Bangalore District Court
Smt.Nagamani @ Shilpa vs Sri.B.N.Ravishankar on 1 July, 2016
IN THE COURT OF LXII ADDL.CITY CIVIL And
SESSIONS JUDGE (CCH.63), BENGALURU
DATED: THIS THE 1ST DAY OF JULY, 2016
P R E S E N T:-
Sri.Parameshwara Prasanna.B.,
B.A., LL.B.,
LXII Addl.City Civil & Sessions Judge,
(CCH-63), Bengaluru
CRIMINAL APPEAL No. 1090 of 2015
AND
CRIMINAL APPEAL NO.1207 of 2015
In Crl.A.No.1090 / 2015
APPELLANT/ Smt.Nagamani @ Shilpa,
Petitioner : W/o B.N.Ravishankar
D/o Gurusiddappa,
Aged about 27 years,
Residing at No.189,
Siddalingeshwara Nilaya,
A.G.Boraiah road, 5th cross,
Sri Ranganagar BSK 3rd stage,
Bengaluru-560 085.
(By Sri.N.R.Naik & Associates,
Advocate)
/VS/
RESPONDENTS/: 1. Sri.B.N.Ravishankar,
S/o Ravishankar.B.N,
Aged about 31 years,
2. Sri Neelakantaiah,
S/o Nanjundappa,
Aged about 68 years,
2 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
3. Smt.Sarojamma,
W/o Sri Neelakantaiah,
Aged about 63 years,
All are residing at No.93,
Ishwarya Nilaya,
Megharanjini road, 3rd cross,
Vadiraja Layout, Akshayanagar
B.G.Road, Bengaluru-68.
4. Smt.Lalithamma.B.N,
W/o Somashekar,
Aged about 39 years,
5. Sri.Somashekar,
S/o late Basappa,
Aged about 45 years,
Respondents, 4 5 are r/at No.7,
Beladingalu, 7th Cross,
2nd main, Akshayanagar,
B.G.Road, Bengaluru.
6. Smt.Annapoornamma,
S/o late Basappa,
Aged about 45 years
7. Sri.Ramesh,
S/o Ningappa,
Aged about 40 years,
Respondents 5, 6 are r/at
No.2932/1, Sai Sadan,
Behind Government High
School, Shanthi Priaya Layout,
Begur, Bengaluru.
(By Amar Correa Associates,
Advocates)
3 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
In Crl.A.No.1207/2015
Appellant/
Respondent No.1: Ravi Shankar,
S/o Nilakantaiah,
Aged about 30 years,
R/at No.93, Ishwarya Nilaya,
Megha Ranjani road,
Akshyanagar West,
Bengaluru-560 068.
(By Sri.Amar Correa,
Advocate)
/VS/
RESPONDENT/: Smt.G.Nagamani @ Shilpa,
D/o Gurusiddappa,
W/o B.N.Ravishankar,
Aged about 25 years,
Residing at No.189,
Siddalingeshwara Nilaya,
A.G.Boraiah road, 5th cross,
Sriranganagar BSK 3rd stage,
Bengaluru-560 085.
(By Sri.N.R.Naik & Associates,
Advocate)
COMMON JUDGMENT
Both Criminal Appeals in Crl.A.1090/2015 and
1207/2015 are arising out of the Judgment /orders passed by
4 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
the learned Metropolitan Magistrate Traffic Court-III, Bengaluru
in Crl.Misc.No.232/2014 dated 1.8.2015 they are clubbed
together and disposed off by this common judgment.
2. For the sake of convenience, the parties will be
referred as per their original rank / status before the trial Court.
Appellant in Crl.A.1090/2015 was the petitioner/complainant
before the trial Court and respondents were arrayed as
respondents before the trial Court. Appellant in Crl.A.1207/2015
was the 1st respondent and respondent was the petitioner
before the trial Court.
3. The trial Court as per order dated 01.08.2015
passed in Crl.Misc.No.232/2014 allowed the petition filed under
Section 12 of Protection of Women from Domestic Violence Act
in part, wherein the said trial Court was pleased to pass the
following order:
1) The 1st respondent shall not cause any domestic
violence against the petitioner and in the event of
5 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
repetition of any domestic violence against the
petitioner, the concerned police shall give
protection to the petitioner.
