Karnataka High Court
Sri. D M Vijay vs Smt. M Vasanta Lakshmi @ Umavati on 9 January, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:1003
WP No. 23388 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
WRIT PETITION NO. 23388 OF 2023 (GM-RES)
BETWEEN:
SRI. D.M.VIJAY,
AGED ABOUT 52 YEARS,
S/O LATE MADE GOWDA,
R/A NO.113, FIRST FLOOR,
BENAKA NILAYA, 2ND CROSS,
RENUKAMBA TEMPLE STREET,
DODDABOMMASANDRA,
BENGALURU - 560 097.
ALSO AT: NO.1, SHIVARAKSHA,
NEAR CHAMUNDI TEMPLE,
DODDABOMMASANDRA,
BENGALURU - 560 097.
...PETITIONER
(BY SRI. SATYANARAYANA CHALKE S., ADVOCATE)
AND:
Digitally signed
by SUCHITRA M SMT. M VASANTA LAKSHMI @ UMAVATI,
J
Location: High AGED ABOUT 41 YEARS,
Court of R/AT NO.5, LAKSMIPRIYA NILAYA,
Karnataka
VINAYAKANAGAR, KATRIGUPPE MAIN ROAD,
VIDYAPEETA, BENGALURU - 560 050.
ALSO AT: NO.53, 2ND CROSS,
LAKSHMI VENKATESHWARA NILAYA,
NEW POLICE STATION ROAD,
R K MUTT, GAVIPURAM,
GUTTAHALLI, KEMPEGOWDA NAGAR,
BENGALURU - 560 019.
...RESPONDENT
(BY SRI. CHANDAN B.K., ADVOCATE FOR
SRI. B. SIDDESWARA., ADVOCATE)
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NC: 2024:KHC:1003
WP No. 23388 of 2023
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C.
PRAYING TO SET ASIDE/QUASH THE ORDER IN CRL.A.NO.943/2023,
DATED 08.09.2023, ANNEXURE-B1, PASSED BY THE LEARNED LXVI
ADDITIONAL CITY CIVL AND SESSIONS JUDGE AT BENGALURU AND
ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by the petitioner under Article
226 of the Constitution of India read with Section 482 of
Cr.P.C., challenging the order of dismissal of stay application
filed before the First Appellate Court in Crl.A.No.943/2023 by
the petitioner for staying the order of granting maintenance to
respondent-wife and his daughter.
2. Heard arguments of learned counsel for the
petitioner and learned counsel for the respondent.
3. The case of the petitioner is that the petitioner is
said to be the husband of respondent and from their wedlock
they have one daughter named as Dhanusha. Since there was
family dispute between the parties, the respondent filed a case
against the petitioner for restitution of conjugal rights in
M.C.No.1274/2006. After recording evidence, the learned
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Magistrate passed the order by granting maintenance, directed
the petitioner to pay Rs.10,000/- per month to respondent-wife
and Rs.5,000/- per month to the female child from the date of
petition till she attains majority.
4. Feeling aggrieved by the judgment dated
03.06.2023 passed by the learned Magistrate, the petitioner
approached the Sessions Judge under Section 29 of the
Protection of Women from Domestic Violence Act, 2005
(for short 'D.V.Act'). Along with the appeal, he has also filed
I.A.No.1 for staying the judgment dated 03.06.2023 passed by
the learned Magistrate. Whereas, the First Appellate Court after
hearing, dismissed the said application. Further, learned
counsel for the petitioner contended that daughter of the
petitioner has already attained majority and divorce has been
granted by the Family Court, which is challenged before the
High Court. He further contends that the First Appellate Court
erred in staying the order passed by the learned Magistrate.
5. Per contra, learned counsel for the respondent
contended that there is arrears of maintenance more than
Rs.19,80,000/- payable by the petitioner and this Court
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granted interim order directing the petitioner to deposit 50% of
the arrears of maintenance before the trial Court but he has
deposited Rs.5,00,000/- not 50% as ordered by this Court.
6. Having heard the arguments and perusing the
records, of course the petitioner may have good grounds for
acquittal; the First Appellate Court passed the order after
conclusion of the proceedings against the petitioner. The First
Appellate Court is having power of staying the proceedings by
imposing certain conditions. However, the First Appellate Court
has not exercised its power by staying the order of learned
Magistrate. However, arrears of maintenance is now calculated
and the same is payable more than Rs.20,00,000/- and
maintenance required to be paid by the petitioner. However,
this Court passed order to deposit 50% of the arrears of
maintenance while staying the order under challenge.
7. Considering the facts and circumstances of the
case, when the daughter of petitioner has already attained
majority about five years back, though the petitioner's counsel
submits that he has paid some amount during the pendency of
criminal proceedings before the learned Magistrate but he has
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not produced any document to show whether he has paid any
amount towards maintenance or towards education expenses of
his daughter. If any amount towards education expenses is
paid, the same cannot be calculated in this case. As stated by
the respondent's counsel, education expenses has ordered by
the High Court in divorce petition. Such being the case, that
amount cannot be considered and deducted in this case.
Therefore, the contention of the petitioner's counsel is that he
has to deposit 50% amount and that amount cannot be
deducted in this case. Therefore, considering the facts and
circumstances of the case, I am of the view that the First
Appellate Court ought to have exercised its discretionary power
by staying proceedings by imposing condition to deposit certain
amount, but not passed. Hence, the following:
ORDER
1) Writ Petition is allowed in part.
2) Order dated 08.09.2023 passed by the LXVI
Additional City Civil and Sessions Judge,
Bengaluru (First Appellate Court) is set aside
and application under Section 29 of D.V.Act
filed by the petitioner is allowed.
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3) Order dated 03.06.2023 on the file of learned
Metropolitan Magistrate, Traffic Court-V,
Bengaluru, is hereby stayed until disposal of the
appeal in Crl.A.No.943/2023 by the First
Appellate Court subject to condition that the
petitioner to deposit 50% of arrears of
maintenance awarded to both wife and
daughter excluding any amount already
deposited towards education expenses to the
daughter within a week from the date of receipt
of a copy of this order. The petitioner shall
continuously pay 50% maintenance to both wife
and daughter until disposal of the appeal.
4) If any application is filed by the respondent praying
to release the amount, the First Appellate Court
may release the amount to the respondent.
Sd/-
JUDGE
SMJ
