Karnataka High Court
Shri. Parashuram S/O Shivarudra ... vs Smt. Bhumika Alias Megha W/O Parashuram ... on 23 November, 2023
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RPFC No. 100069 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REV.PET FAMILY COURT NO.100069 OF 2023
BETWEEN:
SHRI. PARASHURAM S/O SHIVARUDRA SALUNKE
AGE: 36 YEARS, OCC: CIVIL DRIVER,
CIVIL SECTION, JUNIOR LEADERS
WING ESTABLISHMENT SECTION
INFANTARY SCHOOL BELAGAVI,
R/O. MATOSHRI APARTMENT VADAGAON
YELLUR ROAD 2ND CROSS ANANDNAGAR,
BELAGAVI-590005.
...PETITIONER
(BY SRI. YASH R.NADKARNI, ADVOCATE FOR
SRI. VITTHAL S.TELI, ADVOCATE)
AND:
SMT. BHUMIKA @ MEGHA W/O PARASHURAM SALUNKE,
AGE: 23 YEARS, OCC: HOUSEWIFE,
R/O. MATOSHRI APARTMENT VADAGAON
YELLUR ROAD 2ND CROSS ANAND NAGAR,
BELAGAVI C/O SHRI HANUMANTHAPPA DODDAMANI,
Digitally signed
R/O. H. NO 115 KRISHNAGIRI COLONY,
by VISHAL
NINGAPPA NEAR GANGAPATI TEMPLE, ANANDNAGAR ROAD,
VISHAL PATTIHAL
NINGAPPA Date:
OLD HUBBALLI-580024.
PATTIHAL 2023.12.01 ...RESPONDENT
11:01:43
+0530
(BY SRI. A. A. PATHAN, ADVOCATE FOR SOLE RESPONDENT)
THIS R.P.F.C IS FILED UNDER SECTION 19(4) OF THE FAMILY
COURT ACT, 1984, PRAYS THAT, THE JUDGMENT AND ORDER DATED
22.10.2021 IN CRL. MISC NO.183/2019 PASSED BY THE PRINCIPAL
JUDGE FAMILY COURT HUBBALLI, IN AWARDING MAINTENANCE OF
Rs.20,000/- P.M. TO THE RESPONDENT TILL HER LIFETIME MAY BE
KINDLY BE SET ASIDE IN THE INTEREST OF JUSTICE AND EQUITY.
THIS R.P.F.C, COMING ON FOR FURTHER ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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RPFC No. 100069 of 2023
ORDER
The short question to be answered in this revision
petition is that "Whether evidence by way affidavit in
proceedings under Section 125 of Code of Criminal
Procedure, 1973" (hereinafter referred to as "Cr.P.C") is
acceptable and whether the petitioner is served in the
manner prescribed under Section 67 of Cr.P.C.
2. The present revision petition is by the husband
assailing the order dated 22.10.2021 in
Crl.Misc.No.183/2019 on the file of the Principal Judge
Family Court, Hubballi, whereby, the petition filed by the wife
under Section 125 of Cr.P.C was allowed directing the
husband to pay a monthly maintenance of ₹20,000 to the
wife till her lifetime.
3. The claim was made by the respondent-wife
under Section 125 of Cr.P.C before the Family Court seeking
maintenance. The concerned Family Court directed the
petitioner herein to pay monthly maintenance of Rs.20,000/-
to the wife.
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4. The validity of the impugned order is assailed by
the petitioner on two counts. Firstly, that the summons to
the petitioner is not served in accordance with section 67 of
Cr.P.C., service of notice placing the petitioner ex-parte
through the postal endorsement "unclaimed" is not justified.
Secondly, it is contended that the concerned Court while
deciding the petition of the wife for maintenance has taken
the evidence by way of affidavit which is impermissible
where a petition is filed under Section 125 of Cr.P.C., and
the evidence conducted is not in accordance with the
procedure prescribed under Section 126 of Cr.P.C and the
procedure prescribed under Section 10(2) of the Family
Courts Act, 1984 (hereinafter referred to as "the Act" for
short) and the Family Court has not followed the procedure
as contemplated under the provisions of Cr.P.C., as
applicable under the Act. In support of his contention learned
counsel has relied upon the decision of the co-ordinate Bench
of this Court in the case of Shivashankar Chandrashekar
Jotavar Vs. Poornima Shivashankar Jotavar and
others1.
