Gangadhar S/O Mallappa Hakari vs Smt.Manjula W/O Gangadhar Hakari on 18 July, 2017

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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH

DATED THIS THE 18TH DAY OF JULY, 2017

BEFORE

THE HON’BLE MR.JUSTICE B. A. PATIL

CRIMINAL REVISION PETITION No.200028/2017

Between:
Gangadhar S/o Mallappa Hakari,
Age: 53 Years, Occ: Professor
in K.V.S.R. College,
R/o Adarsh Nagar,
Tq. Gadag,
Dist. Gadag-528101.
… Revision Petitioner
(By Sri. Basavaraj R. Math, Advocate)

And:

Smt. Manjula W/o Gangadhar Hakari,
Age: 46 Years, Occ: Household,
R/o Hatti Hosour Village,
Tq. Lingasugur-584 122.
… Respondent
(By Sri. Arunkumar Amargundappa, Advocate)

This Revision Petition is filed under Section 397
R/w 401 of Cr.P.C., praying to call for records and set
aside the impugned order at Annexure-F dated
23.2.2016 passed by the II Addl. District and Sessions
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Judge, Raichur in Criminal Revision Petition
No.85/2015.

This Criminal Revision Petition is coming on for
dictating of Orders this day, the Court made the
following:-

ORDER

This criminal revision petition has been filed

under Section 397 R/w Section 401 of Cr.P.C. by the

petitioner-husband being aggrieved by the Order passed

by the II Additional District and Sessions Judge,

Raichur in Crl.R.P.No.85/2015 by order dated

23.3.2016 and prayed to set aside the impugned order

at Annexure-F.

2. The brief facts leading to the case are that;

the respondent-wife is the legally wedded wife of the

petitioner-husband. Their marriage took place on

27.6.1994. After the marriage, they lead happy marital

life for about 18 years at Gadag. Thereafter, the

attitude of the petitioner-husband towards the
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respondent-wife underwent in a drastic change and the

petitioner-husband started neglecting the respondent-

wife without looking after her welfare. It is further

contended that, during the year 2011, during summer

vacation, petitioner-husband took the respondent-wife

to her parental village and left her there, then thereafter

he did not make any efforts to take her back and

thereby he neglected her. Though the elders of the

family went and advised the petitioner-husband to take

her back, but he did not take her back and he was not

heeding to the request made by the elders. As such,

petitioner-husband filed a divorce petition in M.C.

No.186/2011 on the file of Prl. Senior Civil Judge at

Gadag, which came to be renumbered as

M.C.No.24/2013 on the ground of non-consummation

of marriage and thereby petitioner has refused the

respondent-wife. As such, respondent-wife filed petition

under Section 125 of Cr.P.C, claiming maintenance.

The said petition was contested by the petitioner-
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husband before the trial Court and after considering the

evidence and material on record, the petition filed under

Section 125 of Cr.P.C came to be partly allowed and the

petitioner-husband was directed to pay monthly

maintenance amount of Rs.5,000/- to the respondent-

wife from the date of the order.

3. Being aggrieved by the said order, the

respondent-wife preferred Crl.R.P.No.85/2015 before

the II Addl. District and Sessions Judge, Raichur. The

said order was considered and came to be allowed by

enhancing maintenance amount from Rs.5,000/- p.m.

to Rs.15,000/- p.m. Being aggrieved by the said order,

the husband is before this Court.

4. I have heard both sides and perused the

entire records including the orders passed by the Courts

below.

5. The main grounds urged by the learned

counsel for the petitioner are that; the petitioner is
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working as a Professor in K.V.S.R. College at Gadag. The

notice sent to him by the Revisional Court was on

9.1.2016. But, by virtue of the order of the

Government, he was appointed as a Member of the

Board of Question Paper Setter for 1st Year Pre-

University Examination at Bangalore and he reported

for the duties on 8.1.2016 at 9:00 A.M. and he was

there upto 13.1.2016. As such, the notice sent by the

Court through registered post has not been served and

even the endorsement to the effect that the intimation

has been given on 9.1.2016 and 11.1.2016, is a false

endorsement made by the postal authorities. He further

contended that, the acknowledgment attached to the

registered post does not contain any signature of the

petitioner-husband. The Court below without hearing

the petitioner-husband and placed him as absent

without there being any just cause, passed the

impugned order dated 23.2.2016. He further contend

that, the enhancement made by the revisional Court is
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not proper and before enhancing, no opportunity has

been given to the petitioner-husband to substantiate his

case. He further contend that enhancement made by

the trial Court is without there being any basis and the

same is liable to be set aside. On these grounds pray to

allow the petition.

