IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.2890/2016 BETWEEN:
1. Anitha @ Bhagya W/o Shankara, Aged about 34 years, 2. Kum. Chandana Aged about 10 years, Represented by her Natural Guardian Mother Petitioner No.1.
Both are R/at Doddamuladodyu Village, Bannur Hobli, T.N. Pura Taluk, Mysuru District – 571 124. …Petitioners (By Sri. Kumara K.G., Advocate) AND:
Basavaraju, S/o. Theete Mullaiahna Chikkaiah, Aged about 49 years, R/o Thalagavadi Village, Kirugavalu Hobli, Malavalli Taluk – 571 430. … Respondent (By Sri. Krishna .R, Advocate – Absent ) This Criminal petition is filed under Section 482 of Cr.P.C. praying to set aside the order dated 17.12.2015 passed by the Principal Sessions Judge, Mandya in Crl. R.P.No.175/2014 and confirm the order in Crl. Misc. No.62/2011 on the file of the JMFC, Malavalli and consequently set aside the order dated 17.12.2015 passed by the Principal Sessions Judge, Mandya in Crl. R.P. No.175/2014.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Petitioners are aggrieved by the order passed by the Prl. District & Sessions Judge, Mandya, in Crl.P.No.175/2014 dated 17.12.2015, whereby the learned Sessions Judge allowed the Revision Petition filed under Section 397 of Cr.P.C. and consequently, modified the order passed by the JMFC, Malavalli in C.Mis.62/2011 thereby setting aside the maintenance granted to petitioner No.1 at Rs.1,000/- per month and confirmed the order insofar as the grant of maintenance to petitioner No.2.
2. Petitioner No.1 herein filed a petition under Section 125 of Cr.P.C. claiming maintenance from the respondent for herself and on behalf of her minor child namely petitioner No.2 before the trial Court. Petitioner No.1 examined herself as Pw1 and produced in evidence 17 documents including 7 RTC extracts in proof of means and capacity of the respondent. In rebuttal, the respondent examined himself as Rw1 and produced photograph at Ex.R1, CD at Ex.R2 and endorsement issued by the police at Ex.R3. Considering the said materials, by order dated 16.08.2013, the learned Magistrate allowed the petition and directed respondent to pay maintenance at the rate of Rs.1,000/- per month to each of the petitioners. However, in the Revision Petition filed by the respondent, the Revisional Court was of the opinion that petitioner No.1 subsequent to desertion of the respondent, married one Shankar and on that ground maintenance awarded to petitioner No.1 was set aside. The reasons assigned by the learned Sessions Judge goes to show that by placing reliance on the photograph produced at Ex.R1, Sessions Court has arrived at a conclusion that the petitioner has contracted a second marriage. The relevant portion reads as follows:
“Ex.P-14 is the copy of the application in which, the photo appears. According to the petitioners, the respondent and his second wife and their child appear in the said photo. When the same was shown to the respondent, he has denied that he appears in the said photo. Ex.P-16 is the birth certificate to show that the child by name Bavana. B. is the daughter born out of the wedlock of the respondent and Lakshmi. When Ex.P-16 was also shown to the respondent, he has denied the same.”
It is unfortunate that based on the said material, the learned Sessions Judge has denied the maintenance to petitioner No.1. The learned Sessions Judge has not recorded any categorical findings as to the fact whether petitioner No.1 herein has either contracted second marriage or is living in adultery. Even assuming that petitioner No.1 is seen in the photograph/Ex.R1 along with another person, the same does not lead to inference that petitioner No.1 is living a adultery or that she has entered into any marriage with the said person. The portion culled out above indicate that even when a question was put to petitioner No.1 as to the identity of person appearing therein, she denied the identity of the said person. Under the said circumstances, there was absolutely no basis for the Revisional Court to come to the conclusion that petitioner No.1 was found with another man as shown in the said photo. In that view of the matter, the reasons assigned by the Revisional Court having not based on legal evidence cannot be sustained. On the other hand, the material produced by petitioner No.1 has remained uncontroverted and the findings recorded by the learned Magistrate also are not disturbed by the Revisional Court. Under these circumstances, Revisional Court was not justified in modifying the order passed by the learned Magistrate. For the said reasons, the impugned order insofar as refusing maintenance to petitioner No.1 is liable to be set aside.
Accordingly, petition is allowed. Impugned order passed by the Prl. District & Sessions Judge, Mandya, in Crl.P.No.175/2014 dated 17.12.2015 insofar as modifying the order passed by JMFC, Malavalli in C.Mis.62/2011 is set aside. Order passed by the learned Magistrate is restored.
Sd/- JUDGE SV