Bangalore District Court
Sri. Sunil Kumar.R vs Smt.Savithri.B.E on 12 April, 2023
IN THE COURT OF THE LVIII ADDL.CITY CIVIL AND
SESSIONS JUDGE (CCH-59), BENGALURU CITY.
Dated this the 12th day of April 2023
PRESENT
Sri.N.Krishnaiah. B.Sc., LL.B.,
LVIII Addl. City Civil & Sessions Judge (CCH-59),
Bengaluru.
: CRIMINAL APPEAL NO.1283/2022:
APPELLANTS : 1. Sri. Sunil Kumar.R,
S/o Late Ramesh.V.C,
Aged about 30 years,
2. Smt.Yellamma,
W/o Late Ramesh.V.C,
Aged about 58 years,
Both are residents of
C/o Krishnamurthy,
Near Water Tank,
BHEL Layout, Pattanagere,
R.R.Nagar,
Bengaluru - 560 098.
(By Sri.B.S., Advocate)
-V/S-
RESPONDENTS: 1. Smt.Savithri.B.E.,
W/o Sunil Kumar.R,
Aged about 37 years,
2. Masterll Tejas.S.,
2 Crl.Apl.No.1283/2022
S/o Sunil Kumar.R,
Aged about 05 years,
Since he is minor
Represented by his
Natural mother petitioner No.1,
Both are residing at No.13,
Gokula Nilaya, 7th Cross,
Gowdanapalya,
Subramanyapura Post,
Bengaluru - 560 061.
(By Sri. A.K., Advocate)
JUDGMENT :
This is a respondent's appeal filed under section 29 of the Protection of Women from Domestic Violence Act, challenging the correctness, legality and propriety of the exparte order of interim maintenance dated 04.02.2020 in favour of petitioner and to set aside the said order by dismissing I.A.No.1 with costs by allowing this appeal, in the ends of justice.
2. The respondents herein, who are petitioners before the trial court have filed a petition under section 12 3 Crl.Apl.No.1283/2022 of the Protection of Woman from Domestic Violence Act against these petitioners/respondents seeking various reliefs as the respondents have committed act of domestic violence against them. Along with the main petition, they have also maintained an application under section 23(2) of D.V.Act seeking to pass an exparte order of maintenance against this first appellant/respondent No.1. The learned Magistrate by considering the prima facie materials on record has awarded Rs.5,000/- per month against the first appellant/husband by impugned order dated 04.02.2020 and ordered to issue notice to the respondents.
3. Being aggrieved by the said order, the appellants/ respondents herein have preferred this appeal among the following grounds:
1. The impugned order passed by the learned Magistrate is illegal, perverse and the same is liable to be set aside in lemini.
2. Absolutely, there is no materials placed by his wife/petitioner No.1 to prove any such domestic 4 Crl.Apl.No.1283/2022 violence committed by them. His wife/first petitioner is getting more income i.e. Rs.25,000/-
per month, then his income. Though this first petitioner/first respondent is ready to take custody of child, but the petitioners themselves have not been allowed him. When the first petitioner/wife herself has economically capable to maintain herself and the child, she is not entitled for interim maintenance.
3. The learned Magistrate without considering the materials on record, passed an interim order, which is highly arbitrary. He is unable to pay the arrears of maintenance of 33 months as he has no sufficient means. Viewed from any angle, the order passed by the learned Magistrate is not sustainable and the same is deserves to be set aside at the hands of this court.
4. After presenting this appeal, the same was numbered as Crl.Appeal.No.1283/2022 by the Hon'ble Principal City Civil and Sessions Judge and made over the same to this court, for disposal in accordance with law. 5 Crl.Apl.No.1283/2022
5. As, there is a delay in preferring this appeal, the appellants/respondents have also filed an application under section 5 of Limitation Act seeking to condone the delay of 358 days. In support of this application, the first appellant/first respondent has sworn to an affidavit and contended that, he himself and his mother/second appellant were not in good health condition. During Pandemic Covid- 19 period, he was also Covid positive patient. Accordingly, he could not contact his counsel to prepare this appeal. The delay caused is bonafide one and not intentional. Hence, he requests to allow this appeal, in the ends of justice.
