Allowed

Sri. Deepak Shenoy @ Arun v. Smt. Varsha Baliga @ Aparna Shenoy

Karnataka HC22 Apr 2024CRL.P/1650/2024

Case brief

AI extract

What is this about?

Petitioner challenged rejection of his Section 389(1) Cr.P.C. application seeking stay of an interim maintenance order in domestic violence proceedings. The High Court held the appellate court erred by dismissing without notice to the respondent, set aside that order and directed reconsideration on merits.

What did the court decide?

Impugned order rejecting Section 389(1) application set aside; appellate court directed to decide I.A.Nos.1 and 2 on merits after hearing respondent; no coercive steps against petitioner till then.

Sri. Deepak Shenoy @ Arun Vs Smt. Varsha Baliga @ Aparna… — Domestic Violence | Karnataka HC (2024)

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NC: 2024:KHC:16136 CRL.P No. 1650 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY

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CRIMINAL PETITION NO. 1650 OF 2024

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BETWEEN:

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SRI. DEEPAK SHENOY @ ARUN, S/O LATE U. NARASIMHA SHENOY, AGED ABOUT 35 YEARS, R/AT FLAT NO.103, DIA RESIDENCY, BHOJA RAO LANE, PRAGATHI SERVICE STATION, BHAGAVATHI NAGAR, 2ND CROSS, KODIYALABAIL, MANGALURU, D.K. DISTRICT-575 003.

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…PETITIONER

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(BY SRI. K. RAVISHANKAR, ADVOCATE)

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AND:

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Digitally signed by PAVITHRA N Location: High Court of Karnataka

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SMT. VARSHA BALIGA @ APARNA SHENOY, W/O DEEPAK SHENOY @ ARUN, AGED ABOUT 31 YEARS, R/AT NANDAGOKULA, SIQUEIRA LANE, URWA, MANGALURU, D.K.DISTRICT-575 006.

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…RESPONDENT

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(BY SRI. RAGHAVENDRA SHENOY M., ADVOCATE)

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THIS CRL.P IS FILED U/S 482 CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER DATED 19.01.2024 PASSED IN CRL.A.NO.12/2024, PENDING ON THE FILE OF III ADDITIONAL

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NC: 2024:KHC:16136 CRL.P No. 1650 of 2024

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DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU AND ALLOW I.A.NO.1.

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

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ORDER

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The petitioner is before this Court assailing the order dated 19.01.2024 passed by the Court of III Additional District and Sessions Judge, Dakshina Kannada, Mangalore rejecting his application filed under Section 389(1) of Cr.P.C., seeking stay of the interim order passed by the III JMFC Court, Mangalore dated 01.04.2022 in

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Crl.Misc.No.88/2019.

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Heard learned counsel for both the parties.

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Respondent herein had filed proceedings under

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the provisions of Protection of Women from Domestic Violence Act before the III JMFC Court, Mangalore in Crl.Misc.No.88/2019. In the said proceedings, the Trial Court passed an exparte order of interim maintenance directing the petitioner herein to pay a sum of Rs.10,000/-

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as maintenance per month to the respondent. Application

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3 - NC: 2024:KHC:16136 CRL.P No. 1650 of 2024

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filed by the petitioner to vacate the said order was dismissed. Assailing the same, the petitioner had filed Crl.A.No.12/2024 before the Court of III Addl. District Judge, D.K., Mangalore. In the said appeal, he had filed applications to condone the delay caused in filing the appeal and also to stay the order dated 01.04.2022 passed by the Trial Court in Crl.Misc.No.88/2019. The appellate Court while issuing notice to the respondent has rejected the application filed by the petitioner under Section 389(1) of Cr.P.C. Being aggrieved by the same, the petitioner is before this Court.

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Learned counsel for the petitioner submits that

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the Appellant Court could not have rejected the application without even issuing notice to the respondent. He submits that rejection of the application filed under Section 389 of Cr.P.C., has caused serious hardship to the petitioner.

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Learned counsel appearing for the respondent

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submits that there is an inordinate delay in filing the

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4 - NC: 2024:KHC:16136 CRL.P No. 1650 of 2024

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criminal appeal before the Appellate Court. Without condoning the said delay, the application under Section 389(1) of Cr.P.C., could not have been entertained. Therefore, the Appellate Court was justified in dismissing the application filed under Section 389(1) of CrPC.

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It is not in dispute that the Trial Court had initially passed an exparte order directing the petitioner herein to pay a sum of Rs.10,000/- per month as monthly maintenance to the respondent. Petitioner herein has filed an application seeking vacation of the said exparte interim order, contending that the respondent is gainfully employed and she is drawing monthly salary. The Trial Court had rejected the said application and being aggrieved by the same Crl.A.No.12/2024 was filed by the petitioner before the Appellate Court. It is also not in dispute that there is an ordinate delay in preferring the said appeal and therefore, application has been filed by the petitioner to condone the delay caused in filing the criminal appeal and also to stay the order dated

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5 - NC: 2024:KHC:16136 CRL.P No. 1650 of 2024

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01.04.2022 passed by the Court of III JMFC Court, Mangalore, D.K., in Crl.Misc.No.88/2019.

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In my considered view, the Appellate Court has erred in dismissing the application filed under Section 389(1) of Cr.P.C. The Appellant Court ought to have issued notice on the said application to the respondent and ought not to have dismissed the same at the stage of issuing notice to the respondent. On this short, the order impugned is liable to set aside and accordingly, the following,

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ORDER

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i. The Criminal petition is ' allowed' .

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ii. The impugned order dated 19.01.2024 passed

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by sthe Court of III Additional District and Sessions Judge, D.K., Mangalore rejecting the interim application filed by the petitioner under Section 389(1) of CrPC is set aside.

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6 - NC: 2024:KHC:16136 CRL.P No. 1650 of 2024

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iii. Since the respondent has already entered appearance before the Appellate Court in Crl.A.No.12/2024, the Appellate Court is directed to consider I.A.Nos.1 and 2 filed by the petitioner/appellant and pass appropriate orders on the merits of the application after hearing the respondent and after giving an opportunity to the respondent to file her objections to the said applications. Till then no coercive steps shall be taken against petitioner.

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SD/JUDGE

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BN List No.: 1 Sl No.: 62

Sri. Deepak Shenoy @ Arun v. Smt. Varsha Baliga @ Aparna Shenoy

Case brief

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Sri. Deepak Shenoy @ Arun v. Smt. Varsha Baliga @ Aparna Shenoy

Case brief

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