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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 19TH DAY OF FEBRUARY 2019

BEFORE
THE HON’BLE MR. JUSTICE ALOK ARADHE

WRIT PETITION NOs.4546-47 OF 2019(GM-FC)

BETWEEN:

MR.PREETHAM V.V.
S/O MR.VISHWANATHA RAO
AGED 44 YEARS
RESIDING AT NO.7
COBBLESTONE LANE
BELMONT, CA, 94002
USA, REPRESENTED HEREIN BY
HIS AUTHORISED GENERAL POWER OF ATTORNEY
HOLDER, MRS.ARCHANA N.VAIDYA
W/O MR.NIRAV VAIDYA
AGED ABOUT 35 YEARS
RESIDING AT NO.3140, 19TH MAIN
1ST CROSS, VIJAYANAGAR 2ND STAGE
MYSORE – 570 017.
… PETITIONER
(By SMT.SHALINI JOHN, ADV.)

AND:

MRS.SANGEETHA PREETHAM
W/O MR.PREETHAM V.V.
D/O MR.BADRINARAYANAN T.E
AGED 40 YEARS
RESIDING AT C-605, MANTRI ALPYNE
DR.VISHNUVARDHAN ROAD
5TH PHASE
BHARAT HOUSING SOCIETY LAYOUT
BANASHANKARI
BANGALORE – 560 061

… RESPONDENT
(By Mr.SHREERAM T.NAYAK ADV. FOR C/R)
—
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THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 14.01.2019 PASSED IN M.C.NO.1052/2015 BY THE
LEARNED III ADDITIONAL PRINCIPAL FAMILY JUDGE, BANGALORE
IN DISPOSING I.A.NO.4 FILED UNDER SECTION 151 OF THE COE
OF CIVIL PROCEDURE, 1908 (ANNEXURE-A).

THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-

ORDER

Smt.Shalini John, learned counsel for the

petitioner.

Mr.Shreeram T. Nayak, learned counsel for the

caveator/respondent.

2. The writ petitions are admitted for hearing.

With consent of the parties, the same are heard finally.

3. In these petitions under Article 227 of the

Constitution of India, the petitioner inter alia seeks a

writ of certiorari for quashment of the orders dated

14.01.2019 as well as 05.01.2018 passed by III

Additional Principal Family Judge, Bangalore.
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4. Facts giving rise to filing of these petitions

briefly stated are that the parties to the proceeding got

married as per Hindu customs and traditions on

29.01.1998 in Bangalore. From the wedlock, two sons

were born. As per the petitioner the marriage between

the petitioner and the respondent was broken beyond

repair in 2009 and in August, 2010 the respondent left

the matrimonial home. The respondent filed a petition

under Section 9 of the Hindu Marriage Act,1955 ( herein

after referred to as ‘the Act’ for short) seeking

restitution of conjugal rights before III Additional

Principal Family Judge, Bangalore the respondent also

filed a petition under Guardians and Wards Act,1890

seeking a declaration that she is the sole guardian of

two minor children. The petitioner herein filed a petition

seeking dissolution of the marriage on the grounds

enumerated under Section 13(1)(i)(i-a) and (i-b) of the

Act against the respondent. The respondent on or about

14.07.2016, filed an application under Section 24 of the

Act seeking Rs.2.5 Lakhs p.m. as interim maintenance.
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The petitioner filed an objection to the aforesaid

application. The Family Court by an order dated

05.01.2018 partly allowed the application and directed

payment of Rs.50,000/- p.m. as maintenance from the

date of application till disposal of the case. The

petitioner through his General Power of Attorney holder

engaged the services of Eagle Detective Agency,

Bangalore to conduct the surveillance of the respondent.

It is averred by the petitioner that the surveillance

reveals that the respondent is not residing in the

apartment and is working in the jewellery store as a

store manager and as a working partner. Thereupon the

petitioner filed an application under Section 151 of the

Code of Civil Procedure, 1908 (hereinafter referred to as

‘the Code’ for short) seeking setting aside the order

dated 05.1.2018 on the ground that the same has been

obtained by playing fraud. The consideration on

aforesaid application has been deferred by the Family

Court by order dated 14.01.2019.

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5. Learned counsel for the petitioner submitted

that the family court ought to have appreciated that the

earlier order was obtained by playing fraud and the

respondent in her objection to the application under

Section 151 of the Code has admitted the report of the

detective agency and has furnished the explanation.

However, the aforesaid aspect has not been appreciated

by the Family Court. In support of aforesaid

submissions, reliance has been placed on decision of

Supreme Court in ‘RAM CHANDRA SINGH VS.

SAVITRI DEVI AND OTHERS’, (2003) 8 SCC 319.

On the other hand, learned counsel for the respondent

has supported the order passed by the Family Court. It

is further submitted that a direction be issued to the

family court to conclude the proceedings pending

between the parties expeditiously.

6. I have considered the submissions made by

the learned counsel for the parties and have perused

the record. From perusal of objections filed by the
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respondent to the application under Section 151 of the

Code reads as under:

10. It is submitted that the petitioner’s
parents have requested the petitioner’s
counsel, as he’s also a family friend to the
petitioner’s parents, to engage the petitioner
in some activity for a diversion of her mind
as advised by the petitioner’s doctor since
the petitioner is going through a stage of
depression for which she’s being treated. As
per the request of the petitioner’s parents,
the petitioner’s counsel has given her the
permission to spend time in the store
whenever she would like to occupy her mind.
Accordingly, the petitioner used to spend her
free time and also in order to discuss about
the cases whenever she had to provide the
inputs or take suggestions on legal matters
at the said premises. The copy of the
detailed doctor’s reports and hospital
documents is hereby produced for the kind
perusal of this Hon’ble Court as document
No.2.

11. This being the case, the
respondent and the detective agency have
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come up with a story that that the petitioner
is working in the said premises as a store
manager just because they have capture a
couple of video clippings and photographs of
the petitioner present in the said premises.

It is further submitted that the respondent
with the help of his GPA holder is trying to
create a story which is not true. It is to be
noted that earlier in their objections to the
main petition as well as objection to the
I.A.No.3 they have contended that petitioner
was working in a place as a spa manager but
till today they have not come up with
authenticated documents to prove that the
petitioner was employed as per their
contention and now also it is the same story.

12. It is submitted that now again the
respondent is using one or the other tactics
to avoid the payment of maintenance passed
by this Hon’ble Court. Just because the
respondent has submitted the investigation
report given by Eagle detective agency, it
does not prove that the petitioner works at
the said premises or has been earning a
salary there. Providing video of the
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petitioner going to the said premises or
having been found there isn’t proving the
fact of the matter. In the absence of the
staff appointed at the said premises, the
petitioner has attended customers as a
person who has replaced the actual store
manager does not mean that the petitioner
has been employed by the said store.

7. The effect of averments made in the

objection to the application has not been considered by

the Family Court while passing the impugned order and

the application filed by the petitioner under Section 151

of the Code have been disposed of with a direction that

at this stage it is not safe to accept the report of the

aforesaid agency. The impugned order is therefore

quashed. The Family Court is directed to take into

account the effect of the averments made by

respondent in paragraphs 10, 11 12 of the objections

and to decide the application filed by the petitioner

under Section 151 of the Code afresh in accordance with
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law. It is made clear that this Court has not expressed

any opinion on the merits of the case.

Accordingly, the petitions are disposed of.

Sd/-

JUDGE

SS