Case Note & Summary
The petitioners, Smt. Huligewwa @ Huligemma and her minor son Manjunath, filed a criminal petition under Section 482 Cr.P.C. challenging the order dated 21.03.2017 passed by the Civil Judge and J.M.F.C. Court, Koppal in Criminal Misc. No.67/2011. The petitioners had filed the said misc. petition under Section 128 Cr.P.C. seeking arrears of maintenance from 01.03.2010 to 01.03.2011 as per an order allegedly passed in Criminal Misc. No.126/2006. The trial court dismissed the petition on the ground that the petitioners failed to produce the order granting maintenance. The High Court observed that the trial court's reasoning was erroneous because the respondent himself in his objections had admitted the existence of the maintenance order. The High Court set aside the impugned order and remanded the matter to the trial court for fresh disposal in accordance with law, directing the trial court to consider the evidence on record and decide the petition afresh.
Headnote
A) Criminal Procedure Code - Maintenance Arrears - Section 128 Cr.P.C. - Enforcement of Maintenance Order - The petitioners, wife and minor son, sought arrears of maintenance from 01.03.2010 to 01.03.2011 under Section 128 Cr.P.C. based on an order in Criminal Misc. No.126/2006. The trial court dismissed the petition on the ground that the order granting maintenance was not produced. The High Court held that the trial court erred in dismissing the petition without considering the evidence on record and the fact that the respondent had admitted the maintenance order in his objections. The matter was remanded for fresh consideration. (Paras 1-6)
Issue of Consideration
Whether the trial court was justified in dismissing the petition for arrears of maintenance under Section 128 Cr.P.C. on the ground that the order granting maintenance was not produced?
Final Decision
The High Court allowed the petition, set aside the impugned order dated 21.03.2017, and remanded the matter to the trial court for fresh disposal in accordance with law, directing the trial court to consider the evidence on record and decide the petition afresh.
Law Points
- Maintenance arrears
- Section 128 Cr.P.C.
- Section 125 Cr.P.C.
- enforcement of maintenance order
- limitation for arrears
Case Details
2020 LawText (KAR) (11) 53
Criminal Petition No.102043/2017
Dr. Justice H.B. Prabhakara Sastry
Sri. M M Patil (for petitioners), Sri. Deepak C. Magnur (for respondent)
Smt. Huligewwa @ Huligemma and Manjunath (minor represented by natural guardian mother)
Hanumanthappa S/o Sanna Yallappa Meti
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Nature of Litigation
Criminal petition under Section 482 Cr.P.C. to quash trial court order dismissing petition for arrears of maintenance.
Remedy Sought
Quashing of order dated 21.03.2017 in Criminal Misc. No.67/2011 and direction to respondent to pay arrears of maintenance.
Filing Reason
Trial court dismissed the petition for arrears of maintenance on the ground that the order granting maintenance was not produced.
Previous Decisions
Trial court dismissed Criminal Misc. No.67/2011 on 21.03.2017.
Issues
Whether the trial court was justified in dismissing the petition for arrears of maintenance under Section 128 Cr.P.C. without considering the admission of the maintenance order by the respondent?
Submissions/Arguments
Petitioners argued that the trial court erred in dismissing the petition as the respondent had admitted the maintenance order in his objections.
Respondent supported the trial court's order.
Ratio Decidendi
The trial court cannot dismiss a petition for arrears of maintenance under Section 128 Cr.P.C. solely on the ground that the order granting maintenance was not produced, especially when the respondent has admitted the existence of such order in his objections. The court must consider the evidence on record and decide the matter on merits.
Judgment Excerpts
The trial Court by its order dated 21.03.2017 dismissed the said petition, challenging which order the petitioners in the trial Court have preferred the present petition.
The respondent is being represented by his counsel.
Procedural History
Petitioners filed Criminal Misc. No.67/2011 under Section 128 Cr.P.C. seeking arrears of maintenance. Trial court dismissed the petition on 21.03.2017. Petitioners filed Criminal Petition No.102043/2017 under Section 482 Cr.P.C. before the High Court of Karnataka, Dharwad Bench, which was allowed on 05.11.2020 with a remand.
Acts & Sections
- Code of Criminal Procedure, 1973 (Cr.P.C.): 128, 482
