Bangalore District Court
Sri.Monojit Banerjee vs Smt.Shalini Banerjee on 30 November, 2015
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.CHANDRASHEKHAR MARGOOR, B.Sc., LL.B.(Spl)
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 30th day of November 2015
Crl. A.No.644/2015 C/W. Crl.A.No.1251/2014
Crl. A.No.644/2015
APPELLANT : Sri.Monojit Banerjee,
S/o.Biswajit Banerjee,
49 years,
R/at.No.2034,
Sobha Moonstone Apartments,
Kempapurr Main Road,
Dasarahalli, Hebbal Kempapura,
Bengaluru-560 024.
.Vs.
RESPONDENT : Smt.Shalini Banerjee,
W/o. Monojit Banerjee,
39 years,
R/at.No.2034,
Sobha Moonstone Apartments,
Kempappur Main Road,
Dasarahalli, Hebbal Kempapura,
Bengaluru-560 024.
Crl. A.No.1251/2014
APPELLANT : Smt.Shalini Banerjee,
W/o. Monojit Banerjee,
38 years,
R/at.Flat No.2034, 3rd Floor,
Sobha Moonstone Apartments,
Kempapura Main Road,
Dasarahalli, Hebbal Kempapura,
Bengaluru-560 024.
2 Crl.A.No.644/2015
C/W. Crl.A.No.1251/2014
.Vs.
RESPONDENT : Sri.Monojit Banerjee,
S/o.Banerjee,
49 years,
R/at.No.114, I Floor,
8th Main, 11th Cross,
Malleshwaram, Bengaluru-560 003.
COMMON JUDGMENT
Since both the appeals are being preferred being
aggrieved by the common order passed on I.A.Nos.1 to 4 on
17.10.2014 in Crl.Misc.No.103/2014 by the MMTC-IV,
Bengaluru. As the parties are one and the same in both
the appeals, hence, common judgment is passed.
2. The Crl.Appeal No.644/2015 is preferred by the
appellant/respondent being aggrieved by the order passed
on I.A.Nos.1 to 4 on 17.10.2014 in Crl.Misc.No.103/2014
by the MMTC-IV, Bengaluru.
3. The appellant in Crl.Appeal No.644/2015 herein was
the respondent and respondent herein was the complainant
before the trial court. For the sake of convenience, parties
would be referred to by the ranks, they were assigned
before the trial court.
4. The Crl.Appeal No.1251/2014 is preferred by the
appellant/complainant being aggrieved by the order
passed on I.A.Nos.1 to 4 on 17.10.2014 in
Crl.Misc.No.103/2014 by the MMTC-IV, Bengaluru
3 Crl.A.No.644/2015
C/W. Crl.A.No.1251/2014
5. The appellant in Crl.Appeal No.1251/2014 herein
was the complainant and respondent herein was the
respondent before the trial court. For the sake of
convenience, parties would be referred to by the ranks, they
were assigned before the trial court.
6. Brief facts of the case of the complainant are as under:
The complainant has filed Crl.Misc.No.103/2014 on
the file of MMTC-IV, Bengaluru for seeking protection,
residence order, monetary relief, custody of two minor
children and also the compensation against the respondent
under the provisions of Domestic Violence Act, 2005. The
complainant has also moved I.A.No.1 under Section 19(b)
r/w. Section 23 of Domestic Violence Act, 2005 for issuing
direction to the respondent to remove himself from the
shared household/residence of the complainant, filed
I.A.No.2 under Section 19(c) r/w. Section 23 of Domestic
Violence Act for receiving direction to the respondent not to
enter any portion of the shared house hold of the petitioner,
filed I.A.No.3 under Section 19 r/w. Section 23 of Domestic
Violence Act for issuing direction to the respondent to pay
the rent of Rs.25,000/- per month and also filed I.A.No.4
under Section 20 r/w. Section 23 of Domestic Violence Act
to issue direction to the respondent to pay a sum of
Rs.50,000/- per month for maintenance of the
complainant. The complainant sworn to an affidavit and
stated that the complainant has filed Crl.Misc.Petition for
seeking the relief of protection, residence, monetary relief,
4 Crl.A.No.644/2015
C/W. Crl.A.No.1251/2014
custody of the children and also compensation against the
respondent and the same may be treated as the part and
parcel of the affidavit. The complainant and the
respondent are residing at Bengaluru since December
2010. The respondent has caused mental trauma to the
complainant and her children. The respondent is the
habitual drunkard and sexual predator. The complainant
has no source of income to maintain herself and also her
children. The house wherein she is residing is a rented
premises, the landlord has directed to vacate the said
premises. The respondent has tarnished the image of the
complainant in locked up her in the house by preventing
her to her family members and also socializing with others.
