Karnataka High Court
Sri. Dr. B.N. Shivaswamy vs Nethravathy M.L. on 17 January, 2020
Author: K.Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL REVISION PETITION NO.422 OF 2016
BETWEEN:
SRI. DR. B.N. SHIVASWAMY
S/O LATE NINGE GOWDA
AGED ABOUT 43 YEARS
R/AT BEECHAGONDANAHALLI
BAGURU VILLAGE
CHANNARAYAPATNA TALUK
PRESENTLY RESIDING AT
MEDICAL OFFICER
PRIMARY HEALTH CENTRE QUARTERS
HIRISAVE, HASSAN DISTRICT-78 ... PETITIONER
(BY SRI. PRATHEEP. K.C, ADVOCATE)
AND:
NETHRAVATHY M.L.
W/O DR. B.N. SHIVASWAMY
AGED ABOUT 43 YEARS
C/O DR. MANJUNATH
BEHIND CHOWDESHWARI PETROL BUNK
B.M. ROAD, CHANNARAYAPATNA
HASSAN DISTRICT-45
PRESENTLY RESIDING AT:
SMT. NETHRAVATHI
W/O DR. B.N. SHIVASWAMY
2
AGED ABOUT 41 YEARS
C/O LATE KALEGOWDA
PRINCIPAL NEAR LAND ARMY OFFICE
VIVEKNAGARA, HASSAN CITY-01 ... RESPONDENT
(BY SRI. K.T. GOVINDEGOWDA, ADVOCATE-ABSENT)
THIS CRL.RP IS FILED UNDER SECTION 397 READ
WITH 401 CR.P.C. TO SET ASIDE THE IMPUGNED ORDER
DATED 02.12.2011 PASSED BY THE II ADDITIONAL CIVIL
JUDGE AND JMFC AT HASSAN IN CRIMINAL MISC.
NO.65/2012 (OLD NO.224/2010) AND JUDGMENT IN
CRL.A.NO.134/2011 DATED 13.01.2016 ON THE FILE OF V
ADDITIONAL DISTRICT AND SESSIONS JUDGE AT
HASSAN.
THIS CRL.RP COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed by the husband challenging the order passed by the II Additional Civil Judge and JMFC., Hassan in Crl.Misc.224/2010 for having granted interim maintenance and the same was upheld by the 5th Additional District and Sessions Court, Hassan in Crl.Appeal No.134/2011.
2. Heard the arguments of the learned counsel for the petitioner and respondent's counsel remained absent. 3
3. For convenience, the parties are referred to their ranks as before the trial Court.
4. The case of the petitioner is that the petitioner claims to be the wife has filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the 'D.V.Act') claiming various reliefs against the respondent - husband.
5. After filing of the petition, learned Magistrate issued notice to the respondent and after receiving objection and on being application filed under Section 23(2) of D.V.Act, interim maintenance of Rs.7,500/- p.m. has been passed in favour of the petitioner which has been challenged before the first Appellate Court by filing an appeal under Section 29 of the D.V.Act, which came to be dismissed. Hence, this revision petition.
6. Learned counsel for the petitioner, Sri.Pratheep, has strenuously argued only one point that 4 the order of the trial court suffers from illegality on the ground that once the Magistrate issued notice to respondent cannot grant exparte interim maintenance as per 23 (2) of D.V.Act and the Magistrate is precluded from passing any interim maintenance once respondent appeared and filed objections. The Magistrate shall not pass any interim maintenance without hearing the matter as prescribed under Section 28 of the D.V.Act and in support of the arguments, learned counsel for the petitioner has relied upon the judgment of Co-ordinate Bench of this Court reported in 2011 (3) KCCR 2221 in the case of KRISHNA MURTHY NOOKULA VS. Y. SAVITHA.
7. After hearing the arguments of the learned counsel for the petitioner, the only point arises for consideration of this Court is whether the order under revision suffers from any illegality or the Magistrate is precluded to pass any order on the interim maintenance 5 once the respondent entered into appearance by filing objections.
8. Before going to the case of the petitioner, it is worth to mention the provision of Section 23 (1) and (2) of the D.V.Act which reads as under:-
"23. Power to grant interim and ex parte orders:
(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) 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 6 the case may be, section 22 against the respondent."
9. On bare reading of the provision (1) of Section 23 of D.V.Act clearly shows that in any proceedings before the Magistrate under D.V.Act, the Magistrate may pass such interim order as he deems just and proper. Sub- section 2 empowers the Magistrate to grant exparte interim maintenance on the application and affidavit filed by the aggrieved person under Sections 18, 19, 20, 21 as the case may be and under Section 22 against the respondent.
10. Learned counsel for the petitioner contends that once the learned Magistrate reluctant to pass exparte interim maintenance in favour of the petitioner-wife, question of granting any interim maintenance to the wife does not arise after the appearance of the respondent and filing of objection. He relied upon the judgment of this 7 Court in Krishna Murthy's case supra, wherein at Paras 17, 18 and 19 reads as follows:
17. Sub-section (2) of Section 23 relates only to grant ex-parte orders. For clarity, the same is once again extracted;
"(2) If the Magistrate is satisfied that an application prima facie disclose that the respondent is committing, or has committed an act of domestic violence or that there is likelihood that the respondent may commit an act of domestic violence, he may grant an exparte order on the basis of the affidavit in such form, as may be prescribed".
18. From this, it is clear that the proceeding under sub-section (1) of Section 23 which permits to pass interim order has to be governed by the provisions of Code of Criminal Procedure by virtue of Section 28(1) of the Act, but all actions in a proceeding for grant of ex-
parte order would be by the procedure framed by the Court itself if any or on 8 the basis of the affidavit in such form as may be prescribed. The ultimate conclusion would be for grant of ex parte order, the Magistrate need not necessarily apply provisions of Code of Criminal Procedure, but he could pass such orders on the basis of material in the form of affidavit in such form as may be prescribed or following the procedure it has prescribed (if any). But when the magistrate declines to grant ex parte relief and notifies the respondent (prior notice), he has to be heard and in such cases, Section 28(1) applies and the procedure prescribed by the Code of Criminal Procedure becomes applicable.
19. In the instant case, the Magistrate had declined to grant interim relief "ex-parte"
on the motion made by the respondent. The learned Magistrate issued prior notice to the petitioner herein and therefore the order comes within the ambit of sub-section (1) of Section 23 and it is not an ex-parte order referred to in sub-section (2) of Section 23. Once sub-section (2) is inapplicable then sub-9
section (1) of Section 28 applies and necessarily procedure prescribed by CrPC is to be followed. The legal consequences are that the procedure prescribed by the Code of Criminal procedure for trial of cases depending upon the nature of offence and punishment prescribed becomes applicable and that procedure has to be followed."
11. On reading of the judgment of this Court, it shows that once the Magistrate declined to grant interim relief of exparte maintenance and thereafter the Magistrate is required to follow the procedure contemplated under Section 28 (1) of the D.V.Act.
12. For the convenience, Section 28 of the D.V.Act reads as follows:
"28. Procedure.-(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of 10 the Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.
13. On a bare reading of Proviso 2 of Section 28 of D.V.Act indicates that nothing in sub-Section (1) prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under sub-section 1 of Section 23 and on perusal of both provisions of sub- section 1 of Section 23 and Section 28 empowers the Magistrate for granting an interim order as he deems just and proper and sub-section (2) of 28 empower of Magistrate shall not prevent the Court from laying down its own procedure for disposal of the application under Section 12 or under sub-section (1) of Section 23 which means the Magistrate is empowered to pass any interim order even after hearing the respondent. That apart in order to punish or violate protection order is under Section 18 for 11 granting damages, compensation under Section 19, evidence is required but not for granting interim maintenance. Therefore, in my considered view judgment relied upon by the learned counsel for the petitioner is not come to the aid of the petitioner. Apart from that, there is no material to show that Magistrate refused to grant ad- interim maintenance to the respondent-wife. Even if the Magistrate not inclined to pass any order of interim maintenance till appearance of the respondent, that itself cannot be considered that the Magistrate is disabled to grant an order of interim maintenance. Hence, I hold that the Magistrate is not precluded from passing any interim order for grant of maintenance even after appearance of respondent and receiving objections.
14. The intents of the legislature for framing of the D.V.Act is to protect the women from domestic violence. Once the Magistrate is empowered to grant ad-interim maintenance to the wife even before appearance of the respondent, he is also empowered to grant interim 12 maintenance after receiving objections from the respondent and he is not precluded from granting any interim maintenance after the respondent appeared and filed objections if any. The Magistrate need not make an enquiry by using evidences for granting interim maintenance. The evidence is required only to grant final order of maintenance, compensation, damages and any other relief while making the order. Therefore, the arguments addressed by the learned counsel for the petitioner is not sustainable under the law and it cannot be acceptable that the Magistrate has no powers to pass any interim maintenance once objection is filed. Therefore, the order under revision is not suffering from legality or arbitrariness, which calls for interference by this Court.
15. Therefore, revision petition is liable to be dismissed and accordingly, it is dismissed.
SD/-
JUDGE Prs*