Bangalore District Court
) Sri Nithyananda vs S/O. Ganesh Acharya on 29 June, 2016
IN THE COURT OF 55TH ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE (CCH-56)
:Present :
Sri Kotrayya M. Hiremath, B.Sc., LL.B.(Spl).,
55th Addl. City Civil & Sessions Judge,
Bangalore.
:CRL. APPEAL Nos. 541/2013 AND 583/2013 :
DATED: THIS THE 29TH DAY OF JUNE, 2016.
: Crl.Appeal.No.541/2013 :
APPELLANTS/ : 1) Sri Nithyananda
RESPONDENTS S/o. Ganesh Acharya,
Age: 27 years,
2) Sri Ganesh Acharya,
S/o. Late Shankar Acharya,
Age: 60 years,
3) Smt. Leelavathi,
W/o. Ganesh Acharya,
Age: 49 years,
(All are r/at No.174, Kalmadi Road,
Kotathattu village, Kundapura Taluk,
Udupi District.
(By Sri G. Rajakumar, Advocate))
- V/s -
RESPONDENT/ : Smt. Surekha Shetty,
PETITIONER W/o. Nithyananda,
Age: 32 years, r/at No.1507, 4th 'D' Cross,
West of Chord Road,
Mahalakshmipuram,
Bangalore-560 086.
(By Sri B. Vijaya Shetty, Advocate)
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Crl. A.Nos. 541/2013 and 583/2013
: Crl.Appeal.No. 583/2013:
APPELLANT/ : Smt. Surekha Shetty,
PETITIONER W/o. Nithyananda,
Age: 32 years, r/at No.1507, 4th 'D' Cross,
West of Chord Road, Mahalakshmipuram,
Bangalore-560 086.
(By Sri B. Vijaya Shetty, Advocate)
- V/s -
RESPONDENTS/ : 1) Sri Nithyananda
RESPONDENTS S/o. Ganesh Acharya,
Age: 27 years,
2) Sri Ganesh Acharya,
S/o. Late Shankar Acharya,
Age: 60 years,
3) Smt. Leelavathi,
W/o. Ganesh Acharya,
Age: 49 years,
(All are r/at No.174, Kalmadi Road,
Kotathattu village, Kundapura Taluk,
Udupi District.
(By Sri G. Rajakumar, Advocate))
COMMON JUDGMENT
The Crl. Appeal No. 541/2013 is filed u/sec. 29 of the
Protection of Women from Domestic Violence Act, 2005 by
appellants/respondents (husband and his relatives) against the
respondent/petitioner(wife) challenging the impugned order
dated 10-9-2013 passed by the 2nd MMTC, Bangalore in Cri.
Misc. No. 141/2012 wherein several reliefs are granted in favour
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of respondent/petitioner (wife). The Crl. Appeal No.583/2013 is
filed under the same provision of law, but, by
appellant/petitioner (wife) against the respondents/respondents
(husband and his relatives) challenging the impugned order
dated 10-9-2013 passed by the same trial court in Cri. Misc. No.
140/2012 wherein the prayer of appellant/petitioner (wife) for
"residence order" is rejected by dismissing the case of petitioner
(wife).
2. These two appeals have arisen from the above
mentioned impugned order dated 10-9-2013 which is a common
order for Crl. Misc. 141/2012 and Cri. Misc. 140/2012.
Therefore, these two appeal cases Cri. Appeal Nos. 541/2013
and 583/2013 are decided by this common Judgment to avoid
the repetition of the facts and the reasons. In this Judgment, for
the sake of convenienance, the parties are referred to by their
respective ranks mentioned in Criminal Miscellaneous cases as
the 'petitioner (wife)' and 'respondent Nos.1 to 3 (husband & his
relatives)'.
3. The facts leading to these Criminal Appeal Nos.
541/2013 and 583/2013, in brief, are as under:
FIRST CASE BY PETITIONER:
3(a) The petitioner (wife) filed her FIRST CASE Cri. Misc.
