Bangalore District Court
S.Suresh vs Smt. Lakshmi on 19 February, 2015
IN THE COURT OF FAST TRACK (SESSIONS) JUDGE-V
BANGALORE CITY
Dated this the 19th day of FEBRUARY 2015
PRESENT
***********
Sri Deshpande G.S, B.com. LL.M
Presiding Officer, FTC-V.
Crl. Appeal No.275/14
APPELLANT: S.Suresh,
S/o Late Siddaiah,
Aged about 30 years,
R/at No.21, Agrahara Dasarahalli,
10th 'B' Cross,
Bangalore.
(Represented by Sri. T. Narayana Gowda,
Advocate)
-Vs-
RESPONDENTS: 1. Smt. Lakshmi,
W/o S. Suresh,
Aged about 22 years
2. S. Jeevan,
S/o S. Suresh,
Aged about 6 years
Both are R/at No.560, 11th Cross,
8th Main Road, Kanaka Nagar,
Bangalore.
(Represented by Sri. A. Ramachandra,
advocate )
2 Crl.Appeal No.275/14
ORDER
The respondent being aggrieved by the order passed by MMTC-III, Bangalore in Crl.Misc.No.250/12 dated 3/3/14 has filed this appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005.
2. In this appeal, the parties will be referred as petitioners and respondent as stated in the Trial Court for the sake of convenience.
3. Petitioners have filed the petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 for grant of various reliefs.
4. The case of the petitioners in brief is that, 1st petitioner is the wife of respondent. Their marriage was took place on 11/5/08 as per the customs prevailing in their community. At that time, the parents of the 1st petitioner have spent more than Rs.20 lakhs to perform the said marriage. After the marriage, 1st petitioner went to the house of respondent to lead married life. He has looked after her well for few months. She became pregnant. Respondent has started ill treating the 1st petitioner and abusing her in a filthy language. He was assaulting her mercilessly and has committed Domestic Violence against her. Respondent has developed illicit intimacy with one Smt.Jaya. 3 Crl.Appeal No.275/14 Petitioner No.1 went to the house of her parents for delivery. She gave birth to male child who is the petitioner No.2. After the birth of petitioner No.2, respondent has not visited the house of parents of 1st petitioner to see the baby. Petitioner No.1 and her parents have requested the respondent to take the petitioners to his house. He has refused for the same. Petitioner No.1 has given the complaint to Vijayanagar Police Station and Kamakshipalya police station in this regard. Petitioner No.1 has also filed the petition in M.C.No.3794/10 before the Family Court, Bangalore for restitution of conjugal rights. Same is pending before the said court.
5. Respondent is running the motor-bike garage with the help of 8-10 workers and getting income more than Rs.2 lakhs per month. He has also leased the properties on rental basis and getting income of Rs.1,75,000/- p.m. He is also having agricultural land in his native place and getting income of Rs.10 lakhs per year. The respondent though having sufficient means, has neglected to maintain the petitioners. Petitioner No.1 is not having any income of her own. Petitioner No.2 is minor and studying in the school. Petitioners required sufficient money for their maintenance. Now the petitioners are staying in the house of parents of 1st petitioner. They required 4 Crl.Appeal No.275/14 separate accommodation. Therefore, the petitioners have filed this petition and prayed to allow the petition.
