Sri Lakshmikantha @ Kantharaju B N vs Smt Rekha B S
2023 Latest Caselaw 884 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 13TH DAY OF JANUARY, 2023

                         BEFORE

     THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

                   R.P.F.C. NO.145/2022

BETWEEN:

SRI LAKSHMIKANTHA @ KANTHARAJU B N
S/O NAGARAJU B H
AGED ABOUT 34 YEARS
R/A BUGUDANAHALLI VILLAGE
BELLAVI HOBLI, TUMAKURU TALUK
AND DISTRICT-572 101.
                                            ...PETITIONER
(BY SRI V.P. KULKARNI, ADVOCATE)

AND:

1.   SMT. REKHA B S
     D/O SIDDAPPA
     W/O LAKSHMIKANTHA @ KANTHARAJU B N
     AGED ABOUT 25 YEARS
2.   B.L. PAVAN
     S/O LAKSHMIKANTHA @ KANTHARAJU B N
     AGED ABOUT 05 YEARS,

     BOTH ARE RESIDING AT:
     BUGUDANAHALLI VILLAGE
     BELLAVI HOBLI, TUMAKURU TALUK AND
     DISTRICT-572 101.
                                          ...RESPONDENTS
(R-1 SERVED AND UNREPRESENTED;
 R-2 IS MINOR REP. BY R-1)
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     THIS RPFC IS FILED UNDER SECTION 19(4) OF THE
FAMILY COURT ACT, AGAINST THE JUDGMENT DATED
23.12.2021 PASSED IN CRL.MISC.NO.145/2021 ON THE FILE OF
THE PRINCIPAL JUDGE, FAMILY COURT, TUMAKURU, ALLOWING
THE PETITION FILED UNDER SECTION 125 OF CR.P.C FOR
MAINTENANCE.

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

                             ORDER

This petition is filed challenging the judgment dated

23.12.2021 passed in C.Misc. No.145/2021 by the Principal

Judge, Family Court, Tumkuru, directing the petitioner herein to

pay maintenance of Rs.4,000/- p.m. to the 1st respondent and

Rs.3,000/- p.m. to the 2nd respondent till he attains the age of

majority from the date of petition till further orders.

2. The learned counsel appearing for the petitioner

submits that due to unavoidable circumstances, the petitioner

did not appear before the Trial Court and the impugned

judgment is not sustainable in law, since the 1st respondent -

wife without sufficient cause deserted the petitioner. The

petitioner had filed a matrimonial case before the jurisdictional

Court, and the jurisdictional Court has dissolved the marriage on

the ground of desertion. Hence, the 1st respondent - wife is not

entitled for maintenance.

3. The respondents though served with notice have not

chosen to appear either personally or through their counsel.

4. I have considered the submission of the learned

counsel appearing for the petitioner.

5. Perusal of the judgment passed by the jurisdictional

Court in M.C.No.312/2019 indicates that the petitioner herein

had filed a petition in M.C.No.340/2018 for restitution of

conjugal rights under Section 9 of the Hindu Marriage Act and

the said petition came to be allowed. The 1st respondent having

not come forward to resume conjugal rights, the petitioner filed

the said petition for dissolving the marriage on the ground of

cruelty and desertion. The jurisdictional Court allowed the

petition dissolving the marriage of the petitioner and the 1st

respondent on the ground of cruelty and desertion.

6. The decree passed by the jurisdictional Court was

not brought to the notice to the Trial Court, since the petitioner

was placed exparte and his nonappearance before the Trial Court

was due to COVID pandemic. In view of the decree passed by

the jurisdictional Court dissolving the marriage of petitioner and

the 1st respondent prior to the petition filed under Section 125

of Cr.PC, the impugned order requires to be set aside and the

matter to be remanded to the Trial Court for adjudication afresh.

Accordingly, I pass the following:

ORDER

i) Revision petition is allowed.

ii) The impugned order dated 23.12.2021 passed in

C.Mis.No.145/2021 by the Principal Judge, Family Court,

Tumkuru, is hereby set aside and the matter is remanded to the

Trial Court for reconsideration of the petition filed by the

respondents herein under Section 125 of Cr.PC afresh after

notifying the parties.

Sd/-

JUDGE

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