N. Rajappa S/O Mr. Ningappa v. Laxmidevi W/O Mr. N. Rajappa
2022-09-09
E.S.INDIRESH
body2022
DigiLaw.ai
ORDER : This Revision petition is filed by the respondent in C.Misc.No.247 of 2017 on the file of the Family Court, Davanagere, challenging the order dated 01st April, 2022, allowing the petition in part. 2. For the sake of convenience, the parties in this petition are referred to with their status and rank before the Family Court. 3. It is the case of the petitioners before the Family Court that, the marriage between the petitioner No.1 was solemnized with the respondent-husband about sixteen years back and in their wedlock two children are born and they have been arraigned as petitioners 2 and 3 in the claim petition. It is further averred in the petition that the petitioners were subjected to cruelty as the respondent was not taking care of the needs of the petitioners and the respondent-husband contracted marriage with another woman and accordingly, petitioners left matrimonial home. It is further stated that the petitioner No.1 has lodged complaint against the respondent-husband has also before Channagiri Police Station and the same was registered in Crime No.59 of 2017 and is pending consideration before the Principal District and Sessions Court, Davanagere in SC No.166 of 2016 and accordingly, petitioners have filed C.Misc.No.247 of 2017 on the file of Family Court, seeking maintenance. 4. On service of notice, the respondent-husband entered appearance and filed detailed objection, however, admits the relationship between himself with the petitioner No.1-wife. It is the specific defence of the respondent-husband that the petitioners left the matrimonial home voluntarily and therefore, petitioners are not entitled for maintenance and accordingly, sought for dismissal of the petition. 5. In order to establish their case, petitioner No.1 was examined as PW1 and produced 26 documents as Exhibits P1 to P26. On the other hand, Respondent-husband was examined as RW1 and marked one document as Exhibit R1. The Family Court, after considering the material on record, by its order dated 01st April, 2022, allowed the petition in part and as such, directed the respondent-husband to pay the maintenance of Rs.5,000/- per month to the petitioner No.1-wife and Rs.4,000/- per month each to petitioners 2 and 3-children. Feeling aggrieved by the same, respondent-husband has preferred this Revision Petition. 6. Heard Sri Satyanand B.S., learned counsel appearing for the revision petitioner and Sri R. Gopal, learned counsel appearing for the respondents. 7.
Feeling aggrieved by the same, respondent-husband has preferred this Revision Petition. 6. Heard Sri Satyanand B.S., learned counsel appearing for the revision petitioner and Sri R. Gopal, learned counsel appearing for the respondents. 7. Sri Satyananda B.S., learned counsel appearing for the revision petitioner contended that the procedure contemplated under Section 126 of Code of Criminal Procedure was not followed by the Family Court while recording the evidence of parties. In this regard, he places reliance on the judgment of this court in the case of SOMASHEKARAVH v. SMT. PARVATHAMMA reported in ILR 2019 KAR. 2614. He further contended that the language employed in Section 125 of Code of Criminal Procedure is to be given effect to, whereby the unmarried daughters who have attained majority and not suffering from any physical or mental injury, are not entitled for maintenance. In this regard, he referred to the judgment of the Hon'ble Apex Court in the case of ABHILASHA v. PARKASH AND OTHERS reported in AIR 2020 SC 4355 . He further argued that as on the date of filing of the petition before the Family Court, petitioners 2 and 3 were majors and therefore, they cannot claim maintenance from the respondent and as such, sought for interference of this Court. 8. Per contra, Sri Gopal, learned counsel appearing for the respondents (petitioners before the family Court), made available the copy of the SSLC Marks cards issued by the Karnataka Secondary Education Examination Board to substantiate the proof of age of petitioners 2 and 3 and submitted that, as on the date of filing of the petition before the Family Court, the age of petitioner No.2 was 17 and the petitioner No.3 was aged 14 years and further, he made available the certified copy of the petition filed under Section 125 of Code of Criminal Procedure and argued that an error has crept in the cause title of the impugned order and therefore, he contended that petitioners 2 and 3 were minors as on the date of filing of the petition and accordingly, sought for rejection of the petition.
