Karnataka High Court
Jeevitha vs Pastor V Danial Paul on 23 January, 2020
Author: K.Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL REVISION PETITION NO.1127 OF 2018
BETWEEN:-
1. JEEVITHA,
AGED ABOUT 23 YEARS,
D/O. PASTOR S.
YESANNA
W/O. PASTOR V. DANIAL PAUL
2. V. ALANA DANIAL
AGED ABOUT 1 YEARS
D/O. PASTOR V. DANIAL PAUL
SINCE MINOR
REPRESENTED BY HER
MOTHER JEEVITHA,
BOTH ARE RESIDING AT
#26, KBH COLONY,
BEHIND POLICE STATION,
HOSAKOTE,
BANGALORE RURAL-562 114
...PETITIONERS
(BY SRI VINAYA KEERTHY M., ADVOCATE)
2
AND
PASTOR V. DANIAL PAUL,
AGED ABOUT 33 YEARS,
S/O. PASTOR VENKATARAMANA PAUL,
#17/388-6-3, NVR STREET,
MADANAPALLE TOWN,
CHITTOOR DISTRICT
ANDHRA PRADESH-517 001
...RESPONDENT
(BY SRI VEERANNA G. TIGADI, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W. 401 OF CR.P.C., PRAYING
TO SET ASIDE THE IMPUGNED ORDER DATED
30.08.2018, PASSED BY THE LEARNED IX
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE IN
CRL.A.NO.16/2018 MODIFYING THE ORDER DATED
12.01.2018, PASSED BY THE LEARNED PRINCIPAL
CIVIL JUDGE AND JMFC, HOSAKOTE ON I.A. IN
CRL.MISC.NO.296/2017, BY REDUCING THE
MAINTENANCE PAYABLE BY THE RESPONDENT TO
THE PETITINERS FROM RS.8,000/- PER MONTH TO
RS.5,000/- PER MONTH AND TO GRANT THE INTERIM
MAINTENANCE OF RS.8,000/- PER MONTH AWARDED
BY THE TRIAL COURT.
THIS PETITION COMING ON FOR ADMISSION ON
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
This petition is filed by the petitioners - wife and daughter of the respondent, being aggrieved with the order dated 30.08.2018 passed in Crl.A. No.16/2018 by the IX Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru (Hereinafter referred to as 'first Appellate Court').
2. Heard the arguments of the learned counsel for the petitioners as well as the respondent.
3. The rankings of the parties are retained as before the trial Court for the sake of convenience.
4. The case of the petitioner-wife before the trial Court is that in Crl.Misc. No.296/2017 on the file of the Principal Civil Judge and J.M.F.C., Hosakote, (Hereinafter referred to as 'the trial Court') she filed an 4 interim application under Section 23 of Protection of Women From Domestic Violence Act, 2005 (Hereinafter referred to as 'D.V. Act') for granting interim maintenance of Rs.35,000/- per month, alleging that the respondent is working as Pastor in Church and earning monthly income of more than Rs.70,000/-. Based upon the affidavit filed by the petitioner-wife, the trial Court passed the order under Section 23 of D.V. Act by granting Rs.8,000/- per month as interim maintenance to the petitioners.
5. Assailing the same, the respondent/husband filed an appeal before the first Appellate Court under Section 29 of D.V. Act. The first Appellate Court after considering the affidavit has held that there is no document of proof produced by the petitioner in order to show the income or the paying capacity of respondent and modified the order passed by the trial Court and 5 reduced interim maintenance from Rs.8,000/- to Rs.5,000/- per month vide order dated 30.08.2018. The same is challenged by the petitioners before this Court.
6. The learned counsel for the petitioners has contended that the order of the first Appellate Court is not sustainable as it is not correct, since the maintenance awarded at Rs.8,000/- per month, itself is meager one. Rs.5,000/- is not sufficient to the petitioner-wife to maintain herself and child, therefore, prayed for setting aside the order of the first Appellate Court, by confirming the order of the trial Court.
7. Per contra, learned counsel for the respondent- husband has contended that the respondent is not at all working as Pastor in any Church as alleged by the petitioners and there is no income for him. Absolutely there was no income proof produced by the petitioners 6 before the Court to show income of the respondent is either Rs.70,000/- or more. Such being the case, granting Rs.8,000/- is exorbitant. Even otherwise, if the petitioner is able to prove the income of the respondent as more than the amount stated in the petition, she is always at liberty to file an application for modification or enhancement of the maintenance amount during the course of trial. Therefore, prayed for dismissal of the petition.
8. Upon hearing the arguments and on perusal of the records, admittedly, the trial Court passed the order under Section 23 of D.V. Act, only based upon the affidavit filed by the petitioner-wife. Absolutely, there is no documentary proof in order to show that the respondent is earning more than Rs.70,000/- per month. Considering the affidavit and after hearing the arguments of the parties, the first Appellate Court has 7 rightly held that without knowing the paying capacity and income proof of the respondent, the trial Court directed him for paying the Rs.8,000/- per month, which cannot be sustainable. Therefore, in the interest of the respondent-husband, the petitioners-wife and child, the first Appellate Court reduced the amount from Rs.8,000/- to Rs.5,000/- per month, as interim maintenance, until disposal of the petition before the Magistrate. I do not find any error or illegality committed by the first Appellate Court in modifying the interim maintenance awarded by the trial Court. It is also necessary to be proved by the petitioner-wife about the actual expenditure of the child as well as herself. As the petitioners are said to be residing in her parents house and respondent is residing at Madanapalle Town Chittoor District of Andhra Pradesh, at this stage, I do not find any ground to interfere with the order passed 8 by the first Appellate Court. Hence, the revision petition is liable to be dismissed, accordingly, it is dismissed.
9. The trial Court is directed to dispose of the matter as expeditiously as possible, in accordance with law.
In view of disposal of main matter on merit, the prayer sought in I.A. No.1/2018 does not survive for consideration and hence, I.A. No.1/2018 also stands dismissed.
SD/-
JUDGE Sbs*