Karnataka High Court

Putala Bai @ Poonam vs Ajay Dhuttargi on 31 May, 2024

                                             -1-
                                                    NC: 2024:KHC-K:3502
                                                    RPFC No. 200009 of 2024




                              IN THE HIGH COURT OF KARNATAKA
                                     KALABURAGI BENCH

                           DATED THIS THE 31ST DAY OF MAY, 2024

                                           BEFORE

                          THE HON'BLE Mrs JUSTICE K S HEMALEKHA

                          REV.PET FAMILY COURT NO.200009 OF 2024

                   BETWEEN:

                   SMT. PUTALA BAI @ POONAM,
                   W/O AJAY DHUTTARGI,
                   (D/O VEERANNA HALLI),
                   AGE: 29 YEARS, OCC: NOTHING,
                   R/O: H.NO. 9-544-7/2, ALAND ROAD,
                   NEAR BHANASHANKARI SCHOOL,
                   MAHADEV NAGAR, SHAIK ROZA,
                   KALABURAGI-585 101.
                                                               ...PETITIONER
                   (BY SRI YASHAS S. DIKSHIT, ADVOCATE)

                   AND:

                   AJAY DHUTTARGI,
Digitally signed   S/O IRAPPA DHUTTARGI,
by SWETA
KULKARNI           AGE: 30 YEARS, OCC: PRIVATE SERVICE,
Location: High     R/O: NEAR JAGRUTI DEVI MANDIR,
Court of
Karnataka          56/5/15, SHAHIR VASTI,
                   BHAVANI PETH, SOLAPUR-413 002
                   (MAHARASHTRA STATE).
                                                             ...RESPONDENT

                        THIS RPFC IS FILED U/S. 19(4) OF THE FAMILY COURTS
                   ACT, PRAYING TO ALLOW THIS REVISION PETITION AND TO
                   CALL FOR THE RECORDS AND SET ASIDE THE ORDER DATED:
                   25.11.2023 PASSED IN CRL. MISC. NO.145/2022 BY THE
                   LEARNED PRL. JUDGE, FAMILY COURT AT KALABURAGI AND
                   ALLOW THE PETITION AS PRAYED AND ETC.
                              -2-
                                    NC: 2024:KHC-K:3502
                                    RPFC No. 200009 of 2024




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

                            ORDER

Dismissal of the petition filed under Section 125

Cr.P.C, has made the petitioner-wife to approach this

Court in this Revision Petition.

2. Herd Sri Yashas S Dikshit, learned counsel for

the petitioner.

3. Though the respondent is served with a notice,

he has chosen to remain absent.

4. Petition filed under Section 125 of Cr.P.C

seeking maintenance of Rs.25,000/- per month on the

ground that the respondent without any reason has

neglected the petitioner, the petitioner is totally depended

upon her parents and she has no source of her livelihood

maintenance.

5. It is further stated that the respondent-husband

is earning around Rs.50,000 per month and has willfully

neglected the petitioner.

NC: 2024:KHC-K:3502

6. Pursuant to the summons issued by the Family

Court the respondent-husband appeared filed his

objections interalia contending that the petitioner-wife has

voluntarily deserted the company of the respondent-

husband and refuse to perform her matrimonial

obligations. It is stated that the petitioner has got a

Government job in Kalaburagi and she started a new life

and that he is working as a Junior Executive at Sricollege

of Ayurvedic Sciences and Research Hospital at Bengaluru

and earning around Rs.22,000 to Rs.24,000/- per month

and that the wife is not entitle for any maintenance as she

is able to earn for herself and she has left the company of

the respondent-husband voluntarily.

7. The Family Court on basis of pleadings framed

the points for consideration:

1. "Whether the petitioner provea that, the respondent has neglected and refused to maintain her?

2. Whether the petitioners prove that she has no income, but the respondent is having sufficient income to maintain her ?

NC: 2024:KHC-K:3502

3. Whether petitioner is entitled for the relief as prayed for?

4. What order?"

8. In order to substantiate their claim the

petitioner examined herself as PW1 and got marked

documents as Ex.P1 to P3. On the other hand the

respondent examined himself as RW1 and got marked

document at Ex.R1.

