Karnataka High Court

Sri. Channakeshava vs Smt. Nirmala on 5 March, 2024

Author: S.Vishwajith Shetty

Bench: S.Vishwajith Shetty

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                                                  CRL.P No. 8091 of 2023




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 5TH DAY OF MARCH, 2024

                                        BEFORE

                     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
                         CRIMINAL PETITION NO.8091 OF 2023

               BETWEEN:

               1.    SRI CHANNAKESHAVA
                     S/O PATEL H.A. BACHANNA
                     AGED ABOUT 45 YEARS
                     RESIDING AT HUNASEHALLI VILLAGE
                     JADIGENAHALLI HOBLI
                     HOSKOTE TALUK-562 114.

                                                              ...PETITIONER

               (BY SRI R. SATISH CHANDRA, ADVOCATE)

               AND:

               1.    SMT. NIRMALA
                     ALLEGED TO BE THE W/O. CHANNAKESHAVA
Digitally            AGED ABOUT 34 YEARS
signed by H
K HEMA               RESIDING AT HUNASEHALLI VILLAGE
                     JADIGENAHALLI HOBLI
Location:
High Court           HOSKOTE TALUK-562 114
of Karnataka
                     PRESENTLY RESIDING AT
                     NAMBIGANAHALLI VILLAGE
                     KASABA HOBLI, MALUR TALUK-563 130.

                                                             ...RESPONDENT

               (BY SMT. NEERAJA KARANTH, ADVOCATE)

                   THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
               OF CR.P.C., PRAYING TO SET ASIDE THE ORDER PASSED IN
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                                          NC: 2024:KHC:9211
                                     CRL.P No. 8091 of 2023




CRIMINAL REVISION PETITION NO.03/2020 DATED 01.09.2021
ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE
AT KOLAR AND SET ASIDE THE ORDER PASSED IN
CMC.NO.16/2012 DATED 21.11.2019 ON THE FILE OF II
ADDITIONAL CIVIL JUDGE AND JMFC. AT MALUR ETC.

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

                          ORDER

1. This petition under Section 482 of Cr.P.C. is filed with

a prayer to set aside the order dated 21.11.2019 passed

by the Court of the II Additional Civil Judge and JMFC,

Malur in CMC.No.16/2012 and the order dated 01.09.2021

passed by the Court of Principal District and Sessions

Judge at Kolar in Criminal Revision Petition No.3/2020.

2. Heard the learned counsel for the parties.

3. The respondent herein has filed a petition under

Section 125(1) of Cr.P.C. before the Court of the II

Additional Civil Judge and JMFC, Malur in CMC.No.16/2012

seeking a maintenance of Rs.10,000/- per month from the

petitioner herein. In the said proceedings, the trial court

had awarded monthly maintenance of Rs.5,000/- to the

respondent herein. The same was challenged by the

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petitioner before the Court of the Principal District and

Sessions Judge at Kolar in Criminal Revision Petition

No.3/2020 which was dismissed on 01.09.2021.

Therefore, the petitioner is before this Court.

4. Learned counsel for the petitioner submits that the

marriage of the petitioner with the respondent is in

dispute. The petitioner is already married to

Smt.Varalakshmi and from the wedlock, the couple have a

daughter. He submits that even if it is considered that the

respondent herein is the second wife of the petitioner, she

is not entitled for any maintenance amount and her

petition under Section 125 of Cr.P.C. is not maintainable.

He has placed reliance on the judgment of the Hon'ble

Supreme Court in the case of Smt. Yamunabai Anantrao

Adhav v. Anantrao Shivaram Adhav and another

reported in AIR 1988 SC 644 and also in the case of

Savitaben Somabhai Bhatiya v. State of Gujarat and

others reported in AIR 2005 SC 1809.

