Karnataka High Court
Hanamant vs Deepa And Anr on 7 June, 2024
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NC: 2024:KHC-K:3691
RPFC No. 200087 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REV.PET FAMILY COURT NO.200087/2023
BETWEEN:
SRI HANAMANT S/O DUNDAPPA KUMBAR,
AGED ABOUT 34 YEARS,
OCC: SERVICE IN PARA MILITARY
R/O. BARADOL, TQ: CHADACHAN,
DIST: VIJAYAPURA-586101.
...PETITIONER
(BY SRI S.S. MAMADAPUR, ADVOCATE)
AND:
1. SMT. DEEPA
Digitally signed W/O HANAMANT KUMBAR
by SUMITRA
SHERIGAR AGED ABOUT 25 YEARS,
Location: High
Court of OCC: HOUSEHOLD WORK,
Karnataka
2. SAMPATKUMAR
S/O HANAMANT KUMBAR
AGED ABOUT 5 YEARS, OCC: STUDENT
SINCE MINOR IS REP BY HIS
M/G AND NATURAL MOTHER-RESPONDENT-1
BOTH R/O. KANAKANAL,
TQ:CHADACHAN
NOW RESIDING AT PLOT NO.2,
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RPFC No. 200087 of 2023
NEAR AKKI HOSPITAL, SWATANTRA COLONY,
VIJAYPUR-586101.
...RESPONDENTS
(BY SRI MOINAKHTAR S. NADAF, FOR R1;
R2 IS MINOR U/G OF R1)
THIS RPFC IS FILED UNDER SECTION 19(4) OF THE
FAMILY COURTS ACT, PRAYING TO SET ASIDE THE JUDGMENT
DATED 21.04.2023 PASSED BY THE I ADDL. PRINCIPAL JUDGE,
FAMILY COURT, VIJAYPUR IN CRL. MISC. NO.330/2021.
THIS PETITION, COMING ON FOR ORDER, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The present revision petition by the husband assailing the
order dated 21.04.2023 passed in Crl.Misc. No.330/2021 by the
I Additional Principal Judge, Family Court, Vijayapur (for short
'Family Court'), whereby, the petition filed by the wife and
son is allowed in part with cost.
2. For the sake of convenience, parties are referred to
as per their ranking before the Family Court.
3. The question that falls for consideration before this
Court is, "whether the evidence by way of affidavit is permitted
to be taken in the proceedings initiated under Section 125 of
Cr.P.C.?".
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4. The relationship between petitioner and respondent
No.1 and their marriage having solemnized on 15.05.2014 at
Siddeshwara Temple of Baradol Village as per their customs
and rights prevailed in their community is not in dispute.
5. Wife filed a petition under Section 125 of Cr.P.C.,
seeking monthly maintenance of Rs.25,000/- for herself and
Rs.15,000/- for her son. Husband appeared and filed his
objections inter alia denying that he has willfully neglected and
refused to maintain his wife and child and contended that the
wife has sufficient means of income. He submitted that he is
working in Paramilitary and drawing a limited monthly salary,
he availed hand loan of Rs.5,00,000/-, hence every month
around Rs.35,000/- to Rs.40,000/- is been deducted from his
salary.
6. On the basis of the pleadings the Family Court
framed the points for consideration:
"1. Whether the petitioners prove that, the
respondent has neglected and refused to
maintain them?
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2. Whether the petitioners prove that, they
are entitled for maintenance? If so, to
what extent?
3. What order?"
7. In order to substantiate their claim, petitioner
examined herself as PW1, one independent witness as PW2 and
got marked documents as Exs.P1 to P10. The respondent
examined himself as RW1 and got marked documents as
Exs.R1 to R8.
8. On the basis of the pleadings, oral and
documentary evidence, the Family Court arrived at a conclusion
that the petitioner-wife is entitled for maintenance of
Rs.6,000/- and the son is entitled for Rs.3,000/- per month.
Aggrieved, the husband is in this petition before this Court.
9. Heard learned counsel Sri S.S. Mamadapur, for
petitioner and learned counsel Sri Moinakhtar S. Nadaf, for
respondents.
10. Learned counsel for the petitioner mainly would
urge that the procedure adopted by the Family Court is in
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violation of Section 126(2) of Cr.P.C., as the said Section
contemplates that the evidence shall be in the manner
prescribed for recording it as summons cases as contemplated
under Section 274 of Cr.P.C., and the acceptance of recording
of evidence by way of affidavit as examination-in-chief is not
permitted and contrary to the provisions to Section 126(2) of
Cr.P.C.
11. Perusal of the material on record would indicate
that the Family Court has taken the evidence of the parties by
way of affidavit, which is contrary to the provisions of Section
126(2) of Cr.P.C. Section 126(2) of Cr.P.C., reads as under:
"All evidence to 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"
12. The procedure to be followed by the Family Court in
recording evidence is prescribed in Section 126 of Cr.P.C., and
the procedure to be followed under Section 126 of Cr.P.C., is no
longer re-integra in light of catena of judgments in line.
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13. The Family Court has failed to adopt the proper
procedure in case of the petition filed under Section 125 of
Cr.P.C. However, it is to be noted that due to the lapse on the
part of the Family Court, the wife should not be put to hardship
by not awarding maintenance as ordered by the Family Court
and the wife cannot be penalized. In the said circumstance,
the petitioner-husband should not be absolved from the liability
of paying maintenance to the respondents and it would be
proper to direct the petitioner-husband to continue to pay the
maintenance as awarded by the Family Court, pending
consideration of the proceedings before the Family Court as not
following of the procedure contemplated under Section 126(2)
of Cr.P.C., the party need not suffer, more particularly, the wife
herein. In the said circumstances, this Court is of the
considered view that the husband to be directed to pay
Rs.6,000/- to the wife and Rs.3,000/- to the child per month as
an interim maintenance.
14. Accordingly, this Court pass the following:
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ORDER
i) The revision petition is hereby allowed.
ii) The impugned judgment dated 21.04.2023 passed
in Crl.Misc.330/2021 on the file of the I Additional
Principal Judge, Family Court, Vijayapur, is hereby
set aside.
iii) Matter is remitted back to the Family Court by
setting aside the impugned judgment, with a
direction to the parties to adduce evidence in
accordance with Section 126 of Cr.P.C. by entering
into the witness box.
iv) The petitioner-husband to pay monthly
maintenance of Rs.6,000/- to the wife and
Rs.3,000/- to the child per month, pending
consideration of the criminal miscellaneous petition.
v) The awarding of maintenance is only by way of
interim arrangement and the Family Court to
consider and pass appropriate orders in accordance
with law.
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vi) Parties to appear before the Family Court on
27.06.2024
All pending I.As., if any, stand disposed of.
Sd/-
JUDGE
SBS
CT: VD
