Allowed

Jubedabanu W/O Mardansab Vadavi v. Mardansab S/O. Davalsab Vadavi

Karnataka HC8 Nov 2023CRL.P/100612/2023

Case brief

AI extract

What is this about?

High Court allowed a criminal petition under Section 482 Cr.P.C. setting aside orders that dismissed a maintenance petition due to the petitioner's non-appearance. The maintenance petition was restored before the Magistrate.

What did the court decide?

Orders dated 05.05.2022 and 02.11.2022 set aside; maintenance petition restored; respondent allowed to exclude interim period for maintenance.

Jubedabanu W/O Mardansab Vadavi Vs Mardansab S/O… — Maintenance and Alimony | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC-D:13032 CRL.P No. 100612 of 2023

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶4

DATED THIS THE 8^TH DAY OF NOVEMBER, 2023

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

¶7

CRIMINAL PETITION NO.100612 OF 2023

¶8

BETWEEN:

¶9

JUBEDABANU W/O MARDANSAB VADAVI, AGE. 37 YEARS, OCC. HOUSEWIFE,

¶10

KHALANDAR S/O MARDANSAB VADAVI, AGE. 13 YEARS, OCC. STUDENT,

¶11

SUHANA D/O MARDANSAB VADAVI, AGE. 10 YEARS, OCC. STUDENT,

¶12

ALIYA D/O MARDANSAB VADAVI, AGE. 08 YEARS, OCC. STUDENT,

¶13

VIJAYALAKSHMI M KANKUPPI Digitally signed by VIJAYALAKSHMI M KANKUPPI Date: 2023.11.10 11:48:07 +0530

¶14

PETITIONERS NO.2 TO 4 ARE MINORS R/BY THEIR MOTHER NATURAL GUARDIAN PETITIONER NO.1 ALL ARE R/O. KHADRINAGAR, NEAR BUS STAND, HULAGUR, TQ. SHIGGAON, DIST. HAVERI-581205.

¶15

… PETITIONERS (BY SRI. AHAMED ALI RAHIMANSHAH, ADVOCATE)

¶16

AND:

¶17

MARDANSAB S/O DAVALSAB VADAVI, AGE. 44 YEARS, OCC. SERVICE & AGRICULTURE, R/O. WARD NO.IV, HOUSE NO.456, KPTCL COLONY, HARAPANAHALLI, TQ. HOVINAHADAGALI, DIST. BALLARI-583131.

¶18

… RESPONDENT (BY SRI. CHETAN MUNNOLI, ADVOCATE)

¶19

¶20

NC: 2023:KHC-D:13032 CRL.P No. 100612 of 2023

¶21

THIS CRIMINAL PETITION IS FILED U/SEC.482 OF CR.P.C. SEEKING TO CALL FOR RECORDS AND SET ASIDE THE ORDERS PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE, HAVERI ON DATED 02.11.2022 BEARING CR.R.P. NO.71/2022, AND FURTHER SET ASIDE THE ORDER PASSED BY THE SENIOR CIVIL JUDGE AND JMFC SHIGGAON IN CRL.MISC NO.50/2020 DATED 05.05.2022, IN THE INTEREST OF JUSTICE AND EQUITY.

¶22

THIS PETITION IS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

¶23

ORDER

¶24

This petition is filed under Section 482 of Code of Criminal Procedure (hereinafter referred as ‘Cr.P.C’ for brevity) praying to set-aside the order dated 02.11.2022 passed in Criminal Revision Petition No.71/2022 by the I Additional District and Sessions Judge Haveri and setaside the order dated 05.05.2022 passed in Criminal Misc.No.50/2020 by the learned Senior Civil Judge and JMFC, Shiggaon.

¶25

Heard learned counsel for the petitioners and learned counsel appearing for the respondent.

¶26

The 1^st petitioner is the wife and petitioner Nos.2 to 4 are the children of respondent. The petitioners initiated proceedings under Section 125 of Cr.P.C against

¶27

¶28

NC: 2023:KHC-D:13032 CRL.P No. 100612 of 2023

¶29

the respondent in Crl.Misc.74/2016 seeking maintenance. The said petition was earlier pending before the Prl.JMFC, Shiggaon. Subsequently, the said petition came to be transferred to Senior Civil Judge and JMFC, Court Shiggaon and renumbered as Crl.Misc.No.50/2020. The said petition came to be dismissed for non prosecution by order dated 05.05.2022. The petitioners have filed revision petition in criminal revision petition No.71/2022 challenging the said order before the I Additional District and Sessions Judge, Haveri and the said criminal revision petition came to be dismissed by order dated 02.11.2022. The said two orders dated 05.05.2022 and 02.11.2022 are the subject matter of this petition.

