Bangalore District Court
R.L.Madhuravalli vs Govindaraj Kannan on 24 November, 2015
IN THE COURT OF THE LX ADDITIONAL CITY
CIVIL & SESSIONS JUDGE, BENGALURU
(CCH-61)
DATED THIS THE 24th DAY OF November 2015
:Present :
Sri B.Jayantha Kumar, B.A.,Law, LL.M.
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. Appeal. No.944/2014
Appellant : R.L.Madhuravalli
W/o Govindaraj Kannan
Aged about 29 years
d/o R.Lakshmanamoorthy
r/at No.22/102, Mantri Residency
Bannerghatta road
Bengaluru -500076
(Rep by Sri.Rudramurthy G.T, Advocate)
Vs
Respondent Govindaraj Kannan
Aged about 33 years
s/o Adayar Kannan
r/at No.69/2, 2nd main road
Gandhinagar, Adayar
Chennai - 600020
(Rep by Smt.Geetha Devi.M.P, Advocate )
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JUDGMENT
This appeal is filed by the appellant u/s 29 of Protection of Women from Domestic Violence Act, 2005. (Hereinafter refer to as the "PWDV Act").
2. The appellant is the petitioner and respondent is the respondent in Crl. Misc. No. 223/2013 on the file of MMTC-VI Bengaluru. Herein afterwards, the parties will be referred to as per their ranks assigned to them before the lower court.
3. The appellant has challenged the correctness and legality of the interim order passed by the learned Magistrate and sought enhancement of interim maintenance.
4. Brief facts leading to this appeal are as follows:
The petitioner has filed a petition u/s 12 of PWDV Act seeking various reliefs under the said Act i.e. monthly maintenance, residential order, compensation order and Crl. A. No. 944/2014 3 protection order from the court. The petitioner has also filed I.A. No.1 u/s 23 of the said Act seeking interim maintenance of Rs.5,00,000/-. In support of the said application, the petitioner has filed affidavit and contended that she married the respondent during 2007 and during her stay with the respondent, she was subjected to ill-treatment and harassment and she was not allowed to pursue higher studies after her marriage. After marriage, she was not allowed to step out of the house. She has aged and ailing parents and minor children totally dependant on her. The respondent forced her to leave her matrimonial home and due to the harassment, she was forced to take shelter in her parents' house. The respondent no.1 demanded dowry and the respondents are very influential people and hence, prayed for granting interim maintenance.
5. The respondents after their appearance before the lower court filed their objection stating that the petitioner is currently residing in her parental house at Bengaluru along with Crl. A. No. 944/2014 4 the children. The second child was born in April 2012 and the petitioner left the matrimonial home at Chennai in the month of June 2012 and as per the influence of the petitioner's father, she left her matrimonial home along with children. The respondent no.1 has contacted personally and over phone many times requesting her to return to the matrimonial home and that he would look after and provide for their maintenance, but he was asked to take up employment in Bengaluru, for which he is not willing. He has further contended that she has expressed her desire not to return to matrimonial home and she has sent a legal notice demanding divorce for which the respondent replied stating that he wanted a reunion. He has further contended that the respondent is working as a software engineer in an IT company at Chennai and after tax deductions, his take home salary is about Rs.80,000/- p.m and not eight lakhs as claimed by the petitioner. He is looking forward for reconciliation with his wife and reunion of his family. Since the Crl. A. No. 944/2014 5 petitioner has left the matrimonial home without any just cause, the petitioner is not entitled to any maintenance. He has further contended that he has filed a petition under the Guardian and Wards Act in G.& WC No. 83/2014 seeking the custody of the minor children and the same is pending on the file of II Addl. Principal Judge, Family Court, Bengaluru. He is ready to take care of his children and petitioner. He has further contended that the petitioner is residing at Bengaluru and petitioner is not capable of looking after or maintaining the children and the minor children do not require a sum of Rs.5 lakhs per month and hence, prayed for dismissal of the petition.
