Karnataka High Court
Smt Basamma W/O Adiveppa Hanchinal vs Sri Adiveppa S/O Ningappa Hanchinal on 15 December, 2023
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RPFC No. 100194 of 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REV.PET FAMILY COURT NO.100194 OF 2022
BETWEEN:
SMT. BASAMMA W/O. ADIVEPPA HANCHINAL,
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O: KUMBAR ONI, KUSUGAL-580023,
TQL: HUBBALLI, DIST: DHARWAD.
... PETITIONER
(BY SMT. BHAGYASHREE N.BIKKANNAVAR, ADVOCATE)
AND:
SRI. ADIVEPPA S/O. NINGAPPA HANCHINAL,
AGED ABOUT 58 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O: RAMAYYA REDDI BUILDING,
KARLWAD VILLAGE-582208,
TQL: NAVALGUND, DIST: DHARWAD.
Digitally signed ...RESPONDENT
by VISHAL
VISHAL NINGAPPA (BY SRI. CHANDRASHEKAR R.HIREMATH, ADVOCATE)
PATTIHAL
NINGAPPA Date:
PATTIHAL 2023.12.20 THIS R.P.F.C. IS FILED UNDER SECTION 19(4) OF THE FAMILY
10:40:11
+0530 COURT ACT, 1984, PRAYING TO, CALL FOR THE RECORDS IN CRL.
MISC. NO.114/2019 ON THE FILE OF THE I ADDITIONAL PRINCIPAL
JUDGE, FAMILY COURT, HUBBALLI AND MAY BE PLEASED TO SET
ASIDE / QUASH THE IMPUGNED ORDER DATED 04.02.2022 MADE IN
CRL. MISC. NO.114/2019 PASSED BY THE I ADDITIONAL PRINCIPAL
JUDGE, FAMILY COURT, HUBBALLI, AS THE SAME BEING NOT
SUSTAINABLE IN LAW AND CONSEQUENTLY ALLOW THE CRL. MISC.
NO.114/2019 ON THE FILE OF THE I ADDITIONAL PRINCIPAL JUDGE,
FAMILY COURT, HUBBALLI, AS PRAYED FOR THEREIN IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS R.P.F.C., COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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RPFC No. 100194 of 2022
ORDER
1. Petitioner-wife is assailing the order dated
04.02.2022, passed in Crl. Misc. No.114/2019 on the file of
the I-Addl. Prl. Judge, Family Court, Hubballi, whereby, the
petition filed by the wife under Section 125 of the Code of
Criminal Procedure, 1973 (for short "the Cr.P.C.") came to
be dismissed.
2. Heard the learned counsel Smt. Bhagyashree
N.Bikkannavar appearing for the petitioner and the learned
counsel Shri Chandrashekhar R.Hiremath appearing for the
respondent.
3. The marriage between the petitioner and the
respondent was solemnized on 15.05.1991 as per the
customs prevailing in their community. The petitioner
instituted the petition in Crl. Misc. No.114/2019 under
Section 125 Cr.P.C. seeking maintenance from the
respondent - husband. The said proceeding was contested
by the husband. The family Court, by its order dated
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04.02.2022, dismissed the petition in Crl. Misc.
No.114/2019 on two counts that:
(i) the wife has willfully neglected and without
lawful reasons refrained herself from
matrimonial home
(ii) the wife has failed to prove that the
husband has willfully neglected and refused
to maintain her in spite of having sufficient
means.
