Bangalore District Court
Sri. Jagadish T vs Smt. Shruthi H.S on 10 August, 2020
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-65) AT BENGALURU.
Dated this 10th day of August 2020
-: P R E S E N T :-
Sri. RAJESHWARA
B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
CRIMINAL APPEAL No.291/2018
APPELLANT/: : Sri. Jagadish T.,
S/o. Late Timmarayappa,
( RESPONDENT - IN
Aged about 31 years,
TRIAL COURT)
Occupation: Driver,
R/at. No.2, 15th Cross,
Sollapuradamma Layout,
Sunkadakatte,
Bengaluru-560 091.
(By Sri.P.Suresh, Advocate)
/Vs/
RESPONDENT/ : Smt. Shruthi H.S.,
W/o. Jagadish T.
(PETITIONER- IN D/o.Late Srinivas,
TRIAL COURT) : R/at.No.171, 1st Main Road,
8th Cross, Sannakki Bayalu,
Kamakshipalya,
Bengaluru-560 079.
(By M/s.Sharath and Associates, advocate)
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JUDG MENT
This criminal appeal is filed U/s.29 of The Protection Of
Women From Domestic Violence Act (herein after referred as
PWDV., Act) to set aside the order passed by V-MMTC,
Court, Bengaluru in Crl.Mis.No.67/2017 dated 2.2.2018
(herein after referred as impugned order).
2. Parties to this appeal shall be referred to as per
their ranking before the trial court for the purpose of
convenience and for better appreciation of their
contentions.
3. In the memorandum of appeal, appellant
submitted that impugned order passed by the trial court is
illegal, perverse, and opposed to law. Without providing an
opportunity to the appellant to defend, trial court accepted
version of the respondent on the point of source of income.
Impugned order is arbitrary, unjust as the same is against
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to the natural justice. Impugned order is illegal and
perverse. Respondent failed to establish the source of
income of the appellant. Respondent voluntarily left the
matrimonial home without any reasonable cause.
M.C.No.1794/2017 is pending before Prl. 4Th Addl.Family
Court, Bengaluru. Hiding the said pending litigation,
respondent obtained impugned order which is liable to be
set aside. Appellant is unemployed and struggling to
maintain himself. Trial court has not properly appreciated
evidence adduced by the respondent in the trial court.
Service of notice of criminal misc. petition was not properly
made on the appellant in the trial court. Declaring
appellant as exparte is not in accordance with law. For the
said reasons, appellant prayed to set aside the impugned
order, remand the matter back to the trial court for fresh
disposal.
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4. Along with memorandum of appeal, appellant
produced certified copy of the impugned order of
maintenance passed by the trial court.
5. Respondent appeared through counsel.
T.C.R.called for reference in this appeal.
6. Heard arguments on both sides. Perused written
arguments submitted by appellant and respondent.
7. Points that arisen for consideration are as under:
1. Whether impugned order is
sustainable in law?
2. Whether interference of this court is
necessitated?
3. What Order?
8. It is the answer for the aforesaid points are as
under:-
Point No.1: In the Affirmative
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Crl.A.No.291/2018
Point No.2: In the Negative
Point No.3: As per final order below,
for the following:-
REASONS
9. POINTS NO.1 and 2:- These points are
taken together to avoid repeated discussions.
10. Brief facts of the case is as follows;
On 18.11.2015 marriage of the petitioner and
respondent was solemnized at Vijayachandra Kalyana
Mantapa, Bengaluru as per Hindu Customs and rites by
spending amount of Rs.10 lakhs. Parents of the petitioner
had given 150 grams gold jewels. After the marriage,
petitioner started residing with the respondent at
Bengaluru. Thereafter respondent and his family members
started to harass her for dowry. Petitioner got aborted the
child for two times as fetus was not properly grown in her
womb and for that reason, respondent and his family
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members started to harass the petitioner mentally.
Respondent was insisting the petitioner to bring further
dowry of Rs.5,00,000/- from her parents and threatened her
to thrown out of matrimonial house. On 24.1.2017
respondent picked up quarrel with her for trivial matter and
had thrown her out of matrimonial home saying that she
should not return without Rs.5,00,000/-, Petitioner went to
her parents house. Petitioner further submits that, by
taking undue advantage of the situation, on 1.3.2017
respondent sent a legal notice to the petitioner for filing
mutual consent divorce. For the said notice, petitioner
suitably replied on 11.3.2017. Thereafter even on the advice
of the elders and well wishers, the respondent was not
ready to get back the petitioner and was demanding
money illegally. Hence on 4.4.2017, the petitioner lodged
complaint at Kamakshipalya police station against the
respondent. Respondent is working as a driver and earning
Rs.40,000/- per month. On the other hand, petitioner is
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unemployed and struggling hard to maintain herself. Hence,
petition seeking reliefs under PWDV Act came to be filed by
applicant/wife.
11. Before considering the legality of the impugned
order, it is just and necessary to identify the dispute raised
by the appellant side on impugned order passed by the
trial court. In this appeal, grievance on behalf of the
appellant is that no sufficient opportunity was given by the
trial court to defend the case. Perused the reasons
assigned by the trial court in impugned order. It is
specifically stated in the impugned order by the trial court
that after service of notice on the appellant through
registered post, appellant placed exparte. Hence,
submission made on behalf of the appellant that service
not made cannot be accepted.