¶30

Learned counsel for the petitioners would contend that the 1^st petitioner is the mother of petitioner Nos.2 to 4 and she is having responsibility to maintain her minor children-petitioner Nos.2 to 4. Therefore, petitioner No.1 could keep herself present on 05.05.2022 before the learned Magistrate when the case was posted for her

¶31

¶32

NC: 2023:KHC-D:13032 CRL.P No. 100612 of 2023

¶33

cross-examination. There was no any deliberate intention in non-appearing by this petitioner No.1 on that day before the learned Magistrate. The relief sought in the said petition is maintenance for 1^st petitioner-wife and petitioner Nos.2 to 4 who are the minor children of the respondent. If the orders sought are not set-aside, the petitioners will be deprived of their right to maintenance by the respondent. With this, he prayed to allow the petition.

¶34

Per contra , learned counsel appearing for the respondent would contend that if the orders dated 05.05.2022 and 02.11.2022 are set-aside, the maintenance petition will be restored and thereafter, if any order is passed where under respondent will be liable to pay maintenance from the date of petition. Learned counsel for the respondent would submit that he should be given a liberty to put forth plea before the learned Magistrate to exclude the period between 05.05.2022 and date of restoration of the petition.

¶35

5 - NC: 2023:KHC-D:13032 CRL.P No. 100612 of 2023

¶36

The 1^st petitioner is the wife and petitioner Nos.2 to 4 are the children of respondent. The respondent is a Government Servant serving in KPTCL. The relief sought under the said petition is maintenance. In the averments of this petition it is stated that petitioner No.1 is a illiterate and Parda Nashin lady and she is responsible

¶37

to look after her children. Merely because the petitioner No.1 was not present on 05.05.2022, learned Magistrate ought not have dismissed the petition filed by the petitioners seeking maintenance against the respondent. The 1^st petitioner who is having responsibility to look after her minor children could not keep herself present on 05.05.2022 before the Court. Even learned Sessions Judge did not consider the case of the petitioners under which the order dated 05.05.2022 was challenged. Considering that petitioner No.1 is a illiterate, Parda Nashin lady and having responsibility to look after three children (petitioner Nos.2 to 4), the order dated 05.05.2022 and 02.11.2022 requires to be set-aside and maintenance petition filed in

¶38

¶39

NC: 2023:KHC-D:13032 CRL.P No. 100612 of 2023

¶40

Crl.Misc.No.50/2022 requires to be restored. In the result,

¶41

the following;

¶42

ORDER

¶43

The criminal petition is allowed.

¶44

The order dated 05.05.2022 passed in

¶45

Crl.Misc.No.50/2020 by the learned Senior Civil Judge and JMFC, Shiggaon and order dated 02.11.2022 passed in Criminal Revision Petition No.71/2022 by the learned I Additional District and Sessions Judge, Haveri are setaside.

¶46

The Crl.Misc.No.50/2020 pending on the file of learned Senior Civil Judge and JMFC, Shiggaon is ordered to be restored.

¶47

The respondent is at liberty to put forth plea to exclude the period between 05.05.2022 and this day i.e., 08.11.2023 while awarding maintenance. The parties are directed to appear before learned Senior Civil Judge and

¶48

¶49

NC: 2023:KHC-D:13032 CRL.P No. 100612 of 2023

¶50

JMFC, Shiggaon on 04.12.2023 without awaiting any

¶51

notice from the Court.

¶52

Sd/JUDGE

¶53

AM CT:BCK List No.: 1 Sl No.: 15

Jubedabanu W/O Mardansab Vadavi v. Mardansab S/O. Davalsab Vadavi

Case brief

What is this about?

What did the court decide?

Jubedabanu W/O Mardansab Vadavi v. Mardansab S/O. Davalsab Vadavi

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

Kasturibai D/O Madiwalayya Hiremath Vs Smt. Jyoti W/O Yuvaraj Hiremath

Jameel Ahamad S/O Mehaboob Sab Punekar Vs Smt. Rubina D/O Raje Sab Muddebihal

Basappa S/O Yallappa Gaddar Vs Bhavaralal S/O Gisulal Sha

Kusum W/O Satyanarayana Wahi Vs the State of Karnataka

Iranna S/O Basayya Ganachari Vs State of Karnataka

Gangya Alias Gangadhar Santaram Shinde, Vs the State of Karnataka through