Bangalore District Court
K.M.Revanasiddeshwara vs ) K.M.Shylaja on 15 September, 2015
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH-61)
DATED THIS THE 15th DAY OF SEPTEMBER 2015
:Present :
Sri B.Jayantha Kumar, B.A.,Law, LL.M.
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. A. No.574/2010
Appellant K.M.Revanasiddeshwara,
S/o K.M.Mahanthaswamy
Aged 45 years, Lecturer in
Economics Government Arts
College Opp: Bengaluru University
Central College Campus
Bengaluru
(Rep. by Sri. S.S.Koti. Advocate)
Vs
Respondents 1) K.M.Shylaja
W/o K.M.Revanasiddeshwara
Aged 44 years r/ at No. 87 A,
I floor, 5th cross, Vasanthnagar,
Bengaluru
2) H.M.Kotraiah
Aged about 61 years
3) Ambuja
Aged about 55 years
W/o H.M.Kotraiaha
4) H.M.Nagalingamma @
Nagarathna
2 Crl.A.574/2010
D/o H.M.Kotraiah
Aged 30 years
Respondents 2 to 4 are r/at
Kottur road, Megalapet
Harappanahalli
Davanagere District
5) K.M.Mahanthaswamy
S/o late Eashawariahswamy
R/o Nehru colony
Behind Sannakki Veerabha-
dreshwara temple, Hospet,
Bellary District
6) K.M.Veerendra
S/o K.M.Mahanthaswamy
Age 40 years
Deputy Manager
State Bank of Mysore
Sirur park branch
Vidyanagar, Hubli
(Respondents 2 to 6 are deleted
As per order dated 20.12.2010)
(Rep. by Sri. G.C.Gurumath, Advocate)
JUDGMENT
This appeal is filed by the appellant u/sec. 29 of Prevention of Women from Domestic Violence Act, 2005 (herein after referred to as the "Act").
2. The appellant is the respondent no.1 and respondent no.1 is the petitioner in Crl.Misc.No. 1915/2009 3 Crl.A.574/2010 on the file of 8th ACMM, Bengaluru. The parties of this appeal hereinafter will be referred to as per their ranks assigned to them before the lower court. The appellant has challenged the correctness and legality of the order passed by the learned Magistrate granting various reliefs under the provisions of the Act including the relief of shared household, relief of maintenance and relief of protection order.
3. The brief facts of the case are as follows;
The petitioner Smt. K.M.Shylaja is the legally wedded wife of the respondent no.1 /Sri. K.M.Revanasiddeshwara. Their marriage was solemnized on 14.06.1993 at Harappanahalli town. Since the date of marriage until April 2009, they led happy marital life, but they did not beget any child in their wedlock. About a year ago, the respondent no.1 introduced respondent no.4 while traveling in a bus from kottur to Harappanahalli. On 28.4.2009, one K.M.Vishwanath, the younger brother of respondent no.1 informed to the petitioner over phone that the respondent no.1 and respondent no.4 were trying to get marry at 4 Crl.A.574/2010 Nandipura Mutt in the divine presence of blessings of Sri.Maheshwara Swamiji, the pontiff of Nandipura mutt. Immediately, the petitioner went to Kottur town and rushed to Nandipura Mutt which is about 45 Kms away from Kottur along with her brother-in-law B.Basaiah and cousin brother G.C.Gurumath, Advocate. All of them physically lifted the respondent no.1 and brought him back in the car. The petitioner has further contended that the respondent no.1 has been trying to persuade her that she should give permission to respondent no.1 to contact second marriage with respondent no.4 and it is further allegation of the petitioner that the other respondents are also pressurizing her to give her consent to the marriage of respondent no.1 with respondent no.4. She has further alleged that the respondent no.1 is going to resign to his job to teach a lesson and deprive her right of residence and payment of loan amount borrowed for the construction of house at Harappanahalli in the site given by the petitioner's father and she has further alleged that the respondent no.1 left the petitioner and ran away from the house to create pressure on her to agree for the second marriage. She has 5 Crl.A.574/2010 further alleged that the respondent no.1 subjected her to physical, verbal, emotional and economical abuses and hence, she filed the petition before the lower court seeking various reliefs under the Act alleging the domestic violence against the respondents.
