Bangalore District Court
Sri.B.Ramaiah vs Smt.Lakkamma on 6 January, 2022
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Crl.A.No.1085/2017
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Crl.A.No.1085/2017
KABC010190972017
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
Dated this the 6th day of January, 2022
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
Crl.A.No.1085/2017
Appellant : Sri.B.Ramaiah
S/o Bangarappa,
Aged about 61 years,
Resident of Mynapanahalli,
Shivakote Post, Hesarghatta
Hobli, Bengaluru North Taluk,
Bengaluru.
(By Sri.K.S.J., Advocate)
-V/S-
Respondent : Smt.Lakkamma,
W/o Muniswamy,
Aged about 59 years,
R/at Type-1/11, IVRI Quarters,
IVRI Hebbal, Bengaluru-560024.
( By Sri.K.N., Advocate)
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Crl.A.No.1085/2017
COMMON JUDGMENT
This appeal is filed by the appellant praying to set aside the order dated 31.08.2015 passed by learned Metropolitan Traffic Court-VI, Bengaluru in Crl.Misc.No.174/2014
2. Appellant of this appeal was the respondent before the trial court. The respondent of this appeal was the petitioner before the trial court. The rank of the parties to the appeal are hereinafter referred to with the same rank as assigned to them before the trial court to avoid repetition of facts.
3. Brief facts of the case of the case which leads to file this appeals in brief are as follows:-
The respondent/ petitioner had filed Cl.Misc.No.174/2017 before the learned Metropolitan Magistrate Traffic Court-VI, Bangalore, u/Sec.12 of
Protection of Women from Domestic Violence Act, 2005, which is hereinafter referred as Domestic Violence Act, praying for grant to protection order, residence order and mandatory relief as provided u/Sec.18, 19, 20 and 22 of Domestic Violence act.
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4. After service of notice of petitioner, the respondent had not appear before the court below and the matter was posted for evidence of the petitioner.
5. The petitioner in order to prove her case before the trial court, has adduced her oral evidence as P.W.1. P.W.1 has produced 3 documents and got them marked as Ex.P.1 to P.3. Then the matter was posted for arguments.
6. The trial court after perusing the petition, oral and documentary evidence adduced on behalf of the petitioner was pleased to pass the judgment on 31.08.2015 by partly allowing the petition, directing the respondent to pay monthly maintenance of Rs.5,000/- to petitioner from the date of the petition till her life time.
7. The petitioner being aggrieved by the said judgment of the trial court had preferred this appeal before this court.
8. The grounds of appeal as urged by the appellant in the appeal memorandum in nutshell are as follows:
(a) The impugned judgment of the trial court is illegal and unjust and liable to be set aside.4
Crl.A.No.1085/2017
(b) The respondent is not the husband of the petitioner. The provisions of DV Act are not applicable to the facts of the case.
(c) The learned Magistrate erred in holding that no strict proof of evidence is required to prove the marriage. Ex.P.1 to P.4 produced by the petitioner does not substantiate the claim of the petitioner.
(d) The petitioner is the legally wedded wife of one Muniswamy. The petitioner has suppressed the said material fact to obtain an order in her favour.
(e) The petitioner is residing in the quarters and she is working and she is drawing handsome salary and as such, she is not entitled for the relief sought for by her in the petition.
(f) The petitioner has failed to prove the ill-treatment, harassment cause to her by the respondent by adducing sufficient evidence and by examining independent witnesses.
(g) The order of the learned Magistrate directing the respondent to pay Rs.5,000/- p.m. as maintenance to the 5 Crl.A.No.1085/2017 petitioner is unjustifiable and oppose to law and facts and probabilities of the case and it is liable to be set aside.
On these among other grounds, as stated in the appeal memorandum, the appellants have prayed to allow the appeal.
9. After filing of the petition, notice was issued to the respondent. The respondent had appeared before the court through her counsel. Then the trial court record was called for. Thereafter the matter was posted for arguments.
10. No oral arguments was addressed and no written argument was filed on behalf of both the parties inspite of granting sufficient time. I have perused the grounds of appeal, lower court record and other materials on record.
11. Having done so, the following points will arise for my consideration:
Point No.1 Whether the appellant proves that the trial court is erred in allowing the petition filed by the petitioner and directing him to pay maintenance of Rs.5,000/- p.m. to the petitioner?
Point No.2 Whether the appellant proves that the interference of this court is required with the impugned order of the trial court?6
Crl.A.No.1085/2017 Point No.3 Whether the appeal filed by the appellant is deserves to be allowed?
Point No.4 What order?
12. My answer to the aforesaid points are as follows:
Point No.1 .. In the Affirmative Point No.2 .. In the Affirmative Point No. 3 .. In the Affirmative Point No.4 .. As per final order for the following:
R EAS O N S
13. Points No.1 to 3:- These three points are interrelated to each other and as such, they are taken together for discussion to avoid repetition of facts.
14. The petitioner had filed the petition before the trial court u/Sec.12 of Domestic Violence Act by contending that she is the legally wedded wife of respondent and respondent has subjected her to mental and physical harassment and torture during her stay with the respondent and subjected her to domestic violence. Further the petitioner has contended that without tolerating the ill-
treatment of the respondent, she had left her matrimonial home in the year 2008 and started to reside separately at 7 Crl.A.No.1085/2017 Hebbal, Bengaluru. The petitioner has further contended before the trial court that the respondent has neglected to maintain her and he has deserted her and he has not made any arrangement for her livelihood and medical expenses. The petitioner has further contended that she is depending upon her parents for her maintenance and shelter.
15. In order to prove the aforesaid contentions, the petitioner has adduced her oral evidence before the trial court as P.W.1. P.W.1 in her examination-in-chief filed by way of affidavit has reiterated the aforesaid facts. As such, the entire examination-in-chief of P.W.1 are not reproduced herein to avoid repetition of facts. P.W.1 has also produced the copy of legal notice issued by her to the respondent at Ex.P.1. She has produced two postal receipts at Ex.P.2 and P.3. She has produced one postal acknowledgment at Ex.P.4.
16. The respondent has not appear before the trial court inspite of service of notice and he has not contested the petition. The learned Magistrate by believing the oral evidence of P.W.1 was pleased to partly allow the petition filed by the petitioner and granted monetary relief to the 8 Crl.A.No.1085/2017 petitioner as provided under the Domestic Violation Act and rejected the prayer sough u/Sec.18, 19 and 22 of the said act.
17. The respondent has challenged the impugned order of the trial court mainly on the ground that he is not the husband of the petitioner and as such, the petition filed by the petitioner u/Sec.12 of DV Act is not maintainable. The respondent has contended that the petitioner has not proved her marriage with him and the trial court is erred in holding that strict proof of marriage is not necessary under DV Act.
18. The petitioner has produced only four documents before the trial court and got them marked as Ex.P.1 to P.4. They are the legal notice issued by the petitioner to the respondent, postal receipts and unserved RPAD cover. Those documents are not sufficient to prove the contention of the petition that she is legally wedded wife of the respondent. The petitioner has not marked the two photos produced by her. She has not produced any single documents to show that she is the legally wedded wife of the respondent. The petitioner has not produced her Adaar 9 Crl.A.No.1085/2017 Card, Voter ID Car, Ration Card or any other public document to prove that she is the legally wedded wife of the respondent. In the absence of any such documents, the trial court has believed the evidence of P.W.1 that she is the legally wedded wife of the respondent.
19. The petitioner in the petition has clearly stated that she left her matrimonial home in the year 2008 itself. Whereas the petition was filed in the year 2014 before the trial court. From 2008 onwards the petitioner was not residing in the share household along with the respondent till the filing of the petition. The petitioner has not pleaded anything regarding domestic violence caused to her by the respondent during the said period.
20. Sec.2(a) of the P.W.D.V. Act provides for definition of aggrieved person. As per Sec.2(a) of the said act, aggrieved person means "any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent" is an aggrieved person. In view of aforesaid provision, in order to maintain the petitioner u/s.12 of the Act, aggrieved person must be a woman and 10 Crl.A.No.1085/2017 she must have been in a domestic relationship with the respondent and she must have been subjected to any Act of domestic violence by the respondent.
21. The term domestic relationship is defined u/s.2(f) of the P.W.D.V. Act. It provides as follows:
"Domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family."
