IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7543 OF 2015 BETWEEN:
AMERA BEGUM W/O NASIR USSAIN AGED ABOUT 26 YEARS R/AT NO.118, EWS 3RD STAGE, HANUMANTH NAGAR BANNIMANTAP MYSURU. … PETITIONER (BY SRI S.N.BHAT, ADVOCATE) AND:
1. NASIR HUSSAIN S/O SOUKATH HUSSAIN AGED ABOUT 29 YEARS 2. GULNAZ HUSSAIN W/O SOUKATH HUSSAIN AGED ABOUT 50 YEARS 3. SOUKATH HUSSAIN S/O LATE ABDUL WAHAB AGED ABOUT 60 YEARS 4. SAHERA BEGUM W/O NURULLA KHAN AGED ABOUT 28 YEARS 5. GULSHAN BEGUM W/O FIROZ KHAN AGED ABOUT 27 YEARS ALL ARE R/AT. NO.2331 8TH CROSS, BASAVESHWARA NAGAR K.R.MOHALLA MYSURU-570005. …RESPONDENTS (BY SRI AMSHITH HEGDE H.S, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY PRINCIPAL DISTRICT AND SESSIONS JUDGE, MYSURU DATED 26.09.2015 IN CRIMINAL APPEAL NO.132/2015 AND ALSO ORDERS PASSED BY THE III ADDITIONAL, 1ST CIVIL JUDGE & J.M.F.C., MYSURU IN C.MIS.NO.102/2013 DATED 30.05.2015.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard.
2. Petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before III Additional, 1st Civil Judge & J.M.F.C., Mysuru seeking certain reliefs from the respondents. The petition though was filed on 29.07.2013, after service of notice, petitioner appeared before the Court on 25.06.2014 and thereafter, the petitioner having remained absent on four consecutive dates of hearing, learned Magistrate by order dated 30.05.2015 dismissed the petition for non-prosecution. The appeal preferred against the said order has also been dismissed vide order dated 26.09.2015 in Criminal Appeal No.132/2015 on the ground that the petitioner has failed to make out substantial ground for her absence.
3. On going through the order sheet maintained by the trial Court, it reveals that petitioner remained absent after service of notice to the respondents. The case was not taken up for some time on account of the Presiding Officer having been sent for training. Thereafter, when the case was posted for hearing on 17.03.2015, petitioner and his counsel were present and time was sought for examination of the petitioner which indicates that the petitioner was interested in pursuing the petition. But on subsequent four adjourned dates, the petitioner having remained absent, learned Magistrate was justified in dismissing the complaint for non- prosecution.
4. However having regard to the circumstances of the case and moreover, the petitioner being a woman having invoked the jurisdiction of trial Court under the provisions of the Domestic Violence Act, 2005, the absence of the petitioner may have to be viewed as unintentional and unavoidable. The order sheet maintained by the trial Court reveals that even though interim order was passed directing respondent No.1 to pay monthly maintenance of Rs.5,000/- to the petitioner, there is nothing on record to show that such amount was being paid to the petitioner so as to enable her to proceed with the matter.
5. In the above circumstances, in the interest of justice, an opportunity is required to be given to the petitioner to substantiate her claim before the trial Court. In that view of the matter, the impugned orders passed by the Courts below are set aside.
Accordingly, petition is allowed. The proceedings in C.Misc.No.102/2013 is directed to be restored to file. In order to expedite the proceedings, parties are directed to appear before the trial Court on 08.08.2019 without any further notice.
PYR Sd/- JUDGE