6. The respondent has appeared in the case through his advocate and has filed his detailed objections and admitted that, petitioner No.1 is his wife and petitioner No.2 is his son. He is contending that, he has not given any ill-treatment to the petitioner No.1. Petitioner No.1 is having love affair with one Ravi. Petitioner No.1 hardly stayed about 15 to 20 days in his house. One day she went away from the house of respondent without informing him and his mother along with said Ravi with the ornaments of respondent. Respondent has brought this fact to the notice of parents of 1st petitioner and elders. They have advised the 1st petitioner in this regard. Now the 1st petitioner has voluntarily staying in the house of her parents along with the said Ravi. Petitioner No.1 while staying in the house of her parents, had left the house along with said Ravi. At that time, her father had given the missing complaint to Vijayanagar Police Station. On the basis of the same, case was registered in this regard. 1st petitioner is having illicit intimacy with the said Ravi and now staying with him. Respondent is running small garage and getting meager income of Rs.150 to 200 per day. Same is not 5 Crl.Appeal No.275/14 sufficient for his maintenance and maintenance of his old aged mother. He is not having any other income. Therefore, the petitioners are not entitled for the reliefs sought for in the petition. Hence, the respondent prayed to dismiss the petition with cost.
7. On behalf of petitioners, petitioner No.1 is examined as P.W. 1. Documents produced by them are marked as Ex.P.1 to P.26. On behalf of respondent, he himself is examined as R.W.1. Documents produced by him are marked as Ex.R.1 to R.16.
8. After hearing arguments of both sides, the learned magistrate has allowed the petition filed by the petitioners in part and directed the respondent not to commit Domestic Violence against 1st petitioner. He was directed to pay maintenance amount of Rs.4,000/- each to the petitioners per month and also directed him to pay Rs.1 lakh as a compensation to the 1st petitioner and directed him to provide alternative accommodation to the petitioners.
9. Being aggrieved by this order, the respondent has filed this appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 on the grounds that, the order passed by the learned magistrate is illegal and as such it is not sustainable in law. The learned magistrate has not properly appreciated the evidence on 6 Crl.Appeal No.275/14 record and has come to the wrong conclusion. The learned magistrate has not properly considered the contention of the respondent that petitioner No.1 is having illicit intimacy with one Ravi. The father of 1st petitioner had given the complaint to the jurisdictional police stating that, she went away from the house along with said Ravi. Respondent has successfully proved that, 1st petitioner is having illicit intimacy with Ravi. Therefore, she is not entitled for maintenance from the respondent. The petitioners have not produced any documents to show that, respondent was having sufficient means and capable to pay maintenance to the petitioners. Even then, the learned magistrate has granted above said reliefs to the petitioners. The impugned order passed by learned magistrate is illegal and not sustainable in law. Therefore, the respondent prayed to allow the appeal and to set aside the impugned order and to dismiss the petition with costs.
10. After issuance of notices the petitioners have appeared in the appeal through their advocate. The records of the Trial Court are secured.
11. Heard arguments of both sides. Perused the records of the Trial Court.
7 Crl.Appeal No.275/14
12. The advocate for the respondent submitted that, the respondent has successfully proved in the case that, petitioner No.1 is having illicit intimacy with one Ravi. The father of 1st petitioner had given the complaint to the jurisdictional police in this regard. The said complaint is produced in the case and marked as Ex.R.7. This document is not properly considered by the learned magistrate. From this document, the respondent has proved that, the petitioner No.1 is having illicit intimacy with said Ravi. Petitioners have not produced any documents to show that, respondent is having sufficient income to pay the maintenance to the petitioners. Even then, the learned magistrate has awarded maintenance amount of Rs.4,000/- each to the petitioners per month without any basis. The 1st petitioner has not produced any documents to show that, Domestic Violence has been committed against her. Even then, the learned magistrate has awarded the compensation of Rs.1 lakh to the 1st petitioner without any basis. The learned magistrate has over looked the admissions made by PW1 in her cross-examination. The learned magistrate has not properly appreciated the evidence on record and has come to the wrong conclusion. The impugned order is illegal and not sustainable in law. 8 Crl.Appeal No.275/14 Therefore, the advocate for the respondent prayed to allow the appeal and to set aside the impugned order.
13. On the other hand, the advocate for the petitioners has argued supporting the impugned order.
14. In view of the rival contentions, the following points arise for my consideration in the appeal is as under:-
1. Whether the learned magistrate is justified in granting maintenance amount of Rs.4,000/-
p.m. each to the petitioners?
