Gururaj vs Rashmi
2023 Latest Caselaw 1061 Kant

Citation : 2023 Latest Caselaw 1061 Kant
Judgement Date : 19 January, 2023

Karnataka High Court

Gururaj vs Rashmi on 19 January, 2023

Bench: V Srishananda

                            1




           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 19TH DAY OF JANUARY, 2023

                        BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL PETITION No.201660/2022
BETWEEN:

GURURAJ S/O MALLIKARJUN VIJAPUR,
AGE: 38 YEARS,
OCC: GOVT. SERVANT,
R/O KATTAGI ADDA MANE, ALNAWAR,
TQ. ALNAWAR,
DIST. DHARWAD-581103
                                           ... PETITIONER
(BY SRI BASAVARAJ M. POLICE PATIL, ADVOCATE)


AND:

SMT. RASHMI W/O GURURAJ VIJAPUR
(D/O RAUTAPPA SALOTGI)
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O PLOT NO.40, JEWARGI ROAD,
CHAMUNDESHWAR COLONY,
KALABURAGI-585102
                                          ... RESPONDENT

       THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO SET ASIDE THE ORDER PASSED BY
THE LEARNED DISTRICT JUDGE FAMILY COURT AT KALABURAGI
IN CRL.MISC.NO.6/2020 ON 23.11.2022 BY ALLOWING THE
APPLICATION OF THE PETITIONER HEREIN DIRECTING THE
RESPONDENT HEREIN TO FILE THE DECLARATION OF ASSETS
AND LIABILITIES.
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     THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:


                         ORDER

Heard Sri Basavaraj M. Police Patil, learned

counsel for the petitioner.

2. The present petition is filed under Section

482 of Cr.P.C., with the following prayer:

"Wherefore it is most humbly prayed that the Hon'ble Court be pleased to set aside the order passed by the learned District Judge Family court at Kalaburagi in Crl. Misc No.6/2020 on 23-11-2022 by allowing the application of the petitioner herein directing the respondent herein to file the declaration of assets and liabilities in the interest of justice. "

3. Office has raised the following objection:

"The Advocate for petitioner has to clarify that under the which provision of Cr.P.C., application filed before the Family Court."

4. In that regard, petitioner has filed memo

which reads as under:

"The counsel for petitioner in the above case most respectfully submit as under;

It is submitted that, the petitioner have filed an application before the Hon'ble Family court, Kalaburagi in Crl. Misc No.6/2020 seeking direction to the respondent herein to file the assets and liabilities as per the directions of the Hon'ble Apex court in case of Rajnesh Vs. Neha. Since there is no provision in CrPC to file an application seeking to implement the guidelines and directions of Hon'ble Apex Court therefore provision is not mentioned.

It is submitted that article 141 of the constitution of India reads as "law declared by the Hon'ble Supreme court is binding on all the courts". Therefore the

application over which the office have raised objection is filed for the implementation of the directions of the Hon'ble Apex court.

Hence the said office objection may kindly be over ruled and the matter may kindly be decided on merits.

Hence this memo."

5. The matter is also taken up to consider as

to whether the case is made out for issuing notice to

the respondent.

6. Learned counsel for the petitioner brought

to the notice of this Court the decision in the case of

Rajnesh vs. Neha and another passed by the

Hon'ble Apex Court in Criminal Appeal No.730/2020

on 04.11.2020. The relevant directions issued to all

the Family Courts in the country and for

implementation reads as under:

"A copy of this judgment be communicated by the Secretary General of this Court, to the Registrars of all High Courts, who would in turn circulate it to all the District Courts in the States. It shall be displayed on the website of all District Courts/Family Courts/Courts of Judicial Magistrates for awareness and implementation."

7. The ground of the petitioner is that in

pursuance of the aforesaid order of the Hon'ble Apex

Court, he filed an application before the Family Court,

Kalaburagi, in Civil Miscellaneous No.6/2020 with the

following prayer:

"It is, therefore, humbly and respectfully prayed that this Hon'ble Court may kindly be pleased to direct the petitioner to submit her affidavit for assets and liabilities in the interest of justice.

It is further prayed that further proceedings in the present case may kindly be carried out only after submission of affidavit pertaining to assets and liabilities."

8. On the said application, the learned Judge

in the Family Court passed an order as under:

"Respondent filed an application to direct the petitioner to file her affidavit of assets and liability. The opportune was given to both the parties to file their assets and liabilities but the both not filed the same. If the petitioner face to compile the same the court has to take judicial notice of the same about her contention to respect income. Hence application filed by the respondent is not maintainable. Hence application is dismissed.

Respondent present.

Prays time.

For respondent evidence.

Call on 30-11-2022."

9. The said order is sought to be assailed in

this petition under Section 482 of Cr.P.C., on the

following grounds:

x "It is submitted that the Hon'ble apex court in its judgement has made it clear that any petition u/s 125 of CrpC it is mandatory to file the declaration of assets and liabilities of the parties so as to ascertain the financial capacities of the parties. The learned Family court judge ought to have directed the respondent to furnish the declaration of assets and liabilities as per the directions of the Hon'ble Apex Court in Rajnesh Vs. Neha. Hence deserves the interference of Hon'ble court in directing the respondent to furnish the declaration of assets and liabilities in the interest of justice.

x It is submitted that, the petitioner filed the application before the learned Family court Judge for directing the respondent to file the declaration of assets and liabilities but the learned judge dismissed the application as not maintainable which is an abuse of process of law hence deserves the interference of the Hon'ble court by setting aside the order of the learned family court judge and allowing the application of the petitioner to meet the ends of justice.