6. After hearing the counsels of both sides, the trial court passed an order allowing I.A.No.1 partly and awarding interim monthly maintenance of Rs. 25,000/- from the date of the order till the disposal of the main petition.
Crl. A. No. 944/2014 6
7. Feeling aggrieved by the order passed by the learned Magistrate awarding monthly maintenance of Rs.25,000/-, the petitioner has filed this appeal seeking enhancement of monthly maintenance on the ground that the order passed by the learned Magistrate is arbitrary, capricious and perverse and ignoring the settled principles of law. There are errors on the face of the interim order dated 11.8.2014 passed by the learned Magistrate. The learned Magistrate has failed to apply proper application of mind in the matter and affidavit evidence in hand. Even though the respondent admitted his monthly salary of Rs.80,000/-, the petitioner would entitled monthly maintenance of Rs.60,000/- The order for payment of maintenance ought to be from the date of filing the said application i.e. 16.11.2013, not from 11.8.2014. The respondent is working as software engineer at Chennai and earning an excellent salary and he is capable of giving maintenance, but the Magistrate has not passed the maintenance of Rs.60,000/- and hence, prayed for Crl. A. No. 944/2014 7 enhancing the interim maintenance awarded by the learned Magistrate.
8. The records of the lower court are secured and I have heard the arguments of learned counsel for the appellant and respondent.
9. The following points arise for my determination:
1) Whether the lower court has committed any error of law and facts in directing the respondent to pay interim monthly maintenance of Rs.25,000/- and the petitioner is entitled for enhancement of maintenance as claimed in the interim application?
2) What order?
10. My findings on the above points are as follows:
Point No.1 : In the negative
Point No.2 : As per final order
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REASONS
11. Point No.1 : The petitioner has filed the petition u/s 12 of Protection of Women from Domestic Violence Act, 2005 seeking various reliefs under the provisions of the said Act and also filed I.A.No.1 under section 23 (2) of the Act seeking monthly maintenance of Rs.5 lakhs for herself and 2 minor children. In her application, she has contended that during her stay with the respondent no.1, she was subjected to harassment and ill-treatment and she was not allowed to pursue higher studies and to step out from the house. She has no source of income and her children are depending on the income of respondent no.1 and she was compelled to take shelter in her parental house with her aged parents. The respondent no.1 used to demand dowry when she was living with him and hence, she sought interim maintenance. Crl. A. No. 944/2014 9
12. The respondent has filed objection and contended that the second child was born in April 2012 and the petitioner left the matrimonial home at Chennai in the month of June 2012 and as per the influence of the petitioner's father, she left her matrimonial home along with children and respondent no.1 has contacted personally and over phone many times requesting her to return to the matrimonial home and that he would look after and provide for their maintenance, but he was asked to take up employment in Bengaluru, for which he is not willing. He has further contended that she has expressed her desire not to return to matrimonial home and she has sent a legal notice demanding divorce for which the respondent replied stating that he wanted a reunion. He has further contended that the respondent is working as a software engineer in an IT company at Chennai and after tax deductions, his take home salary is about Rs.80,000/- p.m and not eight lakhs as claimed by the petitioner. He is looking forward for reconciliation with his Crl. A. No. 944/2014 10 wife and reunion of his family. Since the petitioner has left the matrimonial home without any just cause, the petitioner is not entitled to any maintenance. He has further contended that he has filed a petition under the Guardian and Wards Act in G.& WC No. 83/2014 seeking the custody of the minor children and the same is pending on the file of II Addl. Principal Judge, Family Court, Bengaluru.
