Bangalore District Court
Smt.D.Manjula vs V.R.Nanjunda Raju on 14 January, 2022
1
Crl.A. No.204/2021
IN THE COURT OF THE LXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-62)
Dated this the 14 th day of January, 2022
PRESENT :- SRI R.RAVI, B.Sc., LL.B.,
LXI Addl. City Civil & Sessions Judge,
Bangalore, (CCH-62)
Criminal Appeal No.204/2021
Appellant/ : Smt.D.Manjula
Petitioner W/o.Nanjunda Raju
Aged about 38 years
R/a.No.142, 1st Floor
10th Cross Road
Pipeline Main Road
Malleshwaram
Bengaluru-560 003.
(By Sri.Ramanjaneya.M, Advocate)
V/s.
Respondent/ : V.R.Nanjunda Raju
respondent S/o.Late Rangaraju
Aged about 44 years
Both are R/a.No.27
Venkateshwara Nilaya,
Opp to Shanimahathma Temple
7th MN, 10th Cross
Hennur Cross,
Bengaluru-560 043.
(By Sri.Mahadeva, Advocate)
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Crl.A. No.204/2021
JUDGMENT
This is an appeal preferred under Section 29 of the DV Act, 2005 against the order passed by learned MMTC IV Court in Crl. Misc. No.19/2021 dated 23.02.2021 wherein the learned Magistrate has rejected the application/IA No.1 of the appellant one filed under Section 23(2) of the Protection of Women from Domestic Violence Act.
2. The case of the appellant is that she is the wife of respondent and their marriage was solemnized on 28.03.2005 as per the Hindu Customs and Rituals at 'Sri Gururaja Kalayana Mantapa', Race Course Road, Bengaluru. After the marriage both appellant and respondent started living together & the appellant gave birth to female child namely Kumari Ruchitha.N. on 14.04.2006 and now the child is studying in 9th Standard at Sindhi High School, Kumarakurpa Road, Bengaluru and there after on account of difference of opinion between them, the respondent used to come late night every day & used to pick up quarrel & was beating the appellant mercilessly and also not at all providing food to the appellant and the respondent used to abuse the appellant for giving birth to a female child & used to abuse her in vulgar language including her parents and relations and the respondent had beaten the appellant on several occasion with sticks on her hands & legs and when the same was brought 3 Crl.A. No.204/2021 to the notice of Inspector of Vyalikavala P.S., but they advised the appellant and sent back to lead marital life with respondent and on 12.10.2020 respondent and his family members assaulted appellant and her daughter mercilessly and respondent tried to kill the appellant by pressing her neck and appellant was thrown out with her daughter & threatened with dire consequences. At that time the neighbours came and rescued the appellant and her daughter. Thereafter she took treatment in KCG Hospital and lodged complaint before the Vyalikaval Police Station on 12.10.2020 and the said police have registered a case against the respondent in Cr.No.99/2020 for the offences punishable under Section 506, 307, 323, 504, 498(A) and 324 of IPC and also got filed Crl. Misc. No.19/2021 on the files of MMTC IV Court under Section 12 of Domestic Violence Act and IA No.1 under Section 23(2) of D.V. Act for ex-parte interim compensation & the said Court without considering the documents one produced by the appellant rejected the said I.A. No.1 and hence the appellant is constrained to file this appeal.
3. Along with the main appeal the appellant has also filed I.A. No.1 seeking an ex-parte order of ad-interim maintenance before this court also and after hearing the counsel for the appellant this Court issued notice of I.A. No.1 and also notice on appeal memorandum to the respondent 4 Crl.A. No.204/2021 and after receipt of the said notices the respondent has appeared through his counsel and filed his objections that the appellant has made baseless allegations against him and from the date of marriage the respondent is taking care of the appellant with utmost love and care and even then the appellant by creating a concocted story has filed false criminal case and so also the above Criminal Misc. Petition and since the appellant has not at all made out any prima- facie case of the alleged offences under the D.V. Act then the said IV MMTC Court has rightly rejected the interim maintenance application and accordingly prayed for dismissal of the above appeal with costs.
