Karnataka High Court
Shri Sangam S/O Topanna Yallurkar vs Smt. Saraswati W/O Sangam Yallurkar on 24 February, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2025:KHC-D:3734
CRL.RP No. 100285 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 24TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL REVISION PETITION NO.100285 OF 2024
[397(Cr.PC)/438(BNSS)]
BETWEEN:
SHRI SANGAM S/O. TOPANNA YALLURKAR,
AGE: 54 YEARS, OCC. PVT. SERVICE,
R/O. H.NO.259, UPPAR GALLI, KHASBAG,
BELAGAVI-590001, TQ. AND DIST. BELAGAVI.
... PETITIONER
(BY SRI DEEPAK S. KULKARNI, ADVOCATE)
AND:
1. SMT. SARASWATI W/O. SANGAM YALLURKAR,
AGE: 45 YEARS, OCC. PVT. SERVICE,
R/O. EWS-360, ASHOK NAGAR,
BELAGAVI-590001, TQ. AND DIST. BELAGAVI.
2. KUMAR SAMARTH S/O. SANGAM YALLURKAR,
Digitally
signed by
MALLIKARJUN
MALLIKARJUN RUDRAYYA
AGE: 12 YEARS, OCC. STUDENT,
RUDRAYYA
KALMATH
KALMATH
Date:
2025.02.25
R/O. EWS-360, ASHOK NAGAR,
14:30:49
+0530
BELAGAVI-590016, TQ. AND DIST. BELAGAVI,
SINCE MINOR R/BY. RESPONDENT NO.1
AS NATURAL MOTHER GUARDIAN.
... RESPONDENTS
(R1 AND R2-NOTICE SERVED AND UNREPRESENTED)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) READ WITH UNDER SECTION 401 OF CR.P.C.
SEEKING TO SET ASIDE THE ORDER DATED 06.06.2024 AND
18.06.2024 PASSED IN THE CRIMINAL APPEAL NO. 310/2023, BY
THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI,
WHICH WAS FILED UNDER SECTION 29 OF THE PROTECTION OF
WOMEN FROM DOMESTIC VIOLENCE ACT-2005, (ANNEXURE-A) AND
RESTORE CRIMINAL APPEAL NO.310/2023, TO ITS ORIGINAL FILE.
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CRL.RP No. 100285 of 2024
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)
Challenging judgment/order dated 18.06.2024 by V
Additional District and Sessions Judge, Belagavi ('Appellate
Court', for short) in Crl.A.no.310/2023, this revision petition is
filed.
2. Sri Deepak S. Kulkarni, learned counsel for petitioner
submitted, respondents filed Crl.Misc.no.54/2019 under Section
12 of Protection of Women from Domestic Violence Act, 2005
('DV Act' for short), alleging that she married petitioner on
06.05.2007 at Belagavi as per Hindu Customs and had two
children. She stated, petitioner was a Physiotherapist earning
more than Rs.50,000/- p.m. and owned immovable properties,
but addicted to vices. Though she was a tolerant and patient
wife, he was defamatory, vulgar, violent and abusive with her.
During initial period of matrimony, they resided together with
his mother and led normal marital life. After petitioner's sister
joined them, they began abusing her. Even though she had
borrowed money from her family and raised hand loans and
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kept matrimonial home under good repair, she was thrown out
by petitioner's mother and sister.
3. At that time, petitioner had got her to rent a house,
falsely promising to take care of expenses and forcing to work
as housemaid to make ends meet. While she bore burden of
providing for children's education, health etc., petitioner spent
lavishly on unnecessary things. And whenever she insisted him
to stop wasteful expenditure, he threaten her with lodging false
complaint and also got so abusive and violent, that she had to
escape from house to save herself. Advice from well-wishers
did not stop his cruel behavior. Out of fear and pressure from
his relatives, she was forced not to file complaint and also gave
incorrect information to avoid registration of 'MLC' at Civil
Hospital, Belagavi. As petitioner and his family continued to
beat her, she bore it at peril to her life and for peace in her
marriage. It was alleged that petitioner, his mother and sister
had snatched her gold and ornaments she got as Stree Dhana.
And that by giving earnings to his mother and sister and
spending on himself, petitioner forced her to work as
housemaid to make ends meet. But, he hurled abuses standing
in front of houses where she worked as maid and had willfully
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withdrew from her company and refused to maintain her and
children. He also stole her daughter's undergarments and sold
them on street.
4. Under above circumstances, where petitioner with
income of more than Rs.50,000/- p.m., owning house in
Khasbag, plots, fixed deposits, vehicles etc., had not only failed
and neglected to maintain wife and children but also harassed
and physically and mentally abused her causing her marriage to
completely break down, she was constrained to file petition for
relief of separate residence, monetary relief, order of
protection, damages and maintenance etc.
5. It was submitted, after appearance, petitioner had
opposed petition. In said petition, she had filed application
under Section 23 (2) of DV Act for interim maintenance. Under
order dated 31.07.2023, trial Court allowed application and
directed to petitioner to pay interim maintenance to each of
respondent and children.
