Bangalore District Court
Gave Complaint To The Police Regarding ... vs To The Police At That Time. Finally On ... on 7 June, 2018
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY (CCH-46)
DATED THIS THE 7th DAY OF JUNE 2018
PRESENT
Sri. T.N. INAVALLY, B.A.L., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
CRL.A.No.1471/2017
BETWEEN
Smt. N. Bhagyalakshmi, W/o B.E. Santhosh Kumar,
Aged about 22 years,
R/at No.60, Dhobi Ghat,
Banashankari 2nd Stage,
Bengaluru - 560 070. .. APPELLANT
(By Sri. Mohan B., Advocate)
AND
Sri. B.E. Santhosh Kumar, S/o Eera Shetty,
Aged about 32 years,
R/at No.12, "Kabbalamma Nilaya",
Annayyappa Badavane, 1st Cross,
1st Main, Old Byappanahalli,
Bengaluru - 560 033. .. RESPONDENT
(By Sri. D.S. Mali Patil, Advocate)
*****
JUDGMENT
This appeal is filed by the appellant under Section 29 of Protection of Women from Domestic Violence Act ('the Act' for short) praying for an order to call for the records in Crl.Misc.No.53/2015 on the file of learned Metropolitan Magistrate Traffic Court - II, Bengaluru City ('the learned Magistrate' for short) and thereby to set aside the 2 Crl.A.No.1471/2017 judgment dated 20.09.2017 passed in the said case and for such other relief as this Court deems fit to grant in the interest of justice.
2. The appellant is petitioner and the respondent is respondent before the learned Magistrate in the case in Crl.Misc.No.53/2015 and hence, for the purpose of convenience the parties of this appeal are herein after referred in their rank in the said case.
3. The petitioner filed petition under Sec.12 of the Act for the relief under Sec.18, 10, 20 and 22 of the Act praying for an order to allow the petition as sought for in the interest of justice.
4. The case of petitioner is that her marriage with respondent was solemnized on 06.03.2009 at Sri. Shakti Ganapathi Kalyana Mantapa, New Thippasandra, Bengaluru as per Hindu rites and customs. There is no issue born in the said marriage. At the time of marriage the respondent demanded dowry of Rs.3,00,000/- and 20 gms of gold ornaments and also suite worth of Rs.25,000/-. Accordingly, the parents of petitioner gave ornaments and 50 gms of gold to her and 30 gms of gold necklace and 10 gms of 2 rings to the respondent as dowry and performed marriage by spending Rs.2,00,000/- After the marriage, the petitioner was residing with the respondent in the matrimonial home at No.12, Kabbalamma Nilaya, Annayyappa Badavane, 1st Cross, 1st Main, Byappanahalli, Bengaluru, 3 Crl.A.No.1471/2017 wherein the parents, brother and sister of respondent were also residing. After the marriage, for one month the respondent looked after the petitioner cordially. Thereafter, the respondent colluding with his parents, sister and brother used to abuse the petitioner with filthy language and assault with hands and demand to give further dowry of Rs.2,00,000/- and thereby the petitioner was subjected to physical and mental cruelty demanding dowry by the respondent. Hence, the petitioner gave complaint to the police regarding the same on 21.12.2013. Thereafter the matter was compromised and the parents of respondent took house on rent at Banashankari II Stage, Bengaluru on 17.10.2013 and the petitioner and respondent started to live in the said house. However, when the petitioner was residing in the said house, the respondent subjected the petitioner to physical and mental cruelty. There were complaints given by the petitioner against the respondent to the police at that time. Finally on 18.06.2014 the petitioner gave complaint to Ulsoorgate Women police station against the respondent, his parents, brother and sister and accordingly, the case was registered in Cr.No.95/2014 for the offence punishable under Section 498-A, 506 of Indian Penal Code ('IPC for short) and Sec.3 and 4 of the Dowry Prohibition Act ('the D.P. Act' for short). Thereafter, the charge sheet was filed and the criminal case in C.C.No.28179/2014 was registered on the file of VI Addl. CMM Court, Bengaluru and the said case has been pending for consideration. The petitioner is 4 Crl.A.No.1471/2017 housewife and she was thrown out of matrimonial home and now she is residing in her parents' house. The respondent neglected to maintain her and voluntarily abondened her company. The respondent is well settled in life. He is working as Attender in Manipal Hospital, Airport Road, Bengaluru and getting salary of Rs.24,000/- per month. The respondent is financially sound and there are no dependents to the respondent except the petitioner. But in spite of having sufficient means, the respondent has failed and neglected to look after the petitioner. The cost of living in Bengaluru is very high, and the petitioner would require at Rs.15,000/- per month for her maintenance. She would also require protection order and residence for her life. Hence, the petitioner sought for relief under Sec.18, 19 and 20 of the Act. She also sought for compensation of Rs.10,00,000/- under Sec.22 of the Act. Therefore, the petitioner prayed for allowing the petition.
5. In pursuance of service of notice, the respondent appeared through counsel and filed his objection submitting that this petition is not maintainable in law or on facts of the case and same is liable to be dismissed. The fact regarding the marriage of respondent with the petitioner is admitted. However, the respondent contended that he never demanded dowry from the parents of petitioner and obtained any dowry. After the marriage he lived with the petitioner and he 5 Crl.A.No.1471/2017 looked after the welfare of petitioner by giving love and affection. But the petitioner taking advantage of his innocence and ignorance gave torture to him and left matrimonial home. The petitioner gave complaints against him and his parents on several times. The petitioner lived with respondent only for the period of one month by making separate house as per her demand. Later in spite of living with the respondent, the petitioner lodged complaint against him to the police and the case is pending against him and others regarding the said complaint. The petitioner filed the petition only to harass the respondent. In fact the respondent is earning income of Rs.25,000/- and he is not working anywhere. On the other hand, the petitioner has been earning Rs.400/- per day by running laundry shop owned by her. Even now the respondent is ready to join the petitioner forgetting what happened in the past. All other allegations made in the petition which are not specifically traversed are denied false and baseless. Therefore, the respondent prayed for dismissal of the petition in the interest of justice.
6. In support of the case of petitioner, she got herself examined as P.W.1. She produced documents at Exs.P.1 to P.6. On the other hand, the respondent has got himself as R.W.1 and produced documents at Exs.R.1 to R.5 in support of his contention. 6 Crl.A.No.1471/2017
7. After hearing the argument of both the parties and on considering the oral and documentary evidence on record, the learned Magistrate has dismissed the petition filed by the petitioner under Sec.12 of the Act as per order dated 20.09.2017.
8. Being aggrieved by the said order, the petitioner has come up with the present appeal on the following among other grounds that the impugned order of the learned Magistrate is bad in law and not sustainable. In spite of the fact that the petitioner produced 6 documents at Exs.P.1 to P.6. The learned Magistrate has wrongly held that the petitioner has not produced any document to prove the occupation and income of respondent that the respondent is earning Rs.24,000/- per month. The learned Magistrate has wrongly come to conclusion that the petitioner is doing laundry work and earning Rs.200 to 300 per day. The learned Magistrate has also wrongly come to conclusion that the appellant is healthy and capable of maintaining herself. The learned Magistrate has failed to appreciate the oral and documentary evidence in proper prospective. The petitioner while living with the respondent looked after the respondent well as dutiful wife. Even prior to filing of petition, the case was registered against the respondent and others on the complaint of petitioner by Ulsoor Gate Women police station for the offence punishable under Section 498-A, 506 of IPC and Sec.3 and 4 of the D.P. Act as per 7 Crl.A.No.1471/2017 Cr.No.95/2014. Earlier, on the complaint of petitioner NCR was issued by the concerned police. The necessary documents are produced in support of the said contentions, which clearly show that the respondent subjected the petitioner to physical and mental cruelty. But the said evidence is not properly appreciated by the learned Magistrate. The learned Magistrate has committed error in coming to the conclusion that the petitioner has failed to establish that she was subjected to domestic violence at the hands of respondent and his family members. Hence, the impugned judgment is liable to be interfered with at the hands of this Court and therefore, the petitioner has prayed for allowing the appeal and thereby to set aside the impugned judgment of the learned Magistrate as sought for in the interest of justice.
9. In pursuance of service of notice on this appeal, the respondent has appeared through counsel. The LCR is called for.
10. Heard the argument of the counsel for petitioner and also the counsel for respondent. Perused the oral and documentary evidence and also the relevant materials available on record. Now the points that arise for my consideration are:
1. Whether the petitioner has made out any ground to show that the learned Magistrate has committed error in appreciating the oral and documentary evidence in proper prospective?8 Crl.A.No.1471/2017
2. Whether the petitioner shows that the learned Magistrate has committed error in dismissing her petition under the impugned judgment?
3. Whether the petitioner has made out any ground to interfere with the impugned judgment at the hands of this Court in this appeal as sought for?
4. What order?
11. After hearing the argument of both the parties and on considering the relevant materials on record, my findings on the above points are as hereunder:
Point No.1: In the negative;
Point No.2: In the negative;
Point No.3: In the negative;
Point No.4: As per final order For the following:
REASONS
12. Points No.1 to 3: All these points are taken up for consideration together for avoiding repetition of discussion on the facts of the case and also regarding point of law.
13. It is undisputed fact that the petitioner is wife of the respondent. Moreover, as per the pleadings of both the parties, the date of marriage of petitioner and the respondent is also not in dispute. Further, it is undisputed fact that after the marriage of petitioner, she resided with the respondent in the matrimonial home for sometimes. However, the petitioner has come up with the petition 9 Crl.A.No.1471/2017 before the learned Magistrate under Sec.12 of the Act for the relief under Sec.18, 19, 20 and 22 of the Act. Hence, unless the petitioner would prove that she was subjected to the act of domestic violence at the hands of respondent, she is not entitled to any of the reliefs sought for in the petition, even if it is admitted that the petitioner is wife of respondent.
14. The petitioner has got herself examined as P.W.1. She has filed her affidavit as evidence in chief-examination reiterating the facts averred in the petition. As pointed out by the counsel for respondent, if the petition averments and the evidence of petitioner as P.W.1 in chief-examination are taken into consideration, it is clear that she resided with the respondent in the matrimonial home only for some days. As stated herein above, it is not in dispute that the marriage of petitioner with respondent took place on 06.03.2009. The petitioner has produced invitation and one photo of her marriage and same are marked at Exs.P.1 and P2 respectively. The invitation at Ex.P.1 clearly shows that the marriage of petitioner with respondent was performed on 06.03.2009.
15. Further, in the objection the respondent has not disputed the date of marriage. Therefore, if the contention of respondent and the admitted document at Ex.P.1 are taken into consideration, it is clear that the marriage of petitioner with the respondent took place on 10 Crl.A.No.1471/2017 06.03.2009 i.e. in the year 2009. In the petition averments and also in the evidence the petitioner as P.W.1 has contended that the respondent demanded and took dowry from her in the form of gold ornaments and the marriage was performed by her parents spending Rs.2,00,000/-. After the marriage she resided with the respondent in the matrimonial house at Annayappa Badavane in Bengaluru.
16. If the petition averments and also from the evidence of petitioner as P.W.1 are considered, it is forthcoming that the petitioner lived in the matrimonial home happily only for the period of one year. Thereafter, the respondent along with his parents, sister and brother, subjected the petitioner to physical and mental cruelty, demanding her to bring more dowry. Hence, the petitioner gave complaint to the Ulsoorgate Women police on 21.11.2013 and the matter was compromised in the said case.
17. However, as per the petition averments it is clear that on 17.10.2013 the parents of respondent took house on rent for separate residence of the petitioner and respondent and in the said house the petitioner and respondent lived happily without any impediment. Thereafter, the mother and sister of respondent instigated the respondent over phone to leave the petitioner, so that they would get the respondent married to another girl. Hence, the contention of petitioner is that in the said house also, the respondent subjected her 11 Crl.A.No.1471/2017 to physical and mental cruelty and therefore, she gave complaint thrice to the police and ultimately on 18.06.2014 she gave complaint to the Ulsoorgate Women police station against the respondent, his parents, brother and sister and the case was registered against them in Cr.No.95/2014 for the offence punishable under Section 498-A, 506 of IPC and Sec.3 and 4 of the Act. After completion of investigation, the charge sheet was filed and the case was registered in C.C.No.28179/2014 on the file of VI Addl. C.M.M. Court Bengaluru. At that time the petitioner was residing in her parents' house. This material on record clearly goes to show that from 18.06.2014 the petitioner was not residing with the respondent in shared household.
18. The petition before the learned Magistrate was filed on 12.02.2015. This clearly shows that for period of about 8 months as on the date of filing of this petition, the petitioner was not residing with the respondent in the shared household. It is true that the petitioner has produced certified copy of charge sheet, complaint given by her against the respondent and his parents, sister and brother, FIR and one acknowledgement issued by the concerned police and same are marked at Exs.P.3 to P.6 respectively. The documents at Exs.P.3 to P.6 are regarding the case pending before the learned Magistrate for the offence punishable under Section 498-A, 506 of IPC and Sec.3 and 4 of 12 Crl.A.No.1471/2017 the Act. The cause of action for the said case had arisen finally in the month of September 2013.
19. As discussed herein above, the petition on hand was filed in the month of February 2015 i.e. after more than 1½ years from the date of cause of action for the above said criminal case. Moreover, as submitted by the counsel for respondent, the documents at Exs.P.3 to P.6 would arise for consideration in the case pending before the respondent and others regarding the offence punishable under Section 498-A, 506 of IPC and Sec.3 and 4 of the Act. In the present case, unless the petitioner would prove that she was subjected to the act of domestic violence at the hands of respondent, she is not entitled to any of the reliefs under Sec.18, 19, 20 and 22 of the Act.
20. The submission of the counsel for petitioner is that the learned Magistrate has failed to consider the oral evidence of P.W.1 and also documents at Exs.P.1 to .P6 produced by her and thereby come to the wrong conclusion that the petitioner is having sufficient means to maintain herself and there is no domestic violence committed by the respondent as alleged. It is true that the counsel for petitioner has drawn the attention of this Court to the evidence of P.W.1.
13 Crl.A.No.1471/2017
21. However, as pointed out by the counsel for respondent, the relevant portion in the evidence in cross-examination of P.W.1 reads thus:
"£À£Àß ªÀÄzÀĪÉAiÀÄ£Àß £À£Àß vÀAzÉ vÁ¬Ä ªÀÄvÀÄÛ £À£Àß CvÉÛ ªÀiÁªÀ CzÀsð CzÀsð ºÀtªÀ£Àß ºÁQ ªÀiÁrzÁÝgÉ JAzÀgÉ ¸Àj. £À£Àß ªÀÄzÀÄªÉ ¸ÀAzÀ¨ÀsðzÀ°è §AUÁgÀzÀ D¨ÀsgÀtUÀ¼À£ÀÄß Rjâ ªÀiÁqÀ®Ä ¸ÀĪÀiÁgÀÄ gÀÆ.2 ®PÀë ºÀt RZÁðVzÉ. ¸ÀzÀj J¯Áè D¨Àgs ÀtUÀ¼À£ÀÄß £À£Àß vÀAzÉAiÀÄÄ ªÀģɬÄAzÀ £À£ÀUÁVAiÉÄà PÉÆqÀ¯ÁVvÀÄÛ JAzÀgÉ ¸Àj. £ÀªÀÄä ªÀÄzÀĪÉAiÀÄ°è £À£Àß UÀAqÀ£À ªÀÄ£ÉAiÀĪÀjUÉ ªÀÄzÀÄªÉ RaðUÁV PÉÆlÖ ºÀtªÀ£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ ¨ÉÃgÉ AiÀiÁªÀÅzÃÉ ¸ÀAzÀ¨ÀsðzÀ°è ªÀÄÄAzÉ ºÀtPÁ¸ÀÄ £ÁªÀÅ PÉÆnÖ®è JAzÀgÉ ¸Àj."
It is also the evidence of P.W.1 in her cross-examination that:
"ªÀÄzÀÄªÉ DzÀ §½PÀ £Á£ÀÄ §£À±ÀAPÀj ¥ÉÇð¸ï oÁuÉAiÀÄ°è ªÉÆzÀ®Ä MAzÀÄ zÀÆgÀÄ zÁR®Ä ªÀiÁrzÉÝ JAzÀgÉ ¸Àj. ¸ÀzÀj §£À±ÀAPÀj ¥ÉÇð¸ï oÁuÉAiÀÄ°è £Á£ÀÄ £À£Àß ªÀÄ£ÉAiÀÄ°è ªÁ¸À EgÀ¨ÉÃPÀÄ £À£Àß UÀAqÀ DvÀ£À ªÀÄ£ÉAiÀÄ°è ªÁ¸À EgÀ¨ÃÉ PÀÄ JAzÀÄ gÁf ¥ÀAZÁ¬Äw DVzÉ JAzÀgÉ ¸Àj. ¸ÀzÀj §£À±ÀAPÀj ¥ÉÇð¸ï oÁuÉAiÀÄ°è £À£Àß MqÀªÉ £À£ÀUÉ £À£Àß UÀAqÀ£À §AUÁgÀzÀ D§gÀtUÀ¼À£ÀÄß DvÀ¤UÉ ¥ÉÇð¸ïgÀ ¸ÀªÀÄPÀëªÀÄzÀ°è PÉÆqÀ¯ÁVgÀÄvÀÛzÉ JAzÀgÉ ¸ÁQëAiÀÄÄ ºËzÀÄ JAzÀÄ ºÉý £ÀAvÀgÀ vÀ£Àß vÀ£ÀߣÀß vÀ£Àß UÀAqÀ£À ªÀÄ£ÉUÉ ¥ÀÅ£ÀB PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV £À£Àß §AUÁgÀzÀ ªÀqɪÉUÀ¼À£ÀÄß UÀAqÀ£À ªÀÄ£ÉAiÀĪÀgÉà ªÁ¥À¸ï ¥ÀqÉ¢zÁÝgÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛg.É "
This evidence of P.W.1 clearly goes to show that she had already received gold ornaments given to her at the time of marriage.
22. Further, even though the petitioner has deposed that the respondent took back those ornaments subsequently there is absolutely no independent oral or documentary evidence forthcoming form the petitioner to prove the said contention. Hence, if the above referred evidence of P.W.1 is taken into consideration, the contention 14 Crl.A.No.1471/2017 of petitioner that the respondent subjected her to any act of domestic violence demanding her to give dowry proves to be most improbable.
23. Moreover, as submitted by the counsel for respondent, it is also the evidence of P.W.1 in her cross-examination that:
"¸ÀzÀj ¥ÉÇð¸ï oÁuÉAiÀÄ°è ¥ÉÇð¸ÀgÀ ¸ÀªÀÄPÀëªÀÄzÀ°è £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß UÀAqÀ ¨ÉÃgÉ ªÀÄ£É ªÀiÁrPÉÆAqÀÄ ªÁ¸À ªÀiÁqÀ¨ÃÉ PÀÄ JAzÀÄ £ÀªÀÄäUÀ¼À £ÀqÀÄªÉ gÁf ¸ÀAzsÁ£À DVvÀÄÛ ªÀÄvÀÄÛ D ¥ÀæPÁgÀ £ÁªÀÅ ¨ÉÃgÉ ªÀÄ£É PÀÆqÀ ªÀiÁrPÉÆAqÀÄ ªÁ¸À EzÉݪÀÅ JAzÀgÉ ¸Àj. ¸ÀzÀj ¨ÉÃgÉ ªÀÄ£ÉAiÀÄ°è £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß UÀAqÀ ªÀiÁvÀæ ªÁ¸À EzÉݪÀÅ C°è ¨ÉÃgÉ AiÀiÁgÀÆ £ÀªÀÄä eÉÆvÉAiÀÄ°è EgÀ°®è JAzÀgÉ ¸Àj. ¸ÀzjÀ ¨ÁrUÉ ªÀÄ£ÉAiÀÄ£ÀÄß PÀ¢gÉãÀºÀ½îAiÀÄ°è ªÀiÁqÀ¯ÁVvÀÄÛ D ªÀÄ£ÉAiÀÄ°è £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß UÀAqÀ MAzÀÄ wAUÀ¼ÀÄ ªÀiÁvÀæ ªÁ¸À Ezɪ Ý ÀÅ JAzÀgÉ ¸Àj. £ÀAvÀgÀ ¸ÀzÀj ªÀģɬÄAzÀ PÀÆqÀ £Á£ÀÄ £À£Àß vÀAzÉAiÀÄ ªÀÄ£ÉUÉ ºÉÆÃVgÀÄvÉÃÛ £É JAzÀgÉ ¸Àj. ºÁUÉà £À£Àß vÀAzÉAiÀÄ ªÀÄ£ÉUÉ ºÉÆÃzÀ §½PÀ 1 ªÀµÀð ©lÄÖ 2014£Éà E¸À«AiÀÄ°è ¥ÀÅ£ÀB £Á£ÀÄ ºÀ®¸ÀÆgÀÄ UÉÃmï ¥ÉÇð¸ï oÁuÉAiÀÄ°è £À£Àß UÀAqÀ£À «gÀÄzÀÝ zÀÆgÀÄ zÁR®Ä ªÀiÁrzÉÝÃ£É JAzÀgÉ ¸Àj."
If this evidence of P.W.1 is taken into consideration, it is clear that the petitioner left the matrimonial home in the year 2013 itself. Hence, from the year 2013 till the date of filing of petition in the month of February 2015 and also thereafter the petitioner has not been residing with the respondent in the matrimonial home. Therefore, the petitioner has failed to make out any case that there was domestic relationship between her and the respondent as per the definition under Sec.2(f) of the Act as on the date of filing of petition to have any chance to the respondent to subject her to any act of domestic violence within the meaning of Sec.3 of the Act.
24. The provision of Sec.3 of the Act reads thus:
15 Crl.A.No.1471/2017
3. Definition of Domestic Violence: For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it,-
(a) harms or injuries or endangers the health, safety, life, limp or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injuries or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause
(b); or
(d) otherwise injuries or causes harm, whether physical or mental, to the aggrieved person.
If the petition averments and the evidence of P.W.1 are taken into consideration, there is absolutely no evidence forthcoming from the petitioner to prove that she was subjected to any act of domestic violence at the hands of respondent within the meaning of Sec.3 of the Act. Moreover, when the petitioner was not residing for the period of more than one year as on the date of filing of the petition in the shared household, the question of any cause of action to the petitioner for filing the petition for any of the reliefs under the Act on the allegation that she was subjected to the act of domestic violence at the hands of respondent does not arise for consideration on the facts of the case and also in law.
25. Further, as pointed out by the counsel for respondent, the relevant portion in the evidence of P.W.1 in the cross-examination reads thus:
16 Crl.A.No.1471/2017
"¸ÀzÀj PÉù£À°è ªÀÄ»¼Á ¥ÉÇð¸ÀgÀÄ £À£ÀߣÀÄß, £À£Àß UÀAqÀ£À£Àß, CvÉÛ ªÀiÁªÀ£À£Àß LzÁgÀÄ ¨Áj oÁuÉUÉ PÀgɹ £ÁåAiÀi ¥ÀAZÁ¬Äw ªÀiÁrgÀÄvÁÛgÉ JAzÀgÉ ¸Àj. DUÀ £À£Àß CvÉÛ ªÀiÁªÀ£ÀªÀgÀÄ vÀªÀÄä ªÀÄ£ÉUÉ £À£ÀߣÀÄß ªÁ¸À ªÀiÁqÀ®Ä PÀgÉ¢gÀÄvÁÛgÉ CxÀªÁ ¨ÉÃgÉ ªÀÄ£É ªÀiÁrPÉÆAqÀÄ fêÀ£À ¸ÁV¸À®Ä PÀÆqÀ PÀgÉ¢gÀÄvÁÛgÉ JAzÀgÉ ¸ÁQëAiÀÄÄ DUÀ vÀ£ÀߣÀÄß PÀgÉzÃÉ EgÀĪÀÅ¢®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛg.É FUÀ £À£ÀUÉ £À£Àß UÀAqÀ ªÀÄvÀÄÛ CvÉÛ ªÀiÁªÀ eÉÆvÉ ºÉÆÃV ªÁ¹¸À®Ä EµÀÖ E®è JAzÀgÉ ¸Àj."
This admission of petitioner as P.W.1 in her evidence clearly goes to show that in spite of several attempts made by the concerned police for compromising the matter between the petitioner and respondent for leading happy marital life, the petitioner had no intention to lead marital life with the respondent and she herself left the matrimonial home and thereafter, she has been residing in her parents house for more than 1½ years as on the date of filing of petition.
26. Moreover, as pointed out by the counsel for respondent, the petitioner has clearly admitted in her evidence that she is capable of earning income. However, even it is accepted for the sake of argument that the respondent has deserted the petitioner and that the petitioner is not having any independent income for her livelihood, it cannot be cause for action for filing the petition under the Act for any maintenance, protection order, residence order, monetary relief and compensation under Sec.18, 19, 20 and 22 of the Act, unless the petitioner proves that she was subjected to domestic violence at the hands of respondent as on the date of filing of the petition. 17 Crl.A.No.1471/2017
27. The provisions of Sec.18, 19, 20 and 22 of the Act reads thus:
Sec.18 - Protection Orders: The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a Protection Order in favour of the aggrieved person and prohibit the respondent from,-
(a) committing any act of domestic violence;
(b) (c), (d), (e), (f) and (g)......
Sec.19 - Residence orders: (1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a Residence Order, -
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) (c) (d) (e) and (f)........
Sec.20 - Monetary reliefs: (1) While disposing of an application under sub-section(1) of Section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of he aggrieved person as a result of the domestic violence and such relief may include, but not limited to,-
(a) the loss of earnings;
(b) (c) and (d)........
Sec.22 - Compensation orders: In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent. Hence, all the said provisions of Sec.18, 19, 20 and 22 of the Act clearly show that unless the petitioner proves that the respondent committed act of domestic violence on her, she is not entitled to any of the reliefs as sought for in the petition.
18 Crl.A.No.1471/2017
28. Moreover, as pointed out by the counsel for respondent, Sec.12(1) of the Act reads thus:
Application to Magistrate: (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the Magistrate shall take into consideration any Domestic Incident Report received by him from the Protection Officer or the service provider.
The said provision of Sec.12 of the Act clearly shows that before passing any order on the said application under Sec.12 of the Act, the Magistrate shall take into consideration any domestic incidence report received by him from the Protection officer or the service provider. But in the case on hand, the entire materials forthcoming in the trial Court records do not reveal that the learned Magistrate has sought for any such report and considered such report in the case. There is no material to show that the petitioner has taken any step before the learned Magistrate on such domestic incident report. Therefore, on this ground also, the learned Magistrate has not committed any error by coming to the conclusion that there is no domestic violence committed by the respondent on the petitioner and hence, the petitioner is not entitled to any relief as sought for in the petition.
29. As discussed herein above, unless the petitioner proves that she was subjected to any act of domestic violence by the respondent, she is no entitled to any relief as sought for in the petition. Hence, as 19 Crl.A.No.1471/2017 argued by the counsel for respondent, the learned Magistrate has not committed any error in dismissing the petition filed by the petitioner under the impugned order. One of the grounds urged by the petitioner is that the learned Magistrate has not considered the oral and documentary evidence on record in proper prospective. But as stated herein above, even if the oral evidence of P.W.1 and the documents at Ex.P.1 to P.6 are taken into consideration, any such oral and documentary evidence does not prove that the petitioner was subjected to any act of domestic violence at the hands of respondent. Hence, such ground urged by the petitioner in the present appeal does not merit consideration.
30. On the other hand, as discussed herein above, even if the entire evidence forthcoming on record from the petitioner is taken into consideration it does not help the petitioner to prove her case. It is true that the respondent has got himself examined as R.W.1 and he has produced documents at Exs.R.1 to R.5 in support of his defence. But there is absolutely no material forthcoming from in his evidence to make out any case that the respondent subjected the petitioner to any act of domestic violence. Therefore, the evidence of respondent as R.W.1 and documents produced by him at Exs.R.1 to R.5 do not merit consideration in the case on hand to come to the conclusion that the petitioner is entitled to any of the reliefs as sought for in the petition. 20 Crl.A.No.1471/2017
31. As discussed herein above, even it is accepted that the petitioner is not having any independent income for maintaining herself that itself cannot be a ground to grant maintenance under the Act, unless the petitioner proves that she was subjected to domestic violence by the respondent. On meticulous consideration of the reasoning of the learned Magistrate in the impugned judgment clearly shows that the learned Magistrate has considered oral and documentary evidence in proper prospective and thereby come to the correct conclusion that the petitioner has failed to establish that she was subjected to any act of domestic violence at the hands of respondent. The learned Magistrate has rightly dismissed the petition under the impugned order. Hence, no error is committed by the learned Magistrate in dismissing the petition under the impugned judgment. Therefore, the question of interfering with the impugned judgment at the hands of this Court in this appeal does not arise. Hence, the petitioner has failed to prove point No.1 to 3 and consequently, the points No.1 to 3 are answered in the negative.
32. Point No.4: From the discussion made herein above, it is clear that this appeal liable to be dismissed. In the result, therefore, I proceed to pass the following:
21 Crl.A.No.1471/2017
ORDER This appeal filed by the appellant/ petitioner under Section 29 of Protection of Women from Domestic Violence Act is hereby dismissed.
Consequently, the judgment dated 20.09.2017 of the learned MMTC-II, Bengaluru in Crl.Misc.No.53/2015 shall stand confirmed.
In the circumstances, there shall be no order as to cost.
The LCR shall be returned to the concerned Magistrate Court along with copy of this judgment forthwith.
(Dictated to the Stenographer, transcript corrected by me and then pronounced in open Court on this the 7th day of June, 2018) (T.N. INAVALLY) XLV Addl. City Civil & Sessions Judge Bengaluru