Karnataka High Court
Satyanarayan S/O Venkanna @ Venkatesh ... vs Smt. Vidya W/O Satyanarayan Chinnakar on 7 August, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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RPFC No. 100215 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
REV.PET FAMILY COURT NO.100215 OF 2022
BETWEEN:
SATYANARAYAN S/O. VENKANNA
@ VENKATESH CHINNAKAR,
AGED ABOUT: 37 YEARS,
OCC: HEAD CONSTABLE, R/O: JAGAT CIRCLE,
DIST: KALBURGI. NOW R/O: 1ST BATALIYAN,
MADIWAL, BENGALURU.
RESPONDENT NO.1 BEFORE FAMILY COURT
PETITONER BEFORE HIGH COURT.
...PETITIONER
(BY SRI P. N. HOSAMANE, ADVOCATE)
AND:
1. SMT. VIDYA W/O. SATYANARAYAN CHINNAKAR,
AGED ABOUT: 28 YEARS, OCC: HOUSEHOLD WORK.
2. KUMAR ADITYA D/O. STYANARAYAN CHINNAKAR,
Digitally signed by
CHANDRASHEKAR AGED ABOUT: 02 YEARS, OCC: MINOR,
LAXMAN
KATTIMANI
Location: High
RESPONDENT NO.2 IS A MINOR REPRESENTED BY
Court of Karnataka
HIS NATURAL GUARDIAN MOTHER RESPONDENT NO.1,
SMT. VIDYA W/O. SATYANARAYAN CHINNAKAR,
BOTH ARE R/O: SULTANPUR, JAGAT CIRCLE,
KALBURGI, NOW R/O: MUCHAKANDI CROSS,
KEMP ROAD, MORABAND BUILDING,
BAGALKOT - 587 201.
...RESPONDENTS
(BY SRI MALLIKARJUN C. HUKKERI, ADVOCATE FOR R1;
R2 IS MINOR REPRESENTED BY R1)
THIS RPFC IS FILED U/S 19(4) OF FAMILY COURT ACT 1984,
PRAYING TO, CALL FOR RECORDS, AND ALLOW THE PETITION BY
SETTING ASIDE THE IMPUGNED JUDGMENT AND AWARD DATED
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RPFC No. 100215 of 2022
29.06.2022 PASSED BY THE LEARNED PRINCIPAL JUDGE FAMILY
COURT AT BAGALKOTE, IN CRIMINAL MISC. NO.41/2021, IN THE
INTEREST OF JUSTICE AND EQUITY AND ETC.,
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
1. This petition is filed challenging order dated
29.06.2022, passed by Prl. Judge, Family Court, Bagalkote in
Crl.Misc.No.41/2021.
2. Sri P.N.Hosmane, learned counsel for petitioner
submitted that marriage of petitioner and respondent no.1 was
solemnized as per Hindu customs on 19.11.2013 at Sindhangi.
After marriage, they resided together for some time, during
which, they begot a son and a daughter. It was submitted that
daughter Priyanaka is residing with petitioner, while son is
residing with respondent no.1. It was submitted due to
misunderstanding between them, respondents were residing
separately. Stating that despite having sufficient means
petitioner had failed to maintain them, they have filed
application under Section 125 of Cr.P.C. before Family Court at
Belagavi.
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3. It was submitted, after receipt of notice, petitioner
had entered appeared and engaged counsel. But as petitioner
was stationed at Bangalore on duty as he was Head Constable
in K.S.R.P., he could not contact counsel and effectively
prosecute petition. Under such circumstances, proceedings
concluded virtually ex-parte. It was submitted though
respondents had not submitted sufficient records to
substantiate income of petitioner or need for maintenance,
Family Court had ordered for payment of Rs.15,000/- to
respondent no.1 and Rs.5,000/- to respondent no.2.
Challenging same, present petition was filed. It was submitted
since petitioner was denied opportunity of contesting, learned
counsel seeks for remand of matter.
4. On other hand, Sri M.C.Hukkeri, learned counsel for
respondents sought to oppose petition. It was submitted that,
there was no dispute about petitioner having received notice
and having engaged counsel. Thereafter, matter was proceeded
with and taking note of material on record, Family Court
passed order and same did not suffer from any error, illegality
or material irregularity. It was further submitted that petitioner
has been in arrears to tune of Rs.6,20,000/- and though there
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was attachment of salary and deduction from save, petitioner
has not taken any steps to clear arrears. On said ground,
petitioner's contentions required to be rejected and petition
dismissed.
5. Heard learned counsel and perused impugned
order.
6. From above, marriage of petitioner and respondent
no.1, birth of children from said marriage, are not in dispute.
Respondents have filed application of maintenance. There is
also no dispute about petitioner having been served notice of
said petition and entered appearance therein. Challenge against
order impugned is mainly on quantum and on ground of denial
of adequate opportunity. In view of above, point that would
arise for consideration is:
"Whether impugned order suffers from any error,
illegality or material irregularity and calls for
interference."
7. At outset contention regarding denial of adequate
opportunity to petitioner is not substantiated by production of
order sheet or any material to show that petitioner was not
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able to instruct counsel, except bare self serving assertions. But
perusal of cause title of petition would indicate that petitioner
was posted at Bangalore. Petition was filed on 5.05.2021 and
disposed of on 21.06.2022. Therefore, for a period of more
than one year, same was pending.
8. In paragraph no.3 of order, Family Court had
observed that objections of petitioner was taken as nil on
18.02.2022. It can be presumed that trial commenced
thereafter and concluded with impugned order in about four
months during prevalence of COVID-2019 pandemic.
Inconvenience due to same is not hard to fathom.
9. It is submitted at Bar that petitioner's gross salary
is about Rs.50,000/- and after statutory deductions, is about
Rs.41,000/- and deduction of maintenance amount is ordered
and being deducted from his salary.
10. Under such circumstances, it can be held that there
is denial of adequate opportunity to petitioner to contest
matter. It is also seen that there is no observation of Family
Court about compliance with requirement of affidavit of assets
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and liabilities, as per directions in Rajnesh V/s. Neha and
another, reported in AIR 2021 Supreme Court 569.
11. In view of above, on ground of denial of adequate
opportunity, impugned order would require interference.
Consequently, point for consideration is answered partly in
affirmative as above. Hence, following:
ORDER
i) Petition is allowed.
ii) Impugned order is set aside, matter is remitted
back to Family Court at Bagalkote for fresh
consideration from stage of filing objections.
iii) Since, both parties are represented by counsel,
they shall appear before Family Court at Bagalkote
on 09.09.2024 without awaiting fresh summons. On
said date, maintenance petitioner shall file
objections to maintenance petition. Thereafter,
Family Court shall proceeded to record evidence
from stage of cross examination of PW.1 for which
specific date shall be fixed.
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iv) In order to avoid inconvenience and facilitate
convenience to both parties, Family Court shall
fixed specific contigious dates for conclusion of trail
and thereafter, pass final orders.
v) Until then, arrangement as per impugned order for
maintenance shall continue.
vi) It would also be appropriate to direct both parties
to file affidavit of assets and liabilities by
09.09.2024 .
vii) Registry to transmit trial Court records forthwith.
Sd/-
(RAVI V.HOSMANI)
JUDGE
VB
CT-ASC