No.141/2012 (old No. Cri. Misc. No.1163/2009) u/sec. 12 of the
D.V. Act 2005 before the trial court praying for several reliefs
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such as (1) prohibit the respondents from repeating the acts of
domestic violence, (2) direct the respondent No.1 to come and
reside with the petitioner, (3) direct the respondent No.1 to stay
away from respondent Nos. 2 and 3, (4) restrain the respondent
No.1 from marrying any other girl, (5) direct the respondent
No.1 to pay the rent of Rs.2,000/- per month for the premises
where the petitioner is presently residing alone, (6) direct the
respondents to pay monetary relief towards the expenses
incurred and the losses suffered by the petitioner, (7) direct the
respondent No.1 to pay monthly maintenance of Rs.10,000/- per
month and (8) direct the respondents to give compensation of
Rs.10,00,000/- to petitioner.
3(b) The case of petitioner (wife), as per her petition in the
FIRST CASE Crl. Misc. No.141/2012 (old No. Crl.Misc.No.
1163/2009) in brief, is as under:-
(i) The marriage of petitioner (wife) and the respondent
No.1 is taken place on 22-10-2007. It was a love marriage and
also an inter-caste marriage. Parents of respondent No.1 (i.e.,
R2 and R3) did not attend the marriage. Even after marriage
the R2 and R3 are not ready to receive the petitioner (wife) as
their daughter-in-law. After marriage, the respondent No.1 and
petitioner (wife) lived happily for about one year in the petitioner
(wife)'s house at Bangalore. But since the date of marriage the
R2 and R3 have been advising the R1, through mobile phone, to
come back to the native place by divorcing the petitioner/wife so
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that they perform the marriage of R1 with some other girl of the
same caste. After one year, the respondent No.1 started
changing his mind, he yielded to the ill advice of his parents R2
and R3 and he started to ill-treat the petitioner mentally and
physically by saying that petitioner (wife) is more aged and that
she has not given any dowry to him. He started demanding Rs.2
lakhs from petitioner (wife) towards dowry and told her that he
will divorce the petitioner (wife) if she does not bring the amount
and also he threatened her by saying that he is going to kill her
if she does not consent for divorce. He started quarreling with
petitioner (wife) everyday. Ultimately on 2-11-2008 the
respondent No.1 beaten the petitioner (wife) and went away
from the house. While going he has taken the marriage photo
album and the ATM card with him and he did not return home.
(ii) On 3-11-2008 the petitioner (wife) gave a complaint in
Mahalaxmipuram police station at Bangalore. Later the
respondents have admitted before the said police the
relationship of petitioner (wife) and respondent No.1. On 1-2-
2009 the relatives of petitioner (wife) went to the native place of
respondents. But the respondents did not respond properly with
the relatives of petitioner (wife). The respondents threatened
them by saying that the petitioner (wife) should not try to
contact respondent No.1. The petitioner (wife) has submitted
that the respondent No.1 is doing Carpenter work and earning
more than Rs.15,000/- per month and that he is also getting the
income of Rs.10,000/- per month from agricultural lands. It is
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alleged that the respondent No.1 is making efforts to marry
some other girl of his own caste. It is further submitted that
her salary income is not sufficient to maintain herself in these
costly days, that she has been paying Rs.2,000/- per month
towards house rent and that she is finding it very difficult to pay
the rent and to spend for other day to day expenses. It is
submitted that she is feeling unsecured as she is living alone in a
rented house.
3(c) The objections filed by respondent No.1 in the FIRST
CASE Cri. Misc. No. 141/2012 (old No. Crl. Misc. No.1163/2009),
in brief, are as under:-
(i) The petitioner (wife) has made the respondent Nos. 2
and 3 as parties to this case only with an intention to harass
them. The fact that the marriage of petitioner/wife and
respondent No.1 is taken place on 22-10-2007 is false and it is
specifically denied. The other contents of the petition are also
denied as false.
