Remanded

Mustaq Ahmed S/O Alha Baksh v. Smt Mamtaz W/O Mustaq Ahmed

Karnataka HC13 Nov 2024CRL.RP/100327/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka remanded a maintenance petition reversed by the Sessions Judge back to that court for fresh consideration. The petitioner, absent from the lower court proceedings, was granted a chance to contest the ex parte order.

What did the court decide?

The impugned order of the Sessions Judge granting maintenance ex parte is set aside and the matter is remanded for fresh consideration after affording the petitioner an opportunity to appear.

Mustaq Ahmed S/O Alha Baksh Vs Smt Mamtaz W/O… — Maintenance and Alimony | Karnataka HC (2024)

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NC: 2024:KHC-D:16624 CRL.RP No. 100327 of 2022

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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CRIMINAL REVISION PETITION NO.100327 OF 2022 (397 OF CR.P.C./438 OF BNSS)

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BETWEEN:

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MUSTAQ AHMED S/O. ALHA BAKSH, AGED ABOUT 46 YEARS, OCC: COOLIE, R/O. KANCHAGAR ONI, TALUK: HANGAL-581104, DIST: HAVERI.

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…PETITIONER

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(BY SRI VIJAY S. CHINIWAR, ADVOCATE.)

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AND:

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SMT. MAMTAZ W/O. MUSTAQ AHMED, AGED ABOUT 42 YEARS, OCC: TAILORING,

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KUM. AFTAB AHAMDED S/O. MUSTAQ AHMED, AGED ABOUT 22 YEARS, OCC: STUDENT,

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MALLIKARJUN RUDRAYYA KALMATH

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Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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KUMARI AFREEN BANU D/O. MUSTAQ AHMED, AGED ABOUT 19 YEARS, OCC: STUDENT,

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KUMARI FAITHMA D/O. MUSTAQ AHMED, AGED ABOUT 17 YEARS, OCC: STUDENT, RESPONDENT NO.4 IS MINOR REPRESENTED BY NATURAL GUARDIAN MOTHER RESPONDENT NO.1

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ALL ARE R/O. C/O. ABDUL MAJID KHAN KARGADDE, GOODLUCK ROAD, ABUD UBEDA MASJID, BHATKAL – 581320, DIST: UTTAR KANNADA.

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…RESPONDENTS

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(BY SRI H.R. GUNDAPPA, ADVOCATE FOR R1-R3.)

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2 - NC: 2024:KHC-D:16624 CRL.RP No. 100327 of 2022

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C. SEEKING TO QUASH THE JUDGMENT AND ORDER DATED 20.09.2021 IN CRIMINAL REVISION PETITION NO.46/2019 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE, UTTAR KANNADA, KARWAR AND CONFIRM THE JUDGMENT AND ORDER DATED 17.11.2018 PASSED BY THE PRL. CIVIL JUDGE AND JMFC BHATKAL IN CRIMINAL MISC. NO.109/2016 AND ETC.,.

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

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR)

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Heard the arguments of learned counsel for the

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petitioner and learned counsel for respondents.

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This petition is filed by the petitioner who is the husband of respondent No.1 and father of respondents No.2 to 4. The petitioner is aggrieved by the judgment in Criminal Revision Petition No.46/2019 dated 20.09.2021 passed by II Addl. District and Sessions Judge, Uttara Kannada, Karwar, whereby the judgment of the Prl. Civil Judge and JMFC, Bhatkal, dismissing the petition filed by the respondents in Criminal Miscellaneous Petition No.109/2016 came to be reversed and the petition came to be allowed by granting maintenance to an extent of Rs.1,000/- per month

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NC: 2024:KHC-D:16624 CRL.RP No. 100327 of 2022

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each to all the respondents on the challenge made by the respondents before the Sessions Judge.

