IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION NO.541/2017 BETWEEN :
Sri Sathish A., S/o Ananthaiah Aged about 46 years R/at Kodigehalli Village & Post, Kasaba Hobli, Turuvekere, Tumakuru District-572 227.
… Petitioner (By Sri Prabhugoud B. Tumbigi, Advocate) AND :
1. Smt. Ashwini W/o A.Sathish D/o Nagaraj K., Aged about 31 years 2. Preetham S/o A.Sathish Aged about 5 years Minor by his Guardian Smt.Ashwini.
Both residing at 2nd Cross, 5th Main, Banashankari Nagar Old Pump House Road, Tumakuru-572 101.
(By Sri A.Keshava Bhat, Advocate) … Respondents This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to quash the order dated 11.11.2016 passed in Criminal Appeal No.10005/2016 by the V Addl. District and Sessions Judge, Tipaturu and order dated 02.12.2015 passed by the Civil Judge and JMFC, Turuvekere in Crl.Misc.No.234/2015 Now No.22/2016 on Interim Application filed under Section 20 r/w. 23(2) of Protection of Women from domestic Violence Act and consequently dismiss the Interim Maintenance Application.
This Criminal Revision Petition coming on for Orders this day, the Court made the following:-
O R D E R The present petition is filed by the petitioner- husband being aggrieved by the judgment of the V Additional District and Sessions Judge, Tiptur in Criminal Appeal No.10005/2016, dated 11.11.2016 whereunder the order on Interlocutory Application No.1 filed under Section 23(2) of Protection of Women from Domestic Violence Act, 2005 (‘Act’ for short) passed by the Civil Judge and JMFC., Turuvekere, dated 2.12.2015 was modified and the wife and son, i.e.,, respondent Nos.1 and 2 herein have been granted monthly interim maintenance of Rs.5,000/- and 3,000/- respectively.
2. It is the contention of the learned counsel for the petitioner-husband that the petition filed under Section 12 of the Act is not maintainable. It is his further contention that the trial Court without holding any enquiry, only on the basis of the affidavit filed by respondent No.1-wife has passed the impugned order. It is his further contention that this Court in the case of Krishna Murthy Nookula Vs. Y.Savitha, W/o.Krishna Murthy Nookula, in Criminal Revision Petition No.815/2009, disposed of on 9.12.2009 has interpreted Section 23 of the Act and has come to the conclusion that before passing an ex parte order, an enquiry has to be held as laid down in Code of Criminal Procedure. The said procedure has not been followed by the trial Court. It is his further contention that the petition came to be filed four years after respondent No.1-wife left matrimonial home. It is his further contention that respondent No.1-wife herself has left the matrimonial home and did not come back. Thereafter the petitioner has taken divorce due to conduct of the first respondent-wife. By appreciating the same, the Court has also granted divorce. It is his further contention that the petitioner-husband is having a meager income and he is having aged parents, second wife and the son born to the second wife and he has to maintain them. Under such circumstances, the interim maintenance granted by the Court below is on the higher side. On these grounds, he prayed to allow the petition and to set aside the impugned orders passed by the Courts below.
3. Per contra, the learned counsel for the first respondent-wife vehemently argued and submitted that the order passed by the trial Court is not an ex parte order. At the first instance, the notice was served on the petitioner-husband and he remained absent and he was placed ex parte. Subsequently he appeared and got set aside the ex parte order dated 11.9.2015. Though sufficient opportunities were given to him to file his objections, objections were not filed by him. The trial Court after hearing I.A.No.1 has passed the impugned order dated 2.12.2015 granting monthly maintenance of Rs.2,000/- to the first respondent-wife and Rs.1,000/- to the second respondent-son. Being aggrieved by the said order of maintenance, respondent Nos.1 and 2 filed Criminal Appeal No.10005/2016 before the appellate Court which came to be disposed of by the order dated 11.11.2016 modifying the order of maintenance passed by the trial Court dated 2.12.2015 and granting monthly interim maintenance of Rs.5,000/- to the first respondent-wife and Rs.3,000/- to the second respondent-son. It is his further submission that whatever maintenance which has been granted by the learned District Judge is on the lower side. It is his further submission that the wife is also suffering from various ailments and she has to maintain her son who is studying in 3rd Standard and she is not having any other source of income Under such circumstances, she has filed an application before this Court in I.A.No.1/2019 for enhancement of interim maintenance which has been granted by the learned District Judge, Tiptur. On these grounds, he prayed to allow his application for enhancement of the maintenance and to dismiss the petition.
4. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
5. On close reading of Section 23 of the Act, nowhere it stipulates that before passing an ex parte order of maintenance, an enquiry has to be held in this behalf. Though it is brought to my notice by the learned counsel for the petitioner that Section 28 of the Act prescribes the procedure and as per the said Section, procedure of Code of Criminal Procedure has to be followed. Even I have carefully gone through the procedure laid down in the Code of Criminal Procedure. But nowhere it says that before passing an ex parte order, an enquiry has to be held in this behalf. In the light of the discussions held by me above, the decision in Krishna Murthy Nookula’s Case cited by the learned counsel for the petitioner is not applicable to the facts of the present case.
6. Be that as it may, as could be seen from the order sheet of the trial Court, which is made available, notice has been served on the petitioner-husband and thereafter he remained absent. On 11.9.2015 he got the ex parte order set aside and thereafter the case was posted for filing objections. In spite of granting sufficient opportunities given to the petitioner-husband, he did not file any objections. Thereafter I.A.No.1 has been considered and interim maintenance has been granted to the respondents. When the petitioner-husband has entered appearance before the trial Court and contested the matter by engaging a counsel and has not filed any objections, then under such circumstances, it cannot be held that the order passed by the trial Court is an ex parte order as contended by the learned counsel for the petitioner. Even the order sheet of the trial Court dated 20.11.2015 clearly goes to show that the learned counsel appearing on behalf of the petitioner-husband prayed time for filing objections. But the trial Court by observing that as already sufficient time has been granted to file objections to the main petition and to the application, rejected the said prayer and considered the interlocutory application and thereafter on 2.12.2015 passed the impugned order on I.A.No.1 filed under Section 23(2) of the Act. In that light, the contention taken up by the learned counsel for the petitioner-husband that before passing an ex parte order an enquiry has to be held as contemplated under Section 23 of the Act does not hold any water.
7. Though it is contended by the learned counsel for the petitioner that the amount of maintenance awarded by the District Court is on the higher side, as could be seen from the records, it would clear that the petitioner- husband is drawing a monthly salary of Rs.46,206/-. Though it is contended by the learned counsel for the first respondent-wife that as on date, the petitioner- husband is drawing monthly salary of Rs.1,25,000/-, now the orders have been passed only on interlocutory application and due to other commitments of the petitioner-husband, the first appellate Court has come to the conclusion that if monthly maintenance of Rs.5,000/- is awarded to the first respondent-wife and Rs.3,000/- to the second respondent, it would suffice. Now the matter has to be heard and decided on merits before the Court below at that time, both the parties can urge either for enhancement of maintenance or that the petitioner-
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husband is not liable to pay any maintenance and that is the matter which has to be considered and appreciated by the Court below only after leading evidence by both the parties.
8. In view of the above, I am of the considered opinion that whatever amount which has been awarded by the first appellate Court is just and proper. Both the parties can urge all contentions before the Court below.
With the above liberty and the observations, petition is dismissed.
Consequently, I.A.No.1/2019 is disposed of with liberty to the respondents herein to urge all contentions before the Court below.
The Court below is directed to dispose of the matter as expeditiously as possible but not later than the outer limit of six months from the date of receipt of a copy of this order.
Sd/-
*ck/- JUDGE