(ii) The petitioner (wife) is not the legally wedded wife of
1st respondent and there is no "jural relationship" between them.
She is totally a stranger and she has no any relationship with
respondent No.1.
(iii) The fact that the respondent No.1 is earning
Rs.15,000/- per month and that he is getting Rs.10,000/- per
month from agricultural lands is a created story and the
petitioner (wife) be put to strict proof of the same. Unless the
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petitioner (wife) proves that she is the wife of 1st respondent,
she is not entitled for any relief. The respondent No.1 has
prayed for dismissal of the petition with exemplary costs.
SECOND CASE BY PETITIONER:
3(d) The petitioner (wife) filed her SECOND CASE Cri.
Misc. No.140/2012 (old No. Cri. Misc. No.1069/2010) u/sec. 12
of the D.V. Act 2005 before the trial court praying for the
"residence order" directing the "respondents" to give a portion of
accommodation in the house of respondent No.1 where he
resides with other respondents.
3(e) The case of petitioner (wife), as per her petition in the
SECOND CASE Crl. Misc. No.140/2012 in brief, is as under:-
(i) The petitioner (wife), in this Cri. Misc. No.140/2012,
has reiterated the facts contained in her main petition in Cri.
Misc. No. 141/2012. In addition to that she has contended that
the respondent No.1 is not ready to come to Bangalore and to
stay with her. She is finding it very difficult to lead her life in
Bangalore as the people are saying that the petitioner (wife) has
left her husband, etc. She is finding no meaning to lead a lonely
life in the society without her husband and she is intending to
reside with respondent No.1 in his house at his native place.
She has no home other than the home of respondent No.1. The
court has already held that the petitioner (wife) is the wife of
respondent No.1. Under these circumstances it is just and
necessary to pass an "order for residence" of petitioner (wife) in
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the house of respondent No.1. Now, as per sec. 19(f) of the D.V.
Act, the house of respondent No.1 is the only suitable and
alternate accommodation for petitioner (wife) to lead a dignified
life. It is not possible for petitioner (wife) to stay in Bangalore
without the company of respondent No.1. In this second case,
petitioner (wife) has prayed for a residence order directing the
respondents to give a portion of accommodation in the house of
respondent No.1.
3(f) The objections filed by respondent No.1 in the
SECOND CASE Cri. Misc. No. 140/2012 (old No. Crl. Misc. No.
1069/2010), in brief, are as under:-
(i) The respondent No.1 has specifically denied almost all
the contentions of main petition. In this Cri. Misc. No. 140/2012,
he has reiterated the same objections which are already stated
by him in his statement of objections in the first case Cri. Misc.
No. 141/2012. In addition to that he has contended that the
trial court while disposing the Cri. Misc. No. 1163/2009 has
observed that the petitioner (wife) is already residing in a house
and is paying the rent of Rs.1,600/- per month. The trial court
has further observed that the said accommodation is a proper
and sufficient accommodation to the petitioner (wife) and that
the question of claiming or granting a separate residence does
not arise. It is further contended that the case of petitioner
(wife) is a false case and that it is the abuse of process of law.
The respondent No.1 has prayed for dismissal of the case of
petitioner (wife).
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4. In the FIRST CASE Cri. Misc.No.141/2012, the
petitioner (wife), in order to prove her case, has examined
herself as PW1 and also examined one witness as PW2 and has
produced 15 documents such as voter's ID, Notice,
Endorsement, postal acknowledgment, Rental agreement,
receipts, copy of FIR, report of protection officer, complaint....
etc., and got them marked as Exs.P.1 to 15. The respondents
(husband and his relatives), in support of their objections, have
examined the 1st respondent as RW1 and have produced 3
documents such as copy of ration card, driving licence and
Election I.D card and got them marked as Exs.R.1 to 3. In the
SECOND CASE Cri.Misc.No.140/2012, the petitioner (wife), in
order to prove her case, has examined herself as PW1 and also
examined another witness as PW2 and has produced 18
documents such as Order copy of Cri.Misc.1163/2009, Photo,
receipts, Notices, Rental agreement, Voters I.D card, Postal
acknowledgment, FIR copy of CC.No.12428/2009, complaint,
charge in C.C.No.12428/2009, Order copy of C.C.No.12428/2009
..... etc., and got them marked as Exs.P.1 to 18. The
respondents (husband and his relatives), in support of their
objections have examined the 1st respondent as RW1, but they
have not marked any documents on their behalf.
5. The learned trial judge has heard both side
arguments in BOTH THE CASES and in her COMMON ORDER she
has raised the following points for consideration:
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1) CfðzÁgÀgÀÄ Qæ.«Ä¸ï. ¸ÀASÉå 141/2012 CfðAiÀÄ°è ºÉýPÉÆAqÀAvÉ
JzÀÄgÀÄzÁgÀ DPÉUÉ PËlÄA©PÀ zËdð£Àå J¸ÀVgÀÄvÁÛgÉAzÀÄ gÀÄdĪÁvÀÄ
¥Àr¸ÀĪÀgÃÉ ?
(Whether the petitioner (wife) proves that the
respondents (husband and his relatives) have
committed the domestic violence against her as
contended by her in her petition Cri. Misc. No.
141/2012?)
2) CfðzÁgÀgÀÄ PËlÄA©PÀ zËdð£Àå¢AzÀ ªÀÄ»¼ÉAiÀÄgÀ ¸ÀAgÀPÀëuÁ
PÁAiÀÉÄÝAiÀÄr vÀ£Àß CfðAiÀÄ°è Qæ.«Ä¸ï. ¸ÀASÉå 141/2012 gÀ°è
PÉýgÀĪÀ EvÀgÉ ¥ÀjºÁgÀUÀ¼£À ÀÄß ¥ÀqÉAiÀÄ®Ä CºÀð¼ÉÃ?
(Whether the petitioner (wife) is entitled for other
reliefs under the Protection of Women from Domestic
Violence Act as claimed by her in her application in
C.Misc.141/2012?)
3) CfðzÁgÀgÀÄ Qæ.«Ä¸ï. ¸ÀASÉå 140/2012 CfðAiÀÄ°è ºÉýPÉÆAqÀAvÉ
JzÀÄgÀÄzÁgÀ£À ªÀÄ£ÉAiÀÄ°è ªÁ¸ÀzÀ ªÀåªÀ¸ÉÜAiÀÄ£ÀÄß ¥ÀqÉAiÀÄ®Ä CºÀð¼ÉÃ?
(Whether the petitioner (wife) is entitled for residence
arrangement in a portion of the house of
respondent No.1 as claimed in her application in Cri.
Misc. 140/2012?)
4) K£ÀÄ DzÉñÀ ?
(What order)
7. The learned trial judge in her impugned order has
answered the point Nos. 1 & 2 partly in the affirmative and the
point No.3 in the negative and has ordered that : (1) the
'respondents' shall not commit any domestic violence act
against petitioner (wife) and that the Mahalaxmipuram
Extension Police shall provide protection to petitioner (wife) in
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Crl. A.Nos. 541/2013 and 583/2013
case if such acts repeat in future, (2) the 1st respondent shall
pay the monthly maintenance of Rs.5,000/- to petitioner (wife)
from the date of her petition in Cri. Misc. No. 141/2012 till her
life time, (3) the 1st respondent shall pay the rent of Rs.2,000/-
per month for the house where the petitioner is presently
residing and (4) the respondents shall give Rs.1,00,000/- (one
lakh) to petitioner (wife) towards the compensation for the
domestic violence committed by them. The prayer of petitioner
(wife) in Cri. Misc. 140/2012 for grant of "residence order" is
rejected by the trial Judge.
8. The respondents (husband and his relatives), being
aggrieved by the impugned order dated 10-9-2013 passed in
the FIRST CASE Cri. Misc. No.141/2012, have preferred the Cri.
Appeal No. 541/2013 on the following amongst other grounds:
1. The impugned order is illegal, improper,
opposed to law and facts and the same is liable
to be set-aside.
2. Imposing the burden of proving "the fact that
the petitioner (wife) is not his legally wedded
wife" on respondent No.1 is absolutely wrong
and it is against law. It is the duty of petitioner
(wife) to prove that "she is having a domestic
relationship with the respondent No.1" as per
section 2(a) and (f) of the D.V. Act.
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Crl. A.Nos. 541/2013 and 583/2013
3. The trial court has erred in believing that there
is a "marriage relationship" between petitioner
(wife) and respondent No.1 only on the basis
of superimposed photo. The trial court cannot
accept the photo without its negative. It is not
a real photo.
4. The trial court has wrongly come to the
conclusion that the "report of the protection
officer" supports the case of petitioner (wife).
The protection officer has clearly noticed that
the petitioner (wife) has not produced any iota
of evidence/documents to establish that she is
the legally wedded wife of 1st respondent.
5. The documents Exs.P. 1, 2, 8 and 9 produced
by petitioner (wife) are all created and
concocted documents just for the purpose of
the false claim. The petitioner (wife) has not
examined any witness to prove her marriage
with respondent No.1.
6. The trial court has come to a "wrong
conclusion" with regard to dowry harassment.
Also there are no any materials produced by
petitioner (wife) to prove the income of 1st
respondent. The impugned order with regard
to payment of maintenance and payment of
house rent is highly illegal and improper.
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Crl. A.Nos. 541/2013 and 583/2013
When there is no domestic relationship
between petitioner (wife) and respondent
No.1, the question of awarding damages does
not arise at all. The petitioner (wife) is getting
handsome salary which is sufficient for her
livelihood.
Based on the above mentioned grounds, the respondent No.1
has prayed for setting-aside the impugned order passed in Cri.
Misc. No. 141/2012 by which various reliefs are granted to
petitioner (wife).
9. The petitioner (wife), being aggrieved by the
impugned order dated 10-9-2013 passed in the SECOND CASE
Cri. Misc. No. 140/2012 has preferred the Crl. Appeal
No.583/2013 on the following amongst other grounds:
1. The impugned order dismissing the case of
petitioner (wife) in which she has prayed for
"residence order" is highly unjustifiable.
2. The petitioner (wife) is entitled for "residence
order". The learned magistrate has not given
any cogent reasons for dismissing the prayer
of petitioner (wife).
3. The learned magistrate has failed to appreciate
the evidence given by petitioner (wife). She
(the petitioner) has stated that it is not
possible for her to lead life in Bangalore
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Crl. A.Nos. 541/2013 and 583/2013
without the respondent No.1 and that she is
intending to reside with respondent No.1 in his
house.
4. The "residence order" is very important for
women. The impugned order, rejecting the
prayer for residence, is contrary to the law and
procedure and the principles laid down by the
Hon'ble Supreme Court and High Courts.
Based on the above mentioned grounds, the petitioner (wife) has
prayed for setting-aside the impugned order dated 10-9-2013
passed in Crl.Misc. No.140/2012 and has prayed for the
"residence order" as prayed by her in the said case.
10. In pursuance of the notice issued in both the appeal
cases the respective opposite parties have appeared through
their advocates.
11. The trial court records are secured.
12. I have heard the arguments of learned counsels of
both sides and perused the common impugned order and the
records.
13. Now the following points will arise for my
consideration and determination:
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:POINTS:
1) Whether the impugned order dated 10-9-
2013 with regard to granting of several
reliefs to petitioner (wife) in Cri.Misc. No.
141/2012 is illegal and opposed to law and
facts?
2) Whether the impugned order dated 10-9-
2013 refusing to grant the "residence order"
prayed by petitioner (wife) in Cri. Misc.
No.140/2012 is contrary to the law and
procedure?
3) What order?
14. My findings on the above said points are as under:
Point No.1 : Partly in the affirmative
Point No.2 : In the affirmative
Point No.3 : As per final order
For the following:
REASONS
Point Nos.1 and 2 :-
15. The main objection raised by respondent No.1 is that
the petitioner Smt. Surekha is not his wife and that there is no
domestic relation between him and petitioner. The trial court, in
para No.18 of its impugned order, has held that the burden of
proving the fact that "the petitioner is not his wife" is on the
respondent No.1. The respondent No.1 has rightly contended
that the burden of proving the fact that "the petitioner is not his
wife" cannot be cast on him. He has further rightly contended
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that the burden of proving the fact that "the petitioner is the
wife of respondent No.1" is on the petitioner herself. The initial
burden will always be on the petitioner as she is contending that
"she is the wife of respondent No.1". But, when the petitioner
once discharges her initial burden, then the next step is to see
whether it is disproved by the evidence produced by respondent
No.1. The petitioner, in order to discharge her burden, has to
prove her case by producing her side evidence.
16. The respondent No.1 has contended that the
"protection officer" has mentioned in his report that the
petitioner has not produced any documents to show that she is
the wife of respondent No.1. It is true that the "protection
officer" has reported so in his report Ex.P.15. But the petitioner
has produced several documents before the court to show that
she is the wife of respondent No.1
17. The Ex.P1 is the election I.D card dated 12-3-2009
of petitioner (wife). In this Ex.P1 the name of petitioner is
mentioned as S. Surekha Nithyananda and her husband's name
is mentioned as Nithyananda Acharya (the respondent No.1).
This Ex.P1 pertains to Mahalaxmi Layout Assembly Constituency
of Bangalore. The Ex.P2 is a receipt given by Mahalaxmi police
station, Bangalore city to petitioner for having lodged a
complaint against her husband namely Nithyananda. In this
Ex.P2 the name of petitioner's husband name is mentioned as
Nithyananda. The Ex.P3 and Ex.P4 are the receipts dated 28-
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11-2008 issued by Electoral Registration Officer to petitioner and
to respondent No.1 respectively. In Ex.P3 the name of petitioner
is mentioned as S. Surekha Nithyananda. In these two receipts
the common address is mentioned as No. 1507, 4th D Cross,
Mahalaxmipuram, Bangalore-86. These Exs.P3 and 4 show that
on 28-11-2008 both petitioner and respondent No.1 were living
together in the same house at Bangalore. It means that there
was "domestic relation" between them.
18. The Ex.P5 is a receipt dated 1-11-2007 given by a
photographer. The Ex.P6 is a notice dated 7-11-2008 given to
petitioner by the Parihar Family Counseling Center (Police) in a
case registered by petitioner against respondent No.1. The
Ex.P7 is an attested copy of house rent agreement dated 19-10-
2007. This agreement is between petitioner (tenant) and one
Sri Madhav s/o. Raju, the owner of the house situated at
No.1507, 4th Cross, 2nd Stage, Rajajinagar, Mahalaxmipuram,
Bangalore. The case of petitioner is that the respondent No.1
has put his signature in this Ex.P7 as one of the witnesses. The
Exs.P.8 and 9 are the voter's details pertaining to respondent
No.1 and petitioner respectively. These Exs.P8 and 9 pertain to
the Lokasabha Election, which was held on 23-4-2009 in
Mahalaxmi Layout Assembly Constituency. In Ex.P9, the name of
petitioner's husband is mentioned as Nithyananda. The Ex.P13
is the FIR of Crime No. 74/2009 of Mahalaxmi Layout Police
Station for the offence u/secs. 498(A) and 506, r/w. 34 of IPC
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and sec. 4 of the Dowry Prohibition Act, 1961. The
petitioner(wife) is the complainant of the said Cri. No. 74/2009.
In Ex.P.13, her husband's name is mentioned as Nithyananda.
The respondent Nos. 1 to 3 are the accused Nos. 1 to 3 in the
said case. The Ex.P14 is a copy of the complaint lodged by
petitioner and it pertains to the above mentioned Crime
No.74/2009 of Mahalaxmi Layout Police Station. In Ex.P14 also
the name of petitioner's husband is mentioned as Nithyananda.
The Ex.P15 is the report of Protection Officer. All these exhibits
produced by petitioner show that the respondent No.1 is the
husband of petitioner.
19. In Crl. Misc. 140/2012 the petitioner has produced
one photo as Ex.P2, in which the petitioner and respondent No.1
are standing together. The respondent No.1 has contended that
it is a super imposed manipulated photo. But during the cross-
examination by the other side advocate the respondent No.1 has
failed in his attempt to show that this Ex.P3 is a false and
created photo. This aspect of the matter is discussed nicely by
the trial Judge in her impugned order. It is true that the
marriage invitation card and the marriage photos are not
produced by petitioner before the trial court. But the case of
petitioner is that her marriage with respondent No.1 is taken
place on 22-10-2007 in Ganapathi temple at Rajajinagar,
Bangalore and that the respondent No.1, while going away from
petitioner's house, has taken away the marriage photos album
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Crl. A.Nos. 541/2013 and 583/2013
with him. These above mentioned exhibited documents are the
documents which are easily available to petitioner (wife) at the
time of filing of Cri. Misc. No. 141/2012 and 140/2012 before the
trial court. In addition to these documents the petitioner has
examined one witness namely Ramesh @ M. Raju S/o. Madhav
as PW2 in Crl. Misc. 141/2012. This PW2 is the son of the owner
of the house in which the petitioner and respondent No.1 resided
together after their alleged marriage.
20 The PW2 Ramesh @ M. Raju has stated that on 19-
10-2007 the petitioner and her "would be husband" respondent
No.1 together came to their building and entered into a rent
agreement with him and that after their marriage (i.e., on 22-
10-2007) both of them lived as husband and wife in the house
bearing No. 1507, 4th 'D' Cross, Mahalaxmipura, Bangalore. This
PW2 has stood the test of cross-examination by the other side
advocate. The petitioner (wife) also has examined herself as
PW1 and has reiterated her petition averments in her oral
evidence. Therefore, this court is of the opinion that the
petitioner (wife), by producing all the above mentioned
evidence, has successfully discharged the burden of proving the
fact that the "respondent No.1 is her husband" and that there
was "domestic relation" between them after the marriage. On
the other hand, the respondent No.1 has not produced any
evidence, except his oral evidence, to disprove the case of
petitioner (wife). In the absence of any evidence to the contrary
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the evidence produced by petitioner is sufficient to believe the
case of petitioner. Therefore, this court is of the opinion that the
trial court has rightly come to the conclusion that the petitioner
is the wife of respondent No.1. The fact that the respondent
No.1, with full knowledge, being aware of the consequences and
even by opposing the will and wish of his parents, has lived with
petitioner as her husband and the fact that he has deserted her
without any good reason, itself, in the opinion of this court, can
amount to the domestic violence.
21. When it is held that the petitioner is the wife of
respondent No.1 and when she is subjected to domestic violence
by respondent No.1 and his relatives, then the petitioner is
entitled for various reliefs under the D.V. Act. The trial court has
considered all aspects of the matter and it has also observed
that the petitioner is not able to show the "exact income" of
respondent No.1. This court is of the opinion that the trial court,
taking into consideration the financial capacity of respondent
No.1, has fixed the "reasonable amounts" towards monthly
maintenance and compensation to be paid by respondent No.1
to petitioner.
22. In Crl. Misc. No.140/2012, the petitioner (wife) has
prayed for the residence order directing the respondents to give
a portion of the house of respondent No.1 in their native place.