9. The Family Court by the impugned order arrived

at a conclusion that in the cross-examination the

petitioner-wife has admitted that she is working as staff

nurse in GIMS hospital, Kalaburagi and holds that the

petitioner-wife is able to work and she is not entitle for

maintenance. The perusal of the impugned order more

particularly at paragraph No.12 would indicate other than

the stray admission by the petitioner-wife about working

as staff nurse, no other reasons are forthcoming to denied

maintenance to the wife. The Family Court has lost sight

of the fact that the husband is under sacrosanct duty to

NC: 2024:KHC-K:3502

provide financial support to the wife and to the minor

children. Section 125 of Cr.P.C is measure of social justice

especially to protect the weaker section of the society like

women and children and to see that they are not make to

face destitution and become liability of the society or may

be forced to adopt a life of vagrancy, in morality and crine

for their subsistence or go astray.

10. The Family Court has only considered the stray

admission in the cross-examination of the petitioner-wife,

which is not evidence by any material document. The

petitioner-wife has categorically stated that she was

working before marriage as staff nurse but after marriage

she has left the job and went to Bengaluru with the

respondent-husband. Even assuming that the petitioner-

wife is qualified and has got the earning capacity does not

relieve the husband duty to maintain the wife.

11. Learned counsel for the petitioner would submit

that the non-compliance of the procedure by the Family

Court as laid down by the Apex Court in the case of

NC: 2024:KHC-K:3502

Rajnesh Vs. Neha and Others1(Rajnesh). The

petitioner and the respondent have not filed the affidavit

as directed in the case of Rajnesh case stated supra and

on this count as well the impugned order of the Family

Court warrant interference. The affidavit was to be

submitted in maintenance proceedings as per the direction

give in Rajnesh stated supra which reads as under:

72.1. (a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of this judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending proceedings before the Family Court/District Court/Magistrate's Court concerned, as the case may be, throughout the country;

72.2. (b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets:

72.3. (c) The respondent must submit the reply along with the Affidavit of Disclosure within a maximum period of four weeks. The courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent. If the respondent delays in filing the reply with the affidavit, and seeks more than two adjournments for this purpose the court may consider exercising the power to strike off the defence of the

(2021) 2 SCC324

NC: 2024:KHC-K:3502

respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings. On the failure to file the affidavit within the prescribed time the Family Court may proceed to decide the application for maintenance on the basis of the affidavit filed by the applicant and the pleadings on record;

72.4. (d) The above format may be modified by the court concerned, if the exigencies of a case require the same. It would be left to the judicial discretion of the court concerned to issue necessary directions in this regard.

72.5. (e) If apart from the information contained in the Affidavits of Disclosure, any further information is required, the court concerned may pass appropriate orders in respect thereof.

72.6. (f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the aggrieved party may seek permission of the court to serve interrogatories, and seek production of relevant documents from the opposite party under Order 11 CPC. On filing of the affidavit, the court may invoke the provisions of Order 10 CPC or Section 165 of the Evidence Act 1872, if it considers it necessary to do so. The income of one party is often nit within the knowledge of the other spouse. The court may invoke Section 106 of the Evidence Act, 1872 if necessary, since the income, assets and liabilities of the spouse are within the personal knowledge of the party concerned.

72.7. (g) If during the course of proceedings, there is a change in the financial status of any party, or there is a change of any relevant circumstances or if some new information comes to light, the party may

NC: 2024:KHC-K:3502

submit an amended/supplementary affidavit, which would be considered by the court at the time of final determination.

72.8. (h) The pleadings made in the applications for maintenance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the court may consider initiation of proceeding under Section 340 CrPC, and for contempt of court.

72.9. (i) In case the parties belong to the economically weaker sections ("EWS"), or are living below the poverty line ("BPL"), or are casual labourers the requirement of filing the affidavit would be dispensed with.

72.10(j.) The Family Court/District Court/Magistrate's Court concerned must make an endeavour to decide the IA for interim maintenance by a reasoned order, within a period of four to six months at the latest, after the Affidavits of Disclosure have been filed before the court.

72.11. (k) A professional Marriage Counsellor must be made available in every Family Court."

12. The Family Court takes note of the fact that the

petitioner and the respondent have not filed the affidavit

of assets and liabilities and the impugned order passed by

the Family Court is bereft of reasons. Accordingly, this

Court pass the following:

NC: 2024:KHC-K:3502

ORDER

I. The revision petition filed by the wife is allowed in part. The impugned order passed by the Family Court is set aside.

II. The matter is remitted back to the Family Court for afresh consideration in accordance with law. All the contentions are kept open.

III. Petitioner to appear before the Family Court on 25.06.2024, since respondent is served unrepresented, the Family Court to take appropriate recourse.

IV. Petitioner and respondent to file their Assets and liabilities as per the decision of the Apex Court in the case of Rajnesh stated supra and on filing of such affidavit of assets and liabilities the Family Court to pass appropriate order.