The respondent is threatening to kill the complainant and
taken away the passports, documents and jewelry of the
complainant. The respondent has interrogated the
children. The respondent colluded with one Sandeepa Kaur
and lodged the complaint against the complainant. The
respondent is owning a Software Company and earning
Rs.2,00,000/- per month and having alternative residential
accommodation. The respondent is politically influential
person. Hence, prayed to allow the I.As.
7. The respondent has filed objections and contended
that the contents of the I.As., and affidavit are false and
denied in toto. He further contended that the respondent
after service of notice stepped out of the shared house, but
the complainant and their children are staying in the said
5 Crl.A.No.644/2015
C/W. Crl.A.No.1251/2014
house. The complainant made false allegations against the
respondent in order to malign the reputation of the
respondent. The complainant has also irrational amount
without ascertaining the financial position of the
respondent. The respondent is paying monthly rentals in
respect of the shared house in order to safeguard the lives
of the complainant and their children. The respondent has
taken care of his children and never threatened to
dispossess the complainant and the children. The
complainant was given absolute freedom to persuade her
activities of her choice. The respondent has never raised
finger against the complainant. Hence, prayed to dismiss
the I.As.
8. After hearing both the sides, the lower court has
rejected I.A.Nos.1 and 4 and allowed I.A.Nos.2 and 3.
9. The appellant/respondent has preferred in Crl.Appeal
No.644/2015 being aggrieved by allowing I.As.2 and 3 on
the following grounds.
1. The impugned order is contrary to law and
facts of the case and the learned Magistrate
has failed to follow the procedure prescribed
by the law before passing the impugned
order ;
2. The learned Magistrate has failed to take
note in considering the prima-facie case, one
has to consider the whole background and
circumstances and the context in which, the
petition is made out and it has led to
erroneous decision resulting in miscarriage
of justice ;
6 Crl.A.No.644/2015
C/W. Crl.A.No.1251/2014
3. The impugned order amounts to abuse of
process of law and the applications filed by
the respondent/complainant ought to have
rejected in toto in the interest of justice and
the learned Magistrate has failed to consider
the entire materials on record before
allowing the applications ;
4. The learned Magistrate without conducting
any inquiry or trial has passed the impugned
orders on the applications and prima-facie,
the respondent/complainant has failed to
make out any case as against the appellant;
5. The learned Magistrate has failed to consider
the documents and materials produced by
the appellant at the time of passing the
impugned order ;
6. The order of the learned Magistrate has
taken away the rights of the
appellant/respondent to visit his children
even though there is no such orders passed
by the learned Magistrate ;
7. The illegal, immoral and illicit act of the
complainant as stated above will have a
negative impact on the children and allowing
the children to stay with the complainant is
not in the best interest of the children and
considering the same, the order passed by
the learned Magistrate not to visit the
shared house by the complainant is required
to be set aside ;
8. The order of the learned Magistrate is unjust
and is liable to be interfered with and the
learned Magistrate has not applied the
correct principles of law to the facts of the
case ;
9. The order passed by the learned Magistrate
is unjust and the same is without merits
7 Crl.A.No.644/2015
C/W. Crl.A.No.1251/2014
and the learned Magistrate has failed to
give any finding on the merits of the case,
which is contrary to the settled position of
law ;
Hence, on all these grounds, the appellant/respondent
has prayed to allow the appeal by setting aside the
impugned order on I.A.Nos.2 and 3.
10. The appellant/complainant has preferred in
Crl.Appeal No.1251/2014 being aggrieved by rejection of
I.A.4 on the following grounds.
1. The impugned order is contrary to law and
erroneous, probabilities of law and facts and
not considered the materials available on
record by the learned Magistrate ;
2. Though, the respondent was having more
than Rs.22,00,000/- in his S.B.Account at
HDFC Bank and the same was withdrawn by
him and the same was not considered by
the learned Magistrate, though the
respondent is earning Rs.2,00,000/- per
month by running his own Software
Company ;
3. The respondent has stopped providing food,
medicines and clothing for the complainant
and her children, but the same is not
considered by the learned Magistrate ;
4. The respondent has withdrawn from the
matrimonial home without maintaining the
complainant and her children ;
Hence, on all these grounds, the appellant/complainant
has prayed to set aside the impugned order by allowing
I.A.No.4.
8 Crl.A.No.644/2015
C/W. Crl.A.No.1251/2014
11. Heard the arguments of both the sides. I have perused
the materials available on record.
12. From the above facts, the points that arise for my
consideration are as under:
1. Whether the appellant in Crl.Appeal
No.644/2015 has made out grounds to
set aside the order on I.A.Nos.2 and 3 ?
