IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE B VEERAPPA W.P.NO. 32843/2017 (GM-FC) BETWEEN:
SRI PRAKASH SHETTY S/O LAXMAN SHETTY AGED ABOUT 41 YEARS R/A LALITHA SHETTY COMPOUND PERVAJE ROAD PATHONJIKATTE KARKALA … PETITIONER (BY SRI HAREESH BHANDARY T, ADV. FOR SRI VISHWAJITH SHETTY S., ADV) AND:
Mrs.PREETHI AGED ABOUT 40 YEARS W/O PRAKASH SHETTY HOSTEL SUPERINTENDENT KUDMUL RANGA RAO HOSTEL NEAR P.V.S.CIRCLE MANGALURU 575 003 … RESPONDENT (BY SRI S.K.ACHARYA, ADV) THIS PETITION IS FILED UNDER ARTICLE 226 & 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH ORDER DATED 30.05.2017 – ANNEXURE-A MADE IN EX.NO.19/2015 BY THE FAMILY COURT, D.K., MANGALURU.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner – husband has filed the present writ petition against the order dated 30.05.2017 passed in Execution Petition No.19/2015 on the file of Family Court, Dakshina Kannada, Mangalore whereunder, arrest warrant came to be re-issued to the judgment debtor returnable by 14.07.2017.
2. It is the case of the petitioner that he filed a petition under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 for dissolution of his marriage with the respondent raising various contentions. After contest, Family Court, Dakshina Kannada, Mangaluru by judgment and decree dated 02.02.2015 allowed the petition filed by the petitioner by granting decree of divorce and dissolved the marriage between the petitioner and respondent and directed the petitioner to pay permanent alimony of Rs.6,00,000/- (Rupees Six lakhs only) to the respondent within three months from the date of judgment. It was also observed that custody of the minor son shall be with the guardian - mother and reasonable visitation rights was given to the petitioner.
3. Since the petitioner has not complied with the decree passed in his own petition M.C.No.54/2013, respondent-wife – decree holder had filed Execution Petition No.19/2015. Since the petitioner has not complied with the judgment and decree passed by the Family Court, arrest warrant has been re-issued. Therefore, petitioner is before this court.
4. I have heard the learned counsel for the parties to the lis.
5. Sri Hareesh Bhandari, learned counsel for the petitioner contended that the impugned order of re-arrest issued by the Executing Court is contrary to the material on record and cannot be sustained. He would further contend that by the judgment and decree dated 02.02.2015 passed in M.C.No.54/2013 permanent alimony has been awarded to the respondent on the ground that respondent had to take care of the minor son; petitioner has paid substantial amount towards alimony to the respondent; in spite of the same, respondent has initiated separate proceedings claiming maintenance to the minor son. Since separate petition for maintenance is now filed, petitioner stopped payment to respondent. The Executing Court has not appreciated the said aspect and proceeded to pass the impugned order and same cannot be sustained. On these grounds, he sought to allow the writ petition.
6. Per contra, Sri Acharya, learned counsel for respondent-wife sought to justify the impugned order passed by the Executing Court. He would further contend that the petition filed by the petitioner, Family Court by taking into consideration provisions of Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955, has decreed the petition and dissolved the marriage between the petitioner and respondent and permanent alimony was granted only to the wife and not to the son. Family Court has given custody of the minor to the mother with reasonable visitation rights to the father. He would contend that even if the decree applies to both respondent and her son, it is for the petitioner to raise the same in the petition filed by respondent. Therefore, he sought to dismiss the petition.
He also submits that prayer for arrest in Execution No.19/2015 is not pressed as he has filed Execution Petition for attachment of the immovable property. Said submission is placed on record.
7. Having heard the learned counsel for the parties, it is an undisputed fact that petitioner had filed M.C.No.54/2013 under Section 13(1) (i-a)(1-b) of the Hindu Marriage Act seeking dissolution of the marriage urging various grounds. After contest, the Family Court by the judgment and decree dated 02.02.2015 allowed the petition filed by the petitioner and dissolved the marriage between the parties. Operative portion of the decree clearly depicts that the petition filed by the petitioner came to be allowed. Marriage between the petitioner and respondent solemnised on 18.05.2005 stands dissolved by granting decree of divorce with effect from the date of judgment and petitioner was directed to pay permanent alimony of Rs.6,00,000/- (Rupees six lakhs only) to R.W.1 – wife within three months from the date of said judgment.
8. Though learned counsel for the petitioner tried to persuade this Court that decree is for both wife and son, if it is so, he can very well urge the same before the Family Court where separate petition is filed by the wife for maintenance of her son. It is also not in dispute that in view of the submissions made by learned counsel for the petitioner, he is not interested to pursue the arrest warrant issued by the Executing Court dated 30.05.2017 as respondent -
wife had filed separate petition for attachment of immovable property of the petitioner.
9. In view of the above, petitioner has not made out any ground to interfere with the impugned order passed by the Executing Court. Accordingly, writ petition is dismissed.
Sd/- JUDGE *sp