IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.53448/2018 (GM - FC) BETWEEN SMT. ROOPA, D/O GOVINDAPPA, AGED ABOUT 34 YEARS, R/O NO.141, 20TH MAIN, II CROSS, J.P.NAGAR, MYSURU – 570 004.
... PETITIONER (BY SRI. G.S.BALAGANGADHAR, ADV.) AND SRI.YOGISH, S/O C.BANGARUSWAMY, AGED ABOUT 48 YEARS, R/AT NO.76/1, BANDIPALYA, ASHRAM POST, MYSURU – 570 004.
…RESPONDENT (BY SMT. CHAMPOO K.S., ADV., FOR DR.M.SUNIL SASTRY, ADV.,) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS, DATED 25.10.2018 PASSED BY THE LEARNED PRINCIPAL JUDGE FAMILY COURT, MYSORE IN M.C.NO.622/2015 ON I.A.NO.4/2017, PRODUCED AT ANNEXURE – K AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri G.S.Balagangadhar, learned counsel for the petitioner.
Smt. Champoo K.S., learned counsel for Dr. M. Sunil Sastry, learned counsel for the respondent.
The petition is admitted for hearing. With the consent of the parties, it is heard finally.
2. In this petition filed under Article 227 of the Constitution of India, the petitioner inter alia has assailed the validity of the order dated 25.10.2018, in M.C.No.622/2015, passed by the Principal Judge, Family Court, Mysuru, by which the application filed by the petitioner under Section 151 of C.P.C. seeking to strike off the defence taken by the respondent has been dismissed.
3. Facts giving raise to the finding in the writ petition briefly stated are that, in proceedings under Section 9 of the Hindu Marriage Act (‘the Act’, for short), the order of maintenance was passed on 05.10.2016 against the application filed by the petitioner herein under Section 24 of the Act, the respondent was directed to pay a sum of Rs.5,000/-
p.m. to the petitioner and Rs.3,500/- to their two children. The case of the petitioner is that, the respondent did not pay the amount of maintenance as directed by the family Court. There upon, the petitioner filed an application for recovery of the amount of the maintenance and thereafter, filed an application seeking striking out of the defence of the respondent to the proceedings under Section 9 of the Act at Annexure ‘J’. The said application has been rejected by the family Court by its impugned order on the ground that according to the petitioner herself, the respondent has paid the arrears of maintenance. In the aforesaid facts and background, the petitioner has visited this Court.
4. Learned counsel for the petitioner while inviting the attention of this Court thereto, the memo which is filed on behalf of the petitioner submits that the respondent is in arrears of maintenance to the tune of Rs.3,36,000/-. A copy of the aforesaid memo was supplied to the learned counsel for the respondent on the last date of hearing. Learned counsel for the respondent was granted time to seek instructions in this regard.
5. When the matter is taken up today, learned counsel for the respondent submitted that inspite of intimation sent to the respondent, respondent has not approached nor given instructions in this regard. Therefore appropriate order be passed.
6. From the perusal of the memo of calculation, it is evident that the petitioner is in arrears of maintenance from 05.03.2017 till 05.07.2019 i.e., for a period of 28 months and the outstanding amount of maintenance comes to Rs.3,36,000/-. The respondent has not controverted the fact that the respondent has not paid the amount of maintenance to the petitioner. Therefore, the findings recorded by the family court that the entire amount of maintenance of arrears is paid to the petitioner is perverse. Therefore, the impugned order cannot be sustained in the eye of law as it is non-application of mind. The impugned order is therefore quashed. The application filed by the petitioner under Section 151 of C.P.C., to strike off the defence of the respondent to the proceedings in M.C.No.622/2015 is allowed.
7. Accordingly, writ petition is disposed of.
Sd/- JUDGE nvj