Karnataka High Court
J Keshava Murthy vs G.C.Deepa, on 27 November, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRL. RP. NO.425/2020
BETWEEN
J.KESHAVA MURTHY,
S/O JAVAREGOWDA,
R/AT NO.8, 1ST FLOOR,
KRISHNAPPA BADAVANE CROSS,
S.K.R.LAYOUT, NEAR T.T.K. PRESTIGE,
DEVARCHIKKANAHALLI,
BILEKAHALLI, BANNERGHATTA ROAD,
BANGALORE-560068.
NOW RESIDING AT:
NO.68, VASTHU LAYOUT,
4TH CROSS, KUDULU,
MADIVALA POST, SARJAPURA HOBLI,
ANEKAL TALUK, BENGALURU-560068.
...PETITIONER
(BY SRI SHIVSHANKAR, ADV.)
AND
G.C.DEEPA,
AGED ABOUT 39 YEARS,
PRESENTLY RESIDING AT
NO.1340, 9TH BLOCK, 2ND STAGE,
NAGARABHAVI, BENGALURU-560072.
...RESPONDENT
(BY SRI ABDUL RAHIMAN, ADV.)
2
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE ORDER DATED 05.09.2019 IN
CRL.A.NO.269/2018 ON THE FILE OF LII ADDITIONAL CITY
CIVIL AND SESSION JUDGE AT BENGALURU AND SET ASIDE
THE ORDER DATED 19.01.2012 IN CRL.M.C.NO.44/2011 (OLD
DATED CRL.M.C.NO.1971/2009) PASSED BY THE
METROPOLITAN MAGISTRATE TRAFFIC COURT-III AT
BENGALURU.
THIS CRL.R.P COMING ON FOR 'ADMISSION', THIS DAY
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for petitioner and learned counsel for respondent.
2. Petitioner has approached this court under Section 397 of Crl.P.C. challenging the order passed by the LII Addl. City Civil & Sessions Judge at Bengaluru (CCH-53) in Crl.A No.269/2018 dated 05.09.2019 whereby, the appeal filed by the petitioner has been dismissed with cost and the order passed by the learned Metropolitan Magistrate in Crl.Misc. No.44/2011 has been confirmed.
3. The respondent herein claiming to be the wife of the petitioner filed an application under Section 12, 18, 19, 20 and 3 22 of the Protection of Women from Domestic Violence Act, 2005 seeking relief of maintenance and protection order. Learned Magistrate by order dated 19.01.2012 partly allowed the petition and directed the petitioner-husband to pay maintenance of Rs.24,000/- per month to the respondent-wife as well as her son from the date of the order and further he was directed to provide proper accommodation to the respondent-wife at his own cost. Though this order was passed on 19.01.2012, the petitioner- husband challenged the said order by filing an appeal before the Sessions Judge six years after the said order in the year 2018.
4. In the meanwhile, the respondent-wife filed a petition in M.C. 4963/2017 for divorce and petitioner-husband filed a petition in M.C. 914/2015. The matrimonial court having directed the petitioner-husband to pay maintenance of Rs.6,000/- per month in M.C. 4963/2017, he challenged the said order before this court in W.P. No.55090/2018 on the ground that he cannot be directed to pay a maintenance in two parallel proceedings. In the said writ petition, the petitioner-husband having made a submission that the wife could seek maintenance only under one of the Act namely under the Domestic Violence 4 Act, this court by order dated 18.02.2019 disposed of W.P. 55090/2018 with a direction to the petitioner-husband to deposit the amount as directed by the trial court under the provisions of the Domestic Violence Act within a period of two months from the date of receipt of certified copy of the order. As a result, the order passed by the learned Magistrate in Crl. Misc. 44/2011 stood confirmed and the petitioner-husband was directed to comply with the said order.
5. It is submitted that since the petitioner-husband failed to comply with the direction, a Contempt Petition was filed in CCC 1062/2019. Since the petitioner-husband sought time to make the deposit, the said Contempt Proceedings was dropped. In the meanwhile, the respondent-wife filed a recovery proceedings before the Magistrate to recover the amount due in Crl.Misc. 44/2011. It is only thereafter the petitioner-husband appears to have filed the Crl.A challenging the orders passed in Crl.Misc. 44/2011.
6. On entertaining the revision petition, following the decision of the Hon'ble Supreme Court in Rajnesh Vs. Neha and Another, 5 the parties were directed to file their affidavit of assets and liabilities. Accordingly, both the parties have filed their affidavit of assets and liabilities.
7. Based on the facts sworn in the affidavit filed by the respondent-wife the learned counsel for petitioner-husband pointed out that in the said affidavit, the respondent-wife has disclosed that in the year 2012 she was employed in Emphasis and was drawing a salary of Rs.47,028/-, but the learned Magistrate in its order dated 19.01.2012 in Crl.M.C. 44/2011 has proceeded on the basis that the respondent-wife was not having sufficient means to live her life and she has taken shelter in her parents house and therefore, the petitioner-husband was liable to maintain her. Based on this observation, it is argued that by suppressing the actual income and by misleading the court, respondent-wife has obtained a favourable order in her favour and therefore, the impugned orders are liable to be set-aside.
8. No doubt, the facts highlighted by the learned counsel for the petitioner clearly indicate that the respondent-wife has suppressed her avocation and income and by answering to 6 falsehood has secured an order for maintenance. Nonetheless, the petitioner himself having undertaken to pay the maintenance ordered by the Magistrate in Domestic Violence case and pursuant to this undertaking the petitioner having suffered an order in W.P. No.55090/2018, in my view, at this juncture, the petitioner cannot be permitted to defeat the said order on purported plea of suppression of facts in Misc. Case No.44/2011 especially when the facts sworn by the petitioner-husband in his affidavit disclose that the petitioner-husband is running a school and having sufficient means to pay the maintenance to his wife and son. In his affidavit he has stated that on account of Covid- 19 he has suffered a loss of Rs.50,00,000/- implying thereby that his normal income is running to crores. That apart, even before this court the counsel for the petitioner-husband had given an undertaking to deposit a sum of Rs.5,00,000/-. Under the said circumstances the petitioner was also equally duty bound to disclose his actual income in Misc. Case 44/2011 and that learned Magistrate could record a factual finding regarding the actual source and capacity of the petitioner to pay the maintenance claimed by the respondent-wife. The petitioner 7 also being guilty of suppression of facts regarding his actual income cannot now be permitted to take advantage of the wrong committed by the respondent. If the income declared by the petitioner-husband in his affidavit as on the date of making the application in Misc. Case 44/2011, was taken into account, in all probabilities, the respondent and her son would have been awarded more than Rs.24,000/- per month towards their maintenance.
In that view of the matter, I do not find any reason to interfere with the impugned order. As both the parties have suppressed their source of income, I leave it to the parties to seek modification of the order passed by the learned Magistrate by making necessary application if permissible under law.
Reserving this liberty, the petition is dismissed.
Sd/-
JUDGE Chs CT-HR