IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOs.4546-47 OF 2019(GM-FC) BETWEEN:
MR.PREETHAM V.V.
S/O MR.VISHWANATHA RAO AGED 44 YEARS RESIDING AT NO.7 COBBLESTONE LANE BELMONT, CA, 94002 USA, REPRESENTED HEREIN BY HIS AUTHORISED GENERAL POWER OF ATTORNEY HOLDER, MRS.ARCHANA N.VAIDYA W/O MR.NIRAV VAIDYA AGED ABOUT 35 YEARS RESIDING AT NO.3140, 19TH MAIN 1ST CROSS, VIJAYANAGAR 2ND STAGE MYSORE – 570 017.
(By SMT.SHALINI JOHN, ADV.) AND:
MRS.SANGEETHA PREETHAM W/O MR.PREETHAM V.V.
D/O MR.BADRINARAYANAN T.E AGED 40 YEARS RESIDING AT C-605, MANTRI ALPYNE DR.VISHNUVARDHAN ROAD 5TH PHASE BHARAT HOUSING SOCIETY LAYOUT BANASHANKARI BANGALORE – 560 061 … PETITIONER (By Mr.SHREERAM T.NAYAK ADV. FOR C/R) - - -
… RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 14.01.2019 PASSED IN M.C.NO.1052/2015 BY THE LEARNED III ADDITIONAL PRINCIPAL FAMILY JUDGE, BANGALORE IN DISPOSING I.A.NO.4 FILED UNDER SECTION 151 OF THE COE OF CIVIL PROCEDURE, 1908 (ANNEXURE-A).
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Smt.Shalini John, learned counsel for the petitioner.
Mr.Shreeram T. Nayak, learned counsel for the caveator/respondent.
2. The writ petitions are admitted for hearing.
With consent of the parties, the same are heard finally.
3. In these petitions under Article 227 of the Constitution of India, the petitioner inter alia seeks a writ of certiorari for quashment of the orders dated 14.01.2019 as well as 05.01.2018 passed by III Additional Principal Family Judge, Bangalore.
4. Facts giving rise to filing of these petitions briefly stated are that the parties to the proceeding got married as per Hindu customs and traditions on 29.01.1998 in Bangalore. From the wedlock, two sons were born. As per the petitioner the marriage between the petitioner and the respondent was broken beyond repair in 2009 and in August, 2010 the respondent left the matrimonial home. The respondent filed a petition under Section 9 of the Hindu Marriage Act,1955 ( herein after referred to as ‘the Act’ for short) seeking restitution of conjugal rights before III Additional Principal Family Judge, Bangalore the respondent also filed a petition under Guardians and Wards Act,1890 seeking a declaration that she is the sole guardian of two minor children. The petitioner herein filed a petition seeking dissolution of the marriage on the grounds enumerated under Section 13(1)(i)(i-a) and (i-b) of the Act against the respondent. The respondent on or about 14.07.2016, filed an application under Section 24 of the Act seeking Rs.2.5 Lakhs p.m. as interim maintenance.
The petitioner filed an objection to the aforesaid application. The Family Court by an order dated 05.01.2018 partly allowed the application and directed payment of Rs.50,000/- p.m. as maintenance from the date of application till disposal of the case. The petitioner through his General Power of Attorney holder engaged the services of Eagle Detective Agency, Bangalore to conduct the surveillance of the respondent. It is averred by the petitioner that the surveillance reveals that the respondent is not residing in the apartment and is working in the jewellery store as a store manager and as a working partner. Thereupon the petitioner filed an application under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) seeking setting aside the order dated 05.1.2018 on the ground that the same has been obtained by playing fraud. The consideration on aforesaid application has been deferred by the Family Court by order dated 14.01.2019.
5. Learned counsel for the petitioner submitted that the family court ought to have appreciated that the earlier order was obtained by playing fraud and the respondent in her objection to the application under Section 151 of the Code has admitted the report of the detective agency and has furnished the explanation. However, the aforesaid aspect has not been appreciated by the Family Court. In support of aforesaid submissions, reliance has been placed on decision of Supreme Court in ‘RAM CHANDRA SINGH VS. SAVITRI DEVI AND OTHERS’, (2003) 8 SCC 319.
On the other hand, learned counsel for the respondent has supported the order passed by the Family Court. It is further submitted that a direction be issued to the family court to conclude the proceedings pending between the parties expeditiously.
6. I have considered the submissions made by the learned counsel for the parties and have perused the record. From perusal of objections filed by the respondent to the application under Section 151 of the Code reads as under:
10. It is submitted that the petitioner’s parents have requested the petitioner’s counsel, as he’s also a family friend to the petitioner’s parents, to engage the petitioner in some activity for a diversion of her mind as advised by the petitioner’s doctor since the petitioner is going through a stage of depression for which she’s being treated. As per the request of the petitioner’s parents, the petitioner’s counsel has given her the permission to spend time in the store whenever she would like to occupy her mind. Accordingly, the petitioner used to spend her free time and also in order to discuss about the cases whenever she had to provide the inputs or take suggestions on legal matters at the said premises. The copy of the detailed doctor’s reports and hospital documents is hereby produced for the kind perusal of this Hon’ble Court as document No.2.
11. This being the case, the respondent and the detective agency have come up with a story that that the petitioner is working in the said premises as a store manager just because they have capture a couple of video clippings and photographs of the petitioner present in the said premises. It is further submitted that the respondent with the help of his GPA holder is trying to create a story which is not true. It is to be noted that earlier in their objections to the main petition as well as objection to the I.A.No.3 they have contended that petitioner was working in a place as a spa manager but till today they have not come up with authenticated documents to prove that the petitioner was employed as per their contention and now also it is the same story.
12. It is submitted that now again the respondent is using one or the other tactics to avoid the payment of maintenance passed by this Hon’ble Court. Just because the respondent has submitted the investigation report given by Eagle detective agency, it does not prove that the petitioner works at the said premises or has been earning a salary there. Providing video of the petitioner going to the said premises or having been found there isn’t proving the fact of the matter. In the absence of the staff appointed at the said premises, the petitioner has attended customers as a person who has replaced the actual store manager does not mean that the petitioner has been employed by the said store.
7. The effect of averments made in the objection to the application has not been considered by the Family Court while passing the impugned order and the application filed by the petitioner under Section 151 of the Code have been disposed of with a direction that at this stage it is not safe to accept the report of the aforesaid agency. The impugned order is therefore quashed. The Family Court is directed to take into account the effect of the averments made by respondent in paragraphs 10, 11 & 12 of the objections and to decide the application filed by the petitioner under Section 151 of the Code afresh in accordance with law. It is made clear that this Court has not expressed any opinion on the merits of the case.
Accordingly, the petitions are disposed of.
Sd/- JUDGE SS