Research › Search › Judgment

Karnataka High Court · body

2009 DIGILAW 787 (KAR)

Ravindra Kumar v. Renuka

2009-10-16

A.S.PACHHAPURE

body2009
ORDER A.S. Pachhapure, J : The petitioner who is the husband of the first respondent herein has filed this revision challenging the order granting maintenance of Rs. 5,000/- to the first respondent and Rs.3,000/- to the second respondent. 2. The facts relevant for the purpose of this revision are as under: I will be referring the parties as per their rank before the Trial Court for the purpose. of convenience. The respondents herein are the petitioners before the Family Court and they submitted an application under Section 125 of Cr.P.C. requesting for maintenance of Rs.5,000/- per month for the first petitioner and Rs.3,000/- per month for the second petitioner against the respondent/petitioner herein. It is averred that the marriage between the petitioner and the first respondent was solemnized about 12 years prior to the petition and she also alleged that there was refusal and neglect on the part of the respondent in maintaining them. Furthermore, it is averred that the respondent is an agriculturist and gets house rent of Rs.36,000/- per year, Rs.1,20,000/- per year from Dalal shop and Rs.2,00,000/- from his slab business. She averred that the respondent is having sufficient means to pay the maintenance. 3. In pursuance of the notice issued, the respondent herein admitted the relationship with the first petitioner and however denied his relationship with the second petitioner. He contended that the first petitioner was with him for about six months after the marriage and thereafter she was residing in her parental home. He denied the liability, refusal, neglect and the income alleged by the petitioner. In the circumstances, he sought for dismissal of the petition. 4. During the pendency of the petition, an interim order of maintenance was granted and the first petitioner was awarded Interim Maintenance of Rs.2,000/- per month, whereas the second petitioner was awarded Rs. 1,000/- per month. When the respondent did not pay the Interim Maintenance, the Learned Judge passed an order on 24.1.2009 striking the defence of the respondent on the ground that the Interim Maintenance was not paid. And thereafter, the first petitioner was examined as PW- 1 on 26.2.2009 and the documents Exs. P-1 to P7 were marked in evidence. 1,000/- per month. When the respondent did not pay the Interim Maintenance, the Learned Judge passed an order on 24.1.2009 striking the defence of the respondent on the ground that the Interim Maintenance was not paid. And thereafter, the first petitioner was examined as PW- 1 on 26.2.2009 and the documents Exs. P-1 to P7 were marked in evidence. As the respondent was absent, the Counsel prayed for time and the Learned Judge holding that the defence of the respondent was struck of by the order dated 24.1.2009, the request of the Counsel praying time was rejected and he heard the Learned Counsel for the petitioner and posted the matter for judgment on 28.2.2009 on which date, he pronounced the order directing the respondent to pay monthly maintenance of Rs.5,000/- to the first respondent and Rs. 3,000/- to the 2nd petitioner from the date of the petition. Aggrieved by the order, this revision is preferred by the husband. 5. I have heard the Learned Counsel for the petitioner and also the respondents. 6. The point that arise for my consideration is: “Whether the Court below, in the proceedings under Section 125 of Cr.P.C. can strike off the defence for non payment of the Interim Maintenance ordered by it? 7. It is the contention of the Learned Counsel for the petitioner that there was no opportunity for the petitioner herein to lead this evidence in view of the fact that his defence was struck off and he also claims that the order striking of the defence is illegal and in the circumstances, he submits it is a fit case to be remitted to the Court below for giving an opportunity to the petitioner to lead the evidence. 8. Per contra, the Learned Counsel for the respondents has supported the judgment and order of the Courts below. 9. I have carefully scrutinized the evidence led, the order sheet of the Trial Court and also the impugned judgment and order. It is relevant to note that the petitioner filed an application for Interim Maintenance and an amount of Rs. 2,000/- to the first petitioner and Rs.1,000/- to the second petitioner per month was passed on 17.12.2008. It is on 24.1.2009 for the first time, the Court below passed an order striking off the defence on the ground that the Interim Maintenance was not paid. 2,000/- to the first petitioner and Rs.1,000/- to the second petitioner per month was passed on 17.12.2008. It is on 24.1.2009 for the first time, the Court below passed an order striking off the defence on the ground that the Interim Maintenance was not paid. The perusal of the provisions of Section 125 Cr.P.C. or even the Family Courts Act, does not provide any such authority to the Courts to strike off the defence for non payment of the Interim Maintenance. Furthermore, the Learned Counsel for the respondent is not able to show any such provision wherein the defence could be struck off for non payment of the maintenance for a month as per order dated 17.12.2008. It is necessary to note that whenever an order of Interim Maintenance is passed, it can be enforced by filing a petition under Section 128 of the Cr.P.C. The Court below has overlooked the provisions of Section 128 Cr.P.C. The petitioners ought to have filed a petition for enforcement of the order of Interim Maintenance obtained in the proceedings under Section 125 CLP.C. Therefore I am of the view that the Court below was wrong in striking off the defence of the respondent solely on the ground that one month's Interim Maintenance was not paid. Furthermore, it is relevant to note that the defence was struck off on 24.1.2009 and the matter was adjourned to next date i.e. on 26.2.2009 wherein the petitioner was examined as PW-1 and Exs. P-1 to P-7 were marked, on that day, the Counsel for the respondent prayed for time but solely on the ground that the defence was struck of, time was not granted and the Counsel for the petitioners was heard and the judgment was pronounced on the next date. This would go to show that the Trial Court hurried to pass the order of maintenance and the petition has been disposed of within 11 months from the date of filing of the petition. It is necessary to grant reasonable opportunity to the parties to pass appropriate orders. In view of the fact that the Trial Court committed an error by striking off the defence and passed the order without giving any opportunity to the respondents. I am of the view that the judgment and order is illegal and has to be set aside. It is necessary to grant reasonable opportunity to the parties to pass appropriate orders. In view of the fact that the Trial Court committed an error by striking off the defence and passed the order without giving any opportunity to the respondents. I am of the view that the judgment and order is illegal and has to be set aside. Hence, I answer the point in Negative and proceed to pass the following: ORDER The revision petition is allowed. The order impugned in this revision granting maintenance of Rs.5,000/- to the wife and Rs.3,000/- to the daughter per month is set aside. The order of Interim Maintenance passed by the Trial Court is maintained till the termination of the proceedings in the Court below. The order of striking off the defence is also set aside. The Trial Court shall give an opportunity to the respondent to file the objection statement and to lead the evidence and thereafter dispose of the case in accordance with law.