6. Per contra, learned counsel for the

respondent-wife vehemently argued and contended that,

the notice has been served through R.P.A.D. to the

correct address of the petitioner-husband. But, he has

not claimed deliberately. He further contend, that the

said order is a beneficial in favour of the wife and by

taking into consideration the avocation and income of

the petitioner-husband and as he has neglected and

refused to maintain the respondent-wife, the Court

below properly enhanced the compensation from

Rs.5,000/- p.m. to Rs.15,000/- p.m. Said enhancement

is in accordance with law and as such there is no need
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to set aside the order. He further contend that, this

Court can also take the said fact and re-assess the

evidence and thereafter determine the maintenance,

which is liable to be given to the respondent-wife. On

these grounds, he prayed for dismissal of the petition.

7. The relationship between the petitioner-

husband and respondent-wife is not in dispute so also

the legality of the marriage. Even it is not in dispute

that, the petitioner-husband is working as a Professor,

working in K.V.S.R. College, Gadag. The only

contention raised by the learned counsel is that, he has

not been served with a proper notice before hearing the

criminal revision petition by the learned II Addl. District

and Sessions Judge, Raichur and at that point of time,

he had been appointed as a Member to the Board of

Question Paper Setter of 1st Year Pre-University

Examination and he was there in Bangalore from

8.1.2016 to 13.1.2016. As such, in his absence, the
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impugned order came to be passed and petitioner-

husband prayed for an opportunity to be given to him

for hearing the case and to pass an appropriate orders.

8. On going through the records and the

contention of the learned counsel for the petitioner as

well as the respondent that, it indicates that, the notice

was came to be issued by the learned II Addl. District

and Sessions Judge, Raichur through RPAD and the

said endorsement would clearly indicate that an

intimation was given on 9.1.2016 to the addressee.

But, when once the record shows that the petitioner-

husband has been deputed as a Member to the Board of

Question Paper Setter for 1st Year Pre-University

Examination and he was directed to report for the

duties on 8.1.2016, under such circumstances, the

question of intimating the petitioner-husband on

9.1.2016 by the postal authorities does not arise at all.

Even the said endorsement does not indicate to whom
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the said notice has been intimated so as to claim the

same by the petitioner-husband. When there is no

proper service of the notice to the petitioner-husband

and when in the absence of the petitioner-husband the

impugned order was came to be passed and the

maintenance amount has been enhanced from

Rs.5,000/- to Rs.15,000/-, under such circumstances, I

feel that an opportunity has to be given to the

petitioner-husband to represent the case properly and

after taking into consideration of the contention of the

petitioner-husband an appropriate order has to be

passed.

9. During the course of the arguments, learned

counsel for the respondent-wife submitted that, the

petitioner-husband has not given any maintenance so

far as. The learned counsel for the petitioner-husband

also submitted that, upto date maintenance amount

has been paid. It is well settled principle of law that,
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the trial Court has already fixed the maintenance

amount of Rs.5,000/- p.m. and the petitioner-husband

has not filed revision petition or any other petition

challenging the said order, under such circumstances

that he is bound to pay the admitted maintenance of

Rs.5,000/- p.m till the order is modified by the

revisional Court. Hence, it is directed that upto date

maintenance by calculating at the rate of Rs.5,000/-

p.m. to be paid to the respondent-wife.

10. However, the trial Court is also directed to

dispose of the said criminal revision petition by giving

full opportunity to both the parties by keeping in view

the decision in the case Kalyan Dey Chowdhary Vs.

Rita Dey Chowdhary Nee Nandy reported in AIR

2017 SC 2383. If the said case is heard and decided

on merits by keeping in view the above direction of the

Apex Court, under such circumstances both the parties

will meet the ends of justice.

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11. For the reasons stated above, petition is

allowed and the impugned order is set aside and the

matter is remitted back to the II Addl. District and

Sessions Judge, Raichur to dispose of the case after

hearing both the parties on merits.

12. Since both the parties are appearing before

this Court, both the learned counsel for the petitioner

and the respondent are directed to appear before the

learned II Addl. District and Sessions Judge, Raichur,

on 7.8.2017 at 11:00 a.m., without waiting for any

further notice.

The Registry is directed to send back the records

to the lower Court forthwith.

Sd/-

JUDGE

BL

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