Bangalore District Court
Karthik.R vs S/O Ranganatha on 10 March, 2022
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 10 th day of March 2022
:PRESENT:
Sri.Sabappa, B.Com., LLB (Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
CRIMINAL APPEAL No.181/2019
APPELLANT/ Karthik.R
RESPONDENT : S/o Ranganatha,
Aged about 29 years,
Residing at No.63/2, S.R.Estate,
Srinivasanagara, Sunkadakatte, Bengaluru
- 560 091.
(By Sri.Y.D.Shivashankara,
Advocate)
- Versus -
RESPONDENT/ : Smt.Asha Rani
PETITIONER W/o Karthik.R,
Aged about 28 years,
Residing No.1100, 1st Cross,
5th Main, Lakshmana Nagar,
Hegganahalli Cross,
Bengaluru - 560 058.
(By Sri.C.P.P., Advocate)
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JUDGMENT
The appellant has preferred this appeal under Sec.29 of the Protection of Women from Domestic Violence Act, 2005 (henceforth referred as the "Act") challenging the orders passed by the learned Metropolitan Magistrate, Traffic Court-V, Bengaluru, in Crl.Mis.No.159/2013 dated 26-07-2018, whereby the learned trial Judge has allowed the petition filed by the respondent herein under Sec.12 of the Protection of Women from Domestic Violence Act, 2005 and directed the appellant herein to pay a sum of Rs.10 lakhs towards compensation to the petitioner therein.
2. The appellant is the respondent and the respondent herein is the petitioner before the trial court. For the sake of convenience, the parties are assigned the same rank as given to them before the trial court.
3. Essential material facts leading to this appeal are as follows :-
It is the case of the appellant that the marriage between the appellant and respondent was solemnized on 24-03-2011 at appellant/respondent's house as per Hindu rites and customs. After the marriage, the respondent resided with the appellant at her matrimonial house for a period of 3 months, thereafter appellant and his mother demanded the respondent to bring dowry of Rs.1 lakh or 3 Crl.Apl.181/2019 to bring ¼ kg gold, by giving mental and physical torture to her.
Their relationship was good for 3 months thereafter the appellant used to come to house by consuming alcohol and harass the respondent by demanding dowry. The appellant and his mother assaulted and abused her in filthy language and to get out of their house and hence the respondent on 10-06-2011 approached Kalasipalya Police Station and lodged a complaint against the appellant and his mother for the offences punishable under Sec.498(A) r/w Sec.34 of I.P.C. and the same is pending for adjudication. The appellant is the only son to his parents and he is having immovable property bearing No.9 at Hegganahalli Cross Bus Stop, Bengaluru, out of which the appellant and his family is earning rental income of Rs.50,000/- to Rs.60,000/- per month, apart from that he is also running a tour travel business and has a finance in the name and style as Sri Ranga Finance ®. The appellant has deserted her and hence she has suffered mental and physical harassment and she has no one to take care and also has no source of income to continue her further studies. The appellant is having an illicit relationship with one Sruthi and they have a male child out of the said relationship. Hence, sought for allowing the said petition.
4. The appellant has put in his appearance before the trial court through a counsel and has filed his objections. In the objections, the appellant denied all the allegations made by the respondent but admitted his marriage with the respondent. Further 4 Crl.Apl.181/2019 contended that he met one Sruthi in dance class and both of them started to love each other, but his parents and Sruthi's parents opposed their marriage, hence with the consent of the said girl, they went to Davanagere and their marriage was solemnized on 16-05- 2009 at Chamundeshwari Temple, Davanagere in presence of their friends as per Hindu Rites and customs and thereafter they resided in a rented house at Chikkamagaluru. The appellant has denied the all other allegations made by the respondent. The Trial Court on considering the petition, passed order on 26.07.2018 directing the appellant to pay Rs.10,00,000/- as compensation to the respondent within 3 months from the date of the order.
5. Being aggrieved by the said order the appellant preferred this appeal and contended that, the Magistrate without collecting any report of domestic incident from the Protection Officer passed an order under the Act against the appellant. The said order is arbitrary and same is bad in law. The parties are living separately and no incident of domestic violence has been reported after the date of separation. The respondent failed to prove the allegation of domestic violence against the appellant. The respondent failed to prove the income of the appellant before the Magistrate. The appellant has married one Shruthi on 16.05.2009 and leading marital life with her. The marriage of the appellant and respondent was fixed by the grandparents of the appellant in his absence. There is no consent for the marriage between the appellant and the respondent.
5 Crl.Apl.181/2019 Hence, the said marriage is not valid in the eye of law. The evidence of respondent clearly shows that appellant has not lead any marital life with the respondent after the marriage. Under such circumstances, the question of domestic violence against the respondent does not arise at all. The Magistrate has passed on order for payment of compensation in favour of respondent without there being any material on record. The appellant submits that viewed from any angle the impugned order is opposed to law, facts and probabilities of the case. Hence, he prayed to set-aside the order passed by the Trial Court.
6. Appearance of respondent and the LCR has been secured.
7. Heard the counsel for parties and perused the material available on record.
8. In the light of above materials and contentions of parties, following points fall for decision making of this Court:-
1. Whether the appellant has made out grounds to allow the appeal and set-aside the impugned order of the Trial Court?
2. What Order?
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9. On appreciation of the trial court record i.e., the oral and documentary evidence and also on appreciation of the reasons assigned by the trial court in its judgment, my findings to the above said points are as follows:
Point No.1 : In the Affirmative,
Point No.2 : As per final order
For the following ;
REASONS
10. POINT No.1: The Trial Court on considering the petition, passed order on 26.07.2018 directing the respondent to pay Rs.10,00,000/- as compensation to the petitioner within 3 months from the date of the order. Being aggrieved by the said order the appellant has preferred the present appeal and contends that, as per the evidence of respondent, the marriage of the respondent with the appellant was taken place on 24.03.2011. Immediately, after the marriage he left the house on 31.03.2011. Thereafter, he returned to his house after 2½ months. By the time the respondent has filed complaint before the Jurisdictional police for offence punishable U/Sec.498(A) IPC r/w Sec.3 and 4 of the D.V.Act.
11. The appellant filed memo along with certified copy of the judgment passed by the 39th ACMM, Bangalore on 06.02.2021. It reveals that the respondent lodged the complaint against the 7 Crl.Apl.181/2019 appellant for the offences punishable under Sec.498(A) r/w 34 of IPC and Sec.3 and 4 of the D.P.Act. After contesting the case the ACMM Court has acquitted the appellant and his mother for the offences punishable under Sec.498(A) r/w 34 of IPC and Sec.3 and 4 of the D.P.Act.
12. On going through the trial court judgment at para 10 it is clearly held that, "In the present petition, firstly, the petitioner has prayed for protection order, however from the date of separation, parties are living separately and no incident of domestic violence has been reported after the date of separation. Hence she is not entitled to the said relief." This observation is supported the documents relied by the appellant i.e., certified copy of the judgment passed in C.C.10130/2012. Therefore, the respondent is not able to made out any grounds that the appellant and his family members have made any act of domestic violence against the respondent.
13. On over all considering the facts and circumstances of the case and discussions made by the trial Court, this appellate Court feels to refer Sec.12 of the Protection of Women from Domestic Violence Act. It is clearly mentioned that 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.
8 Crl.Apl.181/2019 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.
2) The relief sought for under sub-section(1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent.
Herein in this case on perusal of the trial Court records, the respondent has filed petition on 29.07.2013 at 3.35 p.m. On the same day it is mentioned in the order sheet that "petitioner present. Issue notice of I.A and main petition through P.O by RPAD returnable by 13.08.2013". The office has put a note that "notice to respondent through RPAD issued and through CDPO not issued since sufficient true copies not furnished." On 13.08.2013 Sri.Y.S.S. files vakalath for respondent. Both parties present. Counsel prays time for objection. Hence case adjourned.
14. At the same time, this court referred Sec.13 of the Protection of Women from Domestic Violence Act, wherein it is mentioned that "a notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate 9 Crl.Apl.181/2019 within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt."
