K. Vinayaka vs Pruthvi S.

A.V. Chandrashekara, J.

Heard the learned counsel for the petitioner and perused the impugned order dated 15-3-2013.

The petitioner is the legally wedded husband of the respondent herein. The respondent-wife had filed a petition under Section 125 of Cr.P.C. before the Family Court at Shivamogga.

Parties will be referred to as per their ranking before the Trial Court.

The marriage of the parties was solemnised on 19-11-2009 as per the rites and customs of the Hindu Community and subsequently, the marriage was registered by Sub-registrar, Theerthahalli. The case of the petitioner is that the respondent, at the instigation of his mother started ill-treating the petitioner with an intention to extract more dowry and refused to maintain her, she filed petition under Section 125 of Cr.P.C.

The respondent has denied the entire material allegation with regard to ill-treatment meted out and neglected to maintain her. According to the husband, the petitioner has made unnecessary allegations against him for additional dowry. It is his case that even during her short period of stay with him, the petitioner was not properly taken care of the respondent and his family and she had stayed only for a period of four months. Therefore, she is not entitled for any maintenance, as such, pleaded the Trial Court to dismiss the petition.

Petitioner has examined herself as P.W.1 and respondent as R.W.1. Smt. K. Geetha, mother of the respondent is examined as R.W.2. 24 exhibits have got marked on behalf of the petitioner and 34 exhibits have got marked on behalf of the respondent. The learned Judge has allowed the petition by framing the following number of points:--

"1. Whether the petitioner proves that the respondent inspite of having sufficient means, has neglected or refused to maintain her?

Whether the petitioner proves that she is unable to maintain herself?

Whether the respondent is liable to pay maintenance amount to the petitioner? If so, in what amount and from which date?

To what order or decree?"

Ultimately, a sum of Rs. 20,000/- is awarded towards monthly maintenance from the date of the petition. It is this order which is called in question in the present petition by the respondent.

The learned Judge has specifically held that there is an allegation and counter allegation made against each other. The learned Judge has come to a conclusion that if really the petitioner had deserted the respondent without any reason, he would have not kept quite without filing restitution of conjugal rights. The learned Judge has come to a conclusion that the respondent has not taken any steps to take her back to the matrimonial house and there is willful negligence on the part of the respondent.

Learned counsel for the petitioner has vehemently argued that the Court has taken evidence of the petitioner and the respondent by way of affidavit and this is contrary to the procedure to record evidence under Section 125 of Cr.P.C. Decision reported in 2011 (4) KCCR 2568 in the case of ARUNA @ SUVARNA AND ANOTHER v. MARLINGAAPPA has been relied upon.

This Court in the case of ARUNA @ SUVARNA AND ANOTHER v. MARLINGAAPPA has specifically held that evidence has to be recorded in the manner prescribed for summons cases. Section 274 of Cr.P.C. speaks about the manner in which evidence has to be recorded in the summons cases and inquiries as discussed in paragraph No. 7 of the judgment stated supra. Since the very approach adopted by the Trial Court is contrary to the mandate under Section 274 of Cr.P.C., the case will have to be set aside. Notwithstanding the impugned order being set aside, the interim maintenance will have to be granted by this Court till the disposal of the petition before the Trial Court. Hence, I pass the following order:--

Petition is allowed. Impugned order dated 15-3-2013 is set aside. The matter is remanded to the Family Court at Shivamogga to dispose of the matter in accordance with law keeping in mind the decision of this Court in the case of ARUNA @ SUVARNA AND ANOTHER v. MARLINGAAPPA reported in 2011 (4) KCCR 2568.

Taking into consideration that the respondent is having sufficient income by running a rice-mill at Theerthahalli Town, interim maintenance of Rs. 20,000/- shall be paid during the pendency of the petition, commencing from 1-3-2015 till the disposal of the petition. It is also made clear that the parties shall appear before the Family Court at Shivamogga on 31-3-2015 and thereafter, the matter shall be disposed of within a period of three months. If for any reason, petition is to be allowed, it need not be reiterated that the maintenance shall be from the date of filing the petition till the date of realisation.

It is also made clear that the observation made before this Court shall not influence the Family Court while deciding the case on merits. It is also made clear that if for any reason, if the respondent fails to pay the interim maintenance awarded by this Court, his defense shall be struck off. If the evidence is recorded as per Section 274 of Cr.P.C. of some witnesses, the same shall remain unaltered for all practical purposes.