4. And I have heard the arguments of both sides and perused the materials placed on record and the points that would arise for my consideration are as below;
1. Whether the appellant has made out sufficient grounds to allow the appeal one filed by her under Section 29 of Domestic Violence Act ?
2. What Order?
5. My findings on the above points are as under:
Point No.1 : In the affirmative Point No.2 : As per the final order for the 5 Crl.A. No.204/2021 following;
R E A SON S
6. Point No.i:- On perusal of the materials placed on record I found that, it is an admitted fact that the appellant is the wife of the respondent and their marriage has taken place on 28.03.2005 & out of their marital life the appellant has given birth to a female child who is now studying in 9 th Standard.
7. Now it is the specific case of the appellant that since the respondent is ill-treating & demanding dowry & not providing any food and so also assaulted and caused blood injury to the appellant, then she got filed a criminal case before Vyalikaval Police in Cr.No.99/2020 on 12.10.2020 and so also got filed Criminal Misc. No.19/2021 before the IV MMTC, Bengaluru under Section 12 of the DV Act along with I.A. No.1 under Section 23(2) for interim maintenance of Rs.20,000/- to her and a sum of Rs.10,000/- to her daughter and the said Court without concentrating the documents one produced by her has rejected the said I.A. No.1.
8. On the other hand, though the respondent has opposed the above contention of the appellant on the grounds that since the appellant has not at all made out any prima- facie case of the alleged offences under the D.V. Act then the said IV MMTC Court has rightly rejected the interim 6 Crl.A. No.204/2021 maintenance application is concerned, the same do not hold any water as Section 23(2) of the DV Act clearly says that:-
"If the Magistrate is satisfied that an application prima-facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex-parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the respondent".
9. And since Section 23(1) of the DV Act clearly empowers the Magistrate to pass such interim orders as he deems just and proper and since Section 20(1) (d) of the said DV Act further empowers the Magistrate to direct the respondent to pay the maintenance for the aggrieved person as well as her children and since the affidavit one filed by the appellant along with I.A. No.1 before the trial court & so also the materials placed along with the same (i.e., MLC Records, photos & FIR) at this stage clearly shows that the respondent has committed an act of domestic violence and since in a ruling of 2020(2) AKR 443 one relied on by the appellant it has been further held that 'Enquiry under Section 28 is required for passing final order of maintenance and as such the Magistrate has got power to grant interim order 7 Crl.A. No.204/2021 until completion of the enquiry' then I am of the opinion that the trial court has erred in rejecting the said I.A. No.1 one filed by the appellant under Section 23(2) of DV Act.
10. And even otherwise for argument sake if it were to be held that the petitioner has not at all produced any documents to show that she has been subjected to domestic violence, the same is not at all fatal to the case of the petitioner as the said Section 23(2)of the DV Act clearly says that if there is a likelihood that the respondent may commit an act of Domestic Violence then the Magistrate may grant an ex-parte order of maintenance on the basis of the affidavit of the appellant.
11. And moreover since the birth certificate of one Shourya produced by the appellant through a memo dated 17.12.2021 allegedly shows that the respondent is the father of the said child one begotten by Smt.Chandravathi & since the respondent has not at all produced any cogent materials to rebut the above birth certificate and since in a ruling of AIR 2016 SC 2914 one relied on by the appellant it has been clearly held that 'there is no error of the learned Magistrate who considered the birth certificate of the son of the respondent from the alleged 2 nd wife and came to a finding that the respondent had performed 2 nd marriage and was living with other women and was therefore 8 Crl.A. No.204/2021 guilty of domestic violence' then I am once again of the opinion that the present case respondent is guilty of domestic violence.