2) The 1st respondent shall pay an amount of
Rs.1,00,000/- to the petitioner as compensation
towards mental and emotional violence and he
shall pay Rs.1,000/- towards cost of litigation.
4. In the Memorandum of appeal in Crl.A.1090/2015
grounds urged by petitioner in brief as follows:
That the trial Court gravely erred to note that, after
the petitioner was sent for maternity after delivery of female
child, the respondents completely neglected to take care of the
petitioner. The trial Court failed to note that, 1st respondent is
working in Info sis, drawing a salary of Rs.50,000/-. The trial
Court failed to note that, the respondents have given
harassment to the petitioner with an intention of fulfilling his
demand. The trial Court gravely erred to note that, the
6 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
petitioner is ready and willing to join the respondents, but the
respondent has not taken her to matrimonial house. The trial
Court gravelly erred by not granting the relief which were
sought for accommodation, maintenance and the trial Court
failed to note the economic abuse and sexual abuse on the part
of the respondent and the compensation awarded by the trial
Court is totally insufficient. Inter-alia on these grounds, the
petitioner sought for allowing the criminal appeal.
5. The respondent in his Crl.A.No.1207/2015 has
contended that the lower Court has failed to consider the
evidence on record in proper prospective and came to an error
conclusion. The trial Court wrongly observed that, the
respondent caused mental and economic violence to the
petitioner despite of observing that petitioner has not come up
with clean hands and she has suppressed the true facts. The
petitioner has not stated about the alleged harassment
regarding dowry in Ex.P.7 / police complaint alleged by her
before Basavanagudi Women Police Station. The learned trial
7 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
Court has failed to appreciate the evidence of the petitioner,
wherein she has stated that she is ready to live with the
respondent only if the 1st respondent lives separately from his
parents. The home take salary of appellant per month is
Rs.21,362/-. The respondent has no property of his own nor
any other income. The petitioner has filed a petition U/s.125 of
Cr.P.C before Family Court, Bengaluru and obtained ex-parte
Judgment and order dated 09.01.2015 passed by the 4th
Additional Family Court, Bengaluru and this fact was suppressed
before the trial Court. The petitioner initiated recovery
proceeding in Crl.Misc.No.81/2015 to execute the aforesaid ex-
parte Judgment. In compliance of ex-parte Judgment and
order, the appellant had paid the maintenance amount of
Rs.25,000/- to the petitioner on 15.05.2015. Subsequently the
respondent challenged the said ex-parte Judgment and order
before the Hon'ble High Court in R.P.F.C No.88/2015. The
Hon'ble High Court of Karnataka has ordered that sum of
Rs.30,000/- deposited before the trial Court should be paid to
8 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
the petitioner and that the petitioner shall pay Rs.5,000/- per
month towards maintenance of the child till the final disposal of
the application or until further orders. In pursuance of the said
order, the respondent has been paying monthly installments of
Rs.5,000/- to his child. The reason given by Magistrate are
contrary to law and contrary to the facts and circumstances of
the case. The respondent is not in a position to pay
compensation of Rs.1,00,000/- as ordered by the trial Court.
Inter-alia on these grounds, the respondent sought for allowing
of the appeal filed by him in Crl.A.1207/2015.
6. The Lower Court records secured.
7. Heard both the parties and perused the lower Court
records.
8. Now the following points arise for the consideration
of this court in this appeal as under :
1) Whether the order passed by
the trial Court is erroneous and calls
for interference by this Court?
9 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
2) Whether the
Crl.A.No.1090/2015 deserves to be
allowed?
3) Whether the
Crl.A.No.1207/2015 deserves to be
allowed?
4) What Order?
9. Findings of this Court on the aforesaid points are as
follows:
Point No.1 : In the Affirmative,
Point No.2 : In the Negative,
Point No.3 : In the Affirmative,
Point No.4 : As per final order for the
following:
REASONS
10. POINT NO.1 :- The brief facts as per the petition
filed under Section 12 of Protection of Women From Domestic
Violence Act is that; The petitioner is the legally wedded wife of
first respondent - Sri.B.N.Ravishankar and their marriage was
solemnized on 27.02.2011 at Siddaganga Samuhika Bhavan,
Rajajinagar, 8th Cross, West of Chord road, Bengaluru. That
10 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
during negotiation of marriage, parents of first petitioner
demanded for huge of gold ornaments and house hold articles.
