IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.910/2019 Between:
Sri Ashok Saldanha S/o Pascal Saldanha Aged about 41 years R/o Ganganamakki Village K.M.Road, Mudigere at and post Mudigere Taluk- 577 550 Chikkamagalur District … Petitioner (By Sri.H.R.Ananthakrishna Murthy, Adv) And:
Smt Saritha Pereira W/o Ashok Saldanha Aged about 33 years R/at No.49/2, Reddy Building 2nd Cross, Lake Road, Ramakrishna Layout G.S Palya, Mudigere aluk Chickmagalur Dist- 577 550 … Respondent (By Sri.B.Ashol Kumar, Advocate) This Criminal Revision Petition is filed under Section 397 R/w 401 of Cr.P.C., pleased to set aside the impugned order dated 13.07.2018 passed by the IX Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru in Crl.A.No.67/2017 and the order dated 11.02.2016 passed by the C.J.M., Bengaluru Rural District, Bengaluru in Crl.Misc.No.91/2015.
This Criminal Revision Petition is coming on for orders, this day, the Court made the following:
O R D E R Heard the learned counsel for the petitioner on I.A No.1/2019.
2. The said application has been filed under Section 5 of the Limitation Act to condone the delay of 274 days in preferring the present revision petition. It is also accompanied with affidavit of the petitioner.
3. Though notice is served, the learned counsel for the respondent remained absent.
4. It is the submission of the learned counsel for the petitioner-husband that after disposal of the appeal, he could not muster the amount required to be paid on first date of hearing, all the efforts made were futile. In the meanwhile, he was also not keeping good health and his parents also fell sick and he is alone and nobody was there to look after his parents.
5. It is further stated that after seeking the assistance of his sister, he filed the present revision petition and as such, there is a delay and the said delay is bonafide delay. On these grounds, he prays to condone the delay.
6. Even it is the submission of the learned counsel for the petitioner-husband that the petitioner- husband has filed the MC Petition for restitution of conjugal rights and the same is pending before the trial Court. Without considering the said fact, the trial Court has awarded an amount of Rs.9,000/-. The First Appellant Court has come to a conclusion that the husband has no sufficient source of income, however, the matter has been remitted back and an amount of Rs.5,000/- has been fixed and payable to the respondent-wife. Though the petitioner-husband is not having any income, the Court below ought not to have passed the said order.
7. I have carefully and cautiously gone through the submissions of the learned counsel for the petitioner and perused the records including the judgment of the trial Court as well as the first Appellate Court.
8. The first appellate Court after considering the material placed on record, and the fact that though he has remained exparte, he has not cross-examined the witnesses and only because no opportunity has been given to the petitioner-husband, the matter has been remitted back to the trial Court. It is further observed that the application has been filed under the Domestic Violence Act, 2005, and in order to protect the interest of respondent-wife, the Court below has directed the petitioner-husband to pay a sum of Rs.5,000/- per month as an interim maintenance to the respondent-wife from the date of petition till the date of disposal afresh.
9. I have carefully and cautiously gone through the affidavit and submissions for condonation of delay. In the said application, no sufficient and cogent reasons have been stated explaining the delay of 274 days in preferring the present revision petition.
10. It is contended that he was not keeping good health, no documents have been produced in this regard pertaining to himself or his parents and also for not having any financial capacity .
11. In the light of discussions held by me above, no good grounds have been made out by the petitioner to condone the delay. Be that as it may, even on looking to the merits of the case at the request of the petitioner- husband, the matter has been remitted back to the trial Court by observing that an opportunity has do be given to the petitioner-husband when he himself has made out a good ground that he has not given any opportunity and the First Appellate Court has remanded the matter by setting aside the impugned order of the trial court and even it has been observed that the interim maintenance has to be given to protect the interest and right of both the parties. It is also not in dispute that the petitioner is the husband and the respondent is the wife and there is no legal dispute in this behalf. The only contention which have been taken up by the learned counsel for the petitioner is that, the MC Proceedings is pending before the Court for the purpose of restitution of conjugal rights and the amount of Rs.5,000/- p. m. awarded by the Appellate Court is not justifiable. Looking from any angle even the petitioner has no good ground so as to interfere with the judgment of the first appellate Court.
In that light, I.A No.1/2019 is dismissed and consequently, the petition is also dismissed.
In view of the dismissal of the main petition, I.A.No.3/2019 does not survive for consideration and same is disposed off.
Sd/- JUDGE HB/-