4. Learned counsel appearing for the petitioner
would contend that the reasoning assigned by the Family
Court is contrary to the provisions as enumerated under
Section 125 Cr.P.C. and would contend that the wife
staying away from the matrimonial home without sufficient
cause and living separately since 2017, as held by the
Family Court, cannot be a ground for denying the
maintenance sought by the petitioner - wife under Section
125 of Cr.P.C. In support of her contention, she has placed
reliance on the following judgments of the Apex Court:
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(i) Rajnesh Vs. Neha and another1 (Rajnesh)
(ii) Rajathi Vs. C.Ganesan2 (Rajathi)
5. Per contra, learned counsel appearing for the
respondent would contend that from the very day of
marriage, the petitioner, without any reasonable cause, has
been living separately and as per the provisions of Section
125 of Cr.P.C., the petitioner is not entitled for
maintenance as she has, without any sufficient reason,
refused to live with her husband and would contend that
the petitioner has made out no ground to interfere with the
order of dismissal by the trial Court.
6. This Court has carefully considered the rival
contentions urged by the learned counsel appearing for the
parties and perused the material on record.
7. On hearing the learned counsel appearing for the
parties, the only point that would arise for
considerations is:
(2021) 2 SCC 324
(1999) 6 SCC 326
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"Whether the Family Court was justified in
dismissing the petition filed by the wife under Section
125 Cr.P.C. in the present facts and circumstances of
this Case?"
8. Section 125 Cr.P.C. reads as under:
"125. Order for maintenance of wives,
children and parents.- (1) If any person having
sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain
itself, or
XXXXXXXX
Explanation.- For the purposes of this Chapter.-
XXXXXXXX
(b) "wife" includes a woman who has been
divorced by, or has obtained a divorce from, her
husband and has not remarried.
XXXXXXXX
(4) No Wife shall be entitled to receive an allowance
from her husband under this section if she is living
in adultery, or if, without any sufficient reason, she
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refuses to live with her husband, or if they are living
separately by mutual consent.
9. Two conditions are enumerated under Section
125 Cr.P.C.: a person is entitled to initiate proceedings if
they demonstrate that the person against whom
maintenance is sought has sufficient means and neglects or
refuses to maintain the wife, who is unable to maintain
herself, can move an application under Section 125 Cr.P.C.
Explanation (b) of Section 125 (1) clarifies that even if she
is a divorcee, she can claim maintenance, provided she is
not remarried. Sub-Section (4) disentitles the wife to
receive an allowance from her husband in certain cases.
One of them being "if without any sufficient reason, she
refuses to meet with her husband". This sub-section
governs the whole Section of 125 Cr.P.C., is the contention
raised by the respondent-husband and contend that the
Family Court has rightly held that the wife left her husband
without reasonable cause and she is not entitled for
maintenance under Section 125 Cr.P.C. However, this was
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not the intent of the legislature while incorporating Section
125 Cr.P.C., the Family Court has overlooked the object
and purpose of Sub-Section (1) of Section 125 Cr.P.C. The
object of the provision is to provide for social justice, which
has been enacted to protect the weaker section of the
Society like women and children. The object is to compel a
man to perform his moral obligation towards the Society in
respect of the maintaining his wife, children and old aged
parents, so that, they are not put to destitution and
become the liability of the society and may forced to adopt
a life of vagrancy, immorality and crime for their
sustenance or go astray. Admittedly, the proceedings are
summary in nature and provide for speedy remedy against
starvation of a deserted wife, children or indigent parents.
The proceedings under Section 125 Cr.P.C., are not final
and the parties are at liberty to agitate their rights in the
Civil Court.
10. In the instant case, the matrimonial relationship
between the petitioner and the respondent is not disputed,
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what is in fact disputed by the respondent - husband is that
the wife, since the date of marriage is not staying along
with the husband, this contention is available to the
husband in the proceedings that would have been initiated
by the husband regarding the validity or status of the
parties in the matrimonial relationship, which would be
adjudicated. The Apex Court in the case of Dwarika
Prasad Satpathy Vs. Bidyut Prava Dixit and another3
(Dwarika Prasad Satpathy) has held that an order
passed in the application under Section 125 Cr.P.C. does
not finally determine the rights or obligation of the parties
and the said section is enacted with a view to provide
summary remedy for providing maintenance to the wife,
children and old aged parents. The Apex Court in the case
of Rajnesh stated supra held at paragraph Nos.32 & 33 as
under:
"32. Chapter IX of the Code of Criminal
Procedure, 1973 provides for maintenance of wife,
children and parents in a summary proceeding.
