Telangana High Court
J.Radhika vs J.Sai Babu And Another on 20 December, 2021
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.1726 OF 2021
ORDER:
This Criminal Petition is filed under Section - 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') to quash the order dated 12.12.2019 passed in Crl.M.P.No.1537 of 2019 in (DVC) Crl.A.No.895 of 2019 by the IV Additional Metropolitan Sessions Judge, at Hyderabad and consequently to grant enforcement of directions of the final orders dated 21.08.2019 in DVC No.74 of 2017 issued by the III Metropolitan Magistrate, Hyderabad.
2. Heard Sri R.Narender, learned counsel for the petitioner, and Sri G.Ravi Chandra Sekhar, learned counsel for the 1st respondent. Perused the record.
3. Perusal of the record would reveal that the petitioner herein, unmarried sister of the 1st respondent, has filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short, 'the Act') vide DVC No.74 of 2017, seeking several reliefs. Learned III Metropolitan Magistrate, Hyderabad, vide order dated 21.08.2019 allowed the said case in part with the following directions:-
a. granting protection order prohibiting the respondent from committing or aiding or abetting in the commission of any act of domestic violence against the petitioner, b. directing the respondent to pay maintenance of Rs.5,000/- per month to the petitioner under Section 20 of the act from the date of this order on or before 10th of every month;2
KL,J Crl.P.No.1726 of 2021 c. directing the respondent to provide residential accommodation to the petitioner in the house at Namalagundu, Secunderabad, as claimed by the petitioner or to provide alternative residential accommodation or rent for the alternative accommodation @ Rs.10,000/- to the petitioner as contemplated under Section 19 of the Act, from the date of this order, on or before 10th every month;
d. directing the respondent to pay Rs.15,00,000/- (Rupees Fifteen lakhs) towards compensation and damages to the petitioner under Section 22 of the Act, within four months from today in equal monthly installments;
e. directing the respondent to pay Rs.10,000/-to the petitioner towards the costs of this application.
4. Feeling aggrieved by the said order, the 1st respondent herein has filed an appeal vide DVC(Crl.A.No.895 of 2019) and he has also filed an application vide Crl.M.P.No.1537 of 2019 seeking suspension of the operation of the said order, dated 21.08.2019 in DVC No.74 of 2017. Learned IV Additional Metropolitan Sessions Judge, Hyderabad ordered the said application vide order dated 12.12.2019 as follows:-
The petitioner/1st respondent herein is directed to pay an amount of Rs.40,000/-(Rupees Forty Thousand Only) to the respondent/petitioner herein on or before 10.01.2020 and stay is granted till next date. For compliance call on 10.01.2020.
5. According to Sri G.Ravi Chandrasekhar, learned counsel for the 1st respondent herein that the 1st respondent has 3 KL,J Crl.P.No.1726 of 2021 complied with the said order which fact is not disputed by Sri R.Narender, learned counsel for the petitioner herein.
6. Challenging the said order, the petitioner herein has filed the present Criminal Petition under Section 482 of the Cr.P.C.
7. Sri R.Narender, learned counsel for the petitioner, referring to the principle laid down by the Apex Court in Bhuwan Mohan Singh vs Meena1 and Shailaja Vs. Khobbanna2 and the order dated 16.09.2019 in Crl.A.No.1399 of 2019 (arising out of SLP(Crl)No.7203/2019) would submit that the appellate Court without giving any reasons granted stay of operation of order dated 21.08.2019 in DVC No.74 of 2017.
The Court has to decide whether stay can be granted with regard to the maintenance awarded by the Court below in DVC case. Without considering the said legal aspects and without any reasons, the Court below has stayed the order dated 21.08.2019 in DVC No.74 of 2017 only on the condition of the petitioner paying amount of Rs.40,000/-.
8. On the other hand, Sri G.Ravi Chandrasekhar, learned counsel appearing for the 1st respondent would submit that the appellate Court has given specific reasons by considering the entire facts and also the principle laid down by the Apex Court in the above said judgments. He has completed his side of arguments in the said appeal and the matter is posted to 03.01.2021 for the arguments of the petitioner herein. The 1 AIR 2014 SC 2875 2 AIR 2017 SC 1174 4 KL,J Crl.P.No.1726 of 2021 petitioner herein instead of proceeding with the arguments in the very appeal itself, filed the present Criminal Petition. He would further submit that the petitioner herein is a double post- graduate which fact is not disputed by Sri R.Narender, learned counsel for the petitioner. On the other hand, he would submit that the petitioner herein has completed M.Com and L.L.M. The 1st respondent has discontinued his Intermediate and he is speechless. With the said grounds, learned counsel appearing or the 1st respondent would submit that there is no error in the impugned order.