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11.1) Next ground of attack on the impugned order
is that no sufficient opportunity given by the trial court to
defend the case. Criminal misc. petition is filed by the
petitioner Smt. Shruthi H.S. U/s.12 of PWDV Act 2005
against her husband Sri.Jagadish T. seeking monitory reliefs
to meet life expenses and for residential orders.
12. Section 28 of the Protection of Woman from
Domestic Violence Act 2005 described procedure to dispose
of application filed U/s.12 of PWDV Act.
12.1) Section 28 of PWDV Act states 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 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
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application under section 12 or under sub-section (2) of
section 23.
13. For disposal of application filed U/s.12 of PWDV
Act time limits is fixed by the legislature in clause 4 - 5 of
Section 12. Clause 4 and 5 of 12 of PWDV Act which reads
as under; Section 12(4) The Magistrate shall fix the first
date of hearing, which shall not ordinarily be beyond three
days from the date of receipt of the application by the court.
13.1) Section 12(5) The Magistrate shall endeavour to
dispose of every application made under sub-section (1)
within a period of sixty days from the date of its first
hearing.
14. Now it is just and necessary to consider whether
steps taken by the trial court to dispose the application filed
by the applicant U/s.12 of PWDV Act is in accordance with
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Crl.A.No.291/2018
the procedure laid under PWDV Act. As per Section 28 of
PWDV Act, trial court has to follow provisions of Cr.P.C.1973
to conduct proceedings U/s.12 of PWDV Act. Further trial
court is permitted to adopt its own procedure to dispose
such application. In this case, service of notice on
application is made through RPAD to the appellant which
came to be served. Respondent did not appeared on the
date fixed for appearance. Hence, appellant placed
exparte.
14.1) Perused trial court records. Notice issued to
appellant Jagadish T. returned with postal shara "not
claimed" which shall be considered as deemed service to
the appellant. Hence, allegations by the appellant that
insufficient service of notice on application filed U/s.12 of
PWDV Act by the applicant in the trial court is not
acceptable.
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14.2) So far as procedure adopted by the trial court to
allow petition filed U/s.12 of PWDV Act by wife is concerned
applicant examined herself as Pw.1 by filing her affidavit in
lieu of examination-in- chief and got marked 3 documents at
Ex.P.1 to Ex.P.3. Taking evidence through affidavit is
permitted under law. In the impugned order, trial court
considered evidence adduced by the Pw.1, contents of
Ex.P.1 and Ex.P.2 and marriage invitation, marriage photo.
To consider the source of income of the appellant and
requirement of the applicant is concerned, after considering
the evidence adduced by Pw.1 by taking into consideration
the need of a married lady in the costly life to meet life
expenses, trial court awarded Rs.4,000/- per month to meet
life expenses to maintain her life. Further trial court directed
the appellant to pay per month Rs.2,000/- towards rental
expenses till her life time or till she remarry, whichever is
earlier.
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14.3) Considering the reasons assigned by the trial
court to award maintenance amount and residence order
this court is of the opinion that, looking into any angle
impugned order is not against to the interest of the
appellant. On the other hand, awarded maintenance
amount and rent is very minimum when cost of living of
present days is taken into consideration. As there is no
cross appeal by the applicant, this court is of the opinion
that, appellant shall pay the awarded maintenance amount
and rent ordered by the trial court in the impugned order.
15. It is the duty of the husband to maintain his wife.
No means to pay maintenance shall not be accepted as
defence on behalf of the husband. Despite order, appellant
did not paid any amount to his wife to meet her daily life
expenses. No such document is produced by the appellant
to prima facie show that applicant wife is having source of
income and she is capable to maintain herself.
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16. Compared reasons assigned by the trial court
with the allegations made in the memorandum of appeal.
There is no acceptable grounds in the memorandum of
appeal to interfere into the well reasoned, legally
sustainable impugned order. Absolutely there is no merit in
the appeal. Therefore, impugned order is sustainable.
Hence, interference of this court in the impugned order is
not necessary. Hence, point No.1 is answered in the
affirmative and point No.2 is answered in the negative.
17. POINT NO.3 :- In view of findings on the above
points No.1 and 2, this appeal is liable to be dismissed.
Hence, following order is made:
ORDER
Criminal Appeal filed U/Sec.29 of PWDV Act is hereby dismissed.
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Crl.A.No.291/2018 Consequently, impugned order dated 2.2.2018 passed in Crl.Misc.No.67/2017 on the file of V- MMTC., Court, Bengaluru, is hereby confirmed.
Office is directed to send back T.C.R. along with certified copy of this judgment to the trial court, forthwith.
(Dictated to the Judgment Writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 10th day of August, 2020) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY. 15 Crl.A.No.291/2018 16 Crl.A.No.291/2018 10.8.2020 Judgment pronounced in the open court Vide separate judgment ORDER Criminal Appeal filed U/Sec.29 of PWDV Act is hereby dismissed.
Consequently, impugned order dated 2.2.2018 passed in Crl.Misc.No.67/2017 on the file of V- MMTC., Court, Bengaluru, is hereby confirmed.
Office is directed to send back T.C.R. along with certified copy of this judgment to the trial court, forthwith.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.