On the demand of parents of the first respondent, petitioner
parents by spending huge amount performed the engagement
at their expenses at New Shanthi Sagar Party Hall on
22.8.2010. That on the demand of respondents parents, the
petitioner parents have gave Rs.2,00,000/- by way of cash as
dowry to the first respondent on 16.01.2011 and petitioner
parents had paid Rs.25,000/- to the first respondent for
purchase of clothes and stitching charges. The parents of the
petitioner spent more than Rs.12 lakhs towards marriage
expenses and purchase of gold ornaments.
11. That after the marriage, the petitioner and
the first respondent was residing in the matrimonial house.
After the marriage, the petitioner became pregnant, but the
respondent and his family members who felt it difficult to
maintain the child were not willing for birth of child and they got
her aborted. Thereafter respondent and his family members
11 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
started to harass the petitioner by demanding her to bring
money from her parents house for purchasing the site in the
name of 1st respondent or that her father should purchase a site
in the name of 1st respondent. That subsequently the petitioner
became pregnant and at her 7th months pregnancy she was sent
to delivery to her parents house and petitioner delivered a
female child on 21.8.2012. Though the naming ceremony was
performed by parents of petitioner, respondent and his family
members were not ready and willing to attend the function. In
continuation of living of petitioner in her parents house, during
maternity period first respondent and his family members
continued to demand the petitioner that she should bring money
from parents house for purchasing the site in the name of 1st
respondent. Since the 1st respondent failed to maintain the
petitioner and her child, she was constrained to file a petition
before Mahila Police Station on 10.03.2014 and in the
conciliation proceeding held before said police station, first
respondent was not ready to maintain and look after the
12 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
petitioner and her child. Since June, 2012 the petitioner and 1st
respondent are away from each other and living separately.
The petitioner along with her child is residing in her parent's
house, she is not having any income and she is unable to
maintain herself and her child. The respondent is not ready to
take back her unless her demands were fulfilled. Several
panchayath took place between family members of petitioner
and respondent. But they were in vain. The petitioner is
working in Infosys drawing a salary of Rs.50,000/-. The
petitioner requires a sum of Rs.15,000/- towards maintenance
of minor child and Rs.10,000/- for her maintenance and totally
Rs.25,000/-. Due to harassment made to the petitioner by the
respondent, she filed a criminal complaint against the
Respondents. The willful desertion of first respondent caused
mental agony to the petitioner. Due to harassment given by the
respondent, she has been constrained to file petitioner U/s.12 of
Protection of Women from Domestic Violence Act. The
petitioner in her petition U/s.12 of D.V.Act sought for protection
13 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
order U/s.18 residence order U/s.19, compensation of Rs.27
lakhs U/s.22 and interim order of maintenance of Rs.25,000/-
per month.