9. According to the petitioner, both the properties mentioned in the petition filed under Section 12 of the Act in DVC No.74 of 2017 are ancestral properties and the 1st respondent is enjoying the same. The petitioner is unmarried and according to her she has no source of income. Therefore, she has filed the said application seeking maintenance and other reliefs. Her father passed away in the year 2002 and her mother passed away in the year 1994. They are all 5 children including the petitioner to her parents and the 1st respondent, after the death of their parents, is enjoying the ancestral properties and is not taking care and looking after welfare of the petitioner herein. Considering the said fact, the Court below has allowed the DVC in part with the above stated directions.
10. The petitioner herein has filed an appeal challenging the said order and also a petition vide Crl.M.P.No.1537 of 2019 seeking suspension of the said order. The appellate Court vide 5 KL,J Crl.P.No.1726 of 2021 impugned order dated 12.12.2019 after hearing both the petitioner and the 1st respondent and on perusal of the entire record, held that the relief obtained by the petitioner herein to pay Rs.5,000/- per month towards monthly maintenance and to further provide accommodation of house at Namalagundu and also to pay an amount of Rs.15,00,000/- towards compensation and when these reliefs are to be stayed as sought by the petitioner till disposal of the main appeal.
11. Undoubtedly, the petitioner herein put to hardship, as the 1st respondent has not paid the amounts to the petitioner herein. The Court below has also referred the principle laid down by the Hon'ble Apex Court in Bhuwan Mohan Singh (supra) wherein it was an application filed under Section 125 of Cr.P.C. and there was enormous delay in disposal of the said petition. Most of the time, the husband has taken adjournments. The wife sustained herself as far as she could in that state for a period of 9 years. Therefore, she is entitled for maintenance.
12. In Shailaja (supra) the Hon'ble Apex Court observed that the High Court has proceeded on the basis that the appellant No.1 therein was capable of earning and that is one of the reasons for reducing the maintenance granted to her by the Family Court. Whether she is actually earning are two different requirements. Merely because the appellant No.1 therein is capable of earning is not, sufficient reason to reduce the maintenance awarded by the Family Court.
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KL,J Crl.P.No.1726 of 2021
13. In Pratima Devi Vs. Anand Prakash in Crl.A.No.1399 of 2019 (Arising out of SLP(Crl) No.7203 of 2019, it was a case where the High Court without recording any reason whatsoever, has stayed the grant of maintenance both to the wife and to the minor son. The same should not be done. A husband/ father is duty bound to maintain his wife and child. Unless there are very special reasons, the higher Court should not normally stay such an order.
14. In the said case, no reason has been mentioned justifying the grant of the stay order. Whereas, in the present case, the appellate Court has recorded the reasons including the principle laid down by the Hon'ble Apex Court in the above said two judgments. The appellate Court has directed the petitioner to pay an amount of Rs.40,000/- to the petitioner on or before 10.01.2020 and granted stay till 10.01.2020. Thereafter, the appellate Court could not proceed with the appeal due to COVID-19 pandemic situation and also in view of the Standard Operating Procedure issued by this Court from time to time. The appellate Court has already heard the arguments of the 1st respondent/appellant. The matter is posted to 03.01.2021 for the arguments of the petitioner herein.
15. As stated above, the petitioner herein is double Post- Graduate and she is an Advocate. The 1st respondent herein has discontinued Intermediate and is speechless. However, considering the fact that both the properties mentioned in the DVC are ancestral properties, the learned Magistrate has 7 KL,J Crl.P.No.1726 of 2021 allowed the DVC in part with the above said directions. Several grounds and contentions raised by the appellant in the appeal requires to be considered by the appellate Court after hearing both the parties. The impugned order is dated 12.12.2019.
16. Considering the entire facts of the case, more particularly the fact that the very appeal is posted for arguments of the petitioner herein on 03.01.2021, this Court is not inclined to interfere with the impugned order dated, 12.12.2019. However, learned IV Additional Metropolitan Sessions Judge, Hyderabad, shall make endeavor to dispose of the said appeal i.e. DVC (Crl.A.No.895 of 2019) as expeditiously as possible preferably within a period of three months from the date of receipt of a copy of this order.
17. With the above said directions, the Criminal Petition is disposed of.
18. As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.
_________________ K. LAKSHMAN, J Date:20.12.2021.
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