22. The petitioner has contended before the trial court that she is the legally wedded wife of the respondent. In order to maintain the petition under the domestic violence act the petitioner has to prove domestic relationship with the respondent as provided under Sec.2(f) of the PWD Act. Before granting any relief under domestic PWDV act, the learned Magistrate has to first decide whether the aggrieved party is in domestic relationship with the respondent or not and thereafter he has to adjudicate whether the respondent has subjected the petitioner to domestic violence as provided u/Sec.3 of the act. But in 11 Crl.A.No.1085/2017 the impugned order the learned Magistrate has not given any specific finding that their exist domestic relationship between the petitioner and the respondent as provided u/Sec.2(f) of the act and the learned Magistrate has also not given any specific finding stating that the petitioner has proved the domestic violence on her by the respondent in any manner as provided u/Sec.3 of the act. The learned Magistrate has blindly believed the oral evidence of P.W.1 and on the basis of oral evidence of P.W.1, the learned Magistrate partly allowed the petition.
23. Even though the respondent has not appeared and even though he has not contested the petition, it will not absolve the burden of the petitioner to prove the fact that she is in domestic relationship with the respondent and she has been subjected to domestic violence by the respondent during the existence of said domestic relationship by adducing sufficient evidence. Ex.P.1 to P.4 produced by the petitioner before the trial court are not sufficient to prove the aforesaid facts. But only on the said ground, the appeal filed by the petitioner cannot be allowed and the judgment of the trial court cannot be set aside. The 12 Crl.A.No.1085/2017 respondent has not appear before the trial court. But the respondent for the first time in the present appeal is denying the status of petitioner as his legally wedded wife. If the said contention of the respondent is believed without giving an opportunity to the petitioner to substantiate her case, the petitioner would be put to irreparable hardship and injustice.
24. Under these facts and circumstances, I am of the opinion that the impugned judgment of the trial court can be set aside and the matter may be remanded back to the trial court with direction to both the parties to adduce their evidence to prove their respective case. If the matter is remanded to the trial court, the petitioner will be put to irreparable hardship and monetary loss. For no fault of the petitioner, she cannot be made to suffer unnecessarily. The respondent by his own negligence has not appear before the trial court. The petitioner has suffered monetary loss in contesting the case before the trial court. She has also suffered monetary loss in contesting this appeal. Further the petitioner has to suffer monetary loss to contest the case before the trial court after remanding the case. Under 13 Crl.A.No.1085/2017 these facts and circumstances, I am of the opinion that the respondent may be directed to pay cost of litigations to the petitioner after remand of the case to the trial court. The petitioner is made to deprive the fruits of order passed in her favour from 2015 onwards. Further the respondent has also filed this petition after lapse of more than two years from the date of the impugned order. The application filed by the petitioner u/Sec.5 of Limitation act is not yet considered. There is inordinate delay of 699 days in filing the appeal. Since from 2005 onwards the respondent has not paid any amount to the petitioner. Under these facts and circumstances, I am of the opinion that the respondent may be directed to pay cost of Rs.1,00,000/- to the petitioner towards the monetary loss incurred by her for conducting the litigations and inconvenience and hardship and mental torture suffered by her due to negligence of the respondent and for condoning the inordinate delay in filing the petition. As such, I am of the opinion that the appeal filed by the petitioner may be allowed accordingly. The appellant has proved points No.1 to 3. Accordingly, I answer Points No.1 to 3 in Affirmative.
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25. Point No.4:- In view of my findings on point No.1 to 3, I proceed to pass the following:
ORD ER Criminal Appeal filed by the petitioner u/Sec.29 of Protection of Women from Domestic Violence Act, 2005 is hereby allowed subject to payment of cost of Rs.1,00,000/- to the petitioner.
I.A.No.1 filed by the petitioner u/Sec.5 of Limitation Act is hereby allowed. Delay in filing the appeal is condoned.
Both the parties to the appeal are hereby directed to appear before the trial court on 14.02.2022 without waiting for any further notice from the said court.
On the said date, the respondent is hereby directed to pay cost of Rs.1,00,000/- to the petitioner. If the petitioner fails to appear on the said date, the respondent has to deposit the said amount before the trial court. If the respondent fails to appear and fails to pay the cost on the date fixed by this court, the respondent will loose his right to contest the petition.
The trial court is hereby directed to give opportunity to the petitioner to adduce her 15 Crl.A.No.1085/2017 further evidence if any and to give opportunity to respondent to adduce his evidence and to cross- examine P.W.1 if he paid the cost and the trial court can pass necessary orders by considering the oral and documentary evidence of the petitioner and respondent without being influenced by any of observations made by this court.
Send back the record to the trial court along with copy of the judgment of both the appeals.
(Dictated to the Stenographer directly on computer, typed by her, corrected and then pronounced by me in the open court on this the 6th day of January, 2022).
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.
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