Dismissed

S Noorya Naik v. Smt Sharadabai

Karnataka HC1 Jul 2021RPFC/108/2018

Case brief

AI extract

What is this about?

The High Court dismissed a revision petition under Cr.P.C. 125 challenging the Family Court's award of maintenance to a minor child and his mother. The Court held the non-award of maintenance to the mother was an error, affirming the maintenance amount for the child as well.

What did the court decide?

Revision petition dismissed; order of Family Court granting maintenance to the minor child confirmed and modified to explicitly include maintenance for the mother at Rs. 5,000 per month.

S Noorya Naik Vs Smt Sharadabai — Maintenance and Alimony | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF JULY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO

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R.P.F.C. No.108 OF 2018

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BETWEEN:

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S.Noorya Naik S/o Lata Samya Naik, Age:37 years, KPTCL Employee, Hosapete Road, R/o Mariyammanahalli Thanda, Hosapete Taluk, Bellary District, Pin Code – 583 201.

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...Petitioner

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(By Sri.K.P. Bhuvan, Advocate)

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AND:

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Smt. Sharadabai

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W/o.S.Norrya Naik, Age: 30 years, Household.

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Kumar Pankaj Naik, S/o Noorya Naik, Age:09 years, Since minor represented By his natural guardian i.e., his mother respondent

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No.1, Smt.Sharadabai.

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Both are resident of Guttur Colony, Behind Police Station, Harihara Taluk,

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Davangere District. Pin code 577001

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…Respondents

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This RPFC is filed u/s 19(4) of the 04.07.2018 passed in Crl.Misc.No.311/2016 on the file of the Judge, Family Court, Davangere, partly allowing the petition filed under Section 125 of Cr.P.C for maintenance in so far as respondent No.2 is concerned and etc.

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This RPFC coming on for Order this day, through video conferencing the Court made the following:

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ORDER

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This revision petition is presented by one Sri.S.Noorya Naik against the order passed in Crl.Misc 311/2016, wherein the claim petition filed by the revision respondent came to be allowed in part. The claim of the petitioner No. 1 came to be dismissed and it was allowed in so far as the petitioner No.2 is concerned wherein maintenance of Rs.5000/- was granted from the date of petition. The extract of the operative portion of the Order passed by the Trial Court is as under:-

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“ORDER

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The petition filed by the petitioners u/s.125 of Cr.P.C, is hereby partly allowed with cost of Rs.1,000/-

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The petitioner No.2 is entitled for maintenance of Rs.5,000/- per month from the date of petition from the respondent.

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The respondent is directed to pay above monthly maintenance amount to the petitioner No.2 accordingly well in time without fail.

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The claim of petitioner No.1 seeking maintenance is hereby dismissed.”

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The revision petitioner contends that he is not the husband of the revision respondent no.1 and

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that he is not liable to pay maintenance. The Family Court as a matter of fact has not ordered maintenance to revision petitioner No.1 Smt.Sharadabai. However an amount of Rs.5000/- was granted to petitioner No.2 before the Family Court.

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The learned counsel for revision petitioner

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submits that there is no relationship between the revision petitioner and revision respondent no.1 and appreciating the fact, the Family Court has refused maintenance to revision respondent no.1. In so far as the revision respondent no.2 is concerned, he is Kumar Pankaj, aged about 7 years as on the date of filing of the petition in the year 2016 for him Family Court had granted maintenance of Rs.5000/- which goes to show that he is entitled for maintenance till attaining majority.

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Learned counsel Sri. K.P. Bhuvan, for the revision petitioner submits that there was no marriage between the revision petitioner and revision respondent no.1 and as a legal perception, the Family Court understood the matter and has refused the maintenance to wife. Considering the economic position of the revision petitioner who is on contract job, learned counsel submits that the Family Court ought to have not ordered an amount of Rs.5,000/- by way of maintenance to the revision respondent no.2. The learned counsel also submits that a criminal case also was filed by the revision respondent no.1 for the offence punishable under sections 376, 420, and 506 of the Indian Penal Code, 1860 and was registered in Crime No.86/2009 by Sandur police and the same came to be acquitted. The revision respondent no.1 being not a wife of the revision petitioner is not

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entitled for maintenance. Some of the instances and

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admitted facts are as under;

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“A criminal case was filed for the offence stated above in Crime No.86/2009 and regard being had to the fact that the criminal case came be acquitted. The claim petition was filed against the revision petitioner by both the revision respondents. The learned Judge, Family Court, in his wisdom relied upon the DNA report in respect of revision respondent No.2, which reveals that the revision petitioner is a biological father of the revision respondent No.2 There is no dispute that the revision respondent No.2 was born through the womb of revision respondent no.1. The fact of the matter is that the revision petitioner disputes the marital relationship between himself and revision respondent No.1. It is to be understood that in so far as the criminal case is concerned, it is disposed of on several aspects including the applicability of the ingredients of the Provision of Sections under which the revision petitioner was charged. As such the adjudication of the said criminal petition has nothing to do with the

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disposal of maintenance petition filed under Section 125 of Cr.P.C.”

