IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1472 OF 2013 BETWEEN:
SMT THIMMAKKA W/O SHIVANNA AGED ABOUT 36 YEARS R/OF NAGANATTI HOSADURGA TALUK-577527.
(BY SRI: B PURANDARA, ADVOCATE) AND SHIVANNA S/O NINGAPPA @ KUNTANINGAPPA AGED ABOUT 46 YEARS R/OF SANNAKITTADAHALLI VILLAGE MADADAKERE HOBLI HOSADURGA TALUK-577527.
... PETITIONER ... RESPONDENT (BY SRI: C KIRAN KUMAR YADAV, ADVOCATE-ABSENT) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE ADDL. SESSIONS JUDGE, FTC, CHITRADURGA IN CRL.RP.NO.33/11, DATED:6.11.12 AND CONFIRM THE ORDER PASSED BY THE PRL. CIVIL JUDGE AND JMFC, HOSADURGA IN CRL.MISC.NO.129/2007, DATED:20.07.2010 AT ANNEXURES -"B" AND "A" RESPECTIVELY.
THIS CRL.P COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The order passed by the learned Session Judge, Fast Track Court, Chitradurga in Crl.R.P.No.33/2011 dated 06.11.2012, whereby the learned Sessions Judge has allowed the revision petition filed by the respondent herein and has set-aside the order passed by the Prl. Civil Judge & JMFC, Hosadurga in Cr.Misc.No.129/2007 dated 20.07.2010, is under challenge in this petition.
2. The petitioner herein claiming to be the wife of the respondent filed an application under Section 125 Cr.P.C. seeking maintenance from the respondent at the rate of Rs.3,000/- before the trial court. She examined herself as PW-1 and three other witnesses as PWs2-4 in proof of the fact that she is the legally wedded wife of the respondent and she has been neglected by the respondent inspite of possessing sufficient means. In support of the same, she has produced RTCs standing in the name of her husband at Exs-P1 to P6 and her Election Identity card Ex-P7. In rebuttal, respondent examined himself as RW-1 and adduced evidence of another witness as RW-2.
3. Considering the above evidence, by order dated 20.07.2010, the learned Magistrate partly allowed the petition filed under Section 125 Cr.P.C. and directed the respondent to pay maintenance of Rs.1,000/- per month to the petitioner from the date of petition till her life time. The respondent herein carried the matter in revision before the learned Addl. Sessions Judge, Fast Track Court, Chitradurga and by the impugned order, the learned Sessions Judge has set-aside the order of the learned Magistrate.
4. Learned counsel for the petitioner submits that the learned Sessions Judge has gravely erred in reversing the well considered order of the learned Magistrate. The Sessions Judge has failed to appreciate the documentary evidence produced by the petitioner therein in proof of the fact that she was described as ‘wife’ of the respondent at all times. The said document was not disputed by the respondent herein and as such the learned Sessions Judge has committed an error in allowing the revision petition.
Learned counsel for the respondent is absent.
Perused the records and considered the contentions urged by the learned counsel for the petitioner.
5. The petitioner has specifically averred in the petition that she is the legally wedded wife of the respondent. In her evidence, she has stood by her case that she had married the respondent about 18 years earlier to the date of her examination as per Hindu Rites and Customs and lived with the respondent for three years and thereafter her husband drove her out of the matrimonial house. She has examined three independent witnesses including her own brother-PW-3, who has also deposed on oath that the petitioner is the legally wedded wife of the respondent and their marriage was performed as per Hindu Rites and Customs. Except suggesting a general denial, the evidence of this witness has been falsified in the cross-
examination. Further, the document produced by the petitioner Ex-P7-Election Identity Card has also not been challenged in the cross-examination. As a result, sufficient material is available before the Court to come to the conclusion that the petitioner is the legally wedded wife of the respondent.
6. Impugned order reveals that learned Sessions Judge has proceeded on the basis that the petitioner herein has failed to examine any of her neighbours. This observation of the learned Sessions Judge in my view is contrary to the material on record. PWs-2 and 4 are the neighbours of the petitioner and PW-3 was her brother, who was competent to speak about the matrimonial status of the respondent therein. Moreover, their evidence has not been discredited in the cross-examination. In the wake of this evidence, the learned Sessions Judge was not justified in rejecting the petition. Thus on considering all the above facts and circumstances, in my view, the impugned order passed by the learned Sessions Judge cannot be sustained.
7. It is also trite law that in a proceeding under Section 125 Cr.P.C., strict proof of marriage is not necessary, as laid down in the case of KAMALA AND OTHERS v. M.R. MOHAN KUMAR reported in AIR 2010 SUPREME COURT 5128.
8. In the light of the above discussion, the impugned order dated 06.11.2012 is liable to be set-aside.
Accordingly, the petition is allowed. The order passed by the learned Addl. Sessions Judge, Fast Track Court, Chitradurga in Crl.R.P.No.33/2011 dated 06.11.2012 is quashed. Consequently, the order passed by the learned Magistrate, Hosadurga is restored. The respondent shall pay the maintenance of Rs.1,000/- p.m. to the petitioner as directed by the learned Magistrate within 30 days from the date of receipt of copy of this order.
Sd/- JUDGE *mn/-