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5. Per contra, the learned counsel for the respondent

submits that the marriage of the respondent with the

petitioner cannot be disputed. The respondent had filed a

petition under Section 9 of the Hindu Marriage Act seeking

restitution of conjugal rights and the jurisdictional Civil

Court at Malur has allowed the said petition and as against

the decree of restitution of conjugal rights, the petitioner

herein had filed MFA No.6412/2019 and the same was

withdrawn by him before the Division Bench of this Court.

Learned counsel for the respondent has placed reliance on

the judgment of the Hon'ble Supreme Court in the case of

Badshah v. Sou. Urmila Badshah Godse and another

reported in (2014)1 SCC 188 and submits that even the

second wife can maintain a petition under Section 125 of

Cr.P.C., if she has been duped.

6. The respondent had produced necessary documents

before the trial court to prove her marriage. Ex.P1 is the

lagna pathrika and Exs.P14 to P17 are the marriage

photos of the petitioner and the respondent. She has also

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produced other documents wherein it is recorded that she

is the wife of the petitioner. Appreciating the oral and

documentary evidence available on record, the trial court

has recorded the finding that the respondent has proved

that she is the wife of the petitioner. It was for the first

time that the petitioner had come up with a plea before

the trial court that he was already married to

Smt.Varalakshmi and from the said wedlock, the couple

have a daughter. The respondent has produced RTC of

the agricultural properties belonging to the petitioner to

prove his income. Considering the oral and documentary

evidence available on record, the trial court has awarded

monthly maintenance of Rs.5,000/- to the respondent.

The said order of maintenance passed by the trial court

has been confirmed by the Revisional Court.

7. The petitioner has raised a contention before this

Court that the second wife cannot maintain a petition

under Section 125 of Cr.P.C. and has placed reliance on

the judgments of the Hon'ble Supreme Court in the case of

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Smt. Yamunabai Anantrao Adhav v. Anantrao Shivaram

Adhav and another reported in AIR 1988 SC 644 and also

in the case of Savitaben Somabhai Bhatiya v. State of

Gujarat and others reported in AIR 2005 SC 1809. The

Hon'ble Supreme Court in the case of Badshah v. Sou.

Urmila Badshah Godse and another reported in (2014)1

SCC 188 has referred to the aforesaid two earlier

judgments of the Hon'ble Supreme Court and in para 13.2

has observed as follows:

"13.2. Secondly, as already discussed above, when the marriage between respondent No.1 and petitioner was solemnized, the petitioner had kept the respondent No.1 in dark about her first marriage. A false representation was given to respondent No.1 that he was single and was competent to enter into marital tie with respondent No.1. In such circumstances, can the petitioner be allowed to take advantage of his own wrong and turn around to say that respondents are not entitled to maintenance by filing the petition under Section 125 Cr.P.C. as respondent No.1 is not "legally wedded wife" of the petitioner? Our answer is in the negative. We are of the view that at least for the purpose of Section 125 Cr.P.C., respondent No.1 would be treated as the wife of the petitioner, going by the spirit of the two judgments we have reproduced above. For this reason, we are of the opinion that the judgments of this Court in Adhav and Savitaben cases would apply only in those circumstances where a woman married a man with full knowledge of the first

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subsisting marriage. In such cases, she should know that second marriage with such a person is impermissible and there is an embargo under the Hindu Marriage Act and therefore she has to suffer the consequences thereof. The said judgment would not apply to those cases where a man marries second time by keeping that lady in dark about the first surviving marriage. That is the only way two sets of judgments can be reconciled and harmonized."

8. Even in the present case, the material on record

would go to show that the respondent was duped and she

was totally unaware of the earlier marriage of the

petitioner. In addition to the same, the petition filed by

the respondent seeking restitution of conjugal rights has

been allowed by the jurisdictional Civil Court and the

appeal filed by the petitioner as against the decree of

restitution of conjugal rights in MFA No.6412/2019 has

been dismissed as withdrawn and resultantly the decree of

restitution of conjugal rights has attained finality. Under

the circumstances, I am of the considered view that the

petition lacks merit. Accordingly, the petition is dismissed.