Insofar as the arguments advanced relating to the procedure adopted by the Family Court is concerned, learned counsel appearing for the respondents contended that the petitioner herein cannot take a plea of miscarriage of procedure, since the respondent-husband has also adduced evidence through filing of affidavit and therefore, he contended that, the petitioner is estopped from making such a submission with regard to irregularity in the procedure. Accordingly, he sought for dismissal of the petition. 9. In the light of the submission made by the learned counsel appearing for the parties, I have carefully considered the undisputed fact that the petitioner herein and the respondent No.1 are husband and wife and in their wedlock petitioners 2 and 3 are born. Accepting the documents produced by respondent to establish the age of the petitioners 2 and 3, as the respondent No.2 was born on 18th May, 2000 and respondent No.3 took birth on 23rd April, 2003, I am of the view that petitioners 2 and 3 were minors as on the date of filing petition before the Family Court seeking maintenance. Insofar as the contention raised by the petitioner with regard to the fact that the respondent No.3 herein is not entitled for maintenance till her marriage is concerned, the Hon'ble Apex Court, in the case of DR. JAGDISH JUGTAWAT v. SMT. MANJULATA AND OTHERS reported in 2002(5) SCC 422 , has held that “the language employed under Section 125 Cr.PC does not fix liability of parents to maintain children beyond attainment of majority, but right of a minor girl for maintenance from parents after attaining majority till her marriage is recognised under Section 20(3) of Hindu Adoptions and Maintenance Act.” In that view of the matter, even an unmarried daughter is entitled for maintenance from her father till she is married and same has been statutorily recognised under Section 20(3) of the Hindu Adoptions and Maintenance Act, 1956 and therefore, I do not find any substance in the arguments advanced by the learned counsel for the petitioner. That apart, I find force in the submission made by the learned counsel appearing for the respondent that the petitioner herein having adduced evidence before the Family Court by filing affidavit, thereafter, cannot raise a plea before this Court that the said procedure is irregular.
That apart, I find force in the submission made by the learned counsel appearing for the respondent that the petitioner herein having adduced evidence before the Family Court by filing affidavit, thereafter, cannot raise a plea before this Court that the said procedure is irregular. If at all, the petitioner herein was vigilant about procedural aspects, there was no impediment for the petitioner herein to raise such a plea before the Family Court and therefore, having taken the benefit of adducing evidence by filing affidavit before the Family Court the petitioner herein cannot turn around and say that procedure is irregular. In that view of the matter, the arguments advanced by the learned counsel appearing for the petitioner cannot be accepted. In the backdrop of these aspects, it is well settled principle of law that it is the duty of the husband/father has to take care of his wife and children and proceedings under Section 125 of Code of Civil Procedure is a summary proceedings and in view of the law declared by the Hon'ble Apex Court in the case of ABHILASHA (supra), the purpose of maintenance is to provide immediate relief to the destitute wife and therefore, I do not find any irregularity in the order passed by the Family Court. Recently, the Hon'ble Apex Court in the case of RAJNESH v. NEHA reported in (2021) 2 SCC 324 , has held that remedy of maintenance is a social justice and specially enacted by the Constitution of India to provide wife and children from falling into destitute and vagrancy. It is also the settled principle by the Hon'ble Apex Court in the case of BHUWAN MOHAN SINGH v. MEENA & OTHERS reported in 2015(6) SCC 353 , wherein the Hon’ble Apex Court has held that the maintenance provided for the wife is for sustenance and said sustenance does not mean animal existence but signifies leading a life similar in a manner as she would have lived in the house of her husband.
It is also well established principle in law that Section 125 of Code of Criminal Procedure is a summary proceedings and does not determine the rights of the parties and therefore, in terms of the law declared by the Hon'ble Apex Court in the case of RAJATHI v. C. GANESAN, reported in AIR 1999 SC 2374 , it is the obligation of the husband Father to look after the wife/children and he should not neglect or refuse to maintain them. 10. Further, the scope of Section 125 Code of Criminal Procedure is considered by the Hon'ble Supreme Court in the case of SHAMIMA FAROOQUI v. SHAHID KHAN reported in (2015)5 SCC 705 . In the said judgment, it is observed that Section 125 of Code of Criminal Procedure is a measure of social justice and is specially enacted to protect women and children. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and the natural duties of a man to maintain his wife, children and parents, when they are unable to maintain themselves. 11. Though the learned counsel appearing for the petitioner herein drew the attention of the Court to the evidence of the RW1, in MC No.203 of 2018 between the petitioner No.1- wife and the respondent-husband, the same cannot be a basis to deny maintenance to wife under Section 125 of Code of Criminal Procedure as the parties have to decide their personal rights in terms of the relevant law for adjudication of the relief sought for in their petitions. In that view of the matter, I do not find any material irregularity in the order passed by the Family Court wherein the Family Court, taking into consideration the financial position of the respondent-husband as per paragraph 13 of the of the judgment, has rightly awarded maintenance and there is no perversity or illegality in the order passed by the Family Court. In the result, I pass the following: ORDER : 1. Revision petition is dismissed; 2. Order dated 01st April, 2022 passed in Cri. Misc. No.247 of 2017 on the file of the Judge, Family Court, Davanagere, is confirmed; 3. Cost of Rs.10,000/- be paid by the petitioner herein to respondents herein as litigation expenses.