2017 (1) AKR 207
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5. Per contra, learned counsel appearing for the
respondent-wife would contend that there is no total bar for
considering the evidence on affidavit as amended C.P.C itself
provides the leading evidence by way of an affidavit and
would contend that the impugned order cannot be set aside
merely on the ground that the evidence on affidavit is
considered by the Family Court, while passing the impugned
order. Learned counsel for respondent would contend that
the contention of Section 67 Cr.P.C to be applicable, is not
sustainable as the husband has willfully avoided the service
of notice and the Family Court has rightly placed the
husband ex-parte. Learned counsel would contend that the
order of the Family Court does not call for any interference.
6. This Court has carefully considered the rival
contentions urged by the learned counsel for the parties and
perused the material on record. In order to answer the
question framed by this Court, it is necessary to refer to the
relevant procedure governed in proceedings under Section
125 Cr.P.C., the procedure to be followed, is prescribed
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under Section 10 in Chapter-IV of the Act and it reads as
follows:
"10. Procedure generally
(1) Subject to the other provisions of this Act
and the rules, the provisions of the Code
of Civil Procedure, 1908 (Act 5 of 1908)
and of any other law for the time being in
force shall apply to the suits and
proceedings (other than the proceeding
under Chapter IX of the Code of Criminal
Procedure, 1973) before a Family court
and for the purposes of the said
provisions of the Code, a Family Court
shall be deemed to be a Civil Court and
shall have all the powers of such Court.
(2) Subject to the other provisions of this Act
and the rules, the provisions of the Code
of Criminal Procedure, 1973 (2 of 1974)
or the rules made thereunder, shall apply
to the proceedings under Chapter IX of
that Code before a Family Court."
7. The plain reading of the above provision indicates
that other than the proceedings instituted under Chapter-IX
of Cr.P.C shall be governed by CPC, 1908, proceedings under
Section 125 falls under Chapter-IX of Cr.P.C. The present
proceedings are initiated under Section 125 Cr.P.C. Petitioner
is residing at Belagavi, petitioner's residence is clearly
outside the local limits of the Court situated at Hubballi.
Section 67 of Cr.P.C reads as under:
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"67. Service of summons outside local
limits.- When a Court desires that a summons
issued by it shall be served at any place outside
its local jurisdiction, it shall ordinarily send such
summons in duplicate to a Magistrate within
whose local jurisdiction the person summoned
resides, or is, to be there served."
8. Plain reading of the Section envisages a
procedure for issuance of summons when a person is outside
the local jurisdiction, summons issued by the Court shall
ordinarily send such summons in duplicate to a Magistrate
within whose local jurisdiction the person summoned resides.
Thus, in light of Section 10 of the Act and the proceedings
under Section 125 Cr.P.C., falls within Chapter-IX of Cr.P.C.,
the proceedings under Section 125 Cr.P.C., is governed by
the provisions of Code of Criminal Procedure, 1973,
summons to respondent outside the jurisdiction of the Court
necessarily should be served in accordance with Section 67
Cr.P.C. The concerned Court issued notice through RPAD and
postal endorsement returned as "unclaimed" and the Family
Court placed the petitioner ex-parte contrary to the
procedure contemplated under Section 67 of Cr.P.C., and
placing the petitioner ex-parte based on postal endorsement
is unsustainable.
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9. Section contention is that, the procedure to
record evidence in proceedings under Section 125 Cr.P.C., is
provided under Section 126 Cr.P.C and the Family Court has
not recorded the evidence as prescribed under Section 126
Cr.P.C., In order to answer this contention Section 126 of
Cr.P.C. needs to be looked into, which reads as under:
"126. Procedure. (1) Proceedings under
section 125 may be taken against any person in any
district-
(a) where he is, or
(b) where he or his wife, resides, or
(c) where he last resided with his wife, or as
the case may be, with the mother of the
illegitimate child.