6. In response to the notice, the respondents/petitioners appeared before this court through their counsel and orally opposed to allow this application and also appeal.
7. Since, the petitioner himself has produced the certified copies of the entire record, called for record from 6 Crl.Apl.No.1283/2022 the trial court is dispensed with and hence the matter was posted for arguments and also on I.As.
8. The learned counsel for the appellants during the course of his arguments has submitted that, since the appellants/respondents were suffering from ill health and also due to financial problem, they could not prefer this appeal in time. The delay caused is bonafide one and not intentional. They are having good case on merit. Accordingly, the delay is to be condoned.
9. He has further submitted that, though the respondents/petitioners have not prima facie established any such domestic violence, but, the learned Magistrate has wrongly passed the impugned order. The first respondent/first petitioner-wife herself is getting more income than her husband, then how she is entitled for maintenance as prayed for in the application. The learned trial judge without giving an opportunity to these 7 Crl.Apl.No.1283/2022 appellants, passed an exparte order and hence, the same is not sustainable under law. Hence, he requests to allow this appeal and set aside the impugned order, in the ends of justice.
10. On the contrary, the learned counsel for the respondents/petitioners has vehemently argued that except a vague grounds, no proper reasons assigned for the delay caused in preferring this appeal. This first appellant being husband has committed an act of domestic violence and he has completely neglected his wife and minor child. Accordingly, the learned Magistrate by considering the prima facie materials on record, passed the impugned order. After passing the said order, these appellants appeared before the trial court and filed objections and the matter was heard on I.A.No..1 and posted for orders. When such being the case, this appeal preferred by these appellants itself is not maintainable and the same is deserves to be dismissed, in the ends of justice. 8 Crl.Apl.No.1283/2022
11. In view of the aforesaid rival submissions made by both the parties and the grounds urged in this appeal, the following points that would arise for my consideration are:-
1. Whether the appellants have made out sufficient grounds to condone the delay in preferring this appeal?
2. Whether the learned trial judge has committed any error in passing an exparte order on the interim application?
3. Whether the impugned order is suffers from any legal infirmities and the same is required to be set aside?
4. What order?
12. I have heard the arguments of both the sides and perused the records.
13. My findings on the aforesaid points are as follows:-
POINT NO.1 - In the Affirmative .
POINT NO.2 - In the Negative.
POINT NO.3 - In the Negative.9 Crl.Apl.No.1283/2022
POINT NO.4 - As per final order for the following:-
: REASONS:
14. POINT NO.1: Admittedly, there is a delay of 358 days in preferring this appeal. The first appellant in his affidavit filed along with this application has clearly stated that, he himself and his mother were suffering from ill health during the Pandemic Covid-19, he was suffering from Covid positive. He was also suffering from financial problems. Accordingly, there is a delay in preferring this appeal. Though the respondents have generally denied the reasons assigned by the appellants in their affidavits, but they have not filed any counter affidavit by denying the reasons assigned by these appellants. Therefore, the reasons assigned by the appellants is bonafide one and not intentional. If the delay is condoned and an opportunity is given to these appellants to address the arguments on merit, absolutely no prejudice would be caused to these 10 Crl.Apl.No.1283/2022 respondents. Hence, the appellants have made out sufficient cause to condone the delay as prayed for in this application. In view of the above reasons, I answer point No.1 in Affirmative.
15. POINT NOS.2 AND 3: Since these points are interlinked, with each other, they are taken up together, for discussion, in order to avoid repetition of facts and evidence.
16. In respect of merit of this appeal is concerned, it is not in dispute that, this first respondent herein is a legally wedded wife of first appellant and second appellant is the mother of first appellant. The second respondent is a minor son of first appellant and first respondent herein. So, absolutely, there is no dispute about the relationship between the parties.
17. No doubt as submitted by the learned counsel for the respondents, the appellants herein have disputed the 11 Crl.Apl.No.1283/2022 allegation of any such domestic violence committed by them against these respondents herein. But, they have mainly attacked the impugned order on the major ground that his wife/first respondent is getting more salary than him. Though he has not committed any such domestic violence, the learned Magistrate without considering the same, passed an exparte interim maintenance order without hearing. On this ground, the impugned order is not sustainable under law and the same is required to be set aside.