15. Here in this case, there is no such notice issued by the Magistrate through the Protection Officer to the appellant. Moreover, the respondent/petitioner is not able to furnish sufficient true copies of the petition to the Court to issue notice to the Protection Officer. It clearly depicts in the note mentioned by the office(bench). Moreover, the trial court has to issue notice and fix the date of two days for return of the notice. Here in this case the trial court issued notice to the respondent and Protection Officer on 29.07.2013. But the case is posted on 13.08.2013. This clearly indicates that the trial court has not followed the Mandatory provisions under Sec.13 of the Protection of Women from Domestic Violence Act. At the time of issuance of notice to the respondent or Protection Officer the trial Court has to give suitable reasons to fix the date of hearing. Here in this case there is no such reasons assigned by the trial Court in the order sheet. Thereby, the trial Court has not complied the Sec.12 and 13 of the Protection of Women from Domestic Violence Act. Moreover, in Sec.12 it is clearly mentioned that, the Magistrate has to received the domestic incident report from the Protection Officer or the service provider in respect of the incident and proceed with 10 Crl.Apl.181/2019 the case. There is no such report received by the Magistrate before going to pass the order.
16. On perusal of the entire records submitted by the trial court, it never discloses that the trial court has received the report from the Protection Officer or the service provider. It is gross negligence on the part of the trial Court. Moreover, before going to commence the evidence of the parties it is the duty of the trial court to receive the report from the Protection Officer. There is no such report found in the record. Thereby, the appellate Court come to the conclusion that it is not proper to discuss in detail regarding evidence and document relied by the parties in detail. It is pertinent to note that once the trial court has not complied the mandatory provisions of Sec.12 of the Protection of Women from Domestic Violence Act, it is not proper to discuss regarding the merits of the case. At this juncture, this Court feels that, it is better to remand back the matter to the trial court to comply the Sec.12 and 13 of the Protection of Women from Domestic Violence Act. The entire proceedings conducted by the trial court is not in accordance with law. It is first and foremost duty of the trial court to receive the report from the Protection Officer and assess the same that the incident took place between the petitioner and respondent, it is supported with materials. In view of the report submitted by the Protection 11 Crl.Apl.181/2019 Officer, then the trial court has to proceed with the case for recording the evidence and dispose off the case on merits.
17. Here in this case the trial court has committed grave error in order to obtain the report from the Protection Office. It is mandatory on the part of the trial Court to receive such report from the Protection Officer. Therefore, at this juncture I am of the opinion that it is not proper to discuss in detail regarding merits of the case. There, I am of the opinion that the trial court has committed error in following the provisions of Sec.12 and 13 of the Protection of Women from Domestic Violence Act. Therefore, it requires to remand back the matter to the trial Court. Hence, I answer point No.1 in the AFFIRMATIVE.
18. POINT NO.2: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER The Criminal Appeal filed by the appellant under Sec.29 of the Protection of Women from Domestic Violence Act, 2005, is hereby allowed.
The order passed by the learned M.M.T.C-V, Bangalore, in Crl.Misc.159/2013 dated 26.07.2018, is hereby set-aside.
12 Crl.Apl.181/2019 It is further ordered that the trial court is directed to issue notice to the Protection Officer of the concerned area to obtain the report and proceed with the case in accordance with law.
No order as to cost.
Send a copy of this judgment to the trial court, forthwith.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 10 th day of March, 2022) (Sabappa) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
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JUDGMENT PRONOUNCED IN THE OPEN
COURT, VIDE SEPARATE ORDER
The Criminal Appeal filed by the
14 Crl.Apl.181/2019
appellant under Sec.29 of the Protection of Women from Domestic Violence Act, 2005, is hereby allowed.
The order passed by the learned M.M.T.C-V, Bangalore, in Crl.Misc.159/2013 dated 26.07.2018, is hereby set-aside.
It is further ordered that the trial court is directed to issue notice to the Protection Officer of the concerned area to obtain the report and proceed with the case in accordance with law.
No order as to cost.
Send a copy of this judgment to the trial court, forthwith.
LXVIII A.C.C & S.J, Bengaluru City.
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