IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.37152 OF 2018 (GM-FC) BETWEEN:
Ganesh D.Gokarnakar, S/o.D.M.Gokarnakar, Aged about 55 years, R/o. Samudaya Bhavan Road, Gandhinagar B Main Road, Shivamogga-577 201.
(By Sri.Jayaprakash, Advocate for Sri.Showri.H.R, Advocate) AND:
Smt.S.Sushma, W/o. Ganesh.D.Gokarnakar, Aged about 42 years, R/o C/o. H.V.Sripathi Rao, ‘Guru Krupa’ 2nd Cross, Basaveshwaranagara, Shivamogga-577 201.
… Petitioner … Respondent This Writ Petition is filed under Article 227 of the Constitution of India, praying to set aside the impugned order dated 09.07.2018 passed by the Principal Judge, Family Court at Shivamogga in M.C.No.113/2015 vide Annexure-A and etc.
This Writ Petition coming on for Preliminary Hearing, this day, the Court made the following:-
ORDER Sri.Jayaprakash, learned counsel for Sri.Showri H.R, learned counsel for the petitioner.
Taking into account the order which this Court proposes to pass, it is not necessary to issue notice to the respondent.
2. Heard the learned counsel for the petitioner.
3. In this petition, the petitioner has assailed the validity of the order dated 09.07.2018, passed by the Principal Judge, Family Court, Shivamogga in M.C.No.113/2015, by which application filed by the respondent under Section 24 of Hindu Marriage Act, 1955 read with Section 151 of Civil Procedure Code, 1908 (hereinafter for brevity referred to as ‘the Code’) has been allowed directing the petitioner to pay a sum of Rs.4,000/- per month as an ad-interim maintenance.
4. When the matter was taken up today, learned counsel for the petitioner submitted that the petitioner has no source of income and he is entirely dependent on his elder sister for his sustenance. It is further submitted that the aforesaid aspect of the matter was brought to the notice of the Family Court. However, the Family Court while passing the impugned order has failed to take note of the same.
5. In view of the aforesaid submissions and in the facts of the case and in view of the law laid down by the Hon’ble Supreme Court in the case of ‘STATE OF MAHARASHTRA Vs. RAMDAS SHRINIVAS NAYAK & ANR’, AIR 1982 SC 1249, the appropriate remedy for the petitioner is to seek review of the order dated 09.07.2018 passed by the Family Court. Accordingly, the writ petition is disposed of with liberty to the petitioner to file an application for review of the order dated 09.07.2018.
It is made clear that in case such an application is filed by the petitioner before the Family Court, Shivamogga, the Family Court shall deal with the same in accordance with law by a speaking order.
Sd/- JUDGE dn/-