Partly allowed

Smt Bibi Fathima v. Sri Shaik Hyder

Karnataka HC15 Dec 2023WP/19288/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition challenging an interim maintenance order. Relying on the Supreme Court's directive in Rajnesh v. Neha, the Court held maintenance must be awarded from the date of application filing. The impugned order was modified accordingly.

What did the court decide?

The impugned order dated 02.12.2022 was modified to direct payment of maintenance from the date of filing the application (14.07.2021) instead of the date of the order (02.12.2022).

Smt Bibi Fathima Vs Sri Shaik Hyder — Maintenance and Alimony | Karnataka HC (2023)

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1 - NC: 2023:KHC:45812 WP No. 19288 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 19288 OF 2023 (GM-FC)

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BETWEEN:

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SMT.BIBI FATHIMA AGED ABOUT 32 YEARS WIFE OF SHAIK HYDER, D/O MOHAMMED RIYAZ AHAMED RESIDING AT ADARANGI VILLAGE, ADARANGI POST, KUDUR HOBLI, MAGADI TALUK - 562 120 RAMANAGARA DISTRICT.

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BABY ANAM SHAIK D/O SHAIK HYDER AGED ABOUT 2 ½ YEARS CARE AND CUSTODY OF

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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NATURAL GUARDIAN AND MOTHER SMT.BIBI FATHIMA RESIDING AT ADARANGI VILLAGE, ADARANGI POST, KUDUR HOBLI, MAGADI TALUK – 562 120 RAMANAGARA DISTRICT. (SINCE, MINOR REPRESENTED BY HER NATURAL GUARDIAN & MOTHER SMT.BIBI FATHIMA)

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…PETITIONERS

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(BY SRI. FAYAZ SAB B.G., ADVOCATE)

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AND:

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SRI SHAIK HYDER AGED ABOUT 35 YEARS, SON OF LATE H.NAZEER AHAMED, RESIDING AT MUJAWAR MOHALLA, MULBAGAL - 563 103 KOLAR DISTRICT.

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…RESPONDENT

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(BY SRI. MOHAMED ZULFIKHAR AHAMED, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS i) SET ASIDE / MODIFY THE ORDER DATED 02/12/2022 PASSED IN CRL.MISC.NO. 864/2021 ON THE FILE OF ADDL CIVIL JUDGE AND JMFC AT MAGADI ON AN INTERLOCUTORY APPLICATIOIN FILED UNDER SECTION 125(1) OF CODE OF CRIMINAL PROCEDURE, WHEREIN ORDERED TO PAY A MAINTENANCE OF RS. 8,000/- PER MONTH TO THE PETITIONER NO. 1 AND 2 TILL FURTHER ORDERS FROM THE DATE OF ORDER, INSTEAD OF ORDERED TO PAY THE MAINTENANCE FROM THE DATE OF PETITION, WHICH IS PRODUCED AND MARKED AS ANNEXURE-A AS ILLEGAL, ARBITRARY AND WITHOUT APPLICATION OF MIND AND ETC.,

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners are before this Court seeking the following

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prayer:

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“i) To issue a writ of certiorari, to set aside / modify the order dated 02/12/2022 passed in Crl.Misc.No.864/2021 on the file of Addl. Civil Judge and JMFC at Magadi on an Interlocutory Application filed under Section 125(1) of Code of Criminal Procedure, wherein

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ordered to pay a maintenance of Rs.8,000/- per month to the petitioner No.1 and 2 till further orders from the date of Order, instead of Ordered to pay the maintenance from the date of Petition, which is produced and marked as ANNEXURE-A as illegal, arbitrary and without application of mind.

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ii) To direct, the Respondent to pay the enhanced interim maintenance of Rs.25,000/- per month to the Petitioner No.1 & 2 till further orders, instead of paying Rs.8,000/- per month to the Petitioner Nos.1 & 2 till disposal of the Criminal Misc. No.864/2021, pending on the file of Addl. Civil Judge & JMFC at Magadi, to meet the ends of justice.

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iii) To grant, any Writ, Orders or relief/s as deems fit by this Hon’ble Court under the facts and circumstances of the above case in the interest of justice and equity.”

