DUNDAPPA FAKIRAPPA TALWAR Vs. LAXMIBAI

JUDGEMENT

(1.) THE unsuccessful husband has filed the above two revision petitions under Sections 397 and 401. Cr.P.C. and also under Section 482, Cr.P.C. respectively, challenging the order dated 8-3-2001 passed in Cri. Misc. No. 132/98 and Cri.R.P. 111/98 passed by the II Addl. Sessions Judge, Belgaum, to modify the order dated 8-1-1998 passed by the JMFC, Hukkeri in Cri. Misc. No. 173/1995 and to allow the Cri.R.P. No. 111/1998.

(2.) BRIEF facts leading to these petitions are that respondent is the legally wedded wife of the petitioner-Dundappa and out of their wedlock a male child, namely Mahantesh Dundappa was born and the respondent-1, wife, and respondent-2, son, have filed Cri. Misc. No. 26/1981 before the JMFC, Hukkeri, under Section 125, Cr.P.C. for grant of the maintenance amount on the ground of desertion. Therefore, after considering the evidence the Magistrate allowed the said application by his order dated 12-7-1988 and subsequently respondents-1 and 2 filed a Cri. Misc. No. 173/98 under Section 127, Cr.P.C. with a prayer to enhance the maintenance amount from Rs. 200/- to Rs. 500/- to the wife and Rs. 100/- to Rs. 500/- to the son. That petition was contested by the revision petitioner. After considering the evidence of both parties the trial Court allowed the petition by an order dated 8-1-1998 and enhanced the compensation from Rs. 200/- to Rs. 350/- to the wife and from Rs. 100/- to Rs. 200/- to the son. Aggrieved by the said orders the petitioner herein challenged the same by filing Cri.R.P 111/1998 before the II Addl. Sessions Judge. Belgaum, whereas respondents-1 and 2 being the wife and son of the revision petitioner have challenged the order by filing Cri.R.P. 132/1998. After hearing both parties in both cases the learned Sessions Judge passed a common order dismissing the revision petition filed by this revision petitioner i.e. Cri.R.P. 111/98 and allowed the Cri.R.P. 132/98 filed by the wife and son for enhancement of compensation from Rs. 350/- to Rs. 500/- to the wife and Rs. 200/- to Rs. 500/- to the son. Further, the learned Sessions Judge directed this revision petitioner to pay the enhanced amount to wife from the date of filing of the petition and as far as his son is concerned the enhanced amount was directed to be paid to him up to 10-9-1998. Therefore, the petitioner herein challenged the common order passed by the learned Sessions Judge by way of this revision under Sections 397 and 401 as also under Section 482, Cr.P.C.

(3.) IT is contended by the learned counsel for the revision petitioner that since the first respondent had deserted him therefore he filed Misc. Case No. 8/1994 before the Family Court under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights and the said petition came to be allowed therefore the revision petitioner is not expected to pay any maintenance either to the wife or to his son, therefore the orders passed by the learned Sessions Judge as well as the trial Court are illegal and incorrect and do not call for any interference and that there is an abuse of due process of law in directing the revision petitioner to pay maintenance from the date of the petition under Section 127, Cr.P.C. Since respondent-1 has not complied with the order passed by the Family Court, the revision petitioner is not obliged to pay any maintenance and both the courts have come to a wrong conclusion and recorded an illegal finding by holding that this petitioner is liable to pay enhanced maintenance at the rate of Rs. 500/- per month to each of the respondents. In support of his contention the learned counsel for the petitioner relied on a decision reported in the case of Teja Singh v. Smt. Chhota, 1981 Cri LJ 1467 wherein Punjab and Haryana High Court held that :