4. Lower court called for the domestic incident report and issued notice to the respondent. The respondents have not filed any objection to the main petition. But the respondent no.1 filed objection to the interim application filed by the petitioner. In the objections, the respondent no.1 has contended that the petition is false and not maintainable. He has denied the allegations made in the interim application and he has denied that he is making attempts to surrender the government quarters. He has further contended that he never lived happily with the aggrieved person and aggrieved person was also insulting him and he was never having cordial relationship with the aggrieved person. He has further contended that he was always adjusting to the petitioner hoping that she would mend her ways and the petitioner always found fault with 6 Crl.A.574/2010 him and used filthy language like "SULE NANNA MAGA"
and also threatened him and his family members. He has further contended that she never cooked food for him in time and she left him alone and she spent most of her time by living in her parental house. He has further contended that recently in the year 2009, she went to her parent's house in June 2009 and did not return for 4 months. He has further contended that the aggrieved person always threatening him by saying that she will lodge a complaint by taking advantage of her brother advocate. He has further contended that the brother advocate of the petitioner had given false complaint to the Principal Government Arts College where he is working as Professor of Economics. He has contended that he has tolerated the naggings of his wife for the past 17 years. In the month of June 2009, the petitioner physically assaulted him with chapathi roller for no reason. He has further contended that one fine day, when he was taking rest by laying down on the mat, the aggrieved person physically sat on his chest and threatened to kill him due to which his left side heart is damaged slightly. He has further contended that when he
7 Crl.A.574/2010 was looking after house construction work at Harappanahalli, the advocate brother threatened him in the after noon at 3.00 p.m and kicked him with shoes on his chest so he became more weak and suffered mentally and physically and it became impossible for the first respondent to live with the aggrieved person and his father-in-law had slapped on his cheek when he and his wife were having food in the kitchen. On December 7th 2009, when he went to his house, the aggrieved person did not open the door. The respondent no.1 was shocked to see the aggrieved person had changed the door lock and key and did not permit him to enter the house and threatened him that she would lodge a complaint in High Grounds police station. He has further contended that he is a qualified Acadamician who had done M.A.,M.Phil, Phd., and he is working as Professor in Economics for the last 14 years and he is a social scientist and law abiding citizen and respects women folk especially his wife. He was using his laptop for his research purpose. The aggrieved person without his knowledge has taken away his laptop and gave to her advocate brother and caused loss of important 8 Crl.A.574/2010 documents and information. Hence, he prayed for dismissal of the petition.
5. Before the lower court, the petitioner herself examined as P.w.1 and got marked Ex.P1 and 2. The respondent did not adduce his evidence and not produced documents. After hearing the arguments of learned counsel for the petitioner, the lower court passed an order granting the relief claimed by the petitioner.
6. Feeling aggrieved by the impugned order, the respondent no.1/ husband has preferred this appeal contending that the impugned order is passed without affording proper opportunity to him to put forward his case and adduce his evidence and it is in violation of principles of natural justice and non consideration of materials of the case. The impugned order is arbitrary, perverse and contrary to law and facts of the case. The lower court passed an order without any basis and hence, prayed for setting aside the impugned order.
9 Crl.A.574/2010
7. The records of the lower court are secured and I have heard the arguments of learned counsel for the appellant and respondent.
8. The following points arise for my determination:
1) Whether the petitioner proves that she is the victim of domestic violence by the respondent No.1?
2) Whether the petitioner is entitled for the reliefs claimed in the petition filed u/s 12 of the Act?
3) Whether the lower court has committed any error of law and facts in directing the respondent no.1 to comply with the order passed under the Act?
4) What order?
9. My answer to the above points are as follows:
Point No.1 : In the affirmative
Point No.2 : Partly in the affirmative
Point No.3 : Partly in the affirmative
Point No.4 : As per final order
REASONS
10. Point Nos. 1 to 3: The petitioner Smt. K.M.Shylaja filed Crl.Misc. No.1915/2009 before the lower court seeking various reliefs under the provisions of the Act on the ground that she is the victim of domestic violence meted out by the respondent 10 Crl.A.574/2010 no.1 who is her husband. The petitioner has alleged that marriage was solemnized on 14.06.1993 at Harappanahalli town and since the date of marriage until April 2009, they led happy marital life, but they did not beget any child in their wedlock and about a year ago, the respondent no.1 introduced respondent no.4 while travelling in a bus from kottur to Harappanahalli and on 28.4.2009, one K.M.Vishwanath, the younger brother of respondent no.1 informed to the petitioner over phone that respondent no.1 and respondent no.4 were trying to get marry at Nandipura Mutt in the divine presence of blessings of Sri.Maheshwara Swamiji, the pontiff of Nandipura mutt and immediately, the petitioner went to Kottur town and rushed to Nandipura Mutt which is about 45 Kms away from Kottur along with her brother-in-law B.Basaiah and cousin brother Sri.G.C.Gurumath, Advocate and all of them physically lifted the respondent no.1 and brought him back in the car. The petitioner has further contended that the respondent no.1 has been trying to persuade her that she should give permission to respondent no.1 to contact second marriage with respondent no.4 and it is the further allegation of the petitioner that the other respondents are also pressurizing her to give her consent 11 Crl.A.574/2010 to the marriage of respondent no.1 and respondent no.4. She has further alleged that the respondent no.1 is going to resign to his job to teach a lesson and deprive her right of residence and payment of loan amount borrowed for the construction of house at Harappanahalli in the site given by the petitioner's father. She has further alleged that the respondent no.1 left the petitioner and ran away from the house to create pressure on her to agree for the second marriage. She has further alleged that the respondent no.1 subjected her to physical, verbal, emotional and economical abuses. On these allegations, she presented a petition before the lower court. In the petition, she has sought the following reliefs:
a) To restrain the 1st respondent from renouncing the right in the shared household namely Government quarters bearing No. 87 A at 5th cross Vasanthnagar, Bengaluru except with the leave of this Hon'ble.
b) Protection order prohibiting the 1st respondent from alienating disposing of the salary arrears and the increased salary in any manner other than repaying the home loan.
c) Restrain the 1st respondent from tendering resignation to the post of Lecturer in Economics, Govt. Arts College, Bengaluru.
12 Crl.A.574/2010
d) Restrain the 1st respondent from seeking transfer from Govt. Arts College, Bengaluru to any college outside the local limits of Bengaluru.
e) An order restraining respondents No.2 to 6 from aiding or abetting the commission of domestic violence by the 1st respondent.
f) Pass such other orders as this Hon'ble court deems fit to grant in the circumstances of the case, protecting the interest of the aggrieved complainant, in the interest of justice and equity.
11. The petition filed by the petitioner came before the lower court on 16.02.2009 and at the time of filing the main petition, the petitioner had filed 2 interim applications viz., I.A. No.1 is an application filed u/s 23 r/w sec. 19 (e) of the Act to direct the respondent no.1 not to surrender the Government allotted quarters No. 87A, 1st floor, 5th cross, Vasanthnagar, Bengaluru and I.A. No.2 filed u/sec. 23 r/w sec. 18 (e) of the Act to pass an interim order restraining respondent no.1 from alienating or disposing of the salary arrears and the increased salary in any manner other than repaying the home loan. The lower court posted the case for orders on 18.12.2009. The lower court declined to pass any interim order on both the applications and issued notice to the respondent. On 26.12.2009, the respondents remained absent though the 13 Crl.A.574/2010 notice was served. On 18.1.2010, the respondent and his counsel present before the court and counsel received the copy of the applications. The order sheet dated 18.1.2010 reveals that the respondent submitted that he has got no objection. Hence, both the applications were allowed. Case was posted to 27.2.2010 for objection to main petition. On that day, the petitioner was present and matter was referred to mediation. On 22.3.2010, the petitioner filed 2 applications. One application is filed u/sec. 20 (1) and (6) r/w sec. 23 of the Act to grant interim order directing the Principal Govt. Arts college to pay directly to the petitioner's account bearing No. 6405594003 at SBM, Madhavanagar, Bengaluru, a sum of Rs.12,000/- every month from out of the salary of respondent no.1 as monetary relief and another application u/sec. 23 r/w sec.18 (e) of the Act to pass interim order directing the Principal Govt. Arts college to deduct Rs.10,700/- from the salary of the respondent no.1 and credit the same to loan account No.64012987665 of State Bank of Mysore,Kottur branch.
