Ravichandra vs Sahana

Budihal R.B., J.—The petitioner-husband filed this petition under Section 482 of Cr.P.C. before this Court being aggrieved by the interim order passed on I.A. No. 2 in Cr. Misc. No. 156/2014 dated 19.08.2014 ordered granting interim maintenance amount of Rs. 6,000/- per month to the respondent and subsequent, order dated 5.06.2015 issuing warrant even though no notice has been served on the petitioner.

The brief facts of the case are that petitioner is the husband of the respondent, their marriage having been solemnized on 14.07.2013 at Dharwad as per the custom and usages prevailing in their community and by religion, they are Hindus. After the marriage, the respondent came to lead marital life and from the beginning due to the eccentric, arrogant and non-cooperative, quarrelsome attitude of the respondent, the beginning of their marital life was not happy one. Hence, petition in M.C. No. 349/2014 is filed by this petitioner under Section 13(1)(1A) of the Hindu Marriage Act putting forth the true facts and the conduct and attitude causing severe mental cruelty to this petitioner, sought for divorce on the file of III Addl. Principal Judge, Family Court, Bengaluru. Since the divorce petition was presented within one year, special leave was sought to present the same within one year in I.A. No. 2 in M.C. No. 349/2014. The learned Judge of the Family Court, on hearing, dismissed I.A. No. 2 observing that the petition is premature and keeping in view of the possible reconciliation, rejected I.A. No. 2 by order dated 05.04.2014. This being so the respondent herein filed a Cr. Misc. No. 121/2014 under Domestic Violence Act on the file of learned JMFC Dharwad against the petitioner, his parents and his younger brother and also filed the petition under Section 125 of Cr.P.C. claiming maintenance of Rs. 30,000/- in Cr. Misc. No. 156/2014.

It is also the case of the petitioner herein that immediately after presenting the petition and considering the application I.A. No. 2 and without issuing the notice to the petitioner herein, ex-parte order has been passed granting interim maintenance of Rs. 6,000/- per month. It is also the grievance that thereafter, the warrant was also issued against him, even the notice was not served on the petitioner, hence, the present petitioner challenged the Annexures-G and H passed by the Family Court, Dharwad.

Heard the arguments of the learned counsel appearing for the petitioner-husband and the learned Amicus-Curiae appointed to represent and to assist the Court on behalf of the respondent-wife.

Learned counsel for the petitioner has submitted that the order has been passed to pay the interim maintenance of Rs. 6,000/- per month without issuing the notice of the application to the petitioner herein. It is submitted that the petitioner himself is not capable to pay that much of amount to the respondent-wife, he is not having such a financial capacity to pay the amount of Rs. 6,000/- per month. It is also submitted that no opportunity was given to the petitioner herein to place the true facts of the case and he has been deprived before passing such order as against him.

It is also the contention of the learned counsel for the petitioner that as per the proviso to Section 125 of Cr.P.C. unless and until there is a application filed by the wife or the other spouse for the recovery of the amount warrant cannot be issued, this legal aspect is completely ignored by the Family Court before issuing the warrant as against the petitioner. On these grounds, he assailed the orders passed by the Family Court as at Annexures-G and H. Hence, he has submitted that orders are not sustainable and to set-aside the said orders by allowing this petition.

Per contra, learned Amicus-Curiae appearing on behalf of the respondent-wife has submitted that when the petition is presented with the interim application seeking interim maintenance, considering the materials placed on record by the respondent herein, it is ordered for grant of interim maintenance of Rs. 6,000/- per month. He has submitted that the grant of interim maintenance ex-parte is not prohibited, the Court after considering the materials placed on record can very well pass such ex-parte order. He has also submitted that looking to the quantum of the amount ordered by the Family Court, it is just and reasonable and the petitioner is financially capable to pay that amount to the respondent-wife and hence, it does not require any interference by this Court.

But so far as the second contention of the learned counsel for the petitioner that as per the proviso to Section 125 of Cr.P.C. without filing an application seeking recovery of arrears amount, no warrant is to be issued, the learned Amicus-Curiae admitted the said legal position. Hence, he has submitted that the order for the grant of interim maintenance of Rs. 6,000/- per month is in accordance with law and there is no merit in the petition and same is to be dismissed.

I have perused the grounds urged in the petition, so also the documents produced by the learned counsel for the petitioner along with the petition i.e., the copy of the petition filed in M.C. No. 349/2014 as per Annexure-A along with the affidavit, the interim application copy, the order sheet in the said M.C. petition and also the copy of the criminal Misc. No. 121/2014 filed under the provisions of Domestic Violence Act, 2005, produced as per Annexure-D and the photographs.

I have perused the orders, which are assailed in this petition produced as per Annexure-G passed by the Family Court, Dharwad in Crl. Misc. 156/2014. Perusing the same at page No. 50, it is mentioned by the Family Court that petitioner present along with her counsel, respondent is absent. The notice sent to respondent is not yet served. It is mentioned that as per the request made by the petitioner therein, notice was ordered to sent by registered post to the respondent therein through the Bengaluru City K.R. Puram Police Station and Bengaluru, Indiranagar 6th Depot Manager, mentioning the date as 27.10.2014. On the previous day, the Family Court has ordered that the respondent has to pay a sum of Rs. 6,000/- as interim maintenance per month, he has also to pay Rs. 2,000/- towards the cost of litigation and it was also ordered to send the notice to the respondent through registered post.

Perusing Annexure-H, which is at page No. 52 in the order sheet again it is mentioned by the said Court that the petitioner therein present along with her advocate, the respondent-husband and learned counsel for the respondent both are absent. The registered notice sent through the post was served on one Nagaraj, father of the respondent and there is an endorsement in respect of the same and as it was served through the father of respondent, service is held sufficient to the respondent, respondent was called out, remained absent and he was placed as ex-parte. It is further mentioned in the order sheet that as per the submission made by the learned counsel for the petitioner therein that seven months maintenance amount is in arrears and requested for issue of warrant as against the respondent, the Family Court ordered for issuance of warrant as against the respondent therein. So perusing these Annexures-G and H, they clearly show that petition notice was not served on the respondent-husband and even when the notice was ordered through the registered post, it was also not personally served on the respondent-husband in the said proceedings, who is the petitioner herein, inspite of that Family Court proceeded to pass the further orders in the said matter.

I have perused the proviso to Section 125 of Cr.P.C., it is rightly submitted by the learned counsel for the petitioner herein that unless and until there is an application filed for the recovery of the said amount, there could not be any warrant as against the petitioner herein. Hence, the petitioner herein has made out a case that he was not heard in the matter and even with regard to the grant of interim maintenance amount of Rs. 6,000/-, it is submitted that he is to be heard in the said matter about his capacity to make the payment of maintenance amount to the wife.

Considering all these aspects of the matter, I am of the opinion that the ex-parte orders passed by the Court below on I.A. No. 2 as per Annexure-H deserves to be set-aside and the petition is to be allowed. Accordingly, the following:

i. Petition is allowed.

ii. The order on I.A. No. 2 as per Annexure-H is hereby set-aside.

iii. The petitioner herein is directed to appear before the concerned Family Court, Dharwad, on 27.11.2015 and the Family Court Judge has to reconsider the application I.A. No. 2 seeking interim maintenance after considering the objection statement and the documents, if any, produced by the petitioner herein and to hear I.A. No. 2 afresh and to pass appropriate orders on the said application.

iv. Since it is the proceeding seeking maintenance amount and keeping in view the interest of the respondent-wife, the petitioner herein is also directed that the amount of Rs. 3,000/- which he is paying now as per the interim order of this Court, he has to go on paying that amount to the respondent-wife till the disposal of the application I.A. No. 2.

The assistance rendered by Sri Srinand A. Pachhapure, learned Amicus-Curiae is appreciated and placed on record. Government is directed to pay a sum of Rs. 5,000/- to the learned Amicus-Curiae as honorarium.