Allowed

Shri. Parashuram S/O Shivarudra Salunke v. Smt. Bhumika Alias Megha W/O Parashuram Salunke

Karnataka HC23 Nov 2023RPFC/100069/2023

Case brief

AI extract

What is this about?

High Court allowed revision challenging maintenance order. Court held summons service via 'unclaimed' postal endorsement violates Section 67 Cr.P.C. and ex-parte trial via affidavit violates Section 126 Cr.P.C. Ordered remand for fresh hearing with proper service and witness evidence. Awarded interim maintenance.

What did the court decide?

Impugned order set aside; matter remanded for proper service and hearing; husband directed to pay interim maintenance of ₹10,000.

Shri. Parashuram S/O Shivarudra Salunke Vs Smt… — Maintenance and Alimony | Karnataka HC (2023)

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NC: 2023:KHC-D:13664 RPFC No. 100069 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 23^RD DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

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REV.PET FAMILY COURT NO.100069 OF 2023

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BETWEEN:

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SHRI. PARASHURAM S/O SHIVARUDRA SALUNKE AGE: 36 YEARS, OCC: CIVIL DRIVER, CIVIL SECTION, JUNIOR LEADERS WING ESTABLISHMENT SECTION INFANTARY SCHOOL BELAGAVI, R/O. MATOSHRI APARTMENT VADAGAON YELLUR ROAD 2^ND CROSS ANANDNAGAR, BELAGAVI-590005.

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…PETITIONER

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(BY SRI. YASH R.NADKARNI, ADVOCATE FOR SRI. VITTHAL S.TELI, ADVOCATE)

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AND:

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Digitally signed by VISHAL VISHAL NINGAPPA PATTIHAL NINGAPPA Date: PATTIHAL 2023.12.01 11:01:43 +0530

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SMT. BHUMIKA @ MEGHA W/O PARASHURAM SALUNKE, AGE: 23 YEARS, OCC: HOUSEWIFE, R/O. MATOSHRI APARTMENT VADAGAON YELLUR ROAD 2^ND CROSS ANAND NAGAR, BELAGAVI C/O SHRI HANUMANTHAPPA DODDAMANI, R/O. H. NO 115 KRISHNAGIRI COLONY, NEAR GANGAPATI TEMPLE, ANANDNAGAR ROAD, OLD HUBBALLI-580024.

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…RESPONDENT

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(BY SRI. A. A. PATHAN, ADVOCATE FOR SOLE RESPONDENT)

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THIS R.P.F.C IS FILED UNDER SECTION 19(4) OF THE FAMILY COURT ACT, 1984, PRAYS THAT, THE JUDGMENT AND ORDER DATED 22.10.2021 IN CRL. MISC NO.183/2019 PASSED BY THE PRINCIPAL JUDGE FAMILY COURT HUBBALLI, IN AWARDING MAINTENANCE OF Rs.20,000/- P.M. TO THE RESPONDENT TILL HER LIFETIME MAY BE KINDLY BE SET ASIDE IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS R.P.F.C, COMING ON FOR FURTHER ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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NC: 2023:KHC-D:13664 RPFC No. 100069 of 2023

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ORDER

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The short question to be answered in this revision petition is that “Whether evidence by way affidavit in proceedings under Section 125 of Code of Criminal Procedure, 1973” (hereinafter referred to as “Cr.P.C”) is acceptable and whether the petitioner is served in the manner prescribed under Section 67 of Cr.P.C.

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The present revision petition is by the husband

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assailing the order dated 22.10.2021 in Crl.Misc.No.183/2019 on the file of the Principal Judge Family Court, Hubballi, whereby, the petition filed by the wife under Section 125 of Cr.P.C was allowed directing the husband to pay a monthly maintenance of ₹20,000 to the wife till her lifetime.

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The claim was made by the respondent-wife under Section 125 of Cr.P.C before the Family Court seeking maintenance. The concerned Family Court directed the petitioner herein to pay monthly maintenance of Rs.20,000/to the wife.