6. Aggrieved petitioner filed Crl.A.no.310/2023 on
08.11.2023 urging various grounds. As there was delay of 2
months 8 days, an application for condonation was filed under
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Section 5 of Limitation Act. Same was allowed on 06.06.2024,
subject to deposit of 50% of balance interim maintenance
within 10 days, which was too onerous. Thereafter, only on
ground that interim order was not complied, appeal came to be
dismissed. It was submitted, impugned order was contrary to
law and unsustainable.
7. It was submitted, order of interim maintenance was
unsustainable, having been filed after petitioner had filed
M.C.no.450/2018 for restitution of conjugal rights, petition as
well as application under DV Act was only to harass petitioner
and without any basis to establish petitioner had income of
more than Rs.50,000/- p.m. It was further submitted petitioner
was physical disabled person and earning from physiotherapy.
Under such circumstances, imposition of condition of deposit
amounted to denial of opportunity to challenge order of interim
maintenance. Therefore, order passed by Appellate Court was
contrary to law. On above grounds sought for allowing petition.
8. On other hand, respondents are served
unrepresented.
9. Heard learned counsel and perused impugned order.
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10. From above, point that would arise for consideration
is:
"Whether impugned order passed by Appellate
Courts call for interference?"
11. In this petition, petitioner is challenging order passed
by Appellate Court dismissing appeal for failure of petitioner-
appellant to comply with condition imposed for condonation of
delay.
12. Petitioner does not dispute that Crl.A.no.310/2023
was filed with delay of 2 months 8 days. While condoning
same, Appellate Court had imposed condition for deposit of
50% of arrears of maintenance within 10 days. Even legality of
said order is not in question. Only order dismissing appeal after
petitioner apparently refused to comply with condition for
deposit, is under challenge.
13. While it would not be hard to fathom, reason for trial
Court ordering interim maintenance, as there was no dispute
about petitioner's marriage with respondent no.1 and they
having children and petitioner being qualified physiotherapist
while respondent no.1 claiming to be surviving by working as
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maid and about possibility of petitioner preferring this revision
in order to dilate proceedings, by urging various grounds, ratio
laid down in case of Vedabai v. Shantharam Baburao Patil,
reported in AIR 2001 SC 2582, for condonation of delay
requires to be taken into account:
"5. In exercising discretion under Section 5 of
the Limitation Act the courts should adopt a
pragmatic approach. A distinction must be
made between a case where the delay is
inordinate and a case where the delay is of a
few days. Whereas in the former case the
consideration of prejudice to the other side will be a
relevant factor so the case calls for a more cautious
approach but in the latter case, no such
consideration may arise and such a case deserves a
liberal approach. No hard-and-fast rule can be laid
down in this regard. The court has to exercise the
discretion on the facts of each case keeping in mind
that in construing the expression "sufficient cause",
the principle of advancing substantial justice is of
prime importance. In our view in this case, the
approach of the learned Additional District Judge is
wholly erroneous and his order is unsustainable. It
is evident that the discretion under Section 5
of the Limitation Act is exercised by the
Additional District Judge in contravention of
the law laid down by this Court, that the
expression "sufficient cause" should receive
liberal construction, in a catena of decisions
(see State of W.B. v. Administrator, Howrah
Municipality [(1972) 1 SCC 366] and Sandhya Rani
Sarkar v. Sudha Rani Debi [(1978) 2 SCC 116] ).
The High Court in exercising its jurisdiction under
Section 115 CPC failed to correct the jurisdictional
error of the appellate court."
14. In light of above observations, whether for delay of 2
months and 8 days, appellate Court was justified in imposing
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condition of deposit of 50% of arrears of interim maintenance
that too within a period of 10 days, would require
consideration. When mandate is to be liberal and condone delay
unconditionally and to impose costs/conditions only where
some amount of negligence is attributable to appellant,
appellate Court herein imposed condition of deposit of 50% of
arrears of maintenance for condonation of delay, and thereafter
dismissal of appeal for non-compliance with said condition,
would require to be set-aside. Under above circumstances, it
would be appropriate to permit petitioner to comply with
condition within specific period and direct Appellate Court to
decide Appeal on merits but by issuing appropriate directions as
would protect interests of complainant in avoiding further
delay. Thus, point for consideration is answered partly in
affirmative. Hence, following:
ORDER
1. Revision petition is allowed in part, impugned
order dated 18.06.2024 passed by V
Additional District and Sessions Judge,
Belagavi in Crl.A.no.310/2023, is set aside.
2. Consequently, Crl.A.no.310/2023, is restored
to file.
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3. Since only petitioner is represented, he is
directed to appear before Appellate Court on
24.03.2025 without awaiting any fresh notice.
4. Thereafter Appellate Court is directed to issue
notice to respondents/complainants and
proceed to dispose of appeal on merits as
early as possible within an outer limit of four
months.
SD/-
(RAVI V.HOSMANI)
JUDGE
GRD
CT:PA
