Abbas Ali Vs Rehana Bhanu

SINCE RESPONDENT NO.2 AND 3 ARE MINORS, THEY ARE REPRESENTED BY THEIR NATURAL MOTHER AND GUARDIAN /RESPONDENT NO.1 AND ALL ARE RESIDENT OF KHAJI MOHALLA, ALUR TOWN AND POST HASSAN DISTRICT - 573 213.

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…RESPONDENTS

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(BY SMT. ARCHANA MURTHY, ADVCATE FOR R1; R2 AND R3 - SERVED)

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THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 22.04.2019 PASSED BY THE 5th ADDITIONAL DISTRICT AND SESSIONS JUDGE HASSAN IN CRL.RP.NO.188/2018 IN MODIFYING THE ORDER DATED 13.06.2018 PASSED BY THE CIVIL JUDGE AND JMFC, ALUR IN CRL.MISC.NO.77/2016 AND DISMISS THE PETITION/APPLICATION IN CRL.MISC.NO.77/2016 PENDING ON THE FILE OF CIVIL JUDGE AND JMFC, ALUR.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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ORAL ORDER

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Challenging order dated 22.04.2019 passed by V Addl. District and Sessions Court at Hassan, in Crl.R.P no.188/2018

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and order dated 13.06.2018 passed by Civil Judge & JMFC, Alur

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in C.Misc. no.77/2016, this petition is filed.

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Sri Umesh P.B., learned counsel appearing for Sri R.B. Deshpande, Advocate for petitioner submitted that petitioner was respondent in C.Misc. no.77/2016 filed by respondents herein seeking for maintenance under Section 125 (II) of Code of Criminal Procedure, 1973 (' CrPC ').

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In petition, it was stated that marriage of petitioner and respondent no.1 was solemnized on 02.04.2000 as per customs and traditions prevailing in their community at Hassan. From said wedlock, respondents no.2 and 3 were born. However, on account of disturbance in marriage allegedly due to petitioner suspecting fidelity of respondent no.1 and failing to provide for needs of respondents, petition under Section 125 of CrPC was filed. Same was allowed by learned Magistrate on 13.06.2018 directing petitioner herein to pay monthly interim maintenance of Rs.3,000/- each i.e. total of Rs.9,000/-. Aggrieved thereby, petitioner herein filed Crl.R.P. no.188/2018. Though learned counsel for petitioner submitted that there was no justification for grant of maintenance without proper

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consideration, learned District Judge passed impugned order reducing interim maintenance from Rs.3,000/- to Rs.2,000/each i.e. total of Rs.6,000/-.

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It was contented that impugned order was passed without taking note of substantial contention of petitioner that respondents no.2 and 3 were not born to him. That he was doing petty business and was required to maintain other members of family, especially petitioner sister's husband, who was suffering from paralysis. It was also submitted that, desertion by respondents on their own and as such, they were not entitled for maintenance.

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On other hand, Smt.Archana Murthy, learned counsel for respondent no.1 opposed petition. It was submitted, grant of interim maintenance of Rs.3,000/- per month was meagre , reduction of same by District Judge to Rs.2,000/- per month would make it even more difficult and insufficient for bare survival. Apart from above, it was submitted that petitioner was doing Business and was owning 9 houses let out on lease and was having sufficient income, sufficient income but neglected to maintain respondents and

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therefore impugned order were fully justified. Therefore, sought for dismissal of petition.

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Heard learned counsel, perused impugned orders and material on record.

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At outset, it is seen, this petition is challenging order of interim maintenance. It is seen that while passing impugned order, trial judge has taken note of facts and circumstances as well as contentions urged and passed order directing petitioner to pay interim maintenance at Rs.3,000/per month to each respondents. Said order was passed after providing opportunity to petitioner. As pointed out, interim maintenance ordered is for survival till final adjudication. Against said order, Revisional Court exercised jurisdiction and reduced quantum of interim maintenance from Rs.3,000/- per month to Rs.2,000/- to each of respondents.

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Under above circumstance, without even examining contentions of petitioner on merits when there is no dispute about marriage between petitioner and respondent no.1 quantum of interim maintenance awarded cannot be stated to be excessive or contrary to material record under any

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circumstances. Said amount would be sufficient to ensure survival of parties till final adjudication. Since maintenance awarded is interim in nature and before recording of evidence, contention of petitioner denying respondents no.2 and 3 being born to petitioner would appear spacious at this stage and apparently, to avoid payment of maintenance. Such contentions would require to be considered only after recording of evidence. Yet another contention that respondent no.2 has crossed age of 18 years during pendency of above petition and therefore, maintenance to respondent no.2 may be restricted upto date of his attaining age of 18 years, is countered by respondent by stating that respondent no.2 is still a student and non earning member and as such dependent on petitioner. Even said contention need not be adverted by this Court at this stage.

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In view of above, petition is dismissed as devoid of merits with direction to both parties to cooperate for early conclusion of proceedings before trial Court by following procedure laid down by Hon'ble Supreme Court in case of Rajnesh v. Neha and Anr. , reported in (2021) 2 SCC 324 .

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