Karnataka High Court
Lakshmayya vs M Shivalingamma And Anr on 4 March, 2024
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RPFC No. 200095 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR.JUSTICE G BASAVARAJA
REV.PET FAMILY COURT NO. 200095 OF 2023
BETWEEN:
LAKSHMAYYA S/O GOVIND,
AGED ABOUT 31 YEARS, OCC: AGRICULTURE
R/O. D. NO.1/207/1, B.C. COLONY,
PESALABANDA VILLAGE-518323
ADONI MANDAL, KARNOOL DISTRICT,
ANDHRA PRADESH STATE.
...PETITIONER
(BY SRI A.R. TARANATH AND
SRI MAHADEV S. PATIL, ADVOCATES)
AND:
1. SMT. M. SHIVALINGAMMA
Digitally signed W/O LAKSHMAYYA,
by SWETA
KULKARNI AGED ABOUT 30 YEARS, OCC: HOUSEWIFE,
Location: High
Court of 2. GOKUL DAS S/O LAKSHMAYYA,
Karnataka
AGED ABOUT 05 YEARS,
RESPONDENT NO.2 MINOR UNDER
GUARDIAN OF RESPONDENT NO.1
BOTH ARE R/O. NEAR DR. AMBEDKAR BHAVAN,
AMBA BHAVANI STREET, STATION ROAD,
RAICHUR-584101.
...RESPONDENTS
(NOTICE TO R1 HELD SUFFICIENT V/O DATED 14.09.2023)
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RPFC No. 200095 of 2023
THIS RPFC IS FILED U/S. 19(4) OF THE FAMILY COURTS
ACT, PRAYING TO CALL FOR RECORDS AND SET ASIDE THE
ORDER DATED 19.02.2021, PASSED BY THE PRINCIPAL JUDGE,
FAMILY COURT, RAICHUR IN CRL. MISC. NO: 100/2019, VIDE
ANNEXURE-B, FILED BY THE RESPONDENTS.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is preferred by the petitioner -
Laksmayya S/o Govind who was the respondent in
Crl.Misc.No.100/2019 to set aside the exparte order dated
19.02.2021 in Crl.Misc.No.100/2019 passed by the
Principal Judge, Family Court, Raichur [for short, 'the
Family Court'].
2. Notice was duly served to respondent No.1 she
remained absent and un-represented as per order dated
14.09.2023.
3. Heard the arguments of the learned counsel for
the petitioner.
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4. The petitioner's counsel has submitted his
arguments that the petitioner is residing with his wife
Adilakshmi and children in Pesalaband village, Adoni
Mandal, Kurnool district since the date of his marriage.
The respondent purposefully has shown the address of the
petitioner as Yeragera village, taluk and district Raichur
and obtained exparte order of maintenance. Further he
submits that the respondent No.1 has suppressed several
material facts before the Family Court and obtained
exparte order of maintenance by misrepresenting facts
and committed fraud on the Family Court. It is well
settled law that any order obtained by fraud on the Court
is non-est in the eye of law. Further, he submits that as
per Annexure-K charge sheet the respondent No.1 herself
admits that she is the wife of Nagesh and not the wife of
the petitioner. Hence, maintenance awarded by the
Family Court is liable to be set aside. As per the pleadings
at para-2 of the respondent No.1, she claims that her
marriage has taken place on 27.03.2007 but in the
complaint dated 02.04.2015 the respondent No.1 states
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that she is married to one Nagesh and she knows the
petitioner herein for about four years. This on record
proves that respondent No.1 is not the wife of the
petitioner. As such, granting of maintenance to the
respondents is illegal on the face of it. The respondent is
not legally wedded wife of the petitioner. The Family
Court, without verifying the documents produced by the
respondents and taking into account that petitioner herein
was exparte, saddled the liability of paying the
maintenance on the petitioner. Even for the sake of
argument if it is accepted that respondent No.1 is the wife
of the petitioner, she becomes second wife (as the
petitioner is having another wife) and she is not entitled
for maintenance under law. The respondent has not
produced marriage card and marriage registration
certificate before the Family Court. If she had produced
them, truth would have come out. The respondent No.1 in
her pleadings at para-2 and 4 states regarding marriage
and registration of marriage, as such the Family Court,
without insisting on the production of the marriage card
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and marriage registration certificate, as per the pleadings
of respondent No.1 in her maintenance petition has come
to a wrong conclusion and awarded maintenance. The
order sheet produced at Annexure-P does not disclose
when the notice was served on the petitioner. However,
without serving the notice of Crl.Misc.No.75/2021 NBW
has been issued against the petitioner which is illegal and
unsustainable. The Family Court has sent the petitioner to
judicial custody/civil prison on 31.07.2023 which is also
illegal and unsustainable. Further, he submits that
opportunity has to be given to the petitioner to file his
statement of objection to the petition and also to adduce
oral and documentary evidence before the Family Court.