(2) All evidence in such proceedings shall be
taken in the presence of the person against whom an
order for payment of maintenance is proposed to be
made, or, when his personal attendance is
dispensed with, in the presence of his pleader, and
shall be recorded in the manner prescribed for
summons cases:
PROVIDED that if the Magistrate is satisfied
that the person against whom, an order for payment
of maintenance is proposed to be made is wilfully
avoiding service, or wilfully neglecting to attend the
Court, the Magistrate may proceed to hear and
determine the case ex parte and any order so made
may be set aside for good cause shown on an
application made within three months from the date
thereof subject to such terms including terms as to
payment of costs to the opposite party as the
Magistrate may think just and proper.
(3) The Court in dealing with applications under
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section 125 shall have power to make such order as
to costs as may be just."
10. Plain reading of the section envisages that the
proceedings to be taken in presence of the person against
whom an order of payment of maintenance is proposed to be
made, proviso to section 126(2) Cr.P.C makes it clear that
only if the Magistrate is satisfied that the person against
whom an order of payment of maintenance is proposed to be
made is willfully avoiding or neglecting to attend the Court,
the Magistrate may hear the matter ex-parte. In the instant
case, the Magistrate on a postal endorsement returned as
"unclaimed" the Family Court chose to place the petitioner
ex-parte, the dictionary meaning of the word "unclaimed" is
"not claimed" or "not having been claimed". The satisfaction
of the Magistrate placing the petitioner herein ex-parte is not
forthcoming, the endorsement "unclaimed" cannot be
willfully avoiding of notice, which if yes, the Magistrate
should have satisfied himself before proceeding to hear and
determine the case ex-parte and recording of evidence in
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view of affidavit in the petitioner's absence is contrary to
proviso to section 126(2) Cr.P.C.
11. The co-ordinate Bench of this Court in the case of
Shivashankar Chandrashekar Jotavar (stated supra)
following the decisions of this Court in the case of Bhimappa
(1981 Crl.L.J (NOC) 8 (Kar), this Court following the
earlier decision in the case of State Vs. Bhimrao (AIR
1963 Mysore 239) (supra) has held that Magistrate must
be satisfied that the respondent in a proceedings under
Section 125 Cr.P.C was willfully avoiding service or
neglecting to attend the Court before placing him ex-parte.
12. In the instant case the petitioner was placed ex-
parte on a postal endorsement "unclaimed' and the Family
Court without recording the satisfaction as contemplated
under Section 126(2) Cr.P.C., recording evidence in the
absence of the petitioner is unsustainable.
13. For the forgoing reasons petition has to succeed
on both counts namely service of summons not as per
provisions of Section 67 of Cr.P.C., and the recording of
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evidence is contrary to Section 126(2) of Cr.P.C., and in the
result the impugned order warrants interference. However,
the petitioner would not absolve himself from the liability of
paying maintenance to the respondent and it would be
appropriate to this Court to direct the petitioner to pay a
reasonable maintenance to the respondent by way of an
interim maintenance for their sustenance. The fact remains
that non-following of the procedure contemplated under
Sections 67 and 126(2) Cr.P.C., the parties need to suffer
and more particularly the wife herein. For the foregoing
reasons, this Court pass the following:
ORDER
i) Revision petition is here by allowed.
ii) The impugned order passed by the Family
Court is here by set aside.
iii) The matter is remitted back to the Family
Court by setting aside the ex-parte order
affording an opportunity to the petitioner to
file objections to the petition and the Family
Court is to afford reasonable and sufficient
opportunity to the parties to lead evidence in
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accordance with Section 126 of Cr.P.C by
entering into the witness box.
iv) The husband shall pay a sum of ₹10,000 as
maintenance to the wife till the matter is
disposed of by the Family Court.
v) The awarding of maintenance by this Court
₹10,000 is only an interim measure.
vi) The Family Court to pass necessary orders in
accordance with law by considering the
matter afresh without being influenced by
this order or any findings of this Court and
pass the appropriate orders.
vii) Parties to appear before the Family Court on
18.12.2023.
In view of the disposal of the petition, the pending I.As
would not survive for consideration.
Sd/-
JUDGE
PJ, CT: UMD
