Allowed

Kavya D/O a R Rajappa v. a R Rajappa

Karnataka HC5 Sept 2013CRL.RP/314/2005

Case brief

AI extract

What is this about?

High Court of Karnataka allowed revision petition challenging Additional Sessions Judge's order that set aside JMFC maintenance award. Court restored JMFC order awarding maintenance to minor daughter based on birth certificate and correspondence evidence.

What did the court decide?

Order dated 01.02.2005 passed by Additional Sessions Judge, Chitradurga, set aside. Order dated 19.11.2004 passed by JMFC Holalkere restored.

Kavya D/O a R Rajappa Vs a R Rajappa — Maintenance and Alimony | Karnataka HC (2013)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

¶3

DATED THIS THE 05^TH DAY OF SEPTEMBER 2013

¶4

BEFORE

¶5

THE HON’BLE MR JUSTICE V.SURI APPA RAO

¶6

CRIMINAL REVISION PETITION No.314 OF 2005

¶7

BETWEEN:

¶8

KAVYA

¶9

D/O. A.R.RAJAPPA AGED ABOUT 13 YEARS

¶10

BHARATHAMMA

¶11

W/O. A.R.RAJAPPA AGED ABOUT 28 YEARS

¶12

SINCE PETITIONER NO.1 MINOR, REPRESENTED BY HER NATURAL MOTHER – PETITIONER NO.2 SMT.BHARATHAMMA

¶13

BOTH ARE RESIDENTS OF ANJANAPURA VILLAGE RAMAGIRI HOBLI HOLALKERE TALUK CHITRADURGA DISTRICT

¶14

…PETITIONERS

¶15

(BY SRI.B.M.SIDDAPPA, ADV.,)

¶16

AND:

¶17

A.R.RAJAPPA S/O. RANGAPPA AGED ABOUT 48 YEARS WORKING AS TEACHER ZILLA PANCHAYAT

¶18

¶19

HIGHER PRIMARY SCHOOL DURGA TELLAR KARKAL TALUK UDUPI DISTRICT

¶20

…RESPONDENT

¶21

(BY SRI:SPOORTHY HEGDE, N, ADV., FOR SRI.D.R.NAGARAJA, ADV.)

¶22

THIS CRIMINAL RP IS FILED UNDER SECTION 397(1) CR.P.C., BY THE ADVOCATE FOR THE PETITIONERS PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER PASSED BY THE ADDL.S.J., FAST TRACK COURT, CHITRADURGA, IN CRL.R.P.NO.47/2004 DT.1.02.2005 AND CONFIRM THE ORDER PASSED BY THE C.J., (JR.DN) & JMFC., HOLALKERE, IN CRL.MISC.NO.32/2000 DT:19.11.2004.

¶23

THIS CRIMINAL RP COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

¶24

ORDER

¶25

This revision petition is filed under Section 397(1) of Cr.P.C challenging the order dated 01.02.2005 in Cr.R.P.No.47/2004 on the file of Additional Sessions Judge, Fast Track Court, Chitradurga, whereby the learned Additional Sessions Judge, Chitradurga allowed the said revision petition filed by the respondent – Rajappa, and set aside the order dated 19.11.2004 passed by JMFC, Holalkere.

¶26

¶27

2. Aggrieved by the order passed by the learned

¶28

Additional Sessions Judge, the revision petitioners filed this petition.

¶29

The brief facts of the case are hereunder:

¶30

The petitioners filed Crl.Misc.No.32/2000 before learned JMFC, Holalkere under Section 125 of Cr.P.C claiming maintenance at the rate of Rs.500/- each to the petitioners on the ground that the respondent who is none other than maternal uncle of 2^nd petitioner, married her at Subramanya temple and out of their wed-lock 1^st petitioner – Kavya was born to them.

¶31

The respondent resisted the claim of the petitioners contending that there was no marriage between him and 2^nd petitioner and 1^st petitioner was not born through him from out of the alleged marriage. The Trial Court after considering the oral and documentary evidence adduced by both the parties granted maintenance at Rs.1,000/- and allowed the

¶32

¶33

Crl.Misc.No.32/2000 filed by the petitioners and directed the respondent to pay maintenance at the rate of Rs.1,000/- per month to 1^st petitioner only.

¶34

Aggrieved by the said order, the respondent filed Cr.R.P.No.47/2004 before the Additional Sessions Judge, Fast Track Court, Chitradurga. After hearing, the learned Additional Sessions Judge set aside the order passed by the JMFC, Holalkere.

¶35

Being aggrieved by the order passed by the learned Additional Sessions Judge, Chitradurga the revision petitioners filed this revision petition challenging the same.

¶36

Heard both the counsels appearing for the revision petitioners and respondent.

¶37

The learned counsel for the revision petitioners submitted that the 2^nd petitioner is none other than the sister’s daughter of respondent. The petitioners examined PW’s – 2 & 3 to prove the marriage

¶38

¶39

between 2^nd petitioner and respondent at Subramanya temple, Shimoga. It is further submitted that as per Ex.P2 – Date of Birth certificate issued by the head master of the Government Primary School, Chitradurga, it indicates the father’s name of 1^st petitioner as Rajappa – respondent herein. In addition to this, the respondent also addressed the letter to PW-2 who is his friend. In the said letter, the respondent admitted the relationship between himself and 2^nd petitioner and he further admitted that his legal heir was in womb of 2^nd petitioner. Relying on the above evidence, the learned counsel for the petitioners submit that 1^st petitioner was born to 2^nd petitioner through the respondent. Therefore, she is entitled to claim maintenance and the trial Court after proper appreciation of evidence on record has rightly awarded maintenance to 1^st petitioner and learned Additional Sessions Judge, Fast Track Court, was not justified in setting aside the order passed by the JMFC, Holalkere. Therefore, the said

¶40

¶41

order passed by the learned Additional Sessions Judge, dated 01.02.2005 is liable to be set aside.

¶42

The learned counsel for the respondent

¶43

submits that there is no dispute with regard to the relationship between revision petitioner No.2 and the respondent. Even prior to the alleged marriage in the year 1991, the respondent married one Geetha in the year 1988 itself. Therefore, the question of performing marriage between 2^nd petitioner and the respondent by their relatives does not arise. It is further submitted that Ex.P2 - birth certificate issued by the head master cannot be relied on to prove the fact that 1^st petitioner was born to 2^nd petitioner through respondent, in the absence of any other evidence with regard to the marriage between 2^nd petitioner and birth of 1^st petitioner out of their wed-lock. It is contended that there are no grounds to interfere with the impugned order passed by the learned Additional Sessions Judge, Chitradurga.

¶44

¶45

The evidence available on record clearly

¶46

indicates that 2^nd petitioner is the sister’s daughter of respondent and PW-2 is the friend of respondent, PW-3 is maternal uncle of the 2^nd petitioner. PW-3 has stated in his evidence that he does not know anything about the marriage between 2^nd petitioner and the respondent. However, PW-2 friend of respondent supported the case of the petitioners and in his evidence he has stated about the marriage of 2^nd petitioner and the respondent was performed at Subramanya Temple in the presence of parents of the 2^nd petitioner without informing to other relatives of the parties.

¶47

The learned Additional Sessions Judge allowed the revision petition filed by the respondent on the ground that merely because the name of the respondent is mentioned as father of the 1^st petitioner in the Date of Birth certificate as per Ex.P2, it cannot be a ground to come to a conclusion that the 1^st petitioner is the daughter of the respondent. In Ex.P2 Date of Birth

¶48

¶49

certificate issued by the Head master clearly indicates the father name of the 1^st petitioner is mentioned as Rajappa i.e., respondent herein.

¶50

The learned counsel for the respondent submits that 2^nd petitioner furnished the name of the respondent to the head master at the time of admission of the child into the school. Therefore, the trial court was not justified in relying on Ex.P2 - Date of birth certificate issued by the head master to prove the relation between 1^st petitioner and the respondent. Based on the information furnished by parents at the time of admission of the child in the school, the name of the father of the child will be mentioned and Date of birth of the child are mentioned. In the instant case, either the 2^nd petitioner or respondent must have furnished the details of child i.e., name of the child, date of birth and father’s name. The respondent did not choose to examine the head master of the school to prove that he has not furnished any information to the

¶51

¶52

Head master and he has not admitted the 1^st petitioner in the school. When the respondent is denying the paternity of the child, it is for the respondent to prove that he has not given any information to the head master at the time of admission of the child. Therefore, it is clear by Ex.P2 date of birth certificate issued by the head master that the name of the respondent is mentioned as father of the girl at the time of admission. In addition to this Ex.P3 letter said to have been written by the respondent dated 09.07.1991, the 1^st petitioner was born on 05.06.1991. Therefore Ex.P3 letter produced by the petitioner will not be helpful for the petitioner to prove the relationship between the parties.

¶53

The learned Additional Sessions Judge at P- 15 of the judgment observed that the petitioners have not made any effort to establish the relationship between the respondent and 2^nd petitioner through scientific investigation. It is further observed that even prior to the birth of 1^st petitioner, 2^nd petitioner was

¶54

¶55

residing with her parents and that she never resided with the respondent, he has ignored the relationship between the parties. The respondent is none other than the maternal uncle of 2^nd petitioner who is none other than the sister’s daughter. Merely because there is no evidence to prove that 2^nd petitioner and respondent lived together or separately it cannot be believed that the 1^st petitioner was not born to the 2^nd petitioner through the respondent.

¶56

The learned counsel appearing on behalf of both the parties further submitted that 2^nd petitioner has not married any other person though the respondent had married another girl. The evidence on record clearly indicates that 1^st petitioner was born to 2^nd petitioner through respondent. The trial Court has rightly allowed the petition filed by the revision petitioners and awarded monthly maintenance of Rs.1,000/- per month. The learned Additional Sessions Judge was not justified in setting aside the order passed

¶57

¶58

by JMFC dis-believing Exs.P2 & P3 documents filed by the petitioners. Even if it is believed Ex.P2 letter written after alleged marriage and the contentions therein clearly indicates that 2^nd petitioner and respondent are having illegitimate relationship even after marriage of respondent with Geetha. Therefore, the 1^st petitioner who is the illegitimate daughter of 2^nd petitioner and respondent and she entitled to claim maintenance under Section 125 of Cr.P.C from the respondent.

¶59

In view of the above, impugned order dated 01.02.2005 passed by the learned Additional sessions Judge is hereby set aside the order passed by the JMFC in Crl.Misc.Cvl.No.32/2000 dated 19.11.2004 is hereby restored to file.

¶60

Accordingly, the revision petition is hereby

¶61

allowed.

¶62

Sd/JUDGE

¶63

Kavya D/O a R Rajappa v. a R Rajappa

Case brief

What is this about?

What did the court decide?

Kavya D/O a R Rajappa v. a R Rajappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Rajkumar Jalan Vs Karnataka Industrial Area Development Board

Syed Babu S/O Syed Peersab Vs the State of Karnataka

Sri P Sreeramulu Gupta Vs Sri a C Radhakrishna

B S Anand Kumar S/O Subbe Gowda Vs Anith Kumar S/O Ramesha H P

C Vijayakumari Vs M R Gopinath

State by Lokayukta Police Kolar Vs C Narayanappa S/O Chikkanarayanappa