2. Whether the appellant in Crl.Appeal
No.1251/2014 has made out grounds to
set aside the order on I.A.No.4 ?
3. What Order ?
13. My findings on the above points are as follows.
POINT No.1 - Partly in the Affirmative,
POINT No.2 - Partly in the Affirmative,
POINT No.3 - As per final order,
for the following :
REASONS
14. POINT Nos.1 & 2 : To avoid the repetition of the
reasonings, I have taken up these two points together for
my discussion.
The learned counsel for the appellant in Crl.Appeal
No.644/2015 has vehemently argued that the complainant
has an illicit relationship with the neighbour namely Kiran
Pol. The wife of the said Kiran Pol namely Sandeepa Kaur
has filed a complaint No.208/2014 on the file of C.J.M.,
Jamshedpur against her husband Kiran Pol, as the
accused No.1 and the present complainant Smt.Shalini
9 Crl.A.No.644/2015
C/W. Crl.A.No.1251/2014
Banerjee as accused No.5 and others for the offence
punishable under Section 497 of IPC and other provisions
of IPC. The complainant has made false allegation and
made her husband to reside outside the shared house and
not permitting to see the face of the children though her
husband is bearing all the expenses for the said children.
There are ample materials to establish the illicit
relationship of the complainant with the said Kiran Pol and
produced the order passed in Crl. Appeal No.214/4/13
passed by the learned Addl. Sessions Judge (West-02),
Delhi and prayed to allow the appeal by setting aside the
order on I.A.Nos.2 and 3 and permitting the appellant to
see the face of the children.
15. The learned counsel for the appellant in Crl. Appeal
No.1251/2014 has vehemently argued that the respondent
is residing at the work place and he was not dispossessed
by the complainant. The respondent is owning a Software
Company and getting the salary of Rs.2,00,000/- per
month and capable to maintain the complainant and her
children. The shared house is a rented apartment and the
landlord has issued the notice to vacate it. The respondent
has sent the demand draft for Rs.51,000/- on 3.10.2015.
It shows that he is capable to pay the maintenance to the
complainant and her children. The respondent is having
the illicit relationship with Sandeepa Kaur and they have
collusively filed the said complaint and the respondent is
arraigned as a witness in the said complaint. The
10 Crl.A.No.644/2015
C/W. Crl.A.No.1251/2014
respondent has given life threat to the complainant and
also interrogated the children and made false accusation on
the complainant and also made character assassination of
the complainant. Hence, prayed to allow the appeal by
setting aside the order on I.A.No.4.
16. The relationship between the complainant and the
respondent is admitted and two children were born out of
their wedlock is also an admitted fact. It is further
admitted that they were living in the address shown in the
cause title on a rented apartment prior to institution of the
complaint before the MMTC No.IV, Bengaluru. The learned
MMTC-IV, Bengaluru has passed the common order on
I.A.Nos.1 to 4 on 17.10.2014, wherein the complainant has
moved those I.As., namely I.A.No.1 for issuing direction to
the respondent to remove himself from the said shared
household. The said I.A.No.1 was rejected, as because the
respondent has specifically contended that he has left the
said house hold and residing at the office, wherein he is
running the Software Company. Therefore, the learned
MMTC-IV, Bengaluru has rightly rejected the I.A.No.1.
17. The complainant has also moved I.A.Nos.2 to 4 for
issuing directions to the respondent not to enter into the
shared house and also to pay the rent of Rs.25,000/- to the
said house per month and also Rs.50,000/- per month as
maintenance to them, as because there is a life threat to
the complainant and also the respondent has interrogated
11 Crl.A.No.644/2015
C/W. Crl.A.No.1251/2014
his children. The office copy of the complaint lodged to the
police is produced. No doubt, the respondent has also
produced the office copy of the complaint lodged to the
police alleging that there is an illicit relationship between
the complainant and Kiran Pol. But, the complainant has
also made a counter allegation that the respondent is
having an illicit relationship with Sandeepa Kaur. The said
allegations are not yet proved, that has to be proved during
the course of the trial. But, we are at the threshold to
adjudicate as to whether the respondent is capable to pay
the maintenance to the complainant and her children. The
shared house wherein the complainant is residing is a
rented apartment and the said landlord has issued the
notice to vacate it and also stated in the said notice to
deduct the dues out of the deposited amount. No doubt,
the complainant has not produced any document to show
that the respondent is capable to pay the maintenance and
the rental amount, but during the pendency of these
appeals, the respondent has sent the demand draft for
Rs.51,000/- to the complainant to meet out the expenses of
the children. But, the respondent has not contended that
the complainant is having the source of income to eke her
livelihood and also maintain her children. As the
respondent is living separately from the shared house,
therefore, the question of permitting the respondent to stay
in the shared house does not arise, but as the respondent
being the father of the children, he is having right to see
the children. Therefore, the respondent is permitted to see
12 Crl.A.No.644/2015
C/W. Crl.A.No.1251/2014
the children on every Sunday at the shared house without
causing domestic violence to the complainant, with a
condition that the respondent has to pay Rs.40,000/- per
month to the complainant to meet out the expenses i.e., to
pay rent and also maintain herself and her children. The
respondent has stated in his letter while sending the
demand draft of Rs.51,000/- and also in his objections that
he is looking after his children. Therefore, the respondent
shall bear all the educational expenses of his children.