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The grievance of the revision petitioner is the

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amount of Rs.5000/- of maintenance ordered by the learned Judge, Family Court, payable to respondent No.2 is excessive, exorbitant and working out hard on him and has to be cancelled. He is married presently and the name of wife is Manjula and he has a daughter. In so far as the marital and parental relationship is concerned, when the revision respondent no.2 is held to be biological son of the revision petitioner regard being had to the fact that the said respondent no.2 was born through the womb of respondent no.1. Even as per the science the revision petitioner caused pregnancy through cohabitation with revision respondent no.1. Thus the position is that, irrespective of the happening or not happening of marriage because it is asserted by revision respondent no.1 and denied by the revision

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petitioner, the revision petitioner is invariably the father of revision respondent no.2. In other words, he had an opportunity of cohabitation with revision respondent no.1, that resulted in pregnancy, later, she giving birth to the revision respondent No.2. In the overall context of the matter the proceedings under Section 125 is summary by nature. It is not a thread bear bifurcation on verification of all the aspects Section 127 of Cr.P.C contemplates for alteration or modification of maintenance. It may include enhancement, remission or even cancellation, under the appropriate circumstances subsequent to grant of maintenance.

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Further the claim petition is not deciding the

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legal heirship. On the other hand, it is the duty to hold whether a husband has neglected to maintain his wife and children as per Section 125 of Cr.P.C for maintenance, regard being had to the fact that latter

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do not have source of maintenance. When such being a case in strict sense, it cannot be adjudicated that the Courts under section 125 of Cr.P.C the final dictum verdict regarding the relationship.

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In the above circumstances, it cannot be

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presumed that except wife, others are not entitled for maintenance. Even there are cases wherein a kept concubine is entitled for maintenance. In this connection, no doubt revision respondent No.1 has not come in revision against the said order of maintenance, it is only the petition filed by Mr.Noorya Naik who made the revision respondent No.1, the mother of revision respondent no.2 as parties. When such is the case no one is having right that includes a male to have a toy hood treatment with a female. The real difficulty has to be analyzed in the appropriate cases. Section 125 of Cr.P.C is also regarded as a piece of social legislation oriented

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towards social justice, more particularly of wife and destitutes may include women and children.

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In the circumstances, the Family Court

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adopted a very unfair approach in discarding the claim of revision respondent no.1 for granting maintenance.

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I am abreast of the fact that the revision respondent no.1 has not preferred in any revision petition, but she is the guardian of respondent no.2.

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In the circumstances, I am of the sincere but firm view that no matter that the revision might not have been preferred by respondent no.1, the mother of revision respondent No.2, she is entitled for just maintenance under the social legislation and the paramount object of the scheme for maintenance recognized by law, as she is the biological mother of the child whose father is the revision petitioner.

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Under such circumstances, I hold a minimum of Rs.5,000/- should have been awarded to the revision respondent no.1 by the Family Court. In refusing the maintenance the learned Judge, Family Court has committed a serious error which deserves to be rectified.

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Hence, firstly I hold that the respondent No.1 is entitled for maintenance at the rate of Rs.5000/- P.m. In so far as the contention of revision petitioner against revision respondent No.2 is concerned, the amount granted is Rs.5,000/-, the respondent No.2 is minor who requires care, caution, control and is entitled for education and guardian to meet expenditure of education.

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In the circumstances, I do not find the grant of maintenance to the respondent No.2, deserves to be modified. Hence, I find that though the learned

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Judge, Family Court, awarded maintenance to respondent no.2 erred seriously in holding that wife is not entitled for maintenance. Thus the revision petition is hereby dismissed and the order dated 04.07.2018 in granting maintenance to revision respondent No.2 is hereby confirmed and at the same time modified holding the revision respondent no.2 is entitled for maintenance at the rate of Rs.5000/- per month from the date of petition.

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Sd/JUDGE

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akv

S Noorya Naik v. Smt Sharadabai

Case brief

What is this about?

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S Noorya Naik v. Smt Sharadabai

Case brief

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