IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.8335 OF 2015 BETWEEN:
Smt.Roopavathi, W/o Dharanendra Kumar K.V, Aged 45 Years, House Maker, R/At: Induvani Village, Bharangi Hobli, Sagar Taluk, Pin – 577401. ... Petitioner (By Sri.Y.S.Shiva Prasad, Advocate) AND:
Dharanendra Kumar K.V, S/o Vasudeva Indra, Aged 51 Years, Occ: Agriculturist, R/at: Areca Garden of Dr.Kiran, Srivigneshwara Hospital Farm House, Neeakodu Extn., Sagar Taluk, Pin – 577401. …Respondent (By Respondent served and unrepresented) This Criminal Petition is filed under Section 482 of Cr.P.C., praying to set aside the orders passed by V-Addl.
District and Sessions Judge, Shivamogga sitting at Sagar in Crl.R.P.No.169/2014 dated 28.05.2015 and also in Cr.Misc.No.11/2006 dated 12.09.2006 by Addl. Civil Judge (Sr.Dn) and J.M.F.C at Sagar.
This Criminal Petition coming on for Admission, this day, the Court made the following:
O R D E R Heard learned counsel for petitioner. Respondent is duly served and unrepresented. Perused the records.
2. Petitioner herein filed an application under section 125(1) Cr.P.C., claiming maintenance from the respondent at the rate of Rs.3,000/- per month for herself and on behalf of her minor son. The said application was considered by the Trial Court in C.Mis.No.11/2006 and after recording evidence of the parties, by order dated 12.09.2006, the application filed by petitioner herein was dismissed, whereas the minor son of the petitioner was awarded maintenance of Rs.300/- per month from the date of the petition till attaining majority. The petitioner herein did not challenge the said order, instead moved a separate application in Crl.Misc.No.60/2012 on the file of Addl. Civil Judge (Sr.Dn.) and JMFC, Sagar, contending that she has been neglected by respondent and she was unable to maintain herself. In this petition, she sought maintenance at the rate of Rs.3,000/- per month. However, the said application having been rejected, the petitioner challenged the said order before the V Additional District and Sessions Judge, Shimoga and by order dated 28.05.2015 in Crl.R.P. No.169/2014 the learned Sessions Judge dismissed the said revision petition confirming the orders passed by the trial Court. Both the Courts have held that in view of the findings recorded by the learned Magistrate in the previous proceedings between the same parties in Crl.Misc. No.11/2006 the petitioner is not entitled to maintain the petition.
3. The learned counsel for the petitioner would submit that the petitioner is entitled under law to maintain successive petition on the ground of changed circumstances. The earlier petition filed by the petitioner in Crl.Misc. No.11/2006 was dismissed on the ground that the petitioner was employed at the relevant time in tailoring avocation, but since then, petitioner having lost the job she was constrained to seek for maintenance from the respondent on account of changed circumstances. Under the said circumstance both the Courts below have committed an error in dismissing the petition without considering the evidence produced by the petitioner regarding her inability to maintain herself.
4. Learned counsel for the petitioner has produced a copy of the deposition of the petitioner before the trial Court, wherein she has stated that she is unable to maintain herself and she is without any avocation. This assertion made by the petitioner on oath though disputed in the cross examination by suggesting to the petitioner that she was drawing a handsome salary of Rs.4,000/- by way of tailoring, petitioner has unequivocally denied the said suggestion. Under the said circumstance, there was absolutely no material before the Court to hold that as on the date of her deposition, petitioner was gainfully employed and was in a position to maintain herself. Respondent herein did not enter the witness box and did not produce any rebuttal evidence to show that the petitioner was gainfully employed and was in a position to maintain herself. Under the said circumstance, merely because the petitioner has suffered an adverse order in the earlier proceedings, the Courts below could not have dismissed the petition on the ground that the second petition under Section 125 is not maintainable. Since the petitioner has made out justifiable grounds to seek maintenance from the respondent on account of changed circumstances and having established in evidence that at the time of submission of the said petition unable to maintain herself and without any source of income, in my view the Courts below are required to consider the evidence adduced by the petitioner and award appropriate maintenance to her.
5. On going through the material on record, I find that the petitioner has not let in any evidence in proof of the pecuniary resources of the respondent. Except stating in her evidence that she is unable to maintain herself, petitioner has not spoken anything about the income of the respondent. As a result, there being no material to determine the quantum of maintenance, there is no other alternative than to remit the case to the Court below to afford an opportunity to the petitioner to prove the means and capacity of the respondent to pay the maintenance claimed by her. For this purpose the orders passed by the trial Court call for interference. Accordingly, the petition is allowed.
6. The order passed by the V Additional District and Sessions Court, Shimoga, in Crl.R.P. No.169/2014 dated 28.5.2015 and the order passed by the Additional Civil Judge (Sr. Dn.) and J.M.F.C. at Sagar in Crl.Misc. No.11/2006 dated 12.09.2006 are quashed. The matter is remitted to the Court of learned Civil Judge, JMFC, Sagar. Liberty is reserved to the petitioner to adduce further evidence in proof of the means and capacity of the respondent. The respondent is also at liberty to adduce his evidence and thereafter the Court shall proceed in the matter in accordance with law. The petition stands allowed in terms of the above order.
Sd/- JUDGE Bss/ykl