Karnataka High Court

Ashraff Mohammed Bapu vs Shruthi @ Sajidha Ashraff Mohammed on 14 February, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                          NC: 2024:KHC:6226
                                                        WP No. 6779 of 2023




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 14TH DAY OF FEBRUARY, 2024

                                         BEFORE
                     THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                     WRIT PETITION NO. 6779 OF 2023 (GM-RES)
                BETWEEN:

                1.   ASHRAFF MOHAMMED BAPU
                     AGED 46 YEARS, S/O M N M BAPU
                     R/AT FLAT NO 102, ARCHANA ARCADE
                     POST KUNJIBETTU 576102
                     UDUPI TALUK AND DISTRICT
                                                               ...PETITIONER
                (BY SRI. S.K ACHARYA., ADVOCATE)

                AND:

                1.   SHRUTHI @ SAJIDHA ASHRAFF MOHAMMED
                     AGED 44 YEARS
                     W/O ASHRAFF MOHAMMED
                     R/AT C/O GIRIJA SHETTIGAR
                     NEAR SONIA CLINIC
                     MANIPAL 576104
Digitally signed by
PADMAVATHI B K       UDUPI DISTRICT
Location: HIGH                                                ...RESPONDENT
COURT OF            (BY SMT.HALEEMA AMEEN., ADVOCATE)
KARNATAKA
                       THIS WRIT PETITION IS FILED UNDER ARTICLES 226
                AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
                QUASH     THE   ENTIRE   PROCEEDINGS     IN   CRL.MISC.CASE
                NO.21/2022 ON THE FILE OF THE COURT OF THE ADDL. CIVIL
                JUDGE AND JMFC UDUPI VIDE ANNEXURE A AND TO DECLARE
                THE SAME AS NOT MAINTAINABLE UNDER LAW AND TO
                DECLARE AS AGAINST THE MANDATE OF SECTION 12 OF
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                                          NC: 2024:KHC:6226
                                       WP No. 6779 of 2023




PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT
2005 AND ALSO ILLEGAL, ETC.


     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:


                         ORDER

1. The petitioner is before this Court calling in question

the entire proceedings in Crl. Misc. No.21/2022 registered

by the respondent invoking Section 12 of the Protection of

Women from Domestic Violence Act, 2005 (for short, 'the

DV Act').

2. Heard the learned counsel for the petitioner and the

learned counsel for the respondent.

3. The petitioner is husband and the respondent is wife.

The relationship between the husband and wife after the

birth of two children appears to have floundered. On

floundering of relationship, the parties were before the

concerned Court. The pre-litigation process was initiated

by the parties which ends up in a compromise in pre-

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litigation Case No.11/2020 by drawing up the terms of

compromise. The terms of compromise reads as follows -

"BEFORE THE PRE LITIGATION CENTRE UDUPI, Pre Litigation No:11/2020 BETWEEN:-

     SAJIDHA ASHRAF                     )    PETITIONER
                             AND
     1.    ASHRAF MOHAMMAD    ) RESPONDENTS
     2.    ADNAN ASHRAF MOHAMMED )

COMPROMISE APPLICATION FILED UNDER ORDER XXIII, RULE 3 OF THE CODE OF CIVIL PROCEDURE 1908:

The parties above named beg to submit as follows:

That the dispute between parties in the above case is resolved in the pre litigation conducted by the District Legal Service Authority in the presence of the well wishes of both the parties.

The terms of compromise arrived between the parties is as under:

1. That the respondent No.1 is having only the life interest and respondent No.2 is having 1/2 right share and accordingly the said respondents have agreed to release their

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respective right in the land covered by S.No:272/40 (Old S.No.272/9A1) measuring about 0.10.00 acres situated in Shivalli village of Udupi Taluk and District in favour of the petitioner who is also having 1/2 right in the same.

2. That the respondent no.1 has also agreed to pay Rs.50,000/- to the petitioner by way of maintenance within 15 days from this date. On receipt of the said amount the petitioner has no more right to claim the maintenance in future.

However in case of default to be committed by the 1st respondent to pay the said 50,000/- amount the petitioner is to recover the same through the process of court.

4. That the respondent No.1 and his son shall execute release deed or any type of deed in favour of petitioner by complying with the legal requirements connected to the registration. In case of default to comply with the said requirements the petitioner is also entitled to take execution of the decree to be passed on this application.

5. That petitioner and 1st respondent have agreed to dissolve their marriage by a decree of divorce by mutual consent.

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6. That the petitioner has undertaken to withdraw the criminal case filed by her against the 1st respondent and another in Crime No:47/2019 (Women P.S.).

7. That the petitioner and 1st respondent are withdrawing their allegations made against each other.

8. That the petitioner and 1st respondent have no claim whatsoever against each other in future also subject to the compliance of condition Nos.1 and 2 herein also.

9. It is therefore prayed that the court may be pleased to pass necessary decree and Judgment in terms of this compromise and this application shall form the part of the decree.

10. That the parties shall bear their respective costs of the case.

UDUPI Date:11.03.2020 Sd/-

                                              PETITIONER

                Sd/-                               Sd/-
         ST                                ND
     1        RESPONDENT                  2     RESPONDENT"

4. The compromise was entered into between the

parties on 11.03.2020. The learned counsel for the

petitioner submits that the terms of compromise were all

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complied. The wife after about two years i.e., on

28.03.2022 files a Memo before the District Legal Services

Authority that she is not aggreable for the compromise

and wanted to withdraw all the terms of the compromise.

The proceedings take place before the Authority and the

Memo is closed on 08.04.2022 as it was arising out of a

compromise made between the parties on 11.03.2020.

The respondent - wife then initiates the proceedings

invoking the provisions of the DV Act, in which an order is

passed, on an application filed by the wife. The order

reads as follows -

"ORDER ON I.A. NO.I

The petitioner has filed this application U/sec 23 of D.V. Act claiming interim maintenance allowance of Rs.25,000/- p.m. to petitioner from the respondent No.1. The petitioner has filed affidavit with the application and stated that the respondent is Business Man and earning salary of Rs.65,000/- per month.

After hearing submission of petitioner counsel, and perusal of the record and

NC: 2024:KHC:6226

considering the status of the petitioner this Court is of the considered opinion that to meet the day today expenses and needs the petitioner shall be granted the interim maintenance at this stage. Hence, I proceed to pass the following:

ORDER

The petitioner is entitled to interim maintenance of Rs.8,000/- p.m. from the respondent No.1. The said amount shall be paid on or before 5th of every month till disposal of I.A. No.I.

Office to issue notice to CDPO to submit DIR report and issue notice to respondents through CDPO.

                  Await       DIR       report         by:
                  12.10.2022."

5. The order directs that the application under Section

23 of the DV Act claiming interim maintenance is filed by

the wife and in the light of the affidavit, so filed the

husband is earning a salary of Rs.65,000/-. Therefore,

interim maintenance is granted under the DV Act.

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6. The learned counsel for the petitioner submits that

none of the proceedings that has taken place prior to the

filing of the petition invoking the provisions of the DV Act

have been pleaded in the application filed by the wife

before the concerned Court and an order of maintenance

is granted.

7. The order of maintenance, on the face of it, is

perfunctory as there are no reasons indicated as to why

the maintenance is to be granted to the wife or the

capacity of the petitioner to pay such maintenance. The

concerned Court ought to have noticed the facts in which it