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NC: 2023:KHC-D:13664 RPFC No. 100069 of 2023

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The validity of the impugned order is assailed by

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the petitioner on two counts. Firstly, that the summons to the petitioner is not served in accordance with section 67 of Cr.P.C., service of notice placing the petitioner ex-parte through the postal endorsement “unclaimed” is not justified. Secondly, it is contended that the concerned Court while deciding the petition of the wife for maintenance has taken the evidence by way of affidavit which is impermissible where a petition is filed under Section 125 of Cr.P.C., and the evidence conducted is not in accordance with the procedure prescribed under Section 126 of Cr.P.C and the procedure prescribed under Section 10(2) of the Family Courts Act, 1984 (hereinafter referred to as “the Act” for short) and the Family Court has not followed the procedure as contemplated under the provisions of Cr.P.C., as applicable under the Act. In support of his contention learned counsel has relied upon the decision of the co-ordinate Bench of this Court in the case of Shivashankar Chandrashekar Jotavar Vs. Poornima Shivashankar Jotavar and

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others¹ .

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1 2017 (1) AKR 207

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4 NC: 2023:KHC-D:13664 RPFC No. 100069 of 2023

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Per contra, learned counsel appearing for the respondent-wife would contend that there is no total bar for considering the evidence on affidavit as amended C.P.C itself provides the leading evidence by way of an affidavit and would contend that the impugned order cannot be set aside merely on the ground that the evidence on affidavit is considered by the Family Court, while passing the impugned order. Learned counsel for respondent would contend that the contention of Section 67 Cr.P.C to be applicable, is not sustainable as the husband has willfully avoided the service of notice and the Family Court has rightly placed the husband ex-parte. Learned counsel would contend that the order of the Family Court does not call for any interference.

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This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record. In order to answer the question framed by this Court, it is necessary to refer to the relevant procedure governed in proceedings under Section 125 Cr.P.C., the procedure to be followed, is prescribed

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NC: 2023:KHC-D:13664 RPFC No. 100069 of 2023

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under Section 10 in Chapter-IV of the Act and it reads as follows:

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“10. Procedure generally

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(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (Act 5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceeding under Chapter IX of the Code of Criminal Procedure, 1973) before a Family court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court.

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(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.”

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The plain reading of the above provision indicates

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that other than the proceedings instituted under Chapter-IX of Cr.P.C shall be governed by CPC, 1908, proceedings under Section 125 falls under Chapter-IX of Cr.P.C. The present proceedings are initiated under Section 125 Cr.P.C. Petitioner is residing at Belagavi, petitioner’s residence is clearly outside the local limits of the Court situated at Hubballi. Section 67 of Cr.P.C reads as under:

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“67. Service of summons outside local limits.- When a Court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is, to be there served.”

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Plain reading of the Section envisages a

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procedure for issuance of summons when a person is outside the local jurisdiction, summons issued by the Court shall ordinarily send such summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides. Thus, in light of Section 10 of the Act and the proceedings under Section 125 Cr.P.C., falls within Chapter-IX of Cr.P.C., the proceedings under Section 125 Cr.P.C., is governed by the provisions of Code of Criminal Procedure, 1973, summons to respondent outside the jurisdiction of the Court necessarily should be served in accordance with Section 67 Cr.P.C. The concerned Court issued notice through RPAD and postal endorsement returned as “unclaimed” and the Family Court placed the petitioner ex-parte contrary to the procedure contemplated under Section 67 of Cr.P.C., and placing the petitioner ex-parte based on postal endorsement is unsustainable.

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NC: 2023:KHC-D:13664 RPFC No. 100069 of 2023

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Section contention is that, the procedure to record evidence in proceedings under Section 125 Cr.P.C., is provided under Section 126 Cr.P.C and the Family Court has not recorded the evidence as prescribed under Section 126 Cr.P.C., In order to answer this contention Section 126 of

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Cr.P.C. needs to be looked into, which reads as under:

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“126. Procedure. (1) Proceedings under section 125 may be taken against any person in any district-

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(a) where he is, or

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(b) where he or his wife, resides, or

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(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons cases:

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PROVIDED that if the Magistrate is satisfied that the person against whom, an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.

