRI SATYANAND B S., ADVOCATE)

AND:

1. SMT. LAXMIDEVI
   W/O MR. N. RAJAPPA
   AGED ABOUT 40 YEARS

2. MR. SANTHOSH
   S/O MR. N. RAJAPPA
   AGED ABOUT 22 YEARS

3. KUM. SANGEETHA
   D/O MR. N RAJAPPA
   AGED ABOUT 19 YEARS

  ALL ARE RESIDING AT
  KUNTAPALANAHALLI VILLAGE
                                  2




   DAVANAGERE TALUK AND
   DISTRICT-577 530.


                                                 ...RESPONDENTS

(BY SRI R GOPAL, ADVOCATE)

     THIS RPFC IS FILED UNDER SECTION 19(4) OF THE
FAMILY COURTS ACT, AGAINST THE ORDER DATED 01ST APRIL,
2022 PASSED IN C. MISC.NO.247 OF 2017 ON THE FILE OF THE
JUDGE, FAMILY COURT, DAVANAGERE, PARTLY ALLOWING THE
PETITION FILED UNDER SECTION 125 OF CR.P.C FOR
MAINTENANCE.

     IN THIS PETITION ARGUMENTS BEING HEARD, JUDGMENT
RESERVED, COMING ON FOR "PRONOUNCEMENT OF ORDERS",
THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

This Revision petition is filed by the respondent in

C.Misc.No.247 of 2017 on the file of the Family Court,

Davanagere, challenging the order dated 01st April, 2022,

allowing the petition in part.

2. For the sake of convenience, the parties in this petition

are referred to with their status and rank before the Family

Court.

3. It is the case of the petitioners before the Family Court

that, the marriage between the petitioner No.1 was solemnized

with the respondent-husband about sixteen years back and in

their wedlock two children are born and they have been

arraigned as petitioners 2 and 3 in the claim petition. It is

further averred in the petition that the petitioners were

subjected to cruelty as the respondent was not taking care of the

needs of the petitioners and the respondent-husband contracted

marriage with another woman and accordingly, petitioners left

matrimonial home. It is further stated that the petitioner No.1

has lodged complaint against the respondent-husband has also

before Channagiri Police Station and the same was registered in

Crime No.59 of 2017 and is pending consideration before the

Principal District and Sessions Court, Davanagere in SC No.166

of 2016 and accordingly, petitioners have filed C.Misc.No.247 of

2017 on the file of Family Court, seeking maintenance.

4. On service of notice, the respondent-husband entered

appearance and filed detailed objection, however, admits the

relationship between himself with the petitioner No.1-wife. It is

the specific defence of the respondent-husband that the

petitioners left the matrimonial home voluntarily and therefore,

petitioners are not entitled for maintenance and accordingly,

sought for dismissal of the petition.

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

examined as PW1 and produced 26 documents as Exhibits P1 to

P26. On the other hand, Respondent-husband was examined as

RW1 and marked one document as Exhibit R1. The Family

Court, after considering the material on record, by its order

dated 01st April, 2022, allowed the petition in part and as such,

directed the respondent-husband to pay the maintenance of

Rs.5,000/- per month to the petitioner No.1-wife and Rs.4,000/-

per month each to petitioners 2 and 3-children. Feeling

aggrieved by the same, respondent-husband has preferred this

Revision Petition.

6. Heard Sri Satyanand B.S., learned counsel appearing

for the revision petitioner and Sri R. Gopal, learned counsel

appearing for the respondents.

7. Sri Satyananda B.S., learned counsel appearing for the

revision petitioner contended that the procedure contemplated

under Section 126 of Code of Criminal Procedure was not

followed by the Family Court while recording the evidence of

parties. In this regard, he places reliance on the judgment of

this court in the case of SOMASHEKARAVH v. SMT.

PARVATHAMMA reported in ILR 2019 KAR. 2614. He further

contended that the language employed in Section 125 of Code

of Criminal Procedure is to be given effect to, whereby the

unmarried daughters who have attained majority and not

suffering from any physical or mental injury, are not entitled for

maintenance. In this regard, he referred to the judgment of the

Hon'ble Apex Court in the case of ABHILASHA v. PARKASH AND

OTHERS reported in AIR 2020 SC 4355. He further argued that

as on the date of filing of the petition before the Family Court,

petitioners 2 and 3 were majors and therefore, they cannot claim

maintenance from the respondent and as such, sought for

interference of this Court.

8. Per contra, Sri Gopal, learned counsel appearing for the

respondents (petitioners before the family Court), made

available the copy of the SSLC Marks cards issued by the

Karnataka Secondary Education Examination Board to

substantiate the proof of age of petitioners 2 and 3 and

submitted that, as on the date of filing of the petition before the

Family Court, the age of petitioner No.2 was 17 and the

petitioner No.3 was aged 14 years and further, he made

available the certified copy of the petition filed under Section 125

of Code of Criminal Procedure and argued that an error has crept

in the cause title of the impugned order and therefore, he

contended that petitioners 2 and 3 were minors as on the date of

filing of the petition and accordingly, sought for rejection of the

petition. Insofar as the arguments advanced relating to the

procedure adopted by the Family Court is concerned, learned

counsel appearing for the respondents contended that the

petitioner herein cannot take a plea of miscarriage of procedure,

since the respondent-husband has also adduced evidence

through filing of affidavit and therefore, he contended that, the

petitioner is estopped from making such a submission with

regard to irregularity in the procedure. Accordingly, he sought

for dismissal of the petition.