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It is the vehement contention of the learned

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counsel for the petitioner husband that he had not participated in the proceedings before the Sessions Court and he was placed exparte. No doubt he admits the relationship with respondent No.1 to be his legally wedded wife and respondents No.2 to 4 being his children. But he contends that the impugned order in reversing the judgment of the trial Court by the Sessions Judge, is perverse, illegal as no opportunity was given to him, so also the petitioner herein was unable to put forth his case. He further contends that the marriage is 22 years old and as on the date of filing of the petition before the trial Court, 17 years had passed by when frivolous and false allegations were made against the petitioner. Having considered all the details and taking into consideration the evidence and materials placed on record, the trial Court rightly rejected the petition filed by the respondents. However, the Sessions Court on challenge in Revision Petition, reversed the same and granted

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4 - NC: 2024:KHC-D:16624 CRL.RP No. 100327 of 2022

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maintenance of Rs.1,000/- per month to each of the respondents.

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It is contended by the learned counsel that he is not liable to pay the maintenance as respondent No.1 is gainfully employed and she supported by her brother who is working in Dubai, more so respondent No.1 has refused to join the petitioner despite the petitioner filing an application for restitution of conjugal rights against respondent No.1 and as a counter blast the present petition for maintenance under section 125 of Cr.P.C. came to be filed.

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Learned counsel for respondents submits that before the Sessions Court in a Revision Petition filed by respondents, nothing prevented the petitioner to appear and file his objections and contest the matter. He has conveniently remained absent. Therefore, left with no other alternative, the learned Sessions Judge has considered the material on record and passed the order which does not call for interference. Moreover, there is no dispute with regard to the marriage and the children being born from the marriage. Despite the order being passed, the petitioner has not paid a

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5 - NC: 2024:KHC-D:16624 CRL.RP No. 100327 of 2022

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single penny to the respondents. If he was a responsible husband and a responsible father, he should have volunteered to pay for the maintenance of the wife and the children.

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Having heard the learned counsel for the petitioner and the learned counsel for the respondents, the fact remains that the respondent had not participated in the proceedings before the learned Sessions Judge in Criminal Revision Petition No.46/2019, filed by the respondents herein. Therefore, it is an exparte order in the absence of petitioner. The petitioner having approached this Court and willing to take back respondent No.1 wife, it is appropriate to remand this matter back for fresh consideration to provide an opportunity to the petitioner and make his appearance, contest the matter and to provide a fair opportunity of hearing before any orders are passed. The respondent shall deposit 50% of the arrears amount of maintenance granted by the Sessions Court within a period of four weeks from the date of receipt of a copy of this order. He is permitted to

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6 - NC: 2024:KHC-D:16624 CRL.RP No. 100327 of 2022

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contest the matter and raise all the grounds which are raised

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before this Court. Accordingly I pass the following:

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ORDER

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i) The petition is disposed of.

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ii) The impugned order dated 20.09.2021, passed in Crl.R.P.No.46/2019, by the II Addl. District and Sessions Judge, Uttara Kannada, Karwar, is hereby set aside.

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iii) The matter is remanded to the learned II Additional District and Sessions Judge, Uttara Kannada, Karwar, to be considered afresh.

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iv) The petitioner is permitted to contest the matter and put forth his say urging all grounds which are pleaded before this Court.

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v) Both the parties are directed to appear before the learned Sessions Judge on 26.12.2024 without awaiting any further notice from the Court.

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vi) It is needless to mention that this Court has not expressed any opinion on the merits of the matter.

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NC: 2024:KHC-D:16624 CRL.RP No. 100327 of 2022

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vii) The learned Sessions Judge shall dispose of the matter within a period of six months from the date of appearance of the parties.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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MRK CT-MCK List No.: 2 Sl No.: 9

Mustaq Ahmed S/O Alha Baksh v. Smt Mamtaz W/O Mustaq Ahmed

Case brief

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What did the court decide?

Mustaq Ahmed S/O Alha Baksh v. Smt Mamtaz W/O Mustaq Ahmed

Case brief

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What the court decided

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