On all these grounds he sought for allowing this petition
and for remanding the matter to the Family Court to
provide an opportunity to the petitioner to file his
statement of objection and contest the case.
5. Having heard the arguments of the petitioner's
counsel and on perusal of the materials placed before this
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Court, the following points would arise for my
consideration:
(i) Whether the petitioner has made out a
ground to set aside the exparte order dated
19.02.2021 passed by the Family Court in
Crl.Misc.No.100/2019 and remand the
matter to the Family Court?
(ii) What order?
My answer to the above points are as under:
Point No.(i) - Affirmative
Point No.(ii) - As per final order
Reasons to point No.(i):
6. I have carefully examined the materials placed
before this Court. The respondent No.1 Smt. M.
Shivalingamma had filed a petition under Section 125
Cr.P.C. seeking maintenance for herself and minor son
petitioner No.2 - Gokul Das. The impugned judgment
reveals that the Family Court has passed the exparte
order. It is submitted by the learned counsel for the
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petitioner that only after execution of NBW which was
executed in Andhra Pradesh, the present petitioner came
to know about this exparte proceedings passed against
him. Intentionally the respondent has not shown the
correct address of the petitioner in Crl.Misc.No.100/2019.
The petitioner had not received the notice in
Crl.Misc.No.100/2019. The respondent has suppressed the
material facts and filed the false petition before the Family
Court and obtained exparte order of maintenance. To
substantiate his arguments, he produced the copy of the
Arogashri health card, a copy of the SSLC marks card of
the petitioner, a copy of FIR pertaining to Crime
No.49/2015, the charge sheet pertaining to Crime
No.49/2015, statement of witnesses, wound certificate of
Shivalingamma W/o Nagesh and the copy of the petition
pertaining to Crl.Misc.No.75/2021 and order sheet
pertaining to Crl.Misc.No.75/2021.
7. On examination of the materials placed by the
petitioner i.e., the health card issued by the concerned
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authority, reveals that the name of the wife of the
petitioner is shown as Adilakshmi and name of this
petitioner's son as D. Vamshi Krishna and they are
residing in Pesalabanda, D.No.1/207/1, Pesalbanda (VS),
Pesalabanda (V), Adoni (M), Kurnool district. This
document is not disputed by the other side as the
respondent No.1 has remained absent as per the order
dated 14.09.2023. The impugned order passed by the
Family Court does not reveal that whether the respondent
No.1 has complied mandatory provisions under Order VI
Rule 14A of Code of Civil Procedure, 1908 or not. Keeping
in mind the non-compliance of mandatory provisions of
Order VI Rule 14A of Code of Civil Procedure, 1908 and
also the address shown in the health card issued by the
concerned authorities to the present petitioner, it is just
and proper to set aside the exparte order passed by the
Family Court and remand the matter to the Family Court
by providing an opportunity to the petitioner to file his
statement of objection. Accordingly, the petitioner has
made out a ground to set aside the exparte order passed
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by the Family Court and remand the matter to the Family
Court. Accordingly, I answer point No.(i) in the
affirmative.
Reasons to point No.(ii):
For the aforesaid reasons and discussion, I proceed
to pass the following:
ORDER
(i) The petition is allowed.
(ii) The impugned order dated 19.02.2021
passed by the Principal Judge, Family Court,
Raichur in Crl.Misc.No.100/2019 is set aside.
The case is remitted back to the Principal
Judge, Family Court, Raichur with a direction
to provide an opportunity to the present
petitioner to file his statement of objections
to the petition filed by the respondents and
thereafter to proceed with the case in
accordance with law and dispose of this case
as early as possible.
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(iii) The petitioner shall appear before the
Principal Judge, Family Court, Raichur
without seeking for any further notice on
01.04.2024.
(iv) The Family Court is directed to issue Court
notice to respondent Nos.1 and 2 who are
the petitioners in Crl.Misc.No.100/2019 to
appear before the Family Court and
thereafter the Family Court is directed to
dispose of the case in accordance with law.
(v) The Registry is directed to send the copy of
this order to the Principal Judge, Family
Court, Raichur. The Registry is also directed
to send copy of this order to the respondent
No.1 by speed post.
Sd/-
JUDGE
SWK
CT-VD