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

counsel appearing for the parties, I have carefully considered the

undisputed fact that the petitioner herein and the respondent-

No.1 are husband and wife and in their wedlock petitioners 2 and

3 are born. Accepting the documents produced by respondent to

establish the age of the petitioners 2 and 3, as the respondent

No.2 was born on 18th May, 2000 and respondent No.3 took

birth on 23rd April, 2003, I am of the view that petitioners 2 and

3 were minors as on the date of filing petition before the Family

Court seeking maintenance. Insofar as the contention raised by

the petitioner with regard to the fact that the respondent No.3

herein is not entitled for maintenance till her marriage is

concerned, the Hon'ble Apex Court, in the case of DR. JAGDISH

JUGTAWAT v. SMT. MANJULATA AND OTHERS reported in

2002(5) SCC 422, has held that "the language employed under

Section 125 Cr.PC does not fix liability of parents to maintain

children beyond attainment of majority, but right of a minor girl

for maintenance from parents after attaining majority till her

marriage is recognised under Section 20(3) of Hindu Adoptions

and Maintenance Act." In that view of the matter, even an

unmarried daughter is entitled for maintenance from her father

till she is married and same has been statutorily recognised

under Section 20(3) of the Hindu Adoptions and Maintenance

Act, 1956 and therefore, I do not find any substance in the

arguments advanced by the learned counsel for the petitioner.

That apart, I find force in the submission made by the learned

counsel appearing for the respondent that the petitioner herein

having adduced evidence before the Family Court by filing

affidavit, thereafter, cannot raise a plea before this Court that

the said procedure is irregular. If at all, the petitioner herein

was vigilant about procedural aspects, there was no impediment

for the petitioner herein to raise such a plea before the Family

Court and therefore, having taken the benefit of adducing

evidence by filing affidavit before the Family Court the petitioner

herein cannot turn around and say that procedure is irregular.

In that view of the matter, the arguments advanced by the

learned counsel appearing for the petitioner cannot be accepted.

In the backdrop of these aspects, it is well settled principle of

law that it is the duty of the husband/father has to take care of

his wife and children and proceedings under Section 125 of Code

of Civil Procedure is a summary proceedings and in view of the

law declared by the Hon'ble Apex Court in the case of

ABHILASHA (supra), the purpose of maintenance is to provide

immediate relief to the destitute wife and therefore, I do not find

any irregularity in the order passed by the Family Court.

Recently, the Hon'ble Apex Court in the case of RAJNESH v.

NEHA reported in (2021) 2 SCC 324, has held that remedy of

maintenance is a social justice and specially enacted by the

Constitution of India to provide wife and children from falling

into destitute and vagrancy. It is also the settled principle by

the Hon'ble Apex Court in the case of BHUWAN MOHAN SINGH v.

MEENA & OTHERS reported in 2015(6) SCC 353, wherein the

Hon'ble Apex Court has held that the maintenance provided for

the wife is for sustenance and said sustenance does not mean

animal existence but signifies leading a life similar in a manner

as she would have lived in the house of her husband. It is also

well established principle in law that Section 125 of Code of

Criminal Procedure is a summary proceedings and does not

determine the rights of the parties and therefore, in terms of the

law declared by the Hon'ble Apex Court in the case of RAJATHI

v. C. GANESAN, reported in AIR 1999 SC 2374, it is the

obligation of the husband Father to look after the wife/children

and he should not neglect or refuse to maintain them.

10. Further, the scope of Section 125 Code of Criminal

Procedure is considered by the Hon'ble Supreme Court in the

case of SHAMIMA FAROOQUI v. SHAHID KHAN reported in

(2015)5 SCC 705. In the said judgment, it is observed that

Section 125 of Code of Criminal Procedure is a measure of social

justice and is specially enacted to protect women and children.

It is meant to achieve a social purpose. The object is to prevent

vagrancy and destitution. It provides a speedy remedy for the

supply of food, clothing and shelter to the deserted wife. It

gives effect to fundamental rights and the natural duties of a

man to maintain his wife, children and parents, when they are

unable to maintain themselves.

11. Though the learned counsel appearing for the

petitioner herein drew the attention of the Court to the evidence

of the RW1, in MC No.203 of 2018 between the petitioner No.1-

wife and the respondent-husband, the same cannot be a basis to

deny maintaintance to wife under Section 125 of Code of

Criminal Procedure as the parties have to decide their personal

rights in terms of the relevant law for adjudication of the relief

sought for in their petitions. In that view of the matter, I do not

find any material irregularity in the order passed by the Family

Court wherein the Family Court, taking into consideration the

financial position of the respondent-husband as per paragraph

13 of the of the judgment, has rightly awarded maintenance and

there is no perversity or illegality in the order passed by the

Family Court. In the result, I pass the following:

ORDER

1. Revision petition is dismissed;

2. Order dated 01st April, 2022 passed in Cri. Misc.

No.247 of 2017 on the file of the Judge, Family

Court, Davanagere, is confirmed;

3. Cost of Rs.10,000/- be paid by the petitioner

herein to respondents herein as litigation

expenses.

Sd/-

JUDGE

lnn