Hence, the interference of this court warranted as the
learned MMTC-IV, Bengaluru has allowed I.A.No.2
restraining the respondent from entering the said house is
modified, subject to the above conditions. The learned
MMTC-IV, Bengaluru has partly allowed I.A.No.3, but
without mentioning how much amount towards rent has to
be paid by the respondent. Therefore, this court warrants
interference and disclosed that the respondent shall pay
the rent of Rs.25,000/- per month towards the shared
house to the complainant. The interference of this court
also warrants as the learned MMTC-IV, Bengaluru has
rejected I.A.No.4 without ordering any paise to the
complainant towards maintenance, for the reason that the
complainant has not produced any document to show the
income of the respondent. The respondent has not denied
about his financial capacity as he was a N.R.I., and he is
capable to pay the maintenance of Rs.15,000/- per month
to the complainant towards maintenance of the
complainant and her children with a condition that the
13 Crl.A.No.644/2015
C/W. Crl.A.No.1251/2014
respondent shall bear all the education and medical
expenses of his children and apart from paying Rs.25,000/-
rent per month and Rs.15,000/- per month towards
maintenance. Hence, I answered the Point Nos.1 and 2
accordingly.
18. POINT No.3 : In view of the findings on the Point
Nos.1 and 2 as above, my finding on this point is as per
following :
ORDER
The Criminal Appeal filed by the appellant in Crl.Appeal No.644/2015 is partly allowed.
The Criminal Appeal filed by the appellant in Crl.Appeal No.1251/2014 is partly allowed.
The impugned order on I.A.Nos.2 to 4 in Crl.Misc.No.103/2014 are set aside/modified.
I.A.No.2 is partly allowed subject to the condition that the respondent is permitted to see his children on every Sunday at the shared house without causing any domestic violence to the complainant.
I.A.No.3 is partly allowed. The respondent is directed to pay the rent of Rs.25,000/- per month to the complainant towards the shared house, from the date of filing of I.A.No.3.
I.A.No.4 is partly allowed. The respondent is directed to pay the maintenance of Rs.15,000/- per month towards the complainant, from the date of filing of I.A.No.4.
14 Crl.A.No.644/2015C/W. Crl.A.No.1251/2014 The respondent is directed to bear education and medical expenses of his children, from the date of petition.
Send back the records to the lower court along with the copy of this judgment.
Copy of this judgment shall be kept in Crl.Appeal No.1251/2014.
(Dictated to the Judgment-writer directly on computer, later corrected and then pronounced by me in the Open Court on this the 30th day of November, 2015) (CHANDRASHEKHAR MARGOOR) LXVII Addl.City Civil and Sessions Judge, BENGALURU.
15 Crl.A.No.644/2015C/W. Crl.A.No.1251/2014 Judgment pronounced in the open court vide separate order.
ORDER The Criminal Appeal filed by the appellant in Crl.Appeal No.644/2015 is partly allowed.
The Criminal Appeal filed by the appellant in Crl.Appeal No.1251/2014 is partly allowed.
The impugned order on I.A.Nos.2 to 4 in Crl.Misc.No.103/2014 are set aside/modified.
I.A.No.2 is partly allowed subject to the condition that the respondent is permitted to see his children on every Sunday at the shared house without causing any domestic violence to the complainant.
I.A.No.3 is partly allowed. The respondent is directed to pay the rent of Rs.25,000/- per month to the complainant towards the shared house, from the date of filing of I.A.No.3.
I.A.No.4 is partly allowed. The respondent is directed to pay the 16 Crl.A.No.644/2015 C/W. Crl.A.No.1251/2014 maintenance of Rs.15,000/- per month towards the complainant, from the date of filing of I.A.No.4.
The respondent is directed to bear education and medical expenses of his children, from the date of petition.
Send back the records to the lower court along with the copy of this judgment.
Copy of this judgment shall be kept in Crl.Appeal No.1251/2014.
(CHANDRASHEKHAR MARGOOR) LXVII ACC & SJ, Bengaluru.
17 Crl.A.No.644/2015C/W. Crl.A.No.1251/2014