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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