Writ Petition No. 28169 of 2023 · The High Court
Case Details
- 1 - NC: 2025:KHC:17569 WP No. 28169 of 2023 C/W WP No. 1566 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF APRIL, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 28169 OF 2023 (GM-FC) WRIT PETITION NO. 1566 OF 2024 (GM-FC) C/W IN WP No. 28169/2023 BETWEEN: SRI. MOHANKUMAR @ MOHAN KUMAR. P, S/O. SRI. PUTTANANJAIAH, AGED ABOUT 39 YEARS, R/AT.KESARI NANDANA NILAYA, OPPOSITE GOVT. HIGHER PRIMARY SCHOOL, K. PALASANDRA VILLAGE, GULUR HOBLI, TUMKUR TALUK, TUMKUR DISTRICT - 572 118. (BY SRI. NANDISH GOWDA G.B., ADVOCATE) AND: SMT. UMA. N @ HIMASHREE, D/O. LATE L.M. NINGAPPA, W/O. SRI. MOHAN KUMAR @ MOHAN KUMAR P., AGED ABOUT 31 YEARS, R/AT HOSAHALLI VILLAGE, NITTUR HOBLI, GUBBI TALUK, NOW R/AT C/O. SRI. SHIVAKUMARAIAH (BOREKUMARAIAH), NEAR GRAMA PANCHAYATHI, K. PALASANDRA VILLAGE, GULUR HOBLI, TUMKUR TALUK, Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA …PETITIONER - 2 - NC: 2025:KHC:17569 WP No. 28169 of 2023 C/W WP No. 1566 of 2024 TUMKUR DISTRICT - 572 118.
Legal Reasoning
(BY SRI. ADAVEESHAIAH. B, ADVOCATE) …RESPONDENT THIS W.P. IS FILED PRAYING TO QUASH THE IMPUGNED ORDER DATED 09.10.2023 PASSED BY THE COURT OF THE PRINCIPAL JUDGE FAMILY COURT, TUMAKURU ON I.A.NO.7 IN MC NO.141/2020 VIDE ANNX-A AND ETC. IN WP NO. 1566/2024 BETWEEN: SRI. MOHAN KUMAR. P @ MOHANKUMAR @ SHANKAR MOHAN, S/O. SRI. PUTTANANJAIAH, AGED ABOUT 39 YEARS, R/AT KESARI NANDANA NILAYA, OPPOSITE GOVT. HIGHER PRIMARY SCHOOL, K. PALASANDRA VILLAGE, GULUR HOBLI, TUMKUR TALUK, TUMKUR DISTRICT-572118. ...PETITIONER (BY SRI. NANDISH GOWDA G.B., ADVOCATE) AND: 1. SMT. UMA .N @ HIMASHREE, D/O. LATE L.M. NINGAPPA, W/O. SRI. MOHAN KUMAR. P @ MOHAN KUMAR @ SHANKER MOHAN, AGED ABOUT 32 YEARS, 2. KUM. YOGASHREE P.M., D/O. SRI. MOHAN KUMAR P. @ MOHANKUMAR @ SHANKAR MOHAN, AGED ABOUT 7 YEARS, 2ND RESPONDENT IS A MINOR, REP. BY HER NATURAL GUARDIAN AND NEXT FRIEND 1ST RESPONDENT BOTH ARE R/AT C/O SHIVAKUMARAIAH, - 3 - NC: 2025:KHC:17569 WP No. 28169 of 2023 C/W WP No. 1566 of 2024 (BORE KUMARAIAH) OPP. GRAMA PANCHAYATHI K. PALASANDRA VILLAGE, GULUR HOBLI, TUMKUR DISTRICT, TUMKURU-572 118. ...RESPONDENTS (BY SRI. ADAVEESHAIAH B, ADVOCATE FOR R1 R2-YOGASHREE P.M., SD) THIS WP IS FILED PRAYING TO QUASH THE IMPUGNED ORDER DTD 17.10.2023 VIDE ANNEXURE-A PASSED BY THE COURT OF THE PRINCIPAL JUDGE FAMILY COURT, TUMAKURU ON I.A.NO.7 IN C.MISC.NO.21/2021 AND ETC. THESE PETITIONS, COMING ON FOR PRILIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER IN W.P.No.28169/2023 WP.No.28169/2023 is filed aggrieved by the order passed in I.A.No.7 in M.C.No.141/2020 dated 09.10.2023 by the Principal Judge, Family Court, Tumkur whereby the Family Court had dismissed the I.A.No.7 filed by the husband under Section 151 Read with Order 18 Rule 17 of CPC to recall PW1 to produce some electronic evidence. 2. The parties are referred to as husband and wife for the sake of convenience. - 4 - NC: 2025:KHC:17569 WP No. 28169 of 2023 C/W WP No. 1566 of 2024 3. It is the case of the husband that the wife is having illegal relationship with one person and she communicated with that person through telephone and the same is recorded by herself and after knowing the fact the husband had downloaded the same to one electronic device. He wants to produce and demonstrate the same before the Court. The Family Court had dismissed the said application by observing that on behalf of the respondent partly cross examined PW1. Subsequently in spite of sufficient opportunities the respondent side had not further cross examined PW1. Therefore, on 01.12.2022 the Court had taken as further cross-examination of PW1 nil and at the request of the counsel for the petitioner adjourned the case for further evidence of the petitioner. In spite of sufficient opportunities, the petitioner side not adduced further evidence. Therefore, on 23.02.2023 by rejecting the prayer of the petitioner side, posted the case for respondent evidence on 06.03.2023. On 06.03.2023, at the request of the counsel for the respondent adjourned the case to 17.03.2023 for respondent evidence. On that day the counsel for the respondent filed I.A.Nos.5 and 6 to recall PW1 for further cross examination. In spite of sufficient opportunities, the petitioner - 5 - NC: 2025:KHC:17569 WP No. 28169 of 2023 C/W WP No. 1566 of 2024 side not filed objections to said I.A.Nos.5 and 6 and on 22.05.2023 allowed the said I.A.Nos.5 and 6 and permitted the respondent for further cross examination of PW1. Subsequently, the petitioner changed the advocate and filed this I.A.No.7 seeking recall of PW1 to produce some electronic evidence by adducing further chief examination. The Family Court observed that the husband is not seeking divorce from the wife under Section 13(1) of the Hindu Marriage Act on the ground of adultery. He is seeking divorce on the ground of cruelty and desertion. When he is not seeking divorce on the ground of adultery, the documents which he sought to produce before the Court are not relevant. Hence, the Family Court felt that there are no grounds to recall him to adduce further evidence about the alleged electronic evidence and accordingly, dismissed the I.A.No.7. 4. Learned counsel appearing to the petitioner/ husband submits that the Family Court ought to have allowed that application as the evidence which is going to produce would show that the wife is having illicit relationship with another person and the Family Court would be able to - 6 - NC: 2025:KHC:17569 WP No. 28169 of 2023 C/W WP No. 1566 of 2024 adjudicate the dispute between the parties and the writ petition needs to be allowed. 5. On the last occasion, there is no representation on behalf of the respondent. Having heard the learned counsel for the petitioner, this Court had listed this matter as ‘part heard’. Today also, there is no representation on behalf of the respondent. As the M.C. is of the year 2020, which is stayed by this Court as such, this Court is proceeding with the matter as these cases are specially listed under the caption “Specially listed matters”. 6. Having heard the learned counsel for the petitioner/ husband, perused the entire material on record. As rightly observed by the Court, the M.C. is filed seeking divorce on the ground of desertion and cruelty. Now, the cross-examination of PW1 is completed. At that juncture, this application is filed whereby he wanted to place before the Court certain conversations between the respondent/wife and the third party with whom she is having illicit relationship. If the petitioner is seeking divorce on the ground of adultery, no doubt those documents are relevant for proving this case and even at a - 7 - NC: 2025:KHC:17569 WP No. 28169 of 2023 C/W WP No. 1566 of 2024 belated stage also, the Family Court would consider the relevancy of it, but in this case, the ground that is raised is cruelty and desertion. For proving the said ground these documents are not at all relevant and the Family Court had rightly rejected the application and this Court finds no reasons to interfere with the well considered order passed by the Family Court. Hence, this Court is passing the following,
Decision
ORDER i. ii. Accordingly, the writ petition is dismissed. All I.As., in the writ petition shall stand closed. IN W.P.NO.1566/2024 7. Aggrieved by the order passed in I.A.No.7 in Crl.Misc.No.21/2021 dated 17.10.2023 by the Principal Judge, Family Court, Tumkuru, whereby the Family Court had rejected the I.A.No.7 filed by the husband under Section 127 of CrPC for modification of order dated 22.03.2021 the present writ petition is filed . 8. The parties are referred to as husband and wife for the sake of convenience. - 8 - NC: 2025:KHC:17569 WP No. 28169 of 2023 C/W WP No. 1566 of 2024 9. The Family Court had granted the maintenance of an amount of Rs.9,000/- and Rs.5,000/- to the wife and the daughter respectively. Then, the present application is filed by the husband under Section 127 of CrPC seeking modification of the order dated 22.03.2021 passed on I.A.No.2. It is the case of the husband that the wife is working as a teacher, she has acquired certain properties and she has means to maintain herself. Further, he has closed his business and even the GST authorities have issued the notice which shows that the business is closed and in these circumstances, the amount of maintenance that is granted needs to be altered. 10. Learned counsel for the petitioner submits that the Family Court had failed to consider the same and dismissed the application. In the light of the fact that she is already earning and she also got a property in a partition suit, the Family Court ought to have allowed the application filed under Section 127 of CrPC. 11. On the last occasion, there is no representation on behalf of the respondent. Having heard the learned counsel for the petitioner, this Court had listed this matter as ‘part heard’. - 9 - NC: 2025:KHC:17569 WP No. 28169 of 2023 C/W WP No. 1566 of 2024 Today also, there is no representation on behalf of the respondent. As the M.C. is of the year 2020, this Court is proceeding with the matter and these cases are specially listed under the caption “Specially listed matters”. 12. Having heard the learned counsel for the petitioner/ husband, perused the entire material on record. Firstly, it is the case of the husband that the wife is earning. For that purpose he submits that he has filed an application under the Right to Information. The information that he has received under the Right to Information Act is not placed before the Court. It is the case of the wife that she was working before filing of the petition and all the documents that are filed by the husband only shows that she was working before filing of the petition, but there is no material to show that she was working after the petition is filed. In those circumstances, the Family Court cannot consider the said submission of the learned counsel for the petitioner and rightly the Family Court had held that there is no material to come to such conclusion. The second contention is with regard to the income of the husband. If there are subsequent changed circumstances to show that he is not having the same income, he would have filed the revised - 10 - NC: 2025:KHC:17569 WP No. 28169 of 2023 C/W WP No. 1566 of 2024 statement of assets and liabilities to prove the same, but the statements are not filed. Then the third contention is with regard to the properties acquired by the wife from a partition suit. If she has acquired a property in a partition suit that cannot be a ground for the Court to alter the amount of maintenance granted. On all the three counts, the Family Court had come to the conclusion that no modification is required. In the considered opinion of this Court, the Family Court had rightly considered and rightly dismissed the application and this Court finds no reasons to interfere. Hence, this Court is passing the following, ORDER i. ii. Accordingly, the writ petition is dismissed. All I.As., in the writ petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE BN List No.: 3 Sl No.: 1