2. Whether the learned magistrate is justified in granting compensation of Rs.1 lakh to the 1st petitioner?
3. Whether the learned magistrate is justified in directing the respondent to provide alternative accommodation to the 1st petitioner?
4. Whether the impugned order is liable to be set aside?
5. What Order?
15. My finding to the above points is as under:-
9 Crl.Appeal No.275/14
POINT No.1:- AFFIRMATIVE POINT No.2:- PARTLY AFFIRMATIVE POINT No.3:- AFFIRMATIVE POINT No.4:- PARTLY AFFIRMATIVE POINT No.5:- As per final order for the following:-
REASONS
16. POINTS No.1 to 4:- Petitioners have filed the petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005. Their case in brief is that, the marriage of 1st petitioner was took place with respondent on 11.05.2008 as per the customs prevailing in their community. At that time her parents have spent more than Rs.20 lakh to perform the said marriage. After the marriage 1st petitioner went to the house of respondent to lead marital life. He has looked after her well only for a few months. She became pregnant. Respondent has developed illicit intimacy with one woman Smt. Jaya and started ill-treating the 1st petitioner. He was abusing her in a filthy language. He was also assaulting her mercilessly. Petitioner No.1 went to the house of her parents for delivery. She gave birth to a male child, who is the 2nd petitioner. Respondent and his family members have not visited the house of 10 Crl.Appeal No.275/14 parents of 1st petitioner to see the child. After one year, petitioner No.1 and her family members have requested the respondent to take back the petitioners to his house. But, the respondent has refused for the same. Petitioner No.1 has given the complaint to the Vijayanagar police station and Kamakshipalya police station in this regard. She has also filed the petition for restitution of conjugal rights before the family court and the same is pending. Therefore, the petitioners have filed this petition and prayed to allow the petition.
17. The respondent on the other hand is contending that, 1st petitioner stayed in his house for about one month. Thereafter, she went away from his house along with one Ravi and thereafter she has not returned to his house. He has not given any ill treatment to the 1st petitioner. Father of 1st petitioner has given complaint before jurisdictional police stating that, 1st petitioner went away from the house along with said Ravi. Now the 1st petitioner is staying along with him. Respondent is not having sufficient income. He is getting meager income of Rs.150 to 200 per day. Same is not sufficient for his maintenance and maintenance of his old aged mother. Except this income he has no other income. Petitioners are not entitled for the 11 Crl.Appeal No.275/14 reliefs sought for in the petition. Therefore, the respondent has prayed to dismiss the petition.
18. In the present case, it is not in dispute that the 1st petitioner is the wife of respondent and 2nd petitioner is their child.
19. Petitioner No.1 in her evidence has deposed that, respondent has given ill treatment to her while she was staying in the house of respondent. He was assaulting her and abusing in a filthy language. She has given the complaint to Kamakshipalya Police Station in this regard and case was registered against the respondent and his family members in Crime No.431/10 for the offences punishable under Section 498(A) of IPC and Sections 3 and 4 of D.P. Act. Petitioner No.1 has filed the petition before the family court for restitution of conjugal rights and same is pending before that court.
20. From the evidence on record it is made out that, the respondent was giving ill treatment to the petitioner No.1 and was abusing her in a filthy language and assaulting her often and often. Petitioner No.1 has proved that, the respondent has committed Domestic Violence against her.
12 Crl.Appeal No.275/14
21. Respondent is running motor cycle garage. He is repairing the motor bike in the said garage. He is having income not less than Rs.800 to 1000/- per day.
22. The contention of the respondent is that, he is having meager income of Rs.150 to 200/- per day from the said garage cannot be accepted.
23. Petitioners have not produced any document to show that, respondent is getting income of Rs.1,75,000/- from leasing the properties. The property which was acquired by the respondent and his mother is already gifted to the sister of respondent. Therefore, the contention of the petitioners that, the respondent is getting income of Rs.1,75,000/- from leasing the property cannot be accepted. Hence, I hold that, the respondent is not having any income other than the income getting from the garage.
