Partly allowed

Sri. D M Vijay v. Smt. M Vasanta Lakshmi @ Umavati

Karnataka HC9 Jan 2024WP/23388/2023

Case brief

AI extract

What is this about?

Husband challenged the appellate court's refusal to stay a Magistrate's maintenance order in his DV Act appeal. The High Court partly allowed the petition, set aside the dismissal and stayed the maintenance order on condition that he deposit 50% of arrears and continue paying 50% monthly maintenance pending appeal.

What did the court decide?

Stay application allowed; Magistrate's maintenance order stayed pending appeal subject to deposit of 50% of arrears within a week and continued payment of 50% monthly maintenance.

Sri. D M Vijay Vs Smt. M Vasanta Lakshmi @ Umavati — Domestic Violence | Karnataka HC (2024)

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1 - NC: 2024:KHC:1003 WP No. 23388 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE K.NATARAJAN WRIT PETITION NO. 23388 OF 2023 (GM-RES)

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BETWEEN:

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SRI. D.M.VIJAY, AGED ABOUT 52 YEARS, S/O LATE MADE GOWDA, R/A NO.113, FIRST FLOOR, BENAKA NILAYA, 2^ND CROSS, RENUKAMBA TEMPLE STREET, DODDABOMMASANDRA, BENGALURU - 560 097. ALSO AT: NO.1, SHIVARAKSHA, NEAR CHAMUNDI TEMPLE, DODDABOMMASANDRA, BENGALURU - 560 097.

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…PETITIONER

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(BY SRI. SATYANARAYANA CHALKE S., ADVOCATE)

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AND:

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Digitally signed by SUCHITRA M SMT. M VASANTA LAKSHMI @ UMAVATI, J Location: High AGED ABOUT 41 YEARS, Court ofKarnataka R/AT NO.5, LAKSMIPRIYA NILAYA, VINAYAKANAGAR, KATRIGUPPE MAIN ROAD, VIDYAPEETA, BENGALURU – 560 050. ALSO AT: NO.53, 2^ND CROSS, LAKSHMI VENKATESHWARA NILAYA, NEW POLICE STATION ROAD, R K MUTT, GAVIPURAM, GUTTAHALLI, KEMPEGOWDA NAGAR, BENGALURU – 560 019. …RESPONDENT (BY SRI. CHANDAN B.K., ADVOCATE FOR SRI. B. SIDDESWARA., ADVOCATE)

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NC: 2024:KHC:1003 WP No. 23388 of 2023

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THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C. PRAYING TO SET ASIDE/QUASH THE ORDER IN CRL.A.NO.943/2023, DATED 08.09.2023, ANNEXURE-B1, PASSED BY THE LEARNED LXVI ADDITIONAL CITY CIVL AND SESSIONS JUDGE AT BENGALURU AND ETC.

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

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ORDER

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This writ petition is filed by the petitioner under Article 226 of the Constitution of India read with Section 482 of Cr.P.C., challenging the order of dismissal of stay application filed before the First Appellate Court in Crl.A.No.943/2023 by the petitioner for staying the order of granting maintenance to respondent-wife and his daughter.

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Heard arguments of learned counsel for the petitioner and learned counsel for the respondent.

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The case of the petitioner is that the petitioner is said to be the husband of respondent and from their wedlock they have one daughter named as Dhanusha. Since there was family dispute between the parties, the respondent filed a case against the petitioner for restitution of conjugal rights in M.C.No.1274/2006. After recording evidence, the learned

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NC: 2024:KHC:1003 WP No. 23388 of 2023

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Magistrate passed the order by granting maintenance, directed the petitioner to pay Rs.10,000/- per month to respondent-wife and Rs.5,000/- per month to the female child from the date of petition till she attains majority.

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Feeling aggrieved by the judgment dated 03.06.2023 passed by the learned Magistrate, the petitioner approached the Sessions Judge under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (for short 'D.V.Act'). Along with the appeal, he has also filed I.A.No.1 for staying the judgment dated 03.06.2023 passed by the learned Magistrate. Whereas, the First Appellate Court after hearing, dismissed the said application. Further, learned counsel for the petitioner contended that daughter of the petitioner has already attained majority and divorce has been granted by the Family Court, which is challenged before the High Court. He further contends that the First Appellate Court erred in staying the order passed by the learned Magistrate.

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Per contra, learned counsel for the respondent contended that there is arrears of maintenance more than Rs.19,80,000/- payable by the petitioner and this Court

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NC: 2024:KHC:1003 WP No. 23388 of 2023

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granted interim order directing the petitioner to deposit 50% of the arrears of maintenance before the trial Court but he has deposited Rs.5,00,000/- not 50% as ordered by this Court.

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Having heard the arguments and perusing the records, of course the petitioner may have good grounds for acquittal; the First Appellate Court passed the order after conclusion of the proceedings against the petitioner. The First Appellate Court is having power of staying the proceedings by imposing certain conditions. However, the First Appellate Court has not exercised its power by staying the order of learned Magistrate. However, arrears of maintenance is now calculated and the same is payable more than Rs.20,00,000/- and maintenance required to be paid by the petitioner. However, this Court passed order to deposit 50% of the arrears of maintenance while staying the order under challenge.

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Considering the facts and circumstances of the case, when the daughter of petitioner has already attained majority about five years back, though the petitioner's counsel submits that he has paid some amount during the pendency of criminal proceedings before the learned Magistrate but he has

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NC: 2024:KHC:1003 WP No. 23388 of 2023

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not produced any document to show whether he has paid any amount towards maintenance or towards education expenses of his daughter. If any amount towards education expenses is paid, the same cannot be calculated in this case. As stated by the respondent's counsel, education expenses has ordered by

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the High Court in divorce petition. Such being the case, that amount cannot be considered and deducted in this case. Therefore, the contention of the petitioner's counsel is that he has to deposit 50% amount and that amount cannot be deducted in this case. Therefore, considering the facts and circumstances of the case, I am of the view that the First Appellate Court ought to have exercised its discretionary power by staying proceedings by imposing condition to deposit certain amount, but not passed. Hence, the following:

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ORDER

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1. Writ Petition is allowed in part.

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1. Order dated 08.09.2023 passed by the LXVI Additional City Civil and Sessions Judge, Bengaluru (First Appellate Court) is set aside and application under Section 29 of D.V.Act filed by the petitioner is allowed.

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6 - NC: 2024:KHC:1003 WP No. 23388 of 2023

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Order dated 03.06.2023 on the file of learned Metropolitan Magistrate, Traffic Court-V, Bengaluru, is hereby stayed until disposal of the appeal in Crl.A.No.943/2023 by the First Appellate Court subject to condition that the petitioner to deposit 50% of arrears of maintenance awarded to both wife and daughter excluding any amount already deposited towards education expenses to the daughter within a week from the date of receipt of a copy of this order. The petitioner shall continuously pay 50% maintenance to both wife and daughter until disposal of the appeal.

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1. If any application is filed by the respondent praying to release the amount, the First Appellate Court may release the amount to the respondent.

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Sd/JUDGE

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SMJ

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List No.: 1 Sl No.: 16

Sri. D M Vijay v. Smt. M Vasanta Lakshmi @ Umavati

Case brief

What is this about?

What did the court decide?

Sri. D M Vijay v. Smt. M Vasanta Lakshmi @ Umavati

Case brief

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