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2003 DIGILAW 618 (KAR)

DUNDAPPA FAKIRAPPA TALWAR v. LAXIMIBAI

2003-07-30

body2003
( 1 ) THE unsuccessful husband has filed the above two revision petitions under Section 397 and 401 Cr. P. C. and also under Section 482 Cr. P. C. respectively, challenging the order dated 8. 3. 2001 passed in Crl. Misc. No. 132/98 and Crl. p. 111/98 passed by the II Addl. Sessions Judge, Belgaum, to modify the order dated 8. 1. 1998 passed by the JMFC, Hukkeri in Crl. Mis. No. 173/1995 and to allow the Crl. R. P. No. 111/1998. ( 2 ) BRIEF facts leading to these petitions are that respondent is the legally wedded wife of the petitioner Dundappa and out of their wedlock a male child, namely Mahantesh Dundappa, was born and the respondent-1, wife, and respondent-2, son, have filed Crl. Misc. No. 26/1981 before the JMFC, Hukkeri, under Section 125 Cr. P. C. for grant of the maintenance amount on the ground of desertion. Therefore after considering the evidence the Magistrate allowed the said application by this order dated 12. 7. 1988 and subsequently respondent-1 and 2 filed and Crl. Misc. No. 173/98 under Section 127 Cr. P. C. with a prayer to enhance the maintenance amount from Rs. 200/- to Rs. 500/- to the wife and Rs. 100/- to Rs. 500/- to the son. That petition was contested by the revision petitioner. After considering the evidence of both parties the trial court allowed the petition by an order dated 8. 1. 1998 and enhanced the compensation from 8. 1. 1998 and enhanced the compensation from Rs. 200/- to Rs. 35/- to the wife and from Rs. 100/- to Rs. 200/- to the son. Aggrieved by the said orders the petitioner herein challenged the same by filing Crl. R. P. 111/1998 before the II Addl. Sessions Judge, Belgaum, whereas respondents-1 and 2 being the wife and son of the revision petitioner have challenged the order by filing Crl. R. P. 132/1998. After hearing both parties in both cases the learned Sessions Judge passed a common order dismissing the revision petition filed by this revision petitioner i. e. Crl. R. P. 111/98 and allowed the Crl. R. P. 132/98 filed by the wife and son for enhancement of compensation from Rs. 350/- to Rs. 500/- to the wife and Rs. 200/- to Rs. 500/- to the son. R. P. 111/98 and allowed the Crl. R. P. 132/98 filed by the wife and son for enhancement of compensation from Rs. 350/- to Rs. 500/- to the wife and Rs. 200/- to Rs. 500/- to the son. Further, the learned Sessions Judge directed this revision petitioner to pay the enhanced amount to wife from the date of filling of the petition and as far as his son is concerned the enhance amount was directed to the paid to him upon 10. 9. 1998. Therefore, the petitioner herein challenged the common order passed by the learned Sessions Judge by way of this revision under Section 397 and 401 as also under Section 482 Cr. P. C. ( 3 ) HEARD the arguments of the learned counsel for the petitioner as also the respondent. / ( 4 ) IT is contended by the learned counsel for the revision petitioner that since the first respondent had deserted him therefore he filed Misc. Case No. 8/1994 before the Family Court under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights and the said petition came to be allowed therefore the revision petitioner is not expected to pay any maintenance either to the wife or to his son, therefore the orders passed by the learned Sessions Judge as well as the trial Court are illegal and incorrect and does not call for any interference and that there is an abuse of due process of law in directing the revision petitioner to pay maintenance from the date of the petition under Section 127 Cr. P. C. Since respondent-1 has not complied with the order passed by the Family Court, the revision petitioner is not obliged to pay any maintenance and both the courts have come to a wrong conclusion and recorded an illegal finding by holding that this petitioner is liable to pay enhanced maintenance at the rate of Rs. 500/- per month to each of the respondent. In support of his contention the learned counsel for the petitioner relied on a decision reported in the case of TEJA SINGH v. SMT. CHHOTO 1 (AIR 1981 CRL. 500/- per month to each of the respondent. In support of his contention the learned counsel for the petitioner relied on a decision reported in the case of TEJA SINGH v. SMT. CHHOTO 1 (AIR 