SATHISH A. Vs. ASHWINI AND ORS.

JUDGEMENT

(1.) The present petition is filed by the petitionerhusband being aggrieved by the judgment of the V Additional District and Sessions Judge, Tiptur in Criminal Appeal No.10005/2016, dated 11.11.2016 whereunder the order on Interlocutory Application No.1 filed under Section 23(2) of Protection of Women from Domestic Violence Act, 2005 ('Act' for short) passed by the Civil Judge and JMFC., Turuvekere, dated 2.12.2015 was modified and the wife and son, i.e.,, respondent Nos.1 and 2 herein have been granted monthly interim maintenance of Rs.5,000/- and 3,000/- respectively.

(2.) It is the contention of the learned counsel for the petitioner-husband that the petition filed under Section 12 of the Act is not maintainable. It is his further contention that the trial Court without holding any enquiry, only on the basis of the affidavit filed by respondent No.1-wife has passed the impugned order. It is his further contention that this Court in the case of Krishna Murthy Nookula Vs. Y.Savitha, W/o.Krishna Murthy Nookula, in Criminal Revision Petition No.815/2009, disposed of on 9.12.2009 has interpreted Section 23 of the Act and has come to the conclusion that before passing an ex parte order, an enquiry has to be held as laid down in Code of Criminal Procedure. The said procedure has not been followed by the trial Court. It is his further contention that the petition came to be filed four years after respondent No.1-wife left matrimonial home. It is his further contention that respondent No.1-wife herself has left the matrimonial home and did not come back. Thereafter the petitioner has taken divorce due to conduct of the first respondent-wife. By appreciating the same, the Court has also granted divorce. It is his further contention that the petitioner-husband is having a meager income and he is having aged parents, second wife and the son born to the second wife and he has to maintain them. Under such circumstances, the interim maintenance granted by the Court below is on the higher side. On these grounds, he prayed to allow the petition and to set aside the impugned orders passed by the Courts below.

(3.) Per contra, the learned counsel for the first respondent-wife vehemently argued and submitted that the order passed by the trial Court is not an ex parte order. At the first instance, the notice was served on the petitioner-husband and he remained absent and he was placed ex parte. Subsequently he appeared and got set aside the ex parte order dated 11.9.2015. Though sufficient opportunities were given to him to file his objections, objections were not filed by him. The trial Court after hearing I.A.No.1 has passed the impugned order dated 2.12.2015 granting monthly maintenance of Rs.2,000/- to the first respondent-wife and Rs.1,000/- to the second respondent-son. Being aggrieved by the said order of maintenance, respondent Nos.1 and 2 filed Criminal Appeal No.10005/2016 before the appellate Court which came to be disposed of by the order dated 11.11.2016 modifying the order of maintenance passed by the trial Court dated 2.12.2015 and granting monthly interim maintenance of Rs.5,000/- to the first respondent-wife and Rs.3,000/- to the second respondent-son. It is his further submission that whatever maintenance which has been granted by the learned District Judge is on the lower side. It is his further submission that the wife is also suffering from various ailments and she has to maintain her son who is studying in 3rd Standard and she is not having any other source of income Under such circumstances, she has filed an application before this Court in I.A.No.1/2019 for enhancement of interim maintenance which has been granted by the learned District Judge, Tiptur. On these grounds, he prayed to allow his application for enhancement of the maintenance and to dismiss the petition.