(1999) 7 SCC 675
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Maintenance under Section 125 CrPC may be
claimed by a person irrespective of the religious
community of which they belong. The purpose and
object of Section 125 CrPC is to provide immediate
relief to an applicant. An application under Section
125 CrPC is predicated on two conditions: (i) the
husband has sufficient means; and (ii) "neglects" to
maintain his wife, who is unable to maintain herself.
In such a case, the husband may be directed by the
Magistrate to pay such monthly sum to the wife, as
deemed fit. Maintenance is awarded on the basis of
the financial capacity of the husband and other
relevant factors.
33. The remedy provided by Section 125 is
summary in nature, and the substantive disputes
with respect to dissolution of marriage can be
determined by a civil court/Family Court in an
appropriate proceeding, such as the Hindu Marriage
Act, 1956."
11. The Apex Court in the case of Rajnesh stated
supra has set at rest the controversy expressed in sub-
Section (4) of Section 125 Cr.P.C. and held that the two
conditions are predicated, namely, (i) the husband has
sufficient means; and (ii) "neglects" to maintain his wife,
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who is unable to maintain herself and in such a case, the
husband has to pay monthly maintenance to the wife as
directed by the Magistrate.
12. In the said circumstances, having regard to the
preposition of law declared by the Apex Court in the
judgments referred supra, the Court while dealing under
the provisions of Section 125 Cr.P.C. need not record a
finding as to the sufficiency of the cause for the wife to live
separately from the husband. This aspect has to be
considered by the Court in a proceeding that would be
initiated regarding matrimonial relationship between the
parties and not in the proceedings under Section 125
Cr.P.C.
13. The petitioner in the instant case has, however,
stated instances of cruelty in her petition and the reason for
staying separately, in a substantive dispute with respect to
desertion, cruelty would have to be taken in the appropriate
proceedings that would be initiated by the parties before
the Civil Court/Family Court under the Hindu Marriage Act,
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1956. The Family Court has totally lost sight of the
purpose and object of Section 125 Cr.P.C., which is to
provide immediate relief to the applicant. The Family Court
was totally unjustified in dismissing the claim petition by
the petitioner seeking monthly maintenance and the
impugned order warrants interference by this Court.
14. However, in light of remand, the wife should not
be left without any maintenance and the wife cannot be
made to suffer for an order that has been passed by the
Family Court rejecting the petition filed by the wife seeking
maintenance, and the husband cannot be absolved from
the liability of paying maintenance, thus, this Court is of the
considered view that as an interim measure, maintenance
needs to be awarded. For the foregoing reasons, this Court
pass the following:
ORDER
(i) The petition is hereby allowed-in-part.
(ii) The impugned order passed by the Family
Court is hereby set aside.
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(iii) The matter is remitted back to the Family
Court for fresh disposal after affording an
opportunity to the parties to lead evidence
as per the procedure prescribed under
Section 126 Cr.P.C by entering into the
witness box.
(iv) The parties are directed to file their
affidavits of assets and liabilities before the
Family Court.
(v) The parties to appear before the Family
Court on 08.01.2024.
(vi) Consequent to the appearance and on
affidavit of the parties being filed, the
Family Court to pass appropriate orders in
accordance with law and the Family Court
is requested to dispose of the petition in
Crl. Misc. No.114/2019 as expeditiously as
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possible considering the nature of the
proceedings initiated from 2019.
(vii) The respondent to pay monthly
maintenance of Rs.5,000/- from this month
and this is only an interim measure for
sustenance of the petitioner - wife and the
trial Court not to be influenced by this
order and to pass appropriate orders, in
accordance with law.
Sd/-
JUDGE
VNP, CT: UMD