1981 CRL. L. J. 1467) wherein Punjab and Haryana High Court held that: petition by wife under S. 125 for maintenance on ground of desertion by husband Her application under Sec 9, Hindu Marriage Act (1955), already dismissed on ground that it was she who had deserted her husband Held, finding was binding on Magistrate Magistrate could not come to a contrary finding and grant maintenance. ( 5 ) OF course in the instant case the learned counsel for the revision petitioner submitted that the petitioner has filed Misc. Case no. 8/1994 but the failed to produce the certified copy of the orders passed, if any, by the Family Court, to show that the Misc. Case No. 8/1994 came to be allowed and directed the wife to join her husband i. e. , petitioner. Accordingly, the contention of the learned counsel for the petitioner cannot be accepted. Therefore, the decision referred to by the learned counsel for the revision petitioner cannot be made applicable to the facts of this case. ( 6 ) IT is further contended by the learned counsel for the petitioner that it is a settled law that the maintenance amount awarded by the court below from the date of the petition but not from the date of subsequent application filed under section 125 Cr. P. C. Therefore the trial Court as well as the learned Sessions Judge have completely given go by to this aspect and had come to a wrong conclusion. P. C. Therefore the trial Court as well as the learned Sessions Judge have completely given go by to this aspect and had come to a wrong conclusion. In support of this he has relied on a decision of the Patna High Court reported in the case of ENAMUL HAQUE v. BIBI TAIMUNNISS 2 (AIR 1967 PATNA 344) has held that: for the purpose of maintenance whether claimed in an application under S. 488, Criminal P. C. or by a regular suit, relationship of husband and wife will be deemed to subsist Divorce, if any, will be final only after the wife is informed of it and will be deemed to come into effect on the date she comes to know of it Wife claiming maintenance in an application under S. 488, Criminal P. C. Husband, in written statement, alleging that he had divorced her on a certain date Divorce found to have been pronounced on the alleged date - Yet, wife will be saddled with knowledge of divorce from the date of filing of the written statement by husband and not from the date of examination of the husband in the Court. ( 7 ) OF course in the instant case the date of enhancement of maintenance was granted by the trial court from the date of filing of the petition under Section 125 Cr. P. C. Therefore the contention of the learned counsel for the petitioner that the findings of both the courts below does not call for interference. It is curious to note that the revision petitioner has not challenged the order dated 12. 7. 1988 passed by the Magistrate in Crl. Misc. 26/1981. So in the year 1995 both respondents have filed petition under Section 127 Cr. P. C. for enhancement of the maintenance considering the increase in cost of living. As far as the quantum of enhancement of maintenance is concerned the learned Sessions Judge took judicial note of the fact that from the date of Ex. P2 issued by the competent authority that the salary of the petitioner husband might have been increased from Rs. 4587/- to Rs. 7000/ -. Therefore, the learned Sessions Judge has given proper and acceptable reason regarding the enhancement of the maintenance from Rs. 350/- to Rs. 500/ -. P2 issued by the competent authority that the salary of the petitioner husband might have been increased from Rs. 4587/- to Rs. 7000/ -. Therefore, the learned Sessions Judge has given proper and acceptable reason regarding the enhancement of the maintenance from Rs. 350/- to Rs. 500/ -. So viewed from any angle I do not find any perverse or incorrect findings recorded by the learned Sessions Judge is allowing the Crl. R. P. No. 132/98. But the learned Sessions Judge directed this revision petitioner to pay enhanced maintenance from the date of filing of the Crl. Misc. No. 26/1981 appears to be not correct but respondents-1 and 2 are entitled to enhanced maintenance amount from the date of filing Crl. Misc. No. 173/1995 i. e. , from 15. 11. 1995. ( 8 ) ACCORDINGLY, revision petition Crl. R. P. 3119/2001 stands dismissed whereas Crl. R. P. 519/2001 is allowed in part. No order as to costs. --- *** --- .