Bangalore District Court
Smt. L.Devakumari vs Sri.D.H.Shivashankaraiah on 24 January, 2022
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Crl.A.No.1785/2017
KABC010314922017
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH-65) AT BENGALURU.
Dated this 24th day of January 2022
-: P R E S E N T :-
Sri. RAJESHWARA
B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
CRIMINAL APPEAL No.1785/2017
APPELLANT/: : Smt. L.Devakumari,
W/o. D.H.Shivashankaraiah,
( PETITIONER - IN Aged about 64 years,
TRIAL COURT) R/at. No.336, 14th Cross,
6th Main, RPC Layout,
Vijayanagara,
Bengaluru-560 040.
(By Sri. H.Puttaraju, Advocate)
/VS/
RESPONDENT/: : Sri.D.H.Shivashankaraiah,
S/o. Late Honnappa @ Honnaiah,
(RESPONDENT- IN Aged about 68 Years,
TRIAL COURT) R/o. Dodderi village,
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Chikkanahalli post,
Tavarekere Hobli,
Bengaluru South Taluk.
(By Sri.D.G.Chinnappa Gowda, Advocate)
JUDG MENT
This criminal appeal is filed U/s.29 of The Protection Of Women
From Domestic Violence Act (herein after referred as PWDV., Act) to
set aside the interim order passed by V- Metropolitan Magistrate
Traffic Court, Bengaluru in Crl. Mis.No.175/2016 dated 07.02.2017
(herein after referred as impugned order).
2. Parties to this appeal shall be referred to as per their
ranking before the trial court for the purpose of convenience and for
better appreciation of their contentions.
3. In the memorandum of appeal, appellant has submitted
that impugned order passed by the trial court is laible to be set aside
for the reason that without considering the facts and material
available on record, trial court has passed impugned order. Trial
court has not taken into consideration the fact that in
Crl.Mis.No.333/1992 Principal, Family Judge, Bengaluru had
disposed similar application on 22.12.1994. The marriage of the
elder daughter has taken place on 2.3.1998. Marriage of other two
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daughters has also performed subsequently. Since 1998, petitioner
is not receiving maintenance amount from the respondent.
4. This appeal is not filed within the time prescribed.
Hence, application U/s.5 of Limitation Act is also filed for
condonation of delay in preferring this appeal.
5. Respondent appeared through counsel. T.C.R.called
for reference in this appeal. Heard arguments.
6. Now, following are points that arising for determination:
1. Whether appellant had sufficient cause for
not preferring this appeal within the period
of limitation?
2. Whether impugned order is sustainable in
law?
3. Whether interference of this court is
necessitated?
4. What Order?
7. It is the answered for the aforesaid points as under:-
Point No.1: In the Affirmative
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Crl.A.No.1785/2017
Point No.2: In the Negative
Point No.2: In the Affirmative
Point No.3: As per final order below,
for the following:-
REASONS
8. POINT NO. 1:- Perused the application filed U/s.5 of
Limitation Act, contents of affidavit filed in support of said I.A. In the
application, it is contended that, appellant was not keeping sound
health. She is economically week. She could not able to move in and
around Bengaluru due to her old age without any support from
others. She could not use mobile phone due to her illiteracy. She
could not contact counsel in time to prefer this appeal. Therefore,
there is delay of 232 days in filing this appeal. Reasons assigned by
the appellant to condone delay may be accepted to provide an
opportunity to the appellant to prosecute this appeal. Therefore,
application filed U/s. 5 of Limitation Act deserves to be allowed.
Hence, point No.1 is answered in the affirmative.
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9. POINTS NO.2 & 3:- These two points are taken
together for common discussions.
10. Brief facts of the case is that marriage between petitioner
and respondent was solemnized on 12.08.1975 at Sri.
Lakshminarasimhaswamy temple, Attiguppe, Vijayanagar,
Bengaluru. They have begotten four children. Respondent has got
illegal relationship with one lady. After the retirement, respondent
had developed ill-habits and is in the habit of consuming alcohol.
Respondent use to scold the petitioner in a filthy language without
any reason and use to assault the petitioner without any fault.
Respondent was not providing food, cloths to the petitioner and not
showing love and affection. Petitioner is residing in a small rented
house. Respondent is residing with Smt. Meenakshamma having
illegal relationship. Respondent is not coming to visit the petitioner's
house since January 2015. He is completely neglecting the
petitioner without providing anything. Respondent is staying with
said Meenkshamma. Petitioner is aged about 65 years and is
suffering from age related ailments. She is spending a sum of
Rs.6,000/- per month for her medicines and hospital expenses and
Rs.9,000/- per month is required to meet expenses to her
livelyhood. Hence, she has filed the petition against respondent for
maintenance and for other reliefs.
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Crl.A.No.1785/2017
11. Advocate for appellant/wife has submitted that I.A. filed
U/s 23(2) of Cr.P.C. seeking interim order of maintenance of
Rs.15,000/-(fifteen thousand) per month and legal expenses of
Rs.10,000/-(ten thousand) from the respondent husband came to be
rejected by the trial court. There is no suppression of material facts
by the petitioner because entire order sheet maintained in
Crl.Mis.No.333/1992 is produced before the trial court. Further at
Para 8 of the petition, particulars of Crl.Mis.No.333/1992 is also
furnished for the perusal of the trial court. Petitioner is examined as
Pw.1. As per the joint memo filed by the petitioner and respondent
in which respondent has agreed to pay Rs.4,000/- (four thousand)
per month. Respondent husband has failed to pay the aforesaid
agreed maintenance to the petitioner. Respondent is retired police
officer. Therefore, petitioner has filed I.A. seeking interim
maintenance from the respondent. Petitioner is aged about 67 years.
There is no source of income to bear her daily life expenses.
Petitioner has got a vacant site inherited from her father and not
from her husband. Respondent has got pension of Rs.26,000/-
(twenty six thousand) per month. There are no one to take care of
the petitioner. Already three daughters got married. Her only son
has expired. Impugned order passed by the trial court rejecting the
application filed by the petitioner is against to the basic object of
PWDV Act.
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12. Perused the impugned order passed by the trial court
on I.A. filed U/s.22(3) of PWDV Act by the petitioner wife. In the
said order trial court has held that petitioner and respondent have
made several allegations against each other which need detailed
enquiry. Petitioner has filed Crl.Mis.No.333/1992 before Family
Court U/s.125 of Cr.P.C. In that petition, petitioner has taken
contention that respondent was not living with her since 1992.
Petitioner has not disclosed the said fact in the present petition. Date
of re-union of the petitioner is also not disclosed in the petition. No
material is produced to establish the fact of residing in common
house. Petitioner has suppressed material facts in respect of earlier
court proceedings. Petitioner has not filed application with clean
hands. Petitioner has failed to establish prima facie case against the
respondent in respect of domestic violence.
13. It is true that suppression of material facts if done by
any party shall be viewed seriously. However, in the present case
advocate for petitioner has submitted that particulars of pending
petition filed U/s.125 of Cr.P.C. before the Family Court is explained
by the petitioner at para 8 of the petition filed U/s.12 of PWDV Act
before the trial court. It is true that at para 8 of the petition U/s.12,
18, 19, 20, 22 of PWDV Act, petitioner has stated the fact of filing
Crl.Mis.No.333/1992 before Principal Family Judge, Bengaluru
U/s.125 of Cr.P.C. against the respondent. The said petition was
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disposed on 20.12.1994 and directing the respondent to pay
maintenance to aggrieved person and her children. But the
respondent did not pay any maintenance as per the order of Hon'ble
Principal Family Judge, Bengaluru. Therefore, reasons assigned by
the trial court for dismissal of I.A. is not corrected.
14. So far as material produced by the petitioner before the
trial court is concerned, petitioner has filed her examination-in-chief
affidavit and produced 8 documents. Whether the petitioner has
succeeded to establish the fact of domestic violence caused by her
husband as alleged in her petition under PWDV Act has to be
determined by considering the material available on record along
with evidence produced by both the parties.
15. So far as interim relief to the petitioner/ aggrieved
person is concerned, prima facie material established by the
aggrieved person is sufficient to determine whether the petitioner is
entitled for interim maintenance from her husband or not. In this
case, along with application filed U/s.23(3) of Cr.P.C. petitioner has
filed affidavit explaining her inconvenience and her requirements to
meet the life expenses. Further petitioner has explained the source
of income of the respondent husband. Further it is the specific
allegation made by the petitioner wife that despite the order passed
by the Family Court in Crl.Mis.No.333/1992, respondent has failed,
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Crl.A.No.1785/2017
neglected and refused to pay the maintenance amount to the
petitioner.
16. Object behind enacting the Protection of Women From
Domestic Violence Act 2005 is to curb domestic violence that would
be caused to the married women by the husband and his relatives.
The phenomenon of domestic violence is widely prevalent but has
remained largely invisible in the public domain. Presently, where a
woman is subjected to cruelty by her husband or his relatives, it is
an offence under section 498A of the Indian Penal Code. The civil
law does not however address this phenomenon in its entirety. It is,
therefore, proposed to enact a law keeping in view the rights
guaranteed under articles 14, 15 and 21 of the Constitution to
provide for a remedy under the civil law which is intended to protect
the woman from being victims of domestic violence and to prevent
the occurrence of domestic violence in the society. It covers those
women who are or have been in a relationship with the abuser
where both parties have lived together in a shared household and
are related by consanguinity, marriage or through a relationship in
the nature of marriage or adoption. It defines the expression
"domestic violence" to include actual abuse or threat or abuse that is
physical, sexual, verbal, emotional or economic. Harassment by way
of unlawful dowry demands to the woman or her relatives would also
be covered under this definition. It provides for the rights of women
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Crl.A.No.1785/2017
to secure housing. It also provides for the right of a woman to reside
in her matrimonial home or shared household, whether or not she
has any title or rights in such home or household. It empowers the
Magistrate to pass protection orders in favour of the aggrieved
person to prevent the respondent from aiding or committing an act
of domestic violence or any other specified act, entering a workplace
or any other place frequented by the aggrieved person, attempting to
communicate with her, isolating any assets used by both the
parties and causing violence to the aggrieved person, her relatives
or others who provide her assistance from the domestic violence.
17. In this case, undisputed fact is that the marriage
between petitioner and respondent is not terminated by way of
divorce from the competent court of law. That means legal status
that petitioner is the wife of the respondent is still in existence. It is
the duty of the husband to maintain his wife by providing
maintenance to meet the life expenses of the petitioner wife, when
the wife is not in a position to meet her daily expenses. It is the
specific case of the petitioner that as she is unable to maintain
herself and she has no source of income to meet her daily expenses
and expenses of her daughters, she is in need of interim
maintenance from her husband.
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18. Conclusion of the proceedings may take some more
time. This court is of the opinion that an interim maintenance has to
be ordered in favour of petitioner by directing the respondent/
husband to pay the maintenance to the petitioner. However,
respondent is at liberty to produce documents to show payment of
maintenance made by him to the petitioner as per earlier order
passed by the Family Court in Crl.Mis.No.333/1992. Amount of
Rs.10,000/-(ten thousand) is necessary to meet the daily expenses
of a lady aged about 67 years. Therefore, this court is of the opinion
that petition filed by the petitioner U/s.23(2) of PWDV Act deserves
to be allowed. Particulars of income of the respondent furnished by
the petitioner is in respect of pension which is not denied by the
respondent. For the aforesaid reasons, this court is of the opinion
that, impugned order passed by the trial court is not sustainable.
Therefore, interference of this court is necessary. Hence, point No.2
is answered in the negative and point No.3 is answered in the
affirmative.
19. POINT NO.4 :- In view of findings on the above points
No.1 to 3, this appeal deserves to be allowed. Hence, following
order is made:
ORDER
I.A. filed U/s.5 of Limitation Act is hereby allowed.
12Crl.A.No.1785/2017 Delay in preferring this revision petition is hereby condoned.
This Criminal Appeal filed U/Sec.29 of PWDV Act are hereby allowed.
Consequently, impugned order dated 07.02.2017 passed in Crl.Mis.No.175/2016 on the file of V- MMTC, Bengaluru is set aside.
I.A. filed by the petitioner U/s.23(2) of PWDV Act is allowed.
Respondent husband is directed to pay monthly maintenance of Rs.10,000/-(ten thousand) to the petitioner from the date of application till disposal of main petition.
Trial court is directed to set-off the maintenance if any paid by the respondent to the petitioner as per of the Family Court in Crl.Mis.No.333/1992, if the respondent produced documents for payment of maintenance amount.
13Crl.A.No.1785/2017 Office is directed to send back T.C.R. along with certified copy of this judgment to the trial court, forthwith.
(Dictated to the Judgment Writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 24 th day of January, 2022) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
14Crl.A.No.1785/2017 24.01.2022 Judgment pronounced in the open court Vide separate judgment ORDER I.A. filed U/s.5 of Limitation Act is hereby allowed.
Delay in preferring this revision petition is hereby condoned.
This Criminal Appeal filed U/Sec.29 of PWDV Act are hereby allowed.
15Crl.A.No.1785/2017 Consequently, impugned order dated 07.02.2017 passed in Crl.Mis.No.175/2016 on the file of V- MMTC, Bengaluru is set aside.
I.A. filed by the petitioner U/s.23(2) of PWDV Act is allowed.
Respondent husband is directed to pay monthly maintenance of Rs.10,000/-(ten thousand) to the petitioner from the date of application till disposal of main petition.
Trial court is directed to set-off the maintenance if any paid by the respondent to the petitioner as per of the Family Court in Crl.Mis.No.333/1992, if the respondent produced documents for payment of maintenance amount.
Office is directed to send back T.C.R. along with certified copy of this judgment to the trial court, forthwith.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.