24. The contention of the respondent is that, petitioner No.1 is having illicit intimacy with one Ravi and now she is staying with him. He has not produced any document to show that, now she is not staying with him. The father of the 1st petitioner had given the complaint to the Vijayanagar Police Station as per Ex.R.6 stating that, his daughter is missing. He has suspected that, she might have gone 13 Crl.Appeal No.275/14 from the house along with one Ravi. This Ex.R.6 does not prove that, 1st petitioner is having illicit intimacy with said Ravi. If the respondent is able to prove that, petitioner No.1 is living in adultery with said Ravi, then the petitioner No.1 is not entitled for the relief of maintenance from the respondent. In the present case, the respondent has failed to prove the same. Respondent has not filed any complaint stating that, 1st petitioner is living in adultery with the said Ravi. Respondent is required to prove the same beyond all reasonable doubt. Therefore, I hold that, the respondent has failed to prove that 1st petitioner is having illicit intimacy with one Ravi.
25. Petitioner No.1 is not having any income of her own. Petitioner No.2 is a school going child. They required sufficient money for their maintenance. Now the prices of essential commodities are very high. A person requires at least Rs.300 to 500/- per day to lead a simple life. The learned magistrate has granted maintenance amount of Rs.4,000/- p.m. each to the petitioners. In view of the income of respondent, I am of the opinion that, the amount of Rs.4,000/-each per month awarded to the petitioners by way of maintenance is not exorbitant. Same is adequate and reasonable. 14 Crl.Appeal No.275/14
26. The learned magistrate has awarded compensation of Rs.1 lakh to the 1st petitioner stating that the respondent has committed domestic violence against the 1st petitioner. In my opinion, this amount awarded is on the higher side. Petitioner No.1 is entitled for compensation of Rs.50,000/-. In my opinion same is adequate and reasonable.
27. Now the petitioners are residing in the house of parents of 1st petitioner. Petitioners are entitled for separate accommodation as per their status. Hence, the order passed by leaned magistrate in this regard cannot be interfered.
28. The respondent is capable to pay the above said maintenance amount to the petitioners and also compensation of Rs.50,000/- to the 1st petitioner. He is also capable to provide alternative accommodation to the petitioners.
29. The impugned order passed by the learned magistrate is liable to be modified to the extent stated above. Hence, POINTS No.1 to 4 are answered accordingly.
30. POINT No.5:- In view of the above discussions and my findings to POINTS No.1 to 4, I proceed to pass the following:- 15 Crl.Appeal No.275/14
ORDER The appeal filed by the respondent under Section 29 of Protection of Women from Domestic Violence Act, 2005 is here by PARTLY ALLOWED.
The order dated 3/3/14 passed by MMTC-III in Crl.Misc.No.250/12 is modified.
The respondent is directed to pay compensation of Rs.50,000/- to the 1st petitioner.
Remaining order passed by learned magistrate is hereby confirmed.
Send the copy of the order to the Trial Court forthwith. (Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in the open court on this the 19th day of February 2015 ).
(DESHPANDE G.S) Presiding Officer, FTC-V. Bangalore.16 Crl.Appeal No.275/14
O R D E R pronounced in the open Court [vide separate orders] with the following operative portion:
The appeal filed by the respondent under Section 29 of Protection of Women from Domestic Violence Act, 2005 is here by PARTLY ALLOWED.
The order dated 3/3/14 passed by MMTC-III in Crl.Misc.No.250/12 is modified.
The respondent is directed to pay compensation of Rs.50,000/- to the 1st petitioner.
Remaining order passed by learned magistrate is hereby confirmed.
Send the copy of the order to the Trial Court forthwith.
PRESIDING OFFICER, FTC-V, BANGALORE 17 Crl.Appeal No.275/14