13. Learned counsel for the appellant has filed written arguments and in the written arguments, he has submitted that the petitioner has claimed monthly maintenance of Rs. 5 lakhs and the respondent has admitted his income of Rs.80,000/- p.m though income from other sources is estimated to be Rs.8 lakhs per month and now the same has been increased in one year almost double from Rs.8 lakhs to Rs.15 lakhs and the tax returns of the assessment for the year 2014-15 shows his gross income is Rs.15,60,111/- i.e. Rs.1,30,000/- per month. He has further submitted that the maintenance awarded by the learned Crl. A. No. 944/2014 11 Magistrate is on lower side and the order for payment of maintenance ought to be from the date of filing the application i.e., from 16.11.2013 and not from the date of order i.e. 11.8.2014 and in support of his argument, he has produced the pay slip of respondent no.1 which shows that his net salary is Rs.98,351/- and copy of income tax return and also form no.32. He has also relied upon a decision reported in 2013 Crl.L.J. 3909 (Ritesh Ratilal Jain Vs. Sandhya and another). He has also relied upon a decision reported in 2014 (2) KCCR 1493 (N.Jayaramaiah Vs. S.Vanitha). I have gone through both these citations and I accept the principles stated in the said decisions.
14. Learned counsel for the respondent has filed written argument and submitted that the petitioner is not entitled for interim monthly maintenance and that is to be awarded depending upon the needs of the persons, admittedly, the petitioner is residing with her parents who are the root cause for their separate living and deserting the respondent. He has Crl. A. No. 944/2014 12 further submitted that the relief u/s 20 of the Act is discretionary relief and learned Magistrate has considered all the material available on record and there is no arbitrariness and illogicalness in the impugned order and respondent is getting salary of Rs.98,000/- p.m. Hence, prayed for dismissal of the appeal. In support of his argument, he has relied upon a decision reported in (2011) 6 SCC 181 (Inderjit Singh Grewal Vs.State of Punjab and another and 2008 (2) ALT 241 ( M.Nirmala Vs.Dr. Gandla Balakotaiah) and the order passed by the Hon'ble High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Crl. W.P.No. 37/2008 in the case of Kishor Vs. Shalini and others. He has also produced the copy of the petition filed in GWOP No.831/2013 and copy of legal notice and copy of the petition in M.C. 2068/2013. He has also relied upon an order passed by the Hon'ble High Court of Karnataka in Crl.R.P. 815/2009 dated 9.12.2009. Relying on these decisions he has argued that for grant of interim relief is Crl. A. No. 944/2014 13 prescribed under 23 (1) of the Act, the procedure prescribed under the Code of Criminal Procedure has to be followed.
15. I have gone through the above citations. In this case, the learned Magistrate has passed order of maintenance only on the basis of records available and on the basis of affidavit filed by the petitioner. Learned Magistrate has not passed order on the basis of oral and documentary evidence. Interim order of maintenance is not final order. Considering the facts and circumstances of the case and considering the income of the respondent no.1 and considering the need of the petitioner to maintain herself and her children, the learned Magistrate awarded monthly maintenance ofRs.25,000/-. So, without recording the evidence, it is not just and proper to enhance the monthly maintenance. The petitioner has to lead her evidence and to establish that she is the victim of domestic violence from the hands of the respondents and she has to establish that she is entitled for the relief under the provisions of Protection of Crl. A. No. 944/2014 14 Women from Domestic Violence Act, 2005. Only after adducing the evidence, the court can grant the relief under the provisions of the Act. Therefore, whatever the maintenance awarded by the learned Magistrate is sufficient at this stage and I find no error in the order passed by the lower court and I find no reasons to interfere with the findings recorded by the lower court. Accordingly, I answer point no.1 in the negative.
16. Point No.2: In view of my findings on point No. 1, I proceed to pass the following:
ORDER The appeal filed by the appellant u/s 29 of Protection of Women from Domestic Violence Act, 2005 is hereby dismissed.
The order passed by the learned MMTC-VI, Bengaluru on I.A.No.I filed U/s.23(2) of Protection of Women from Domestic Violence Act, 2005 in Crl.Mis Crl. A. No. 944/2014 15 No.223/2013 dated 11.8.2014 awarding monthly maintenance of Rs.25,000/- to the petitioner is hereby confirmed.
Send the lower court records along with copy of this Judgment to the lower court.
(Dictated to the Judgment Writer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 24th day of November, 2015) (B.Jayantha Kumar) LX Addl.City Civil & Sessions Judge, Bengaluru.Crl. A. No. 944/2014 16
Crl. A. No. 944/2014 17