IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.15877 OF 2019 c/w WRIT PETITION NO.15876 OF 2019 (GM-FC) W.P.NO.15877/2019 BETWEEN:
MR.ROSHAN LEWIS AGED ABOUT 42 YEARS S/O LATE MAURICE LEWIS PRESENT AT BEDRLA HOUSE DARBE POST, PUTTUR DAKSHINA KANNADA – 574 202.
PRESENTLY WORKING AT CO2, 6TH FLOOR LEMERITTE APARTMENTS SODNAC LINK ROAD QUARTRE BONNES MAURITIUS.
(BY MR.RAVIKUMAR M.C., ADV.) AND:
DR.CAROLINE PETER D’SOUZA AGED BOUT 37 YEARS W/O MR.ROSHAN LEWIS R/AT CAROL MANSION CHURCH COMPOUND KULSHEKAR 1 MANGALORE – 575 005.
(BY MR.CYRIL PRASAD PAIS, ADV.) … PETITIONER … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 21.03.2019 PASSED BY HON’BLE PRINCIPAL JUDGE, FAMILY COURT, D.K., MANGALURU IN M.C.72/2017 ON I.A.NO.6 IN REJECTING THE APPLICATION FILED BY THE PETITIONER AND PASSING AN ORDER OF MAINTENANCE OF RS.15,000/- AND CONSEQUENTLY ALLOW THE SAID IA VIDE ANNEXURE-A.
W.P.NO.15876/2019 BETWEEN:
MR.ROSHAN LEWIS AGED ABOUT 42 YEARS S/O LATE MAURICE LEWIS PRESENT AT BEDRLA HOUSE DARBE POST, PUTTUR DAKSHINA KANNADA – 574 202.
PRESENTLY WORKING AT CO2, 6TH FLOOR LEMERITTE APARTMENTS SODNAC LINK ROAD QUARTRE BONNES MAURITIUS.
(BY MR.RAVIKUMAR M.C., ADV.) AND:
DR.CAROLINE PETER D’SOUZA AGED BOUT 37 YEARS W/O MR.ROSHAN LEWIS R/AT CAROL MANSION CHURCH COMPOUND KULSHEKAR 1 MANGALORE – 575 005.
(BY MR.CYRIL PRASAD PAIS, ADV.) … PETITIONER … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS IF NEED BE IN M.C.NO.72/2017 PENDING ON THE FILE OF PRINCIPAL JUDGE, FAMILY COURT, D.K.MANGALURU AND SET ASIDE THE IMPUGNED ORDER ANNEXURE-A PASSED ON I.A.NO.5 FILED BY THE PETITIONER UNDER ORDER XII RULE 6 OF CPC REJECTING THE SAME BY VIDE ITS ORDER DATED 21.03.2019 PASSED IN M.C.NO.72/2017, CONSEQUENTLY ALLOW THE SID APPLICATION.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER In these petitions under Article 227 of the Constitution of India, the petitioner inter alia has assailed the validity of the order dated 21.03.2019 passed by the Family Judge, Mangalore, by which the Family Court has rejected the application filed by the petitioner under Order XII Rule 6 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code' for short) as well as on the application filed by the petitioner under Section 151 of the Code has directed the petitioner to pay 50% of the tuition fee of his son and to pay a sum of Rs.15,000/- towards maintenance in the bank account, which is to be opened in the name of the child.
2. Learned counsel for the petitioner submitted that the Family Court grossly erred in rejecting the application submitted by petitioner under Order XII Rule 6 of the Code on the ground that the same is premature. It is further submitted that no application is filed on behalf of the respondents seeking maintenance for the child. Therefore, the order granting maintenance and half of the educational expenses passed by the Family Court is per se arbitrary and suffers from the vice of non application of mind. On the other hand, learned counsel for the respondent while referring to Section 43 of the Divorce Act, 1869 (hereinafter referred to as 'the Act' for short) submitted that the District Court has power to pass any order in a suit for obtaining dissolution of the marriage or a decree of nullity of marriage. Therefore, no fault can be found with the order.
3. I have considered the submissions made by learned counsel on both the sides and have perused the record. Section 43 of the Act reads as under:
43. Power to make orders as to custody of children in suits for dissolution or nullity- In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in a District Court, the Court may from time to time before making its decree, make such interim orders as it may deem proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the Court.
From perusal of Section 43 of the Act, it is evident that Section 43 empowers the Court to pass such interim orders as it may deem proper with respect to custody, maintenance and education of the minor children, marriage on whose parents is the subject of the suit. It does not empower the District Court to pass order suo motu that too without any application being made by the parties to the suit. In the instant case, the District Judge has rejected the application filed by the petitioner under Order XII Rule 6 of the Code simply on the ground that the same is premature. On the basis of the averments made in the application filed under Section 151 of the Code by the petitioner that he is ready to bear 50% of the tuition fee of his child in order to enable him to exercise the visitation rights, the family court has directed the petitioner to deposit 50% of the educational expenses as well as a sum of Rs.15,000/- as interim maintenance to the child. It is pertinent to note that Section 43 of the Act is an enabling provision in the absence of any material on record, the District Court cannot pass an order suo motu. Admittedly, no application is filed by the respondent seeking maintenance for the child from the petitioner. The Family Court in the fact situation of the case and in view of the unequivocal demand made by the petitioner about dissolution of the marriage ought to have dealt with the application under Order XII Rule 6 of the Code on merits. The impugned order therefore, suffers from the jurisdictional infirmity as well as error apparent on the face of the record. The impugned order is therefore, quashed and set aside and the Family Court is directed to decide the application preferred by the petitioner under Order XII Rule 6 of the Code as well as Section 151 of the Code afresh in the light of the observations made in this petition. Needless to state that it will be open to the petitioner to withdraw his petition seeking restitution of the conjugal rights.
Accordingly, the petitions are disposed of.
Sd/- JUDGE SS