Allowed

Sri. Somashekhar v. Smt. Savithra

Karnataka HC21 Jun 2021RPFC/74/2017

Case brief

AI extract

What is this about?

This revision petition challenged the Family Court's order granting maintenance. The High Court held that compromise or prior rejection for non-prosecution does not end the right to claim maintenance. It allowed the revision, set aside the impugned order, remanded the matter to the Family Court with a time limit, and directed interim maintenance payments to continue pending the fresh hearing.

What did the court decide?

Impugned order dated 25.01.2017 set aside; matter remanded to Family Court; petitioner directed to file objections on first hearing; interim maintenance to continue.

Sri. Somashekhar Vs Smt. Savithra — 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 21^ST DAY OF JUNE, 2021

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BEFORE

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

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RPFC No.74/2017

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BETWEEN:

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SRI.SOMASHEKHAR KYATHANAGOUDRU S/O BASAVANAGOUDRU AGED ABOUT 35 YEARS OCC: COOLIE R/O MEVUNDI VILLAGE NERALIGI POST, GUTTAL TALUK, HAVERI DISTRICT -581000 ..PETITIONER

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(BY SRI.G.B.MARUTHI, ADVOCATE)

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AND:

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SMT.SAVITHRA W/O SOMASHEKHAR KYATHANAGOUDRU AGED ABOUT 34 YEARS

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KUMARI PALLAVI S.K. D/O SOMASHEKHAR KYATHANAGOUDRU AGED ABOUT 9 YEARS

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KUMARA SIDDARTHA S.K. S/O SOMASHEKHAR KYATHANAGOUDRU

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AGED ABOUT 8 YEARS

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RESPONDENTS 2 AND 3 BEING MINORS REPRESENTED BY THEIR NATURAL MOTHER RESPONDENT No.1. ALL ARE R/O No.206, 1^ST MAIN ROAD, 6^TH CROSS, JALINAGARA, DAVANAGERE-577003 ..RESPONDENTS

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(RESPONDENTS 2 AND 3 ARE MINORS REPRESENTED BY RESPONDENT NO.1)

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THIS RPFC IS FILED UNDER SECTION 19(4) OF THE FAMILY COURTS ACT, AGAINST THE JUDGMENT AND ORDER DATED 25.01.2017 PASSED IN CRL.MIS.NO.236/2015 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE, C/C JUDGE, FAMILY COURT, DAVANAGERE, PARTLY ALLOWING THE PETITION FILED UNDER SECTION 125 OF CR.P.C. FOR MONTHLY MAINTENANCE.

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THIS RPFC COMING ON FOR ORDERS THIS DAY THROUGH VIDEO CONFERENCING THE COURT MADE THE FOLLOWING:

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ORDER

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Petition is filed under Section 19(4) of the

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Family Courts Act and same is directed against the

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order passed on 25.01.2017 in Cri.Misc.No.236/2015.

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The revision petitioner is one Somashekhar Kyatanagoudru. Revision respondents are (1)

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Savithra (2) Kum.Pallavi S.K. and (3) Kumara Siddartha S.K. Revision respondents 2 and 3 are minors represented by revision respondent No.1.

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It is stated that marriage between revision petitioner and respondent No.1 was solemnized on 25.09.2002 at Murugharajendra Kalyana Mantapa Chowkipeth, Davanagere. Revision respondent No.1 left home and joined the parental house without notice to the revision petitioner. Revision respondents filed C.Mis.No.236/2015 under Section 125 Cr.P.C seeking monthly maintenance. She alleged that happy life was only for a period of six months and harassment of the revision petitioner continued. However petition filed in C.Mis.No.236/2015 came to be partly allowed and court directed revision petitioner to pay monthly maintenance of Rs.2,500/- to revision

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respondent No.1 and Rs.1,500/to revision respondent No.2 from the date of petition till her marriage and to pay Rs.1,500/- to revision respondent No.3 from the date of petition till he attains majority. It is stated that earlier C.Mis.No.232/2011 was filed before the Family court claiming maintenance and said petition got dismissed. However, the terms of compromise are not stated. Learned counsel for revision respondent did not submit the details of compromise. However it is stated that after the compromise parties started living together. Thereafter the revision respondent filed petition for maintenance in C.Mis.No.4/2014 and that case was posted for evidence on 15.04.2014 and she was not feeling well on that day, she did not appear before the court and therefore the court has dismissed the said petition for non-prosecution and present petition in C.Mis.No.236/2015 came to be filed. Thus, revision

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petitioner-husband contends that the present petition is not maintainable by virtue of the previous petition being dismissed for non-prosecution i.e., C.Mis.No.4/2014 and previous petition to the said one ended in compromise. It is further submitted that the revision respondent has unjustifiably withdrawn herself from the marital company of the revision petitioner.

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The petitioner is stated to be an LIC agent and earning Rs.5 to Rs.6 lakhs per year, a cable operator earning Rs.10,000/- to Rs.15,000/- per month and also agriculturist getting yearly income of Rs.3 to Rs.4 lakhs. It is further submitted by the revision petitioner that before the Family court he had no opportunity to file objections and to lead evidence. Learned counsel for petitioner would submit that if an opportunity was given he would have presented the

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case and explained the groundlessness of the

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maintenance petition.

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5. The following points are clear:

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Compromise of a petition for maintenance cannot put a full stop to the right of a wife to claim maintenance if she has been subsequently deserted. It is to be understood that right of maintenance does not come to an end by virtue of disposal through compromise more particularly when the terms of compromise are not indicated or the compromise was through payment of a bulk amount or sufficient maintenance in monthly installments.

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The question that would arise is even when earlier payment is made or is continuing, the question of sufficiency would also come into operation as changed circumstances also would be taken to court by virtue of Section 127 Cr.P.C.

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In the circumstances the dismissal of a petition

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for non-prosecution cannot operate as estoppel against petitioner seeking maintenance as the right to claim maintenance recurs. The disposal must have a logical end considering the merits and demerits of the case of both the parties in the matter of maintenance. More particularly the revision respondent No.1 is the wife and revision respondents 2 and 3 are minor children. The interest of the minor children cannot be jeopardized for no fault of them. Family court has granted Rs.2,500/- to revision respondent No.1 and Rs.1,500/- to revision respondents 2 and 3.

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However in the circumstances if the revision

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petitioner has a case to be presented and he was prevented by sufficient cause from placing appearance before the Family court an opportunity may be given in the ends of natural justice to file his objections and to participate in the proceedings with a right to cross

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examine the revision respondent and to lead his evidence. However, in this connection the opportunity to revision petitioner cannot be at the cost of taking away the right of maintenance.

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Thus, revision petitioner shall go on paying the present rate of maintenance by way of interim maintenance till the disposal of C.Mis.No.236/2015. However, he shall file his objections on the very first date of hearing before the Family court. He shall not be defaulter in payment of either arrears of maintenance or the interim maintenance.

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Learned Judge, Family Court shall dispose of the petition expeditiously within an outer limit of six months from the first date of hearing and adjudication shall not be influenced by the present disposal.

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Without waiting for further notification, the parties shall appear before the Family Court,

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Davanagere on 07.08.2021.

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Accordingly, petition is allowed and order dated 25.01.2017 passed in C.Misc.No.236/2015 is set aside and matter is remanded to the Family Court with above observation.

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Send a copy of this order to the Family Court, Davanagere so that notice is issued to the revision respondents.

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Sd/JUDGE

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SBN

Sri. Somashekhar v. Smt. Savithra

Case brief

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Sri. Somashekhar v. Smt. Savithra

Case brief

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