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Heard Sri Fayaz Sab B.G., learned counsel for petitioners and Sri Mohamed Zulfikhar Ahamed, learned counsel for respondent.

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Petitioner No.1 is the wife, the respondent her husband. It transpires that the relationship between the two turned sore and on the relationship turning sore, the wife instituted certain proceedings invoking Section 125 of the Cr.P.C. seeking maintenance at the hands of the husband. The

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concerned Court allows the application in terms of its order dated 02.12.2022. The order reads as follows:

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NC: 2023:KHC:45812 WP No. 19288 of 2023

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“I.A.No.1 filed by the Petitioner under sec.125(1) of Cr.P.C. is hereby partly allowed.

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The Respondent is hereby directed to pay an interim monthly maintenance of Rs.8,000/- per month to the Petitioner No.1 and 2 till further orders. This order shall be in force from this day.

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Petitioner evidence: 23.01.23.”

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The order directs the husband to pay maintenance to the wife from the date of the order i.e., 02.12.2022. The petitioners have called that in question this order, on the score that it ought to have been granted from the date of filing of the petition i.e., 14.07.2021.

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It is the submission of the learned counsel for petitioners that the maintenance ought to have granted from the date of filing of the petition and not from the date of the order granting maintenance.

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The submission of the learned counsel for the petitioners merits acceptance as it is in tune with the law laid down by the Apex Court in the case of RAJNESH v. NEHA

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NC: 2023:KHC:45812 WP No. 19288 of 2023

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AND ANOTHER reported in (2021)2 SCC 324. The Apex

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Court has held as follows:

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“ xxxxxx

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113. It has therefore become necessary to issue directions to bring about uniformity and consistency in the orders passed by all courts, by directing that maintenance be awarded from the date on which the application was made before the court concerned. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.

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xxxxxx

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VI. Final Directions

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127. In view of the foregoing discussion as contained in Part B — I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India.

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(a) Issue of overlapping jurisdiction

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128. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:

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128.1. (i) Where successive claims for maintenance are made by a party under different statutes, the court would consider an adjustment or set-off, of the amount awarded in the previous proceeding(s), while determining whether any further amount is to be awarded in the subsequent proceeding.

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128.2. (ii) It is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding.

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128.3. (iii) If the order passed in the previous proceeding(s) requires any modification or variation, it would be required to be done in the same proceeding.

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(b) Payment of Interim Maintenance

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129. The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the Family Court/District Court/Magistrates Court concerned, as the case may be, throughout the country.

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(c) Criteria for determining the quantum of maintenance

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130. For determining the quantum of maintenance payable to an applicant, the court shall take into account the criteria enumerated in Part B — III of the judgment. The aforesaid factors are however not exhaustive, and the court concerned may exercise its discretion to consider any other factor(s) which may be necessary or of relevance in the facts and circumstances of a case.

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(d) Date from which maintenance is to be awarded

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131. We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B — IV above.

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(e) Enforcement/Execution of orders of maintenance

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132. For enforcement/execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28-A of the Hindu Marriage Act, 1955; Section 20(6) of the DV Act; and Section 128 of CrPC, as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order 21.”

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(Emphasis supplied)

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The Apex Court holds that it would be correct to interpret the order on maintenance would run from the date of the application filed by the wife seeking maintenance be it, under any provision of law i.e., Section 24 of the Hindu Marriage Act; Section 125 of the Cr.P.C.; Section 12 of the Protection of Women from Domestic Violence Act. Therefore, the order that directs maintenance to be paid from the date of the order runs foul of the judgment rendered by the Apex Court supra . In the light of it running foul, the modification of the order would ensue.

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For the aforesaid reasons, the following:

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ORDER

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a. The writ petition is allowed in-part.

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b. The impugned order dated 02.12.2022 passed on I.A.No.1/2021 in Crl.Misc.No.864/2021, stands modified to the effect that the payment of maintenance from the date of filing of the application i.e., 14.07.2021, and not from 02.12.2022.

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c. All other contentions of the parties shall remain open.

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Ordered accordingly.

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Sd/JUDGE

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nvj List No.: 2 Sl No.: 31