12. After issuance of notice, the respondents
appeared before lower court and the 1st respondent has filed
detailed statement of objections. In the objections, the first
respondent has admitted his marriage with the petitioner and
first respondent has denied the allegations of harassment, ill
treatment, violence of dowry harassment, etc., averred in the
petition. The first respondent in his objections has contended
that, he has not taken any dowry from the parents of the
petitioner and 1st respondent on demand of father of the
petitioner has given Mangalasutra. Since Mangalasutra is of less
weight, the father of the petitioner had insulted and criticized
the 1st petitioner regarding the same. After the marriage, the
petitioner and respondent NO.1 led blissful marriage life around
2 months. After that in the functions attended by the 1st
respondent, the parents of the petitioner used to comment and
14 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
insult the first respondent that they have committed a mistake
by giving their daughter in marriage to the 1st respondent as he
does not own any house. The parents of the petitioner tried to
create rift between 1st respondent and his father. The parents
of the petitioner were persuading the 1st petitioner to leave his
joint family house and to stay along with them. The parents of
the petitioner at many time used to threaten the 1st respondent
with dire consequences, if their words were not considered. The
1st respondent had not given the consent for abortion, the
petitioner voluntarily as per her wish got aborted. The
petitioner used to make phone call frequently, if the 1st
respondent asked her regarding the same she used to shout
back at the 1st respondent and used to abuse him in filthy
language. The petitioner was not doing the domestic work and
she used to threaten the respondents that she will commit
suicide and she was also threatening that she will approach the
media and will make false allegations against the respondents in
the media. The petitioner was also used to scold the
15 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
respondents 1 to 3 in filthy language and she was threatening
to send them to jail. At the demand and on the threat of the
petitioner's parents, relatives, even though the 1st respondent is
not willing he sent the petitioner to her parental house during
her 7 months pregnancy. The petitioner after going to her
parents house, during her 8 months pregnancy admitted to the
hospital and delivered a female child. Respondents Nos.1 to 3
and many other relatives of the respondents had been to the
hospital to see the baby and the petitioner. After discharge
from the hospital, the petitioner and child were taken to the
parental house of the petitioner. The petitioner objected for visit
of his relatives to her parental house to see child. Once the
petitioner through phone told the 1st respondent that his relative
should not come to her parental house to see child and
thereafter the respondent has not been picking her phone call
nor he has been making the phone call to the petitioner. The 1st
respondent after birth of child tried to bring back the petitioner
and his child to his matrimonial house, but the petitioner has
16 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
refused to return to the matrimonial house, in-spite of the
repeated request of the 1st respondent. . The 1st respondent in
his objection further contended that the respondent have not
committed any domestic violence, but false police complaint has
been lodged against the respondents and that due to
harassment of petitioner, 1st respondent had filed petition for
divorce U/s.13(1)(ia) of Hindu Marriage Act 1956. Thereafter
false charge sheet has been filed against the respondents for
the offences punishable under Sections 498(A), 506, 314, 354
r/w Sec 34 of IPC and Sections 3 and 4 of Dowry Prohibition
Act. Inter-alia on these grounds the respondent sought for
dismissing of the petition under the Domestic Violence Act.
13. In order to prove the case of the
petitioner, the petitioner got examined herself as Pw.1 and
documents produced by her were marked as Exs.P.1 to P.14. In
order to prove the defence, the 1st respondent examined himself
as Rw.1 and documents produced by him were marked as
Exs.R.1 to Ex.R.4.
17 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
14. The trial Court after hearing both the
parties was pleased to allow the petition filed U/s.12 of
Domestic Violence Act, in part, wherein the trial Court directed
the 1st respondent not to cause domestic violence to the
petitioner and if the domestic violence is repeated, then the
police shall give protection to the petitioner and the trial Court
also directed the 1st respondent to pay Rs.1,00,000/- to the
petitioner as compensation towards mental and emotional
violence and cost of Rs.1,000/-.
15. First of all, it is relevant to note the
undisputed facts in this case. There is no dispute regarding the
marriage of the petitioner with the respondent No.1 and birth of
the child and there is no dispute that, since June 2012 the
petitioner and 1st respondent are residing separately. It is also
not in dispute that from the year 2012, the petitioner and her
child are residing in the parents house of the petitioner.
18 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
16. The petitioner in support of her case has
produced 14 documents which were marked as Exs.P.1 to
Ex.P.14. They are as follows:
Ex.P.1- Marriage Invitation
Ex.P.2- Receipt for having paid rent of the
marriage hall, where marriage held
Ex.P.3- Marriage photo
Ex.P.4- Receipt for having purchased the gold
ornaments - five in numbers
Ex.P.5- Receipt for having purchased clothes, bed,
pillow, blankets etc., - six in number
Ex.P.6- Order sheet in Crl.Misc.No.558/2014
Ex.P.7- Copy of complaint filed by the petitioner
before Basavanagudi Women Police
Station
Ex.P.8- Receipt issued by Basavanagudi Police for
having lodged Ex.P.7
Ex.P.9- Certified coy of the statement alleged to
have been given by the 1st respondent
before Basavanagudi police station
19 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
Ex.P.10- Certified copy of the complaint filed by the
petitioner before Hulimavu police station,
Bengaluru
Ex.P.11- Certified copy of the FIR registered
against the respondents for the offences
punishable under Sections 3 and 4 of
D.P.Act and 498(A), 506, 313, 354 r/w
sec 34 of IPC.
Ex.P.12- Certified copy of charge sheet filed in
Crime No.566/2014
Ex.P.13- Medical bill issued by Sannidhi hospital
Ex.P.14- Domestic Enquiry Report (DER) filed by
Protection Officer/ Child Development
Project Officer, Bengaluru.
17. It is pertinent to note that, Ex.P.7 is the
first police complaint which was filed by the petitioner before
Basavanagudi Police Station, Bengaluru on 10.03.2014 against
respondent, wherein it is alleged that after marriage petitioner's
marital life with 1st respondent was cordial for 2 months only
and thereafter by hearing the say of in-laws the 1st respondent
was assaulting and abusing her in filthy language. Since from
20 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
the date, when she came to her parents' house on pregnancy for
delivery, the respondent not came to her parents house either
to see her or child. With these allegations she sought for
summoning of the respondent to the police station for settling
her family dispute. Ex.P.8 is the receipt issued by the police for
having filed Ex.P.7. Ex.P.9 is the statement alleged to have
given by 1st respondent before Basavanagudi Women Police
station. Ex.p.9 shows that, Basavanagudi Women Police Sub-
Inspector by summoning both the parties enquired about the
dispute. Since the dispute could not be solved, 1st respondent
urged before the police that he will get his family dispute
agitated before the Family Court. Pw.1 in cross-examination
admitted that, Basavanagudi Police by summoning the 1st
respondent enquired the matter and they have not taken any
action against the 1st respondent. It is after 5 months from the
date of filing of 1st complaint on 18.08.2014, FIR was registered
against the respondents before Hulimavu police station in Crime
No.566/2014 for the offence punishable under Sections 3 and 4
21 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
of D.P.Act and U/s.506, 498-A, 314, 354 r/w sec 34 of IPC
based on the complaint of the petitioner dated 18.8.2014 i.e.,
Ex.P.10. In the complaint dated 18.8.2014, it is alleged that the
respondent at the time of marriage have taken the dowry and
subsequently they subjected her to cruelty with the demand of
more dowry and they caused miscarriage of fetus of the
petitioner and 2nd respondent has sexually abused her. It is
very pertinent to note that, theses allegations were not averred
in the first complaint filed by the petitioner before Basavanagudi
police station, which give rise to the reasonable doubt and
suspicion regarding the allegations made by the petitioner.
18. I have carefully perused the deposition of
Pw.1. Pw.1 in her evidence has made following admissions:
1) That she was not present during marriage
talks/conversation
2) Respondents 4 and 7 are residing separately
3) That she has not stated harassment pleaded in
the petition in Ex.P.7
22 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
4) No action taken by Basavanagudi Police on
Ex.P.7.
5) She has not produced any documents to show
that, respondent NO.1 is drawing a salary of
Rs.50,000/-.
6) As per customs after seemantha (¹ÃªÀÄAvÀ)
respondents have sent the petitioner to her
parent's house for delivery.
7) Respondent No.1 is looking after and
maintaining respondents 2 and 3.
8) Respondent No.1 is residing with his parents in
a rented house and they do not own any house.
9) That the petitioner is an M.com Graduate and
she has capacity to earn hand some salary.
10) That photo of petitioner 1st respondent and
their child in Ex.P.3 was taken during the
naming ceremony of their child.
19. It is very relevant to note that allegation
regarding the dowry has not been made in Ex.P.7. Pw.1 in her
cross-examination admitted that, she was not present during
23 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
the marriage talks and no body has been examined by the
petitioner to prove that first respondent demanded or obtained
dowry at the time of marriage. There is no evidence regarding
the alleged demand of dowry, at the time of marriage. In Para-5
of the petition, the petitioner has urged that, though the naming
ceremony was performed by the parents of the petitioner, but
respondents were not ready and willing to attend the function.
But admissions made by Pw.1 shows that the first respondent
has attended the naming ceremony of his child.
20. In the petition, it is the contention of the
petitioner that the respondent has not taken back her to the
matrimonial house after delivery of child. But Pw.1 in Page- 16
and 21 of her deposition and in Para- 12 of her chief-
examination stated that, she will reside with the 1st respondent
only if he provides separate house for her. In page- 25 of
deposition of Rw.1 suggestion was put by the counsel of the
petitioner to the following effect:
24 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
"FUÀ®Æ CfðzÁgÀ¼À®Ä ¤ªÉÆäA¢UÉ §AzÀÄ ¸ÀA¸ÁgÀ ªÀiÁqÀ®Ä
¹zÀݽzÀÄÝ, ¤ÃªÀÅ DPÉAiÀÄ£ÀÄß ¨ÉÃgÉ ªÀÄ£É ªÀiÁr PÀgÉzÀÄPÉÆAqÀÄ
ºÉÆÃUÀ®Ä ¹zÀÝj¢ÝÃgÁ? JA§ ¥Àæ±ÉßU,É ¸ÁQë ¸ÀzÀåzÀ ¥Àj¹ÜwAiÀÄ°è
£À£ÀUÉ CzÀÄ ¸ÁzÀså«®è, PÁgÀt £À£ÀUÉ DyðPÀ vÉÆAzÀgÉ EzÉ. vÀPÀëtPÉÌ
£Á£ÀÄ FUÀ ªÁ¸À EgÀĪÀ ªÀÄ£ÉUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀ®Ä
¹zÀÞ¤zÉÝãÉ"
21. Thus, materials available on record shows
that the respondent is ready and willing to take her to
matrimonial house, but the petitioner is not ready to return back
to matrimonial house, as she is demanding for separate
residence.
22. It is very pertinent to note that, petitioner
had filed petition U/s.125 of Cr.P.C before the learned Family
Court, Bengaluru and obtained the ex-parte order dated
09.01.2015 by the learned 4th Additional Judge, Family Court,
Bengaluru, wherein the learned Judge directed the respondent
No.1 to pay monthly maintenance of Rs.8,000/- per month for
25 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
maintenance to the petitioner and to pay monthly maintenance
of Rs.7,000/- per month to the child of the petitioner. But even
though the said order was obtained prior to filing of the petition
under Protection and Domestic Violence Act, the petitioner has
suppressed the said fact in the petition. The documents on
records discloses that, on 15.05.2015 the first respondent has
paid maintenance amount of Rs.25,000/- to the petitioner in
Crl.Misc.No.81/2015 and records further discloses that,
subsequently the respondent No.1 challenged the said ex-parte
Judgment and order dated 05.06.2015 before Hon'ble High
Court of Karnataka and in RP (FC) No.88/2015, wherein the
Hon'ble High Court has stayed the said Judgment and order,
subject to the deposit of Rs.30,000/- before the lower Court and
1st respondent has complied the said order of the High Court.
These facts are suppressed by the petitioner in the petition.
Section 26 (3) of Domestic Violence Act says that, "in case any
relief has been obtained by the aggrieved person in any
proceedings other than a proceeding under the protection
26 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
of Women from Domestic Valence Act, she shall be bound
to inform the Magistrate of the grant of such relief". The
petitioner has violated the said provision of law.
23. The respondent in order to prove his
contention, the respondent examined himself as Rw.1 and the
documents produced by him are marked as Ex.R.1 to Ex.R.4.
The documents produced by the respondents were marked as
under:
Ex.R.1 - Three salary certificates
Ex.R.2 - Loan letter issued by the Axis Bank
to the 1st respondent regarding
sanction of the loan
Ex.R.3 - RTC extract
Ex.R.4 - RTC standing in the name of father
of petitioner
From Ex.R.1, it is made out that the salary of the
first respondent is only Rs.21,363/- and from Ex.R.2 it is
establishes that sum of Rs.2,00,000/- was sanctioned to the 1st
27 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
respondent and the evidence of records coupled with admission
of the petitioner shows that the 1st respondent is maintaining
respondents 2 and 3. Ex.R.4 shows that, the father of the
petitioner is having property.
24. It is very pertinent to note that, allegation
of harassment made in Ex.P.10 and in the petition are the same.
The material on record does not discloses any domestic violence
as admittedly the petitioner and 1st respondent have been living
separately from June 2012.
25. The Hon'ble High Court of Karnataka at
Dharwad Bench in Crl.Petition No.11022/2013, dated 1.7.2014
has held that, " I am of the opinion, there is absolutely no
domestic incident as alleged and allegations regarding
ill-treatment and harassment of the respondent for which
a case U/s.498(A) r/w Sec 34 of IPC is already pending.
Therefore, in my opinion the domestic violence petition
filed by the lower Court is nothing but abuse of process of
28 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
the Court and the same is liable to be quashed.
Accordingly following order is passed: "Petition is
allowed".
Here also the criminal proceedings against
respondents for the offences punishable U/s.498(A), U/s.506,
314, 354 r/w sec 34 of IPC and Sections 3 and 4 of D.P.Act is
still pending before learned 5th Additional Chief Metropolitan
Magistrate, Bengaluru.
26. It is the case of the petitioner that, she
has suffered mental and emotional agony on account of the
alleged dowry harassment. The trial Court having held that the
dowry harassment is not proved totally erred in holding that the
petitioner has suffered mental and emotional agony / violence.
The evidence on record clearly establishes that the petitioner
herself without just to cause deserted the 1st respondent.
29 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
27. In this case no domestic violence has
been established. In a Judgment of Hon'ble High Court of
Judicature at Bombay, Nagpur Branch in Crl.Writ Petition
No.32/2014 in the case of Koushik /vs/ Sangetha Koushik,
wherein it was held that, "when domestic violence could not
be established, maintenance order to the minor children
was not permissible under Protection of Women from
Domestic Violence Act. Further Hon'ble High Court has held
that, they were entitled for maintenance U/s.125 of
Cr.P.C. Since the petitioner and her child already granted with
maintenance which is challenged in appeal, the petitioner is not
entitled for any maintenance under domestic violence Act.
Since the 1st respondent is having the salary of Rs.21,398/- only
and he has to maintain and look after respondents 2 and 3 and
has to pay the house rent, and the installment of the loan, the
petitioner is not entitled for any additional maintenance or for
separate residence order. The material on records discloses that
the petitioner herself not returned to the matrimonial house and
30 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
as she is living separately from the respondent without sufficient
cause. Hence she is not entitled for any residence order also.
28. The petitioner in her evidence has
deposed that, she is ready to live with the respondent if he lives
separately from his parents, which itself shows that the 1st
respondent has not committed any domestic violence, as
otherwise the petitioner would not be ready to live with 1st
respondent separately. The reasons assigned by the trial Court
for passing the order of compensation and order directing the
respondent not to cause violence are erroneous and order
passed by the trial Court calls for interference. As such point
No.1 answered in the Affirmative.
29. Point No.2: For the reasons assigned in Point
No.1, point NO.2 is answered in Negative.
30. Point No.3: For the reasons given in point
No.2, point NO.3 is answered in the Affirmative.
31 Crl.A.No.1090/2015
AND
Crl.A.No.1207/2015
31. Point No.4: For the reasons stated above, I
proceed to pass the following:
ORDER
The criminal appeal filed by the appellant in Crl.A.No.1207/2015 U/s.29 of Protection of Women from Domestic Violence Act is hereby allowed.
The Judgment/order dated 01.08.2015 by the learned Metropolitan Magistrate Traffic Court-III, Bengaluru in Crl.Misc.No.232/2014 is hereby set- aside.
Consequently appeal filed by the appellant in Crl.A.No.1090/2015 is hereby dismissed.
No order as to costs.
The deposit of any portion of the compensation if any made by the appellant before the trial Court as per order of this Court dated 7.6.2016,, it 32 Crl.A.No.1090/2015 AND Crl.A.No.1207/2015 shall be refunded after lapse of appeal period.
Send back the LCR along with copy of this Judgment to the trial Court immediately.
Original copy of the Judgment be kept in Crl.A.No.1090/2015 and copy of the same shall be kept in Crl.A.No.1207/2015.
(Dictated to the Judgment Writer, transcribe and typed by her, and then corrected by me and pronounced in open court on this the 1st day of July, 2016) (Parameshwara Prasanna.B.) LXII Addl.City Civil & Sessions Judge, (CCH-63), Bengaluru 33 Crl.A.No.1090/2015 AND Crl.A.No.1207/2015