Karnataka High Court
Mrs. Anita Nayak vs Mr. Uday Nayak on 8 November, 2024
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NC: 2024:KHC:45398
WP No. 22058 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
WRIT PETITION NO. 22058 OF 2023 (GM-FC)
BETWEEN:
MRS. ANITA NAYAK
D/O. RAMACHANDRA G. NAYAK,
AGED ABOUT 29 YEARS,
PRESENTLY R/AT SHIVALAYA,
GURU NAGAR, KONCHADY POST,
MARRYHILL, MANGALURU-575 008.
...PETITIONER
(BY SRI. ANANDARAMA K., ADVOCATE)
AND:
MR. UDAY NAYAK
S/O. KRISHNA NAYAK,
Digitally AGED ABOUT 33 YEARS,
signed by R R/AT MUMDADI HOUSE, SONANDOOR SCHOOL,
DEEPA BELTHANGADY TALUK, D.K. DISTRICT-574 224.
Location: ...RESPONDENT
HIGH
COURT OF (BY SRI. S. RAJASHEKAR, ADVOCATE)
KARNATAKA
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS IN MC NO. 208/2021 ON THE FILE OF THE COURT OF
PRINCIPAL JUDGE, FAMILY COURT, D.K. MANGALURU AND
SETTING ASIDE ORDER DATED 14/09/2023 (ANNEXURE-R)
PASSED BY THE COURT OF PRINCIPAL JUDGE, FAMILY COURT,
D.K. MANGALURU IN MC NO. 208/2021 AND ETC.
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WP No. 22058 of 2023
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL ORDER
This writ petition is filed challenging the order dated
14.09.2023 passed in M.C. No.208/2021 by the Principal
Judge, Family Court, D.K. Mangalore.
2. Brief facts leading rise to the filing of this writ
petition are as under:
The marriage, of the petitioner and respondent was
solemnized on 31.12.2018. The respondent filed a petition
for dissolution of their marriage. The petitioner appeared
and filed a counter denying the allegations made in the
petition. The petitioner filed I.A.No.5 under Section 24 of
the Hindu Marriage Act seeking interim maintenance to the
tune of Rs.60,000/- per month and litigation expenses to
the tune of Rs.30,000/-. The respondent filed objections to
I.A.No.5. The trial Court vide order dated 28.09.2022
allowed the I.A.No.5 in part, granted interim maintenance
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of Rs.30,000/- per month to the petitioner, and granted
litigation expenses of Rs.20,000/-.
3. The respondent, being aggrieved by the order
on I.A.No.5, filed a writ petition in W.P.No.22006/2022.
This Court, vide order dated 24.11.2022, dismissed the
writ petition. The petitioner filed an execution petition in
Ex.No.1/2023 for the execution of the order on I.A.No.5
passed in M.C.No.208/2021. The respondent filed an
application in I.A.No.10 seeking for revocation/cancellation
of order on I.A.No.5. The petitioner filed objections to
I.A.No.10. The trial Court, after hearing the parties on
I.A.No.10, passed an order dated 14.09.2023 wherein the
Family Court allowed the application in part and ordered
that till further orders, with effect from 27.12.2022 the
order passed on I.A.No.5 be kept in abeyance. The
petitioner, aggrieved by the order on I.A.No.10, filed this
writ petition.
4. Heard the learned counsel for the petitioner and
learned counsel for the respondent.
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5. Learned counsel for the petitioner submits that
the petitioner filed I.A.No.5 under Section 24 of the Hindu
Marriage Act. The application was allowed by the Family
Court, and the respondent, aggrieved by the order on
I.A.No.5, filed a writ petition before this Court. This Court
dismissed the writ petition. The order passed on I.A.No.5
has attained finality. He submits that the petitioner has
not performed the second marriage as contended by the
respondent. He submits that the respondent has made an
allegation against the petitioner to avoid the payment of
interim maintenance. Hence, the Family Court has
committed an error in passing an impugned order. Hence,
on these grounds he prays to allow the writ petition.
6. Per contra, learned counsel for the respondent
submits that the petitioner has performed a second
marriage and she is residing along with her husband.
Hence, he submits that the petitioner is not entitled to
interim maintenance as ordered in I.A.No.5. He also
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submits that before the dissolution of marriage, the
petitioner had performed a second marriage and the
marriage is void. Hence, he submits that the order passed
by the Family Court is just and proper and does not call for
any interference. Hence, on this ground prays to dismiss
the petition.
7. Perused the records and considered the
submissions of the learned counsel for the parties.
8. It is not disputed that the marriage of the
petitioner and respondent was solemnized as per the
customs prevailing in their community. The respondent
filed a petition for dissolution of their marriage. The
petitioner filed an application under Section 24 of the
Hindu Marriage Act. In the said proceedings the Family
Court allowed the said application and granted interim
maintenance of Rs.30,000/- per month from 02.09.2021
and litigation expenses of Rs.20,000/-. The respondent,
aggrieved by the order on I.A.No.5, filed a writ petition in
W.P.No.22006/2022. This Court vide order dated
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24.11.2022 dismissed the writ petition and confirmed the
order passed on I.A.No.5.
The respondent filed I.A.No.10, stating that the
respondent got married to one Mr. Harikrishna G. Keelu
and herself given an application for a change of her name
in the Maharashtra Shasan Rajpatra published from June -
1 to June -15 of 2022, and she is running a business
jointly along with said Harikrishna at Mumbai. The
petitioner denied the allegations made by the respondent
in the affidavit filed in support of the I.A.No.10.
9. Though the petitioner has produced the
documents before the Family Court i.e., an affidavit filed
by the petitioner sworn on 13.03.2023, which reveals that
the petitioner got married to Sri. Harikrishna G. Keelu, and
she intends to change her name to Anita Harikrishna Keelu
and also produced a copy of the Gazette Notification of the
Government of Maharashtra certifying that the Gazette
was published on 27.12.2023. The respondent produced
petitioner's marriage photographs. The said photographs
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were taken at the time of her second marriage with the
said Harikrishna. The said fact was denied by the
petitioner. Whether the petitioner married to Harikrishna is
a matter which requires trial. Though the respondent has
produced the materials before the Family Court prima facie
reveals that petitioner has married Harikrishna, the Family
Court, considering the material placed on record, held that
the petitioner is not entitled to claim any type of alimony
or maintenance from the husband, after her second
marriage and passed an order on I.A.No.10 stating that
order passed on I.A.No.5 be kept in abeyance till giving a
finding on the allegation of the husband that she has
entered into second marriage and also observed that only
after recording of the evidence and after giving a specific
finding on the said question of fact, it can be decided
whether the husband is liable to pay interim maintenance
as per the order passed on I.A.No.5 or not.
10. The trial Court was justified and passed
impugned judgment. If the respondent fails to prove that
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the petitioner had married Harikrishna, the petitioner will
be entitled to arrears of interim maintenance as ordered in
I.A.No.5. Hence, I do not find any error in the impugned
order.
11. Accordingly, I proceed to pass the following:
ORDER
Writ petition is dismissed.
Sd/-
(ASHOK S.KINAGI)
JUDGE
BVK