18. But, as rightly submitted by the learned counsel for the respondents herein, the impugned order pased by the learned Magistrate is an exparte order before appearing by these respondents. The provision of section 23(2) of D.V.Act clearly provides to pass an exparte interim order, if it is satisfied prima facie, there is domestic violence against them. The first respondent/wife in her affidavit and also in her main petition has clearly pleaded about an act of 12 Crl.Apl.No.1283/2022 domestic violence and they were neglected to maintain. Therefore, being satisfied with the prima facie case, the learned Magistrate passed the impugned order. So, admittedly, at the time of passing the said order, there is no material to show that, this first respondent/wife is getting more salary than her husband. When such being the case, after appearance before the trial court, these appellants can file objections and they would have produce documents and contest the application. Instead of contesting the said application, they have approached this court by raising the grounds, which were not urged before the trial court. If these appellants had filed objections and produced the documents as urged in this appeal, the learned Magistrate would have passed an appropriate order. But, instead of doing so, they have directly approached this court without any basis.
19. During the course of arguments, the learned counsel for the appellants has submitted that, these 13 Crl.Apl.No.1283/2022 appellants have already filed objections and produced several documents before the trial court and the matter was heard on I.A.No.1. When such being the case, this appeal preferred by challenging the exparte order became infructous. Whether the first respondent/wife is getting more salary or not, whether there is a prima facie material to show that, there is domestic violence is to be considered while passing order on I.A.No.1 on merit. After passing order on I.A.No.1, if these appellants feels aggrieved then they can prefer an appeal. The liberty is given to these appellants to urge all the grounds urged in this appeal.
20. More importantly, granting interim maintenance, a sum of Rs.5,000/- is not an exorbitant. Now a days, the cost of living is more. Out of this Rs.5,000/- the first respondent/wife and second respondent/minor child cannot lead respectable life in the society. It is the duty of the appellant No.1 to look after his wife and minor children . Therefore, till passing the order on I.A.No.1 on merit, these 14 Crl.Apl.No.1283/2022 appellants are bound to pay the arrears of maintenance. Therefore, the learned Magistrate has rightly appreciated the material on record and passed the impugned order and he has not committed any error in passing this order. Except vague grounds, no valid grounds made out to entertain this appeal. When such being the case, the question of interference to the impugned order does not arise. Therefore, the appellant has not made out any valid grounds to set aside the impugned order. On the other hand, the appeal preferred by this appellant lacks merit and the same is deserves to be dismissed. In view of the above reasons, I answer point Nos.2 and 3 in negative.
21. POINT NO.4: In the result, for the aforesaid reasons, I proceed to pass the following:
: ORDER :
I.A.No.1 filed under section 5 of Limitation Act is allowed. The delay caused in preferring this appeal is hereby condoned. 15 Crl.Apl.No.1283/2022 The appeal preferred by the appellants/ respondents under section 29 of the Protection of Women from Domestic Violence Act, is hereby dismissed.
But, the impugned order dated 04.02.2020 passed in C.Misc.No.13/2020 on the file of the learned Metropolitan Magistrate Traffic Court-II, Bangalore, is hereby confirmed.
The office is hereby directed to forward this copy of this judgment to the trial court forthwith to proceed in accordance with law. (Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 12th day of April, 2023).
(N.KRISHNAIAH) LVIII ADDL. CITY CIVIL AND 16 Crl.Apl.No.1283/2022 SESSIONS JUDGE (CCH-59) BENGALURU CITY.
17 Crl.Apl.No.1283/2022
Judgment pronounced in the open Court
(vide separate order)
ORDER
The appeal preferred by the
appellant/respondent under section 29 of the Protection of Women from Domestic Violence Act, is hereby dismissed with cost.
The impugned order dated 06.08.2019 passed in C.Misc.No.90/2015 on the file of the learned Metropolitan Magistrate Traffic Court-VI, Bangalore, is hereby confirmed.
The office is hereby directed to forward this copy of this judgment to the trial court forthwith to proceed in accordance with the law.
(N.KRISHNAIAH) LVIII ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.
18 Crl.Apl.No.1283/2022