12. And above all though the respondent in the present case has produced some documents to show that he was made to resign from the alleged act of the appellant, the same are of no help to his case as in a ruling of 2020(2) AKR 604 one relied on by the appellant it has been clearly held that 'Even though the husband working as a coolie cannot pretend that he has no sufficient source of income to maintain his wife and children'.
13. And lastly as per the directions of the Hon'ble Supreme Court of Indian in Crl. Appeal No.730/2020 [Arising out of SLP (Crl. No.9503/2018 dt.04.11.2020)] since the respondent has not at all filed his affidavit of disclosure of assets and liabilities and since the income tax returns one filed by the appellant before the trial court clearly shows that the respondent is having sufficient means to provide maintenance amount of Rs.10,000/- per month to the appellant & so also an amount of Rs.5,000/- per month to his daughter and since in the above Crl.A.No.730/2020 the Hon'ble Supreme Court of India has further held that maintenance in all cases should be awarded from the date of filing of the application for maintenance & since in a ruling of 9 Crl.A. No.204/2021 2020(2) AKR 604 one relied on by the appellant it has been clearly held that 'Even though the husband working as a coolie cannot pretend that he has no sufficient source of income to maintain his wife and children ' and since in another ruling of 2020(2) AKR 443 one relied on by the appellant it has been further held that 'Enquiry under Section 28 is required for passing final order of maintenance and as such the Magistrate has got power to grant interim order until completion of the enquiry ' then I am of the considered opinion that the trial court has erred in rejecting the I.A. No.1 one filed by the appellant under Section 23(2) of the DV Act for grant of interim maintenance amount and thus call for interference by this appellate Court and accordingly I have answered the above point No.1 in the affirmative.
14. Point No.2:- Inview of the discussion made on point No.1 and further holding it in affirmative I proceed to pass the following:-
OR D E R The appeal preferred by the appellant under Sec.29 of the Protection of Women from Domestic Violence Act, 2005 is hereby allowed.10
Crl.A. No.204/2021 Consequently, the order passed by the learned MMTC IVi Court in Crl. Misc. No.19/2021 on IA No.1 one filed U/S.23(2) of DV Act dated 23.02.2021 is here by set aside & allowed.
AND The respondent is hereby directed to pay an interim maintenance amount of Rs.10,000/- per month to the appellant & so also an amount of Rs.5,000/- per month to her daughter from the date of filing of said I.A. No.1 in Crl. Misc.19/2021 U/S.23(2) of DV Act before IV MMTC, Bengaluru till the disposal of said Crl. Misc.19/2021.
Parties to bear their own cost.
Sent the copy of this order to the trial court i.e., MMTC IV Court Bengaluru along with the trial court records for further action and reference.
(Dictated to the stenographer, transcribed and typed by her, corrected and then pronounced by me in the open Court on this the 14 th day of January, 2022).
(Sri.R.RAVI) LXI Addl. City Civil & Sessions Judge, 11 Crl.A. No.204/2021 Bengaluru City.12
Crl.A. No.204/2021 14.01.2022 APP-SKM R-M Judgment pronounced in open court vide separate typed order OR D E R The appeal preferred by the appellant under Sec.29 of the Protection of Women from Domestic Violence Act, 2005 is hereby allowed.
Consequently, the order passed by the learned MMTC IV Court in Crl.
Misc. No.19/2021 on IA No.1 one filed U/S.23(2) of DV Act dated 23.02.2021 is here by set aside.
AND
The respondent is hereby
directed to pay an interim maintenance amount of Rs.10,000/- per month to the appellant & so also an amount of Rs.5,000/- per month to her daughter from the date of filing of said I.A. No.1 in Crl. Misc.19/2021 U/S.23(2) of DV Act before IV MMTC, Bengaluru till the disposal of said Crl. Misc.19/2021.
13Crl.A. No.204/2021 Parties to bear their own cost.
Sent the copy of this order to the trial court i.e., MMTC IV Court Bengaluru along with the trial court records for further action and reference.
(Sri.R.RAVI) LXI Addl. City Civil & Sessions Judge, Bengaluru City.