12. Order sheet dated 27.3.2010 reveals that "Learned counsel for the petitioner filed a memo stating that the learned 14 Crl.A.574/2010 counsel for the respondent refused to receive the copy on going through the applications, hence case was posted for orders on 30.3.2010'. The order sheet reveals that though the case was posted to 30.3.2010, order was signed on 29.3.2010. As far as the maintenance is concerned, the lower court passed an order directing the respondent no.1 to pay a sum of Rs.7,000/- towards petitioner's maintenance from the said date and also directed to clear all the electricity and water charges. On the said day, the lower court passed an order directing the respondent no.1 to repay the loan amount in accordance with the agreement with the SBI and on failure of respondent no.1 to repay the loan account. It was further ordered that the petitioner is entitled to require the bank authorities to request to pay Drawing officer to deduct the amount from the salary of respondent no.1 and to credit the same to the loan account. Then the case was posted on 27.4.2010. On 27.4.2010, respondent absent, no representation and the lower court instructed the office to issue direction to deduct maintenance amount and arrears of electricity from the salary of respondent no.1 to the PDO. Order sheet dated 18.5.2010 reveals that 'respondent absent, no representation, objection to main 15 Crl.A.574/2010 petition is taken as not filed' and case was posted for enquiry. On 17.6.2010, the petitioner filed her affidavit and she was examined and got marked Ex.P1 and 2. Ex.P1 is the copy of FIR of Cr.No. 268/09, the case registered against respondent no.1 for the offence u/sec. 498A of IPC by Highgrounds police station and Ex.P2 is the copy of complaint given by the petitioner against respondent no.1 before Highgrounds police station. On 17.6.2010, the respondent absent and the evidence of respondent taken as nil and lower court heard the arguments of counsel for petitioner and posted the case for orders on 19.6.2010. On 19.6.2010, the lower court passed the following order:
"1. The respondent -1 is hereby directed to provide resident to the petitioner in Government quarters No. 87A, 5thcross, Vasanthnagar, Bengaluru. If the respondent renounces his rights in the said quarters in favour of the Government, he is liable to provide an alternative accommodation to the petitioner with the same status of residence.
16 Crl.A.574/2010
2. The respondent -1 is hereby directed to settle the home loan to the extent of is liable for which the petitioner shall not to be made liable and the concerned authority is to recover the amount from the respondent -1.
3. If the respondent -1 resigned from the job, then all the benefits which accrued to shall be given to the petitioner.
4. The respondents -2 to 6 are hereby directed not to aid or abate the Commissioner of the Domestic Violence by the respondent -1.
5. Issue free copy of this orders to the petitioner as well as to the respondents.
6. The office is directed to send a free copy of this order to the jurisdiction police i.e. Highgrounds P.S.
7. The office is further directed to issue copy of this order to the Principal, Government Arts college, Central college campus,Bengaluru -1.
17 Crl.A.574/2010
8. Further office is directed to send copy of order to the Creditor of the petitioner and the respondent-1."
13. Order sheet dated 22.6.2010 reveals that ''Case called, Additional affidavit filed. Learned counsel for the respondent did not seek any time to file objection. Heard prayer made is allowed. Interim order for granting of maintenance is made is absolute. Office to issue direction to the PDO of R-1 to direct the maintenance amount from salary of R-1 and to remit to same to this court. This order shall form a part of the final order passed by this court on 29.6.2010''. Thereafter the respondent no.1 filed this appeal on 5.8.2010 and also filed I.A. No. 1 u/sec. 5 of Limitation Act and I.A. No.2 u/s 29 of Prevention of Women from Domestic Violence Act, 2005 and sought to stay the operation of the order. Order sheet reveals that notices were issued to the respondents and the lower court order was not stayed and on 4.6.2011, I.A.No.1 was dismissed and consequently appeal was also dismissed.
14. The respondent no.1 challenged the said order by filing Crl.P. No. 836/2011 before the Hon'ble High Court of 18 Crl.A.574/2010 Karnataka. The Hon'ble High Court of Karnataka by order dated 25.1.2012 passed the following order:
"22. For the above reasons, the revision petition is allowed and the order of the lower appellate court dismissing the I.A. as well as the appeal is set aside. The lower appellate court to consider the application filed for condonation of delay and it is also open to the respondent to urge the contentions concerning the petitioner having suppressed certain facts and at the same time, the petitioner is also given liberty to put forward before the lower appellate court his contention that this court had granted stay of the order of the lower appellate court and the lower appellate court therefore was informed of the said position and if the lower appellate court had conceived the stay order differently in respect of both the orders passed by the trial court, it is for the lower appellate court to consider as to whether the petitioner has made any incorrect statement or not. It is needless to say that this court had only stayed the order of the lower appellant court."
15. The petitioner has filed special leave to appeal (Crl. P. 3461/2012) before the Hon'ble Supreme Court of India. The 19 Crl.A.574/2010 Hon'ble Supreme Court of India granted stay as per order dated 9.5.2012. On 29.11.2013, the Hon'ble Supreme Court of India has passed the following order:
"Heard Mr.T.V.Ratnam, learned counsel in support of this special leave petition and Mr.Shekhar Devasa, learned counsel appearing for the respondent. Counsel for the respondent states that the respondent is not going to marry again during the subsistence of his marriage. The impugned order is only an order of remand. We are not inclined to interfere therewith. The special leave petition is dismissed. The order of the trial court is not disturbed in any manner."
