Karnataka High Court: Jyoti Mulmani J., allowed the revision petition on grounds of failure to ascertain and understand the material propositions involved in the case.
The facts of the case are that the petitioner is a legally wedded wife of respondent and their marriage was solemnized on 28-02-2007 at Gayathri Mangalya Mandira, B.H. Road, Shimoga as per the Hindu Rites and Customs. They lived blissfully for some time however was constrained to leave apart from respondent after some time. Thereafter she filed a petition under Sections 18, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 which was thereby allowed and compensation granted. Aggrieved by which, appeal was preferred by both parties which was clubbed and the impugned order upheld. Later, a petition as filed under Section 125 of Criminal Procedure Code, 1973 which was dismissed as non-maintainable. Aggrieved by this order, present revision petition has been filed challenging the impugned order.
Counsel for the petitioners submitted that the order suffers from serious infirmities and is liable to be set aside as the ground for rejection of the petition that the petitioner had filed petition under provisions of Protection of Women from Domestic Violence act, 2005 and thus petitioners cannot file another petition under Section 125 CrPC is wholly unsuitable in law.
Counsel for the respondents submitted that the impugned order has reached finality as petitioners have not preferred a further appeal before any other courts.
The Court observed that the petitioner filed a petition under Section 125 Cr.PC and not under Section 127 of the Code. There has been an error in the impugned order in not appreciating the distinction between the provisions of the Domestic Violence Act and Cr. PC as the petitioner is not seeking enhancement of maintenance.
The Court before disposing off the petition remanded the matter to reconsider the application filed by petitioner under Section 125 CrPC.
In view of the above, the impugned order was set aside.[D.A. Divya v. M. Yashwanth, R.P.F.C. No. 63 of 2016, decided on 02-11-2020]
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