Karnataka High Court

Hasandongari S/O Gafursab Hipparagi vs Nasreen W/O Hasandongri Hipparagi on 31 May, 2024

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                                                    NC: 2024:KHC-K:3469
                                                    RPFC No. 200073 of 2023




                              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.200073/2023

                   BETWEEN:

                   SRI HASANDONGRI
                   S/O GAFURSAB HIPPARAGI
                   AGED ABOUT 36 YEARS,
                   OCC: CONTRACTOR/MASON,
                   R/O: MAIBOOB NAGAR, SHETTY HOTEL,
                   SAI PARK ROAD,
                   VIJAYAPUR-586101.
                                                               ...PETITIONER
                   (BY SRI S.S. MAMADAPUR, ADVOCATE)

                   AND:

Digitally signed   SMT. NASREEN
by SUMITRA
SHERIGAR
                   W/O HASANDONGRI HIPPARAGI,
Location: High     AGED ABOUT 35 YEARS,
Court of
Karnataka          OCC: HOUSEHOLD WORK,
                   R/O: MAIBOOB NAGAR,
                   NEAR SAINT JOSEPH SCHOOL,
                   VIJAYPUR-586101.
                                                             ...RESPONDENT
                   (BY SRI YASHAS S. DIKSHIT, ADVOCATE)

                        THIS RPFC IS FILED UNDER SECTION 19(4) OF THE
                   FAMILY COURTS ACT, PRAYING TO SET ASIDE THE JUDGMENT
                   DATED 10.03.2023 PASSESD BY THE I ADDL. PRINCIPAL
                   JUDGE, FAMILY COURT, VIJAYAPUR IN CRL. MISC.192/2022.
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                                       NC: 2024:KHC-K:3469
                                        RPFC No. 200073 of 2023




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


                           JUDGMENT

Heard Sri S.S. Mamadapur, learned counsel for the

petitioner and Sri Yashas S. Dikshit, learned counsel for the

respondent.

2. Husband is before this Court assailing the order in

Crl.Misc. No.192/2022 dated 10.03.2023 on the file of the I

Addl. Principal Judge, Family Court, Vijayapur (hereinafter

referred to as 'Family Court' for short), whereby, petition filed

under Section 125(1)(a) of Code of Criminal Procedure (for

short Cr.P.C)., by the wife claiming monthly maintenance of

Rs.40,000/- was allowed in part directing the husband to pay

monthly maintenance of Rs.6,000/- to the wife from the date of

petition till her re-marriage or last breath.

3. Parties herein are referred to as per their ranking

before the Family Court for the sake of convenience.

4. The claim made by the wife is that she has no

income for sustenance and the husband has willfully neglected

to maintain her inspite he having sufficient means of income of

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Rs.2,00,000/- through contract work and he is also getting rent

of Rs.30,000/- from the house he has given on rent and the

husband has capacity to maintain her as sought for by the wife.

5. The husband appeared and filed his objections

interalia not disputing marriage between them. However, he

contended that earlier to their marriage, she had married one

Rafiq and out of the said wedlock she has a son, who is working

in Mumbai and drawing salary of Rs.30,000/- per month. It is

the case of the husband that wife is suffering from illness and

she has removed uterus by way of surgery, which was not

disclosed at the time of the marriage. Further, it is stated that

he got re-married another lady and they are having a female

child and he is earning only Rs.6,000/- to Rs.7,000/- per

month.

6. The Family Court on the basis of the pleadings

framed the necessary points for consideration, which reads as

under:

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

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2. Whether the petitioner proves that, she is entitled for maintenance? If so, to what extent?

3. What order?

7. In order to substantiate their claim, wife examined

herself as PW1 and got marked the documents at Exs.P1 to P5.

On the other hand, husband examined himself as RW1 and one

independent witness as RW2, no documentary evidence was

marked on his behalf. The Family Court based on the

pleadings, oral and documentary evidence arrived at a

conclusion that the wife has proved that the husband has

neglected and refused to maintain her and held that the wife is

entitled for maintenance under Section 125 of Cr.P.C.

8. Learned counsel for the petitioner mainly would

urge that the evidence by way of affidavit, where petition was

filed under Section 125 of Cr.P.C is not permissible and the

procedure adopted by the Family Court is not in accordance

with Section 126 of Cr.P.C.

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9. 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 provision of 126 (2) of

Cr.P.C. The proceedings initiated by the wife is under Section

125 of Cr.P.C. While dealing with Section 125 of Cr.P.C., it

says that if any person having sufficient means neglects or

refuses to maintain his wife in case she is unable to maintain

herself, there shall be an order to such person to pay a monthly

allowance for interim maintenance of his wife and the expenses

of such proceedings and shall be payable from the date of the

application.

Section 126 of Cr.P.C., reads as under:

"(1) Proceedings under section 125 may be taken against any person in any district--

1. where he is, or

2. where he or his wife resides, or

3. where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(2) 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

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shall be recorded in the manner prescribed for summons-cases;"

10. The Family Court has failed to adopt the proper

procedure as envisage in Sub-Clause(2) of 126 of Cr.P.C on this

count alone the impugned order needs to set aside.

11. Placing reliance on explanation 'B' of Section 125 of

Cr.P.C., petitioner's counsel would urge that petition filed by

the wife under Section 125 Cr.P.C., was not maintainable as

previous marriage solemnized with one Rafiq was not dissolved

in accordance with law, at this stage learned counsel for the

respondent would submit that the Family Court has considered

the very contention of the petitioner and awarded maintenance

to the respondent-wife. The respondent would contend that

marriage of respondent-wife with one Rafiq was dissolved and

Khulanama is produced by the respondent by way of additional

document.

12. The learned counsel would submit that in the event

this Court remands the matter to Family Court for not following

the procedure under Section 126 (2) of Cr.P.C, respondent be

permitted to place additional evidence as petitioner has

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disputed the marriage being not valid. There appears to be

sufficient force in submission of the learned counsel appearing

for the respondent.

13. The procedure to be followed by the Family Court in

recording evidence is prescribed in Section 126 Cr.P.C and the

procedure to be followed under Section 126 Cr.P.C is no longer

a res integra in light of catena of judgments in line and

accordingly, the present petition filed by the petitioner needs to

be allowed. However, for the lapses on the part of the Family

Court for not following proper procedure in conducting the

proceedings, the respondent-wife cannot be penalized and for

her sustenance till the disposal of the proceedings as an interim

maintenance needs to be awarded.

14. The husband has lived with his wife for nearly 15

years and now has taken a contention that the marriage is

invalid, when the wife files a petition for maintenance, stating

that her marriage with her earlier husband was not dissolved.

Keeping open all the contentions and to see that the wife is not

put to destitution and hardship, this Court feels it appropriate

to direct the husband to pay a monthly maintenance of

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Rs.4,000/- to the wife while pending consideration of the

criminal miscellaneous before the family Court. Accordingly,

this Court pass the following: