Bangalore District Court
M.M. Vijayalakshmi vs Dr. Ravishankar Bhat on 1 August, 2016
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 1st day of August 2016
PRESENT:
Sri G.D.Mahavarkar, M.A., LL.B (Spl),
M.L. (Lab & Indstrl Rlns & Adm. Laws),
LL.M (Business Laws), M.Phil-in-Law
(Juridical Science)
LI Addl. City Civil & Sessions Judge, Bengaluru City.
Crl. Appeal No. 185/2014
Appellant : M.M. Vijayalakshmi,
Original-petitioner D/o. Late M.S. Mallikarjuna,
Aged 47 years,
R/a. No.48, 16th Cross,
Kamakshi Hospital Road,
Saraswathipuram,
Kuvempunagar,
Mysore - 570 023.
(By Sri B.M. Nagendra Prasad,
Advocate)
Vs.
Respondent : Dr. Ravishankar Bhat,
Original-respondent S/o. Ramakrishna Bhat,
Aged 46 years.
R/a. No.231, 2nd 'D' Cross,
2nd 'B' Main, 1st Stage,
Girinagara,
Bangalore - 560 085.
(By Sri G.R. Prakash, Advocate)
* * * *
JUDGMENT
This is an appeal preferred by the appellant/original- petitioner against the respondent/original-respondent U/Sec.29 of 2 Crl.Appeal No.185/2014 the Protection of Women from Domestic Violence Act, 2005, against the impugned-order passed by the Court of MMTC-V, Bengaluru, in it's Crl.Misc.No.56/2011, dated 10.02.2014.
2. The original-petitioner before the trial court having preferred this appeal against the original-respondent, as the appellant and the respondent, respectively, are hereby assigned with their original ranks before the trial court i.e., the appellant as the petitioner and the respondent as the respondent in the present discussion for the purpose of brevity and convenience to avoid the confoundation and perplexity.
3. This is a Crl.Misc.Petition No.56/2011 filed by the original- petitioner/complainant against the original-respondent before the trial court seeking for the reliefs of granting of maintenance amount of Rs.50,000/- per-month, the compensation of Rs.1,00,00,000/- towards the cruelty and harassment made to the appellant/original-petitioner mentally and physically, and to make separate arrangement for her stay, along-with restraining them (original-respondents) from causing any kind of domestic-violence against her.
4. The epitomized facts projected from the petition before the trial court run thus:
The petitioner is in the profession of alternate medicine (Counseling) from the past 10 years. The respondent No.1 is a 3 Crl.Appeal No.185/2014 gastro enterology surgeon working in Bengaluru. The respondent No.2 is the wife of the respondent No.1. Since the petitioner was suffering from gastro enteritis, she was referred by Dr. Naveen Rao to the respondent No.1 to be a famous and efficient gastro enterology surgeon at Bengaluru, for treatment. The petitioner visited the Radhakrishna Multi-specialty Hospital at Bengaluru, where the respondent No.1 was visiting faculty and consulted the respondent No.1. The respondent No.1 recommended surgery for the problem of the petitioner. The petitioner wanted to consult her mother before surgery and get back to the respondent No.1 as-
soon-as-possible. The respondent No.1 took the phone-number of the petitioner from the hospital-records and started sending SMS to the petitioner from 05.03.2007. The petitioner being a spinster till that day was lured by the soft-talk of the respondent. Few-days later, when the petitioner went-back to the respondent No.1 for further treatment, the respondent No.1 sent the sister of the petitioner who was accompanying her, out of the consultation-
room for medical-examination and started misbehaving with her.
The respondent No.1 hugged and kissed the petitioner and stated that he was an unmarried-doctor and would like to marry her. The petitioner at that time was residing at No.10/12, Vivekananda Nagar, Katriguppe Main Road, Vidyapeeta Circle, Bengaluru, and also practicing alternate medicine at Bengaluru. The respondent 4 Crl.Appeal No.185/2014 No.1 suddenly came to the residence of the petitioner on 30.03.2007 at about 5.30 p.m. in the evening. On that day, the respondent No.1 hugged and kissed the petitioner and had sexual-
intercourse with the petitioner, on promising to marry her. Thereafter, the petitioner and the respondent No.1 started living as husband and wife in the said house till March 2008. The respondent No.1 use to visit the petitioner on a day-to-day basis use to have sexual-intercourse with the petitioner. On 06.02.2008 the petitioner underwent an operation in the hands of the respondent No.1 and all the hospital bills are paid by the petitioner.
The petitioner believed that the respondent No.1 would marry her and conceded to all the demand of the respondent No.1. The petitioner made lot of promises and also mooted an idea to open a super-specialty hospital at Bengaluru, jointly and would later get married and live together happily. Meanwhile, the petitioner got an offer to work in Mumbai in alternate medicine. The petitioner whenever use to visit Bengaluru to meet her professional-commitments, use to reside at Hotel Rajmahal. The respondent No.1 use to visit the petitioner in the said hotel and with his soft-talk use to have sexual-intercourse with the petitioner on the pretext that he would get married to her. At the instance of the respondent No.1, she transferred Rs.9,00,000/- to the account 5 Crl.Appeal No.185/2014 of the respondent No.1 on various dates and also paid cash of Rs.32,00,000/- to the respondent No.1, on the various occasions. The respondent No.1 on various occasions had sexual-intercourse with her on the promise of marriage and joint-ownership of the super-specialty hospital. The respondent No.1 after receiving the amount from the petitioner instead of starting a hospital at Bengaluru, has purchased agricultural-lands at Kotpadi village, Kumble, Kasargod Taluk, jointly in the name of himself and his wife on 14.05.2009 & 10.07.2009. The petitioner was shocked to know that the respondent No.1 was already married to the respondent No.2, but the respondent No.1 intentionally has deceived her by having sexual-intercourse on the pretext of marriage. At the request of the respondent No's.1 & 2, the petitioner has signed the sale-deeds as witness. The respondent No.1 also assured that, after the super-specialty hospital at Bengaluru, he would divorce his wife and get married to the petitioner.
The respondent No.2 met the petitioner in the month of May 2009 after the 1st registration and pleaded that her husband in- spite of being a married-man has not revealed the same to the petitioner and requested her to come and reside at the 1st floor of their residence at Girinagar, Bengaluru, in-stead of residing at Hotel Rajmahal or elsewhere during her visit to Bengaluru. The 6 Crl.Appeal No.185/2014 petitioner agreed and resided in the 1st floor of the said house from May 2009 to April 2010. While residing in the shared-household, the respondent No.1 started misbehaving with the petitioner and had sexual-intercourse whenever the 2nd respondent use to go out of the house on personal-works. The respondent No's.1 & 2 along- with the petitioner use to visit farmland situated at Kaipadi village, Kumble, Kasargod District, Kerala, and use to reside at the residence in the farm on several occasions in the shared- household. In July 2010, the respondent No's.1 & 2 came forward to re-convey the land purchased at Kasargod to the petitioner and her sister Mrs. Jamuna Satish Rai at an exorbitant rate of Rs.85,00,000/- in order to save their skin. The respondent No's.1 & 2 convinced her to enter-into an agreement of sale on 30.07.2010 in respect of the land situated at Kasargod. On 04.07.2010 a memo of compromise was also arrived in respect of the cheque bearing No.051485 for Rs.40,00,000/-, drawn on ICICI Bank, which was issued to the respondent No.1 by the petitioner. After signing the memo of compromise and agreement of sale, the respondent No's.1 & 2 turned hostile against the petitioner and ill- treated her verbally with foul and vulgar language and warned the petitioner to leave the shared-house at Girinagar, Bengaluru. The petitioner was thrown-out of the house at 10.00 p.m. in the 1st 7 Crl.Appeal No.185/2014 week of August 2010. The petitioner left to Mysuru and pursued her profession and started to be with her family.
The petitioner sent a legal-notice through her counsel on 12.11.2010 to the respondent No's.1 & 2. Said notice was replied through their advocate on 02.12.2010. The petitioner lodged a police-complaint with the Chennammanakere Acchukattu police station for the offences punishable U/Secs.354, 406 & 420 of IPC on 11.02.2011. The Chennammanakere Acchukattu police have registered the FIR in Cr.No.61/2011. The respondent No.1 has virtually ruined the life of the petitioner by exploiting her financially, physically and sexually in the shared-household at Girinagar, Bengaluru. With the above contentions, the petitioner has prayed for protection-order U/Sec.18, residence-order U/Sec.19, compensation under Sec.22 and maintenance of Rs.50,000/- per-month from the respondent No's.1 & 2. Hence, prayed for allowing the petition.
5. In response to the notices issued by the trial court, the respondent put-in his appearance before it through his learned counsel and filed the objections denying almost all the allegations made by the petitioner and further contended that, the petition is not maintainable under law since the petitioner is not an aggrieved-person and there was no domestic-relationship. The respondent contended that, for the first-time on 03.11.2007 the 8 Crl.Appeal No.185/2014 petitioner registered as outpatient at Apollo Hospital and sought appointment with the respondent. As she could not meet the respondent on that-day, she came to Radhakrishna Hospital in the evening and consulted the respondent for the first-time on 03.11.2007. The respondent advised the petitioner to undergo surgery after looking-into the petitioner's problem. On 06.02.2008 the petitioner underwent surgery at Radhakrishna Hospital in the hands of respondent. After she became well, she tried to meet the respondent frequently by saying that he has saved her from misery. The respondent gave deaf-ears to the submissions made by the petitioner. The petitioner met the respondent and his wife at their residence during the 1st week of July 2008 by obtaining address from the 3rd party sources. She further proposed that she would like to help them in starting a hospital at Bengaluru. In this regard, she has given a cheque bearing No.051485 for Rs.40,00,000/-, drawn on ICICI Bank, forcibly to the respondent. The respondent smelling something wrong has not encashed the said cheque. When the said cheque was not encashed, the petitioner has given another cheque drawn on self for Rs.40,00,000/- and also gave a letter to the Bank Manager to pay the cash to the respondent. Even, the said amount was not drawn by the respondent.
9 Crl.Appeal No.185/2014
The respondent further contended that, the petitioner use to come to the residence of the respondent and because of sweat- words with all the inmates, a cordial-relationship with the family- members was created by the petitioner. At that point of time, the petitioner insisted for purchasing of agricultural-lands at the native-place of the respondent and took initiative to get certain lands, for which a portion of the consideration-amount shall be paid by her. When all the family-members of the respondents agreed for the proposal, certain lands at Pivalike village, Kasargod Taluk, were purchased and registered in the names of the respondent and his wife. Later, the petitioner started forcing the respondent to join her physically at various places. Since the respondent is married and leading a happy marital-life, he did-not heed to the demand of the petitioner. When the petitioner was creating flutters by indulging in-activities detrimental to the family- life of the respondent, both parties decided to put an end to all the property transactions between them, and a memo of compromise is entered on 04.07.2010. Again, the petitioner started troubling the respondent with one or the other reasons claiming her money paid for the purchase of land, an agreement of sale is executed by the respondent in presence of the advocate for the petitioner.
The respondent has further contended that, at no point of time, the respondent had occasion to indulge in the activity as 10 Crl.Appeal No.185/2014 stated in the petition. The respondent further contended that, except the doctor and patient relationship, there is no relationship of whatsoever nature between the petitioner and the respondent. The respondent has not made any assurances to the petitioner and there was no occasion to make such assurances as claimed in the petition. There was certain property transaction between the petitioner and the respondent. Even-after entering the memo of compromise, the petitioner has filed the petition to blackmail the respondent.
The respondent has contended that, the legal-notice dated 12.11.2010 was replied in detail on 03.01.2011, whereas, another reply-letter dated 08.01.2011 is not produced before the court by the petitioner. The SMS details are vague and are one-sided and fictitious. The petitioner is claiming the compensation- maintenance and joint-residence without any relationship and trying to harass the respondent in one or the other-way. The respondent further contended that, there is no cause of action to file the petition. Hence, prayed for dismissing the main-petition.
6. To substantiate her case, the original-
petitioner/complainant herself has got examined as P.W.1 reiterating the entire averments of her main-petition in her chief- examination testimonial affidavit and further got examined 3 independent-witnesses as PWs.2 to 4 who have also endeavored to 11 Crl.Appeal No.185/2014 depose in favour of her case and placed her reliance-on the documentations marked at Exs.P.1 & P.62.
7. Per contra, to substantiate his case, the respondent/husband of the petitioner, himself has got examined as RW.1 and placed his reliance-on the documentations marked at Exs.R.1 to R.10.
8. Basing-on the material placed on record by the petitioner/complainant, the trial court has framed the points for it's consideration as under:
(1) Whether the petitioner proves that she is an 'aggrieved person' who has been in a 'domestic relationship' with the respondent?
(2) Whether the petitioner proves that she was subjected to domestic-violence by the respondent?
(3) Whether the petitioner is entitled to the reliefs sought-for?
(4) What order?
9. On hearing the arguments, the trial court has given the findings on the above said points raised for it's consideration, as under:
Point No.1 .. In the Negative.
Point No.2 .. In the Negative.
Point No.3 .. Petitioner is not entitled to
the reliefs sought-for.
Point No.4 .. As per final-order for the
following.
----------- and thereby dismissed.
12 Crl.Appeal No.185/2014
10. Being aggrieved by the impugned-order passed by the trial court, the appellant/original-petitioner before the trial court has preferred this appeal against the respondent who is the original-respondent before the trial court, on the following:
GROUNDS OF APPEAL
(a) The impugned-order under the appeal is against the law and records of the case.
(b) The impugned-order passed by the trial court is wholly erroneous, wrong and unsustainable under the law and the same is liable to be set-aside.
(c) The trial court has lost it's sight to take-into consideration regarding the evidence of the PWs.1 to 4 coupled-with Exs.P.1 to P.62, with respect to the respondent having sexually harassed and had intercourse against her will, by promising her that he would marry her and lured her through his sweet-
talks and coaxed her to have the sexual-intercourse and also use to take her to the farm-house situated at Pivalike in Kasargod Taluk, Kerala State, and also had the physical-relationship with her at the shared- household in Kasargod and Girinagar.
(d) The trial court has lost it's sight to consider the vital-
aspect that the respondent No.1 had taken Rs.41,00,000/- on the pretext of the marriage and joint-ownership of the super-specialty hospital at Girinagar in Bengaluru City.
(e) The trial court has lost it's sight to take-into consideration regarding the Chennammanakere Acchukattu police have filed the charge-sheet against 13 Crl.Appeal No.185/2014 the respondent No.1 for the alleged offences punishable U/Secs.406 & 420 of IPC.
(f) The trial court having ignored all these vital-aspects, has refused to pass the suitable protection-orders U/Sec.18, orders on shared-household U/Sec.19 and orders on maintenance U/Sec.22 of the Protection of Women from Domestic Violence Act, 2005 in Crl.Misc.No.56/2011.
Hence, prayed for allowing the appeal.
11. I have heard the arguments of both the learned counsels for the appellant/original-petitioner/complainant as-well-as the respondent/original-respondent.
12. Basing-on the material available on record and grounds of appeal, the points that arise for my consideration are:
(1) Whether the appellant/original-petitioner has established that she is an aggrieved-person being in domestic-relationship with the respondent No.1 under a shared-household and she was subjected to the domestic-violence by him?
(2) Whether the order of the trial court is
arbitrary, baseless, capricious, devoid of
merits, erroneous, frivolous and perverse
without being on the sound principles of law
and warrants for the interference by this
court?
(3) To what order?
14 Crl.Appeal No.185/2014
13. My findings on the above points are as under:
Point No.1 : In the Negative.
Point No.2 : In the Negative.
Point No.3 : As per the final-order, for the following:
REASONS
14. The status and ranking assigned in the trial court to the petitioner and respondent are being adopted and adhered-to in the present discussion for the purpose of brevity and convenience to avoid the confoundation and perplexity.
15. Point No's.1 & 2:- To avoid the reiteration of the material available in hand and to appreciate the evidence adduced before the trial court, in a better position, I hereby take-up these Point No's1 & 2 together admixingly for discussion.
16. It is the specific contention of the original-
petitioner/complainant that, the petitioner is in the profession of alternate medicine (Counseling) from the past 10 years. The respondent No.1 is a gastro enterology surgeon working in Bengaluru. The respondent No.2 is the wife of the respondent No.1. Since the petitioner was suffering from gastro enteritis, she was referred by Dr. Naveen Rao to the respondent No.1 to be a famous and efficient gastro enterology surgeon at Bengaluru, for treatment. The petitioner visited the Radhakrishna Multi-specialty Hospital at Bengaluru, where the respondent No.1 was visiting 15 Crl.Appeal No.185/2014 faculty and consulted the respondent No.1. The respondent No.1 recommended surgery for the problem of the petitioner. The petitioner wanted to consult her mother before surgery and get back to the respondent No.1 as- soon-as-possible. The respondent No.1 took the phone-number of the petitioner from the hospital- records and started sending SMS to the petitioner from 05.03.2007. The petitioner being a spinster till that day was lured by the soft-talk of the respondent. Few-days later, when the petitioner went-back to the respondent No.1 for further treatment, the respondent No.1 sent the sister of the petitioner who was accompanying her, out of the consultation-room for medical- examination and started misbehaving with her. The respondent No.1 hugged and kissed the petitioner and stated that he was an unmarried-doctor and would like to marry her. The petitioner at that time was residing at No.10/12, Vivekananda Nagar, Katriguppe Main Road, Vidyapeeta Circle, Bengaluru, and also practicing alternate medicine at Bengaluru. The respondent No.1 suddenly came to the residence of the petitioner on 30.03.2007 at about 5.30 p.m. in the evening. On that day, the respondent No.1 hugged and kissed the petitioner and had sexual- intercourse with the petitioner, on promising to marry her. Thereafter, the petitioner and the respondent No.1 started living as husband and wife in the said house till March 2008. The respondent No.1 use to visit the 16 Crl.Appeal No.185/2014 petitioner on a day-to-day basis use to have sexual-intercourse with the petitioner. On 06.02.2008 the petitioner underwent an operation in the hands of the respondent No.1 and all the hospital bills are paid by the petitioner.
The petitioner believed that the respondent No.1 would marry her and conceded to all the demand of the respondent No.1. The petitioner made lot of promises and also mooted an idea to open a super-specialty hospital at Bengaluru, jointly and would later get married and live together happily. Meanwhile, the petitioner got an offer to work in Mumbai in alternate medicine. The petitioner whenever use to visit Bengaluru to meet her professional-commitments, use to reside at Hotel Rajmahal. The respondent No.1 use to visit the petitioner in the said hotel and with his soft-talk use to have sexual-intercourse with the petitioner on the pretext that he would get married to her. At the instance of the respondent No.1, she transferred Rs.9,00,000/- to the account of the respondent No.1 on various dates and also paid cash of Rs.32,00,000/- to the respondent No.1, on the various occasions. The respondent No.1 on various occasions had sexual-intercourse with her on the promise of marriage and joint-ownership of the super-specialty hospital. The respondent No.1 after receiving the amount from the petitioner instead of starting a hospital at Bengaluru, has purchased agricultural-lands at Kotpadi village, 17 Crl.Appeal No.185/2014 Kumble, Kasargod Taluk, jointly in the name of himself and his wife on 14.05.2009 & 10.07.2009. The petitioner was shocked to know that the respondent No.1 was already married to the respondent No.2, but the respondent No.1 intentionally has deceived her by having sexual-intercourse on the pretext of marriage. At the request of the respondent No's.1 & 2, the petitioner has signed the sale-deeds as witness. The respondent No.1 also assured that, after the super-specialty hospital at Bengaluru, he would divorce his wife and get married to the petitioner.
The respondent No.2 met the petitioner in the month of May 2009 after the 1st registration and pleaded that her husband in- spite of being a married-man has not revealed the same to the petitioner and requested her to come and reside at the 1st floor of their residence at Girinagar, Bengaluru, in-stead of residing at Hotel Rajmahal or elsewhere during her visit to Bengaluru. The petitioner agreed and resided in the 1st floor of the said house from May 2009 to April 2010. While residing in the shared-household, the respondent No.1 started misbehaving with the petitioner and had sexual-intercourse whenever the 2nd respondent use to go out of the house on personal-works. The respondent No's.1 & 2 along- with the petitioner use to visit farmland situated at Kaipadi village, Kumble, Kasargod District, Kerala, and use to reside at the 18 Crl.Appeal No.185/2014 residence in the farm on several occasions in the shared- household. In July 2010, the respondent No's.1 & 2 came forward to re-convey the land purchased at Kasargod to the petitioner and her sister Mrs. Jamuna Satish Rai at an exorbitant rate of Rs.85,00,000/- in order to save their skin. The respondent No's.1 & 2 convinced her to enter-into an agreement of sale on 30.07.2010 in respect of the land situated at Kasargod. On 04.07.2010 a memo of compromise was also arrived in respect of the cheque bearing No.051485 for Rs.40,00,000/-, drawn on ICICI Bank, which was issued to the respondent No.1 by the petitioner. After signing the memo of compromise and agreement of sale, the respondent No's.1 & 2 turned hostile against the petitioner and ill- treated her verbally with foul and vulgar language and warned the petitioner to leave the shared-house at Girinagar, Bengaluru. The petitioner was thrown-out of the house at 10.00 p.m. in the 1st week of August 2010. The petitioner left to Mysuru and pursued her profession and started to be with her family.
The petitioner sent a legal-notice through her counsel on 12.11.2010 to the respondent No's.1 & 2. Said notice was replied through their advocate on 02.12.2010. The petitioner lodged a police-complaint with the Chennammanakere Acchukattu police station for the offences punishable U/Secs.354, 406 & 420 of IPC on 11.02.2011. The Chennammanakere Acchukattu police have 19 Crl.Appeal No.185/2014 registered the FIR in Cr.No.61/2011. The respondent No.1 has virtually ruined the life of the petitioner by exploiting her financially, physically and sexually in the shared-household at Girinagar, Bengaluru. With the above contentions, the petitioner has prayed for protection-order U/Sec.18, residence-order U/Sec.19, compensation under Sec.22 and maintenance of Rs.50,000/- per-month from the respondent No's.1 & 2.
17. To substantiate her contentions, the original- petitioner/complainant herself has got examined as P.W.1 reiterating the entire averments of her main-petition in her chief- examination testimonial affidavit and further got examined 3 independent-witnesses as PWs.2 to 4 who have also endeavored to depose in favour of her case and placed her reliance-on the documentations marked at Exs.P.1 & P.62, in which Ex.P.1 is the notice dated 12.11.2010, Ex.P.2 is the reply dated 24.11.2010, Ex.P.3 is the reply notice dated 02.12.2010, Ex.P.4 is the notice dated 03.01.2011, Ex.P.5 is the copies of First Information Report and complaint, Exs.P.6 to P.9 are the copies of bank-account, Ex.P.10 is the memo of compromise, Exs.P.11 & P.12 are the agreements dated 30.07.2010, Exs.P.13 to P.26 are the photographs, Ex.P.27 is the SMS extract, Ex.P.27(a) is the SMS extract and CD, Exs.P.28 to P.31 are the certified-copies of the sale-deeds, Exs.P.32 to P.37 are the deposit-receipts, Exs.P.38 to 20 Crl.Appeal No.185/2014 P.41 are the transfer of receipt-amounts, Exs.P.42 to P.53 are the photographs, Exs.P.54 & P.55 are the statements of the PW.1 and Exs.P.56 to P.62 are the photographs.
18. In response to the notices issued by the trial court, the respondent put-in his appearance before it through his learned counsel and filed the objections denying almost all the allegations made by the petitioner and further contended that, the petition is not maintainable under law since the petitioner is not an aggrieved-person and there was no domestic-relationship. The respondent contended that, for the first-time on 03.11.2007 the petitioner registered as outpatient at Apollo Hospital and sought appointment with the respondent. As she could not meet the respondent on that-day, she came to Radhakrishna Hospital in the evening and consulted the respondent for the first-time on 03.11.2007. The respondent advised the petitioner to undergo surgery after looking-into the petitioner's problem. On 06.02.2008 the petitioner underwent surgery at Radhakrishna Hospital in the hands of respondent. After she became well, she tried to meet the respondent frequently by saying that he has saved her from misery. The respondent gave deaf-ears to the submissions made by the petitioner. The petitioner met the respondent and his wife at their residence during the 1st week of July 2008 by obtaining address from the 3rd party sources. She further proposed that she 21 Crl.Appeal No.185/2014 would like to help them in starting a hospital at Bengaluru. In this regard, she has given a cheque bearing No.051485 for Rs.40,00,000/-, drawn on ICICI Bank, forcibly to the respondent. The respondent smelling something wrong has not encashed the said cheque. When the said cheque was not encashed, the petitioner has given another cheque drawn on self for Rs.40,00,000/- and also gave a letter to the Bank Manager to pay the cash to the respondent. Even, the said amount was not drawn by the respondent.
The respondent further contended that, the petitioner use to come to the residence of the respondent and because of sweat- words with all the inmates, a cordial-relationship with the family- members was created by the petitioner. At that point of time, the petitioner insisted for purchasing of agricultural-lands at the native-place of the respondent and took initiative to get certain lands, for which a portion of the consideration-amount shall be paid by her. When all the family-members of the respondents agreed for the proposal, certain lands at Pivalike village, Kasargod Taluk, were purchased and registered in the names of the respondent and his wife. Later, the petitioner started forcing the respondent to join her physically at various places. Since the respondent is married and leading a happy marital-life, he did-not heed to the demand of the petitioner. When the petitioner was 22 Crl.Appeal No.185/2014 creating flutters by indulging in-activities detrimental to the family- life of the respondent, both parties decided to put an end to all the property transactions between them, and a memo of compromise is entered on 04.07.2010. Again, the petitioner started troubling the respondent with one or the other reasons claiming her money paid for the purchase of land, an agreement of sale is executed by the respondent in presence of the advocate for the petitioner.
The respondent has further contended that, at no point of time, the respondent had occasion to indulge in the activity as stated in the petition. The respondent further contended that, except the doctor and patient relationship, there is no relationship of whatsoever nature between the petitioner and the respondent. The respondent has not made any assurances to the petitioner and there was no occasion to make such assurances as claimed in the petition. There was certain property transaction between the petitioner and the respondent. Even-after entering the memo of compromise, the petitioner has filed the petition to blackmail the respondent.
The respondent has contended that, the legal-notice dated 12.11.2010 was replied in detail on 03.01.2011, whereas, another reply-letter dated 08.01.2011 is not produced before the court by the petitioner. The SMS details are vague and are one-sided and fictitious. The petitioner is claiming the compensation- 23 Crl.Appeal No.185/2014 maintenance and joint-residence without any relationship and trying to harass the respondent in one or the other-way. The respondent further contended that, there is no cause of action to file the petition.
19. Per contra, to substantiate his case, the respondent/husband of the petitioner, himself has got examined as RW.1 and placed his reliance-on the documentations marked at Exs.R.1 to R.10, in which Ex.R.1 is the OPD bill, Ex.R.2 is the cheque dated 21.09.2008, Ex.R.3 is the letter, Ex.R.4 is the cheque dated 10.09.2008, Ex.R.5 is the letter, Ex.R.6 is the parties raaji- pathra, Ex.R.7 is the notice, Ex.R.8 is the postal-receipt, Ex.R.9 is the postal-acknowledgement and Ex.R.10 is the reply to the petitioner.
20. On marshalling the contentions of the complainant before the trial court, along-with the documents relied-upon by the P.W.1, it is crystal clear that, the original-petitioner/complainant has filed Crl.Misc.Petition No.56/2011 filed by the original- petitioner/complainant against the original-respondents before the trial court seeking for the reliefs of granting of maintenance amount of Rs.50,000/- per-month, the compensation of Rs.1,00,00,000/- towards the cruelty and harassment made to the appellant/original-petitioner mentally and physically, and to make separate arrangement for her stay, along-with restraining them 24 Crl.Appeal No.185/2014 (original-respondents) from causing any kind of domestic-violence against her.
21. Prior to harping-upon the discussion in respect of the merits of the case, it would be appropriate on the part of the instant court to take note-of a vital-aspect that during the lis pendence, the appellant/original-petitioner had filed an application U/Sec.391 of Cr.P.C. seeking permission to produce the bed-sheets before this court, urging the reasons therein that, out of Exs.P.1 to P.62 documentary-evidence placed on record before the trial court by the petitioner, the Exs.P.17 to P.20, P.25 & 26 are the photographs disclosing bed-sheets with semen-stained marks and pubic-hairs thereon. But, the said bed-sheets are not produced before the trial court inadvertently. It is further contended in the said application that the respondent No.1 had sexual-intercourse with the appellant/original-petitioner promising to marry her and also exploited her sexually, physically and mentally, whereas, the said bed-sheet being a material-object, needs to be sent to the FSL, Madiwala, Bengaluru, for further examination and expert's opinion and therefore, may be permitted to produce the said bed-sheets and record the further evidence or direct the trial court to take the further evidence in support of the case of the appellant/original- petitioner.
25 Crl.Appeal No.185/2014
22. As against the said application, the learned counsel for the respondent has filed his sturdy-objections resisting the entire contents of the said application of the appellant/original-petitioner and contended that the appeal having been filed on 10.03.2014, the said application has been filed after lapse of 1½ years only with an ulterior-motive to fill-up the lacunae/gap, whereas, if really the said alleged bed-sheets were to be such vital material-objects, nothing prevented the appellant/original-petitioner to produce the same before the learned Trial Court though the matter was argued before the trial court on merits and therefore, it cannot be entertained at this stage and thereby prayed to dismiss the said application filed U/Sec.391 of Cr.P.C.
23. Having heard both the sides, this court had posted the case for orders on the said application U/Sec.391 of Cr.P.C. But, later-on, while preparing for the dictation of the orders of the said application U/Sec.391 of Cr.P.C., this court came to a particular conclusion to consider the said application to decide it along-with the case to avoid the conflicting observations which are likely to have the adverse effect in one or the other manner on the merits of the case, if the said application filed U/Sec.391 of Cr.P.C. alone is considered and disposed-of and accordingly, ordered on 05.03.2016.
26 Crl.Appeal No.185/2014
24. In view of the same, the said application is also taken-up for disposal along-with the main-appeal hereunder.
25. It would be appropriate to discuss the entire material available on record in an absolute way in connection with the said application U/Sec.391 of Cr.P.C. as-well-as the merits of the case together, to avoid the unnecessary reiteration of the discussion.
26. In view of the same, at the very outset, admittedly, the petitioner is not a legally wedded-wife of the respondent No.1, whereas, she has claimed herself having resided with the respondent No.1 in a shared-household with a relationship between themselves in the nature of a married-couple, only basing- on the alleged promise by the respondent No.1 to the petitioner that he would marry her and thereby, coerced her and had the sexual-intercourse against the will and wish by luring her through his sweet and soft-talks.
27. It is significant to note that, admittedly, the instant petitioner had filed the Crl.Misc.No.56/2011 on the file of MMTC - V, Bengaluru, U/Sec.12 of the Protection of Women from Domestic Violence Act, 2005, seeking for the reliefs U/Secs.18, 19 & 22 of the Protection of Women from Domestic Violence Act, 2005. Having been dismissed the said petition on merits by the said trial court, the instant appeal having been directed by the petitioner, it is incumbent-upon this court to look-into as to whether she has 27 Crl.Appeal No.185/2014 established the requisite ingredients of Section 2(a) which deals with aggrieved-person, Sec.2(f) which deals with domestic- relationship and Sec.2(s) which deals with shared-household of the Protection of Women from Domestic Violence Act, 2005, to allege and make-out her case under the provisions of the said Protection of Women from Domestic Violence Act, 2005 to claim the various reliefs as sought-for in her main-petition before the trial court.
28. It is pertinent to note that, undoubtedly, the respondent is a medico doctor by profession and according to the petitioner's case, originally, the petitioner was a patient of the respondent No.1 and in the guise of the said doctor and patient's relationship, the respondent No.1 developed the intimacy with her and sexually abused and harassed her by having the sexual-intercourse by way of luring and coaxing her with his smooth and soft-words and both stayed in a shared-household under a single-roof with the domestic-relationship.
29. Against all these particular allegations made by the petitioner against him, the respondent No.1 has fatally denied except the relationship between himself and herself as doctor and patient.
30. Therefore, it would be appropriate to focus the light on the legal-proposition at the very threshold, at this point of juncture.
28 Crl.Appeal No.185/2014
31. Therefore, as per the provisions of Section 2(a) of the Protection of Women from Domestic Violence Act, 2005 which deals with the aggrieved-person, 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.
32. According to Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 - 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 family-members living together as a joint-family.
33. As per the well-settled principle of precedent law, reported in 2010 AIR SCW 6731, in a case between D. Velusamy Vs. D. Patchaimmal (relevant-paras 33 to 35), in which their Lordships have held that, a 'relationship in the nature of marriage' is akin to a common law marriage, which requires that although not being formally married; the couple must held themselves out to society as being akin to spouses; there must be a legal age to marry; they must be otherwise qualified to enter-into a legal marriage, including being unmarried; they must have voluntarily cohabited and held themselves out of the world as being akin to 29 Crl.Appeal No.185/2014 spouses for a significant period of time; and they must have lived together in a 'shared-household' as defined U/Sec.2(s) of the Act. It is also observed that, merely spending weekends together or a one- night stand would not make it a 'domestic-relationship', whereas, to get the benefit of the Protection of Women from Domestic Violence Act, 2005, the said conditions must be satisfied and established by way of the evidence, whereas, if a man has a 'keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant, it would not be a 'relationship in the nature of marriage' and therefore, the court in the garb of interpretation cannot change the language of the statute, more-particularly, regarding the Parliament having used the expression 'relationship in the nature of marriage' and not 'live in the relationship'.
34. As per Section 2(s) of the said Protection of Women from Domestic Violence Act, 2005 - shared-household means, a household where the person aggrieved lives or at any stage as if in a domestic-relationship either singally or along-with the respondent and includes such a household whether owned or tenanted having jointly by the aggrieved-person and the respondent or by either of them, in respect of which either the aggrieved-person or the respondent or both jointly or singally have any right, title, interest or equity therein.
30 Crl.Appeal No.185/2014
35. On overall perusal of the status and proposition of law as culled-out herein before supra, it clearly indicates that the aggrieved-person should live together with the respondent under a single-roof as a shared-household with the domestic-relationship as in the nature of the marriage and etc.
36. In the instant case in hand, admittedly, the petitioner is not a legally wedded-wife of the respondent No.1. Now, her case needs to be viewed and evaluated through the ingredients of a relationship in the nature of marriage.
37. The petitioner having alleged against the respondent No.1 that he had promised her that he would marry her pretending himself as a bachelor and use to have the sexual-intercourse often with her against her will and wish by visiting to her house and also later-on taking her to the farm-house in a village of Kasargod Taluk, Kerala District, and also in the 1st floor of the house of the respondent No.1.
38. According to the settled law by the Hon'ble Supreme Court of India, mere spending a night with the alleged aggrieved- person or the weekends together, it would not make as a domestic- relationship between them and even live in relationship will not amount to a relationship in the nature of marriage to get the benefit of the said Act of 2005.
31 Crl.Appeal No.185/2014
39. Though the petitioner herself having got examined as PW.1 has endeavored to depose in favour of her case, PWs.2 to 4 being the witnesses in favour of the petitioner have clearly stated in their respective cross-examinations regarding they having seen a very meager-amount of time in terms of hours regarding the petitioner and the respondent No.1 being together and visited the house of the petitioner at Katriguppe and also Kasargod. It is significant to note that, merely being the petitioner and the respondent No.1 for a very meager-amount of time in terms of the hours at-times freely, does-not tantamount to be as having the domestic-relationship between themselves to constitute it as the relationship in the nature of marriage.
40. In addition to the same, unfortunately, the PW.4 who is none-other than the driver of the petitioner, has stated in his cross-examination that, the respondent No.1 had driven-out the petitioner from his house on the same-day, on which the petitioner had come to the respondent No.1's house. It is significant to note that, though it is an allegation of the petitioner against the respondent No.1 that she had lived and stayed in the 1st floor of the house of the respondent No.1, by virtue of the said version of the PW.4, the said contention of the petitioner that she had lived and stayed in the 1st floor of the house of the respondent No.1 stands absolutely falsified.
32 Crl.Appeal No.185/2014
41. It is no doubt, the petitioner has placed her reliance on the colored-photographs which are marked as per Exs.P.13 to P.26 & P.42 to P.62, in which the Exs.P.43 & P.45 to P.47 disclose the portrait of the petitioner along-with the relatives of the respondent No.1, whereas, Exs.P.42, P.43 & P.48 to P.53 do-not disclose the portrait of the petitioner, whereas, the respondent No.1 and his wife with the relatives are seen. The petitioner is appearing in Exs.P.13 to P.16 along-with the portraits of the relatives of the respondent No.1. But, no single-photograph discloses regarding the instant respondent No.1 and the petitioner together having given pose in the said photographs. Therefore, the intensity of the said photographs in connection with the case of the petitioner certainly stands reduced-down, wherefore, the said colored- photographs do-not come to the aid of the petitioner in any way independently.
42. Apart from the same, the petitioner has placed her reliance on Ex.P.27 which is the SMS details extract stated to have been sent by the respondent No.1 to the petitioner, which includes the CD. But, they are of no consequence in favour of the petitioner because, they are absolutely not deserving to adhere with any kind of legal-sanctity in view of the absence of the certification-letter from the service-provider or any other authority concerned in connection with the Ex.P.27.
33 Crl.Appeal No.185/2014
43. Exs.P.17 to P.26 are the colored-photographs of the bed- sheets which are stated to be the semen-stained with hairs during the intercourse having allegedly had by the respondent No.1 with the petitioner against her will and wish by luring her with his soft and sweet-words. It is significant to note that, at the very outset, there is no any original either CD or pen-drive in case if the said Exs.P.17 to P.26 are digitalized-photographs or their negatives, which are mandatorily required to be produced to consider the said Exs.P.17 to P.26.
44. In addition to the same, if really there was any genuinity in the contention of the petitioner with regard to the sexual- intercourse by the respondent No.1 with the petitioner against her will and wish, there was no bar for her to produce the alleged bed- sheets, which are claimed as intended to be produced under the vide application filed U/Sec.391 of Cr.P.C., which is pending disposal on the file of this court herein, which is considered for disposal under the instant discussion. The said application has been robustly resisted by the learned counsel for the respondent No.1 on the vital-ground that the said application has been filed by the petitioner only to fill-up the lacunae/gap.
45. It is significant to note that, the trial court has discussed in connection with the said colored-photographs marked as per Exs.P.17 to P.26 in it's order at Para No.18 in the right perspective 34 Crl.Appeal No.185/2014 holding that, merely basing-on the said colored-photographs marked at Exs.P.17 to P.26, it cannot be imagined regarding the presence of the bed-sheets containing the semen with hairs of the respondent No.1 and therefore, in view of the major discrepancies and infirmities prevailing in the said SMS details-list prevailing with the suspicious circumstances, they are of no consequence in favour of the petitioner with any kind of significance against the respondent/s.
46. As rightly pointed-out by the learned counsel for the respondent No.1, merely basing-on such observation made by the trial court in it's order, now the petitioner intends to fill-up the lacunae/gap at this highly belated-stage with an ulterior-motive which cannot be entertained at this stage in view of the settled proposition of law of the Hon'ble Supreme Court of India that the courts must exercise the powers of discretion U/Sec.391 of Cr.P.C. cautiously. In the instant case in hand, on the face of record, it appears that the said application filed U/Sec.391 of Cr.P.C. by the petitioner only on a reason that, inadvertently, the said bed-sheets are not produced before the trial court, appearing to be merely formal in nature, appears to be as the consequence of the after- thought without the substantial genuinity. Therefore, the said application filed U/Sec.391 of Cr.P.C. by the petitioner does-not prevail with any substantial dominance with justifiable 35 Crl.Appeal No.185/2014 materialistic reason to consider and bestow the relief claimed there-in favour of the petitioner at this highly belated-stage.
47. It is no doubt, there is an allegation made by the petitioner against the respondent No.1 with respect to the money- transaction, which is not in dispute except the alleged relationship as urged by the petitioner in her main-petition. But, the alleged domestic-relationship between the petitioner and the respondent No.1 with their stay under a single-roof as a shared-household, is not jetting-out from the material placed by the petitioner's-side; meaning-thereby, the petitioner has, in overall failed to establish her domestic-relationship with the respondent No.1 in the nature of the marriage and also their alleged stay together in a shared- household. When that is so, the question of status of the petitioner being as an aggrieved-person intra-vires the scope of Section 2(a) of the Protection of Women from Domestic Violence Act, 2005 does- not arise at-all.
48. Similarly, when there is absolute lack of substantial chunk of material from the petitioner's-side to establish all the ingredients which are put-forth by the Hon'ble Apex Court of India in it's precedent law by way of judicial pronouncement as highlighted herein before supra under a citation reported in 2010 AIR SCW 6731 (relevant-paras 33 to 35), in a case between D. Velusamy Vs. D. Patchaimmal and the provisions of Sections 2(a), 36 Crl.Appeal No.185/2014 2(f) & 2(s), ultimately the urge endeavored to put-forth by the petitioner against the respondent No.1 to seek the reliefs as sought-for in the main-petition before the trial court as-well-as before the instant court, do-not come within the intra-vires ambitual purview of the provisions of the Protection of Women from Domestic Violence Act, 2005.
49. To put-into simple-terms, in overall the said application filed by the petitioner U/Sec.391 of Cr.P.C. seeking permission to produce the bed-sheets does-not deserve to be allowed, wherefore, it certainly hereby stands as dismissed.
50. Adding to the same, the petitioner having utterly failed to establish regarding her alleged status as aggrieved-person being in an alleged domestic-relationship with the respondent No.1 with the alleged stay of herself and the respondent No.1 together under a single-roof as a shared-household and the alleged domestic- violence by the respondent No.1, the trial court has discussed at much-length in it's order at Para No's.13 to 35 in the right perspective on the sound principles of law without there-being any kind of grave- infirmities, discrepancies and errors, in respect of which the instant court also being in agreement of the same, the trial court's order does-not warrant the interference by this court.
51. With these observations, I am inclined to answer the point No's.1 & 2 in the 'Negative'.
37 Crl.Appeal No.185/2014
52. Point No.3:- For the reasons discussed at much-length while answering the point No's.1 & 2 in the Negative, I am inclined to proceed to pass the following:
O R D E R The criminal-appeal preferred by the appellant/original- petitioner against the respondent/original-respondent U/Sec.29 of the Protection of Women from Domestic Violence Act, 2005, against the impugned-order passed by the Court of MMTC-V, Bengaluru, in Crl.Misc.No.56/2011, dated 10.02.2014, is hereby dismissed by confirming and upholding the trial court order.
Send the entire LCRs to the trial court, along-with the copy of this judgment immediately, without causing any delay.
(Dictated to the Judgment Writer, transcribed and typed by him and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 1st day of August, 2016) (G.D.Mahavarkar) LI Addl. City Civil & Sessions Judge, Bengaluru City.38 Crl.Appeal No.185/2014
(Judgment pronounced in the open-court. Operative-portion of the same is extracted as under) ORDER The criminal-appeal preferred by the appellant/original-petitioner against the respondent/original-
respondent U/Sec.29 of the Protection of Women from Domestic Violence Act, 2005, against the impugned-order passed by the Court of MMTC-V, Bengaluru, in Crl.Misc.No.56/2011, dated 10.02.2014, is hereby dismissed by confirming and upholding the trial court order. Send the entire LCRs to the trial court, along-with the copy of this judgment immediately, without causing any delay. LI Addl. City Civil & Sessions Judge, Bengaluru City.