But the trail court has rejected the said prayer of petitioner
(wife) for the reason that the case of petitioner is that she is
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Crl. A.Nos. 541/2013 and 583/2013
being subjected to harassment by respondent No.1, 2 and 3. It
is to be noticed that the petitioner (wife) has contended that the
respondent No.1 is not ready to come and live with her in her
rented house at Bangalore. She has stated that she cannot live
alone in the said house without the company of respondent
No.1. She has stated that she is finding no meaning to lead a
lonely life in the society without her husband (respondent No.1)
and that she is intending to reside with respondent No.1 in his
house at his native place. It means that she is facing difficulty to
live alone in her rented house at Bangalore. Under these
circumstances even if the court grants her the amount of rent it
will not serve the purpose. In this regard the sub sec. 1(f) of
sec. 19 of the D.V. Act says that:
"the Magistrate may on being satisfied that
domestic violence has taken place, pass a residence
order-(f) directing the respondent to secure same
level of alternate accommodation for the aggrieved
person as enjoyed by her in the shared household or
to pay rent for the same, if the circumstances so
required."
The above mentioned provision of law speaks about the level of
the alternate accommodation. It does not prohibit the court from
giving direction to respondent No.1 (husband) and his parents to
provide a portion of their house to petitioner (wife) for her
residential purpose. Therefore, this court is of the opinion that it
is just and necessary to pass the residence order as prayed by
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Crl. A.Nos. 541/2013 and 583/2013
petitioner (wife) in Crl. Misc. No.140/2012. The respondent Nos.
2 and 3 may not accept the petitioner as their daughter-in-law
and they may say that the respondent No.1 is living jointly with
them and they cannot share their house with petitioner. But it is
possible for respondent Nos. 2 and 3 to make a "separate
arrangement" for petitioner in their house. Therefore, this court
is of the opinion that passing this kind of residence order in this
case is very much necessary in the interest of justice. If this kind
of residence order is made then it is not necessary to order for
payment of house rent to petitioner (wife). Therefore, the said
part of the impugned order in Crl. Misc. No.141/2012 is to be
modified accordingly. Hence, the point No.1 is answered as
'partly in the affirmative' and point No.2 is answered in the
'Affirmative'.
Point No.3:
23. Keeping in view the findings already given on point
Nos.1 and 2 above, I proceed to pass the following:
ORDER
The Crl. Appeal No. 541/2013 filed by appellants/respondents (husband and his relatives) is partly allowed.
2. The prayer of respondent/petitioner(wife) in Crl. Misc. No.141/2012 pertaining to payment of house rent, which is granted to her by the trial court
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Crl. A.Nos. 541/2013 and 583/2013 in 5th para of the impugned order dated 10-9-2013 is rejected.
3. The remaining part of the impugned order in Crl. Misc. No.141/2012 remains as it is and it is confirmed.
4. The Crl. Appeal No.583/2013 filed by appellant/petitioner (wife) is allowed.
5. The impugned order dated 10-9-2013 in Crl. Misc. No. 140/2012 is set-aside.
6. The respondent No.1 and respondent Nos. 2 & 3 are directed to give a portion of accommodation in the house of respondent No.1, where they reside, to the appellant/petitioner (wife) as the 'alternate accommodation' u/sec. 19(1)(f) of the Protection of Women from Domestic Violence Act, 2005 for her residential purpose as prayed by her in Crl. Misc. No.140/2012.
7. The certified copy of this Judgment shall be given free of cost to both the parties as required u/sec. 24 of D.V. Act.
Keep a copy of this common judgment in Crl. Appeal No. 583/2013.
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Crl. A.Nos. 541/2013 and 583/2013 Send back the LCRs of both the cases with a copy of this Judgment to the trial court.
(Dictated to the Judgment writer on computer and after corrections, pronounced by me in the Open Court on this the 29th of June 2016.) (Kotrayya M. Hiremath) th 55 Addl.City Civil & Sessions Judge, Bengaluru.