IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.40830 OF 2017 (GM-FC) BETWEEN:
D.Kuberan, S/o late Doraiswamy Pillai, Aged about 61 years, R/a No.12/8, 2nd Cross, Shamanna Garden, Adugodi, Bengaluru – 560 030.
(By Sri.Varadarajan M.S, Advocate) AND:
1. Smt.K.Hindu @ Hindumathi, D/o Kuberan, Aged about 24 years.
2. K.Vishnu, S/o Kuberan, Aged about 22 years.
Both are residing at:
No.341, Somasundarampalya, Near HST Layout, Agara Post, Bengaluru – 560 034.
(Both served and unrepresented) … Petitioner … Respondents This Writ Petition is filed under Article 226 of the Constitution of India, praying to quash the impugned order dated 20.07.2017 passed in Cri.Misc.268/2013 on the file of the IV Additional Principal Judge, Family Court, Bengaluru at Annexure-A and etc.
This Petition coming on for Preliminary Hearing, this day, the Court made the following:-
ORDER Sri.Varadarajan M.S, learned counsel for the petitioner.
None for respondents though served.
Heard the learned counsel for the petitioner.
2. In this petition, the petitioner has assailed the validity of the order dated 20.07.2017 in Crl.Misc.No.268/2013 passed by the IV Additional Principal Judge, Family Court, Bengaluru, by which warrant of arrest has been issued against the petitioner.
3. The facts giving raise to filing of the writ petition briefly stated are that the marriage between the petitioner and one S.Sumathi was solemnized 05.07.1991. Out of the wedlock, the respondents herein were born. The respondents on or before 27.06.2008 filed a petition under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C’ for short), seeking maintenance against the petitioner. The petitioner with a view to settle the dispute, executed a registered partition deed dated 26.08.2011 under which certain properties were allotted in favour of the respondents. On 15.04.2013, the respondents filed an application under Section 125(3) of Cr.P.C for enforcing the order of maintenance passed on 22.10.2012. The petitioner filed detailed objections. However, without setting down the case for enquiry, the IV Additional Principal Judge, Family Court, Bengaluru has directed for issuance of arrest warrant against the petitioner on the ground that the petitioner is in arrears of maintenance to the tune of Rs.1,90,000/-.
4. Learned counsel for the petitioner submitted that once the statement of objections was filed, the trial Court was under an obligation to fix the case for enquiry and ought to have appreciated the fact that the petitioner, by way of one time settlement, had executed a partition deed under which the respondents were allotted certain properties. Therefore, an application seeking execution of order of maintenance dated 22.10.2012 was not maintainable.
5. I have considered the submissions made by learned counsel for the petitioner. Admittedly, on receipt of notice, the petitioner had filed detailed objections. However, in the objections it was averred that the petitioner has settled the matter and has executed a partition deed on 26.08.2011. However, the trial Court without setting down the case for enquiry directed for issuance of warrant of arrest against the petitioner. The impugned order is procedurally ultra-vires and therefore, cannot be sustained in the eye of law. It is accordingly quashed.
6. The trial Court is directed to conduct an enquiry and to give the parties an opportunity to adduce evidence and thereafter, decide the proceedings expeditiously in accordance with law.
With the aforesaid observations, the writ petition is disposed of.
Sd/- JUDGE dn/-