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(3) The Court in dealing with applications under

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NC: 2023:KHC-D:13664 RPFC No. 100069 of 2023

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section 125 shall have power to make such order as to costs as may be just.”

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Plain reading of the section envisages that the

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proceedings to be taken in presence of the person against whom an order of payment of maintenance is proposed to be made, proviso to section 126(2) Cr.P.C makes it clear that only if the Magistrate is satisfied that the person against whom an order of payment of maintenance is proposed to be made is willfully avoiding or neglecting to attend the Court, the Magistrate may hear the matter ex-parte. In the instant case, the Magistrate on a postal endorsement returned as “unclaimed” the Family Court chose to place the petitioner ex-parte, the dictionary meaning of the word “unclaimed” is “not claimed” or “not having been claimed”. The satisfaction of the Magistrate placing the petitioner herein ex-parte is not forthcoming, the endorsement “unclaimed” cannot be willfully avoiding of notice, which if yes, the Magistrate should have satisfied himself before proceeding to hear and determine the case ex-parte and recording of evidence in

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9 NC: 2023:KHC-D:13664 RPFC No. 100069 of 2023

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view of affidavit in the petitioner’s absence is contrary to proviso to section 126(2) Cr.P.C.

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The co-ordinate Bench of this Court in the case of Shivashankar Chandrashekar Jotavar (stated supra) following the decisions of this Court in the case of Bhimappa (1981 Crl.L.J (NOC) 8 (Kar), this Court following the earlier decision in the case of State Vs. Bhimrao (AIR 1963 Mysore 239) (supra) has held that Magistrate must be satisfied that the respondent in a proceedings under Section 125 Cr.P.C was willfully avoiding service or neglecting to attend the Court before placing him ex-parte.

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In the instant case the petitioner was placed exparte on a postal endorsement “unclaimed’ and the Family Court without recording the satisfaction as contemplated under Section 126(2) Cr.P.C., recording evidence in the absence of the petitioner is unsustainable.

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For the forgoing reasons petition has to succeed on both counts namely service of summons not as per provisions of Section 67 of Cr.P.C., and the recording of

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10 NC: 2023:KHC-D:13664 RPFC No. 100069 of 2023

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evidence is contrary to Section 126(2) of Cr.P.C., and in the result the impugned order warrants interference. However, the petitioner would not absolve himself from the liability of paying maintenance to the respondent and it would be appropriate to this Court to direct the petitioner to pay a reasonable maintenance to the respondent by way of an interim maintenance for their sustenance. The fact remains that non-following of the procedure contemplated under Sections 67 and 126(2) Cr.P.C., the parties need to suffer and more particularly the wife herein. For the foregoing reasons, this Court pass the following:

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ORDER

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i) Revision petition is here by allowed.

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ii) The impugned order passed by the Family Court is here by set aside.

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iii) The matter is remitted back to the Family Court by setting aside the ex-parte order affording an opportunity to the petitioner to file objections to the petition and the Family Court is to afford reasonable and sufficient opportunity to the parties to lead evidence in

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NC: 2023:KHC-D:13664 RPFC No. 100069 of 2023

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accordance with Section 126 of Cr.P.C by entering into the witness box.

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iv) The husband shall pay a sum of ₹10,000 as maintenance to the wife till the matter is disposed of by the Family Court.

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v) The awarding of maintenance by this Court ₹10,000 is only an interim measure.

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vi) The Family Court to pass necessary orders in accordance with law by considering the matter afresh without being influenced by this order or any findings of this Court and pass the appropriate orders.

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vii) Parties to appear before the Family Court on 18.12.2023.

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In view of the disposal of the petition, the pending I.As

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would not survive for consideration.

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Sd/JUDGE

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PJ, CT: UMD List No.: 1 Sl No.: 22

Shri. Parashuram S/O Shivarudra Salunke v. Smt. Bhumika Alias Megha W/O Parashuram Salunke

Case brief

What is this about?

What did the court decide?

Shri. Parashuram S/O Shivarudra Salunke v. Smt. Bhumika Alias Megha W/O Parashuram Salunke

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What did the court decide?

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