16. On 19.8.2014, the Hon'ble Supreme Court of India has passed the following order "such an observation is not really called for and the same is deleted. The order dated 29.1.2013 is modified accordingly. Crl.LMP 3564/2011 is disposed of accordingly". Thereafter, this court passed an order on the application filed u/sec. 5 of Limitation Act by allowing the same with cost of Rs.10,000/- and accordingly, the case was posted for arguments. In the meantime, there were some developments in the case. This petitioner Smt. 20 Crl.A.574/2010 K.M.Shylaja filed Writ Petition No.87702010 before the Hon'ble High Court of Karnataka. In the said writ petition, the petitioner prayed for a wit of mandamus directing the respondents to implement the order dated 18.1.2010 in Crl. Misc. No. 1915/2009 passed by the 8th ACMM, Bengaluru. It is pertinent to note that lower court allowed the applications filed by the petitioner for granting interim order directing the respondent no.1 not to surrender the government allotted quarters bearing No. 87A, 5th cross, Vasanthnagar, Bengaluru and for interim order restraining the respondent no.1 from alienating or disposing of the salary arrears and the increased salary to any manner other than repaying the home loan. The Hon'ble High Court of Karnataka while hearing the arguments, the respondents i.e. State of Karnataka by its Principal Secretary, Department of Higher Education, the Commissioner, Collegiate Education and the Principal, the Government Arts College, Opposite Central college campus, Bengaluru undertaken before the Hon'ble High Court of Karnataka that as and when the arrears is drawn as per the Government order and the Accountant General's authorization, the order of the VIII Addl. CMM court, Bengaluru 21 Crl.A.574/2010 will be implemented. In view of this undertaken given by the respondents in the said Writ Petition, the said Writ Petition was disposed of directing the respondents to comply with the order passed in Crl. Misc. No. 1915/2009.
17. It is pertinent to note that the present appellant/ respondent No.1 has not challenged the order passed by the lower court on I.A. No.1 and 2 dated 18.1.2010 so far. The petitioner has filed Crl. R.P. No.240/2011. In the said Criminal Petition, the present petitioner sought to stay the further proceedings in Criminal Appeal No.574/2010 pending disposal of the trial in C.C.No.34834/2010 registered for the offence punishable u/s 498(A) of IPC. The said petition was rejected. The present respondent no.1 filed W.P.No. 27890/2010 before the Hon'ble High Court to issue writ of certiorari to quash the order dated 23.04.2010 passed in W.P.No. 8770/2010 and also sought for a writ of mandamus directing the authorities not to interfere with the arrears of salary of the respondent. In the said Writ petition, the Hon'ble High Court of Karnataka was pleased to pass an order dated 27.9.2010 which reads as follows:
22 Crl.A.574/2010 "The earlier writ petition, W.P.No. 8770/2010 was filed for a writ of mandamus directing the respondents therein to implement the order dated
18.01.2010 in Crl. Misc. No. 1915/2009. The petitioner was not made a party to the proceedings in W.P.No. 8770/10. Even then, the order passed in W.P.No. 8770/10 directing the respondent therein to comply with the order in Crl. Misc. 1915/2009 in no way cause prejudice the petitioner. If for any reason, the petitioner is aggrieved by any order passed in Crl. Misc.
1915/2009, he is at liberty to question the same in accordance with law. With the above observation, writ petition is hereby disposed of."
So far, the present respondent no.1 has not challenged the order passed by the lower court on 18.1.2010. Then the present petitioner filed contempt petition before the Hon'ble High Court of Karnataka in C.C. No. 1293/2010. The Hon'ble High Court disposed of the said petition as infructuous in view of the undertaking given by the respondents. Again the present petitioner filed another contempt petition i.e. CCC 23 Crl.A.574/2010 (Civil) 1816/2013. Hon'ble High Court of Karnataka by its order dated 25.10.2013 closed the petition in view of the submission made by the Government Advocate that the order has been complied with. The present petitioner filed another petition No.CCC No. 1295 /2014 before Hon'ble High Court of Karnataka and Hon'ble High Court of Karnataka was pleased to pass an order dated 13.10.2014 by dropping the contempt petition reserving liberty to the complainant to redress her grievance before the appropriate Legal Forum. The State Bank of Mysore filed Writ petition No. 61491/2012 before the Hon'ble High Court of Karnataka. The said Writ Petition was disposed of on 15.1.2013 with a direction to the bank that the bank is at liberty to take appropriate steps to recover from respondent no.2 i.e. respondent no.1 herein if there is any default in not recovering from salary and further ordered that if the amount falls short, bank can proceed with the property.
18. The learned counsel for the appellant has argued that the lower court has committed an error in granting the relief and though the lower court posted the case for passing the order on application u/sec. 25 of Prevention of Women from 24 Crl.A.574/2010 Domestic Violence Act, 2005 on 30.3.2015, the order was pronounced on 29.3.2015. He has argued that the petitioner has recovered more than Rs.40 lakhs from the respondent no.1 and the lower court has not followed the principles of natural justice, no opportunity was given to him to adduce his evidence and put forward his case and the take home salary of the respondent is Rs.2322/- only and the petitioner is getting rent of Rs.32,000/- from the residential house situated at Harappanahalli and the present respondent no.1 is not a party to the contempt petition filed before the Hon'ble High Court of Karnataka. Hence, prayed for setting aside the order passed by the lower court.
19. Learned counsel for the petitioner has filed written argument and contended that the lower court has passed the order in accordance with law and the orders passed by the lower court has attained finality before the Hon'ble High Court of Karnataka. So, the appeal filed by the appellant become infructuous. The learned counsel for the petitioner has relied upon the following decisions:
1) 2015 ( 2) KCCR 1776 (Vincent Shatha Kumar Vs. Christina Geetha Rani and others) 25 Crl.A.574/2010
2) AIR 1996 SC 1051 ( Chameli Singh and others Vs. State of U.P and another )
3) ( 2008) 3 SCC 753 (Som Mittal Vs. Government of Karnataka)
4) AIR 1961 SC 1367 (B.K.Kar Vs.The Hon'ble Chief Justice and his companion Justices Orissa High Court and others.
5) (1995) 1 SCC 259 ( Spencer & Co Ltd. and another Vs. Vishwadarshan Distributors and another)
6) AIR 1972 SC 2466 (Shri. Baradakanta Mishra Vs. Sri.Bhimsen Dixit)
7) 1987 (1) KLJ 57 ( Habeeb Khandasari Industries Vs. Karnataka Appellate Tribunal and another)
20. It is pertinent to note that the appellant who is respondent no.1 in Crl. Misc. petition filed this appeal challenging the order passed by the lower court dated 19.6.2010. He has not challenged any other order passed by the lower court including the interim order passed on 18.1.2010. The lower court by passing an order dated 19.6.2010 granted the relief of shared household i.e. government quarters allotted to respondent no.1 in relief no.1 and also granted the relief No.2 directing the respondent no.1 to settle the home loan and granted relief no.3 that if the respondent resigned from the job, then all the benefits 26 Crl.A.574/2010 which accrued to shall be given to the petitioner. So, the lower court passed only 3 main reliefs in the order dated 19.6.2010. As far as the interim relief of maintenance is concerned, the lower court granted monthly maintenance of Rs.7,000/- as per order dated 29.3.2010 and also directed the respondent no.1 to repay the loan amount in accordance with the agreement with the State Bank of Mysore on 18.11.2010. The respondent was present before the lower court and submitted no objection to pass order on I.A. No.1 and 2 and the Hon'ble High Court of Karnataka directed the State of Karnataka by its Principal Secretary, Department of Higher Education, the Commissioner, Collegiate Education and the Principal, Government Arts College, Opposite Central college campus, Bengaluru to comply with the order dated 18.1.2010. Though respondent no.1 filed another W.P.No.27890/2010 before the Hon'ble High Court of Karnataka to issue writ of certiorari to quash the order dated 23.04.2010 passed in W.P.No. 8770/2010, the Hon'ble High Court of Karnataka disposed of the said writ petition granting liberty to the respondent no.1 to question the same in accordance with law. But the respondent no.1 has not challenged the said order before the Hon'ble High Court of Karnataka. So, as far as the order 27 Crl.A.574/2010 passed by the lower court regarding the residence and maintenance has attained finality. Even though he had no opportunity to adduce his evidence, the order of maintenance and shared household will not prejudice his right of challenge because he has consented for those orders. But as far as the relief No.3 is concerned, the petitioner has not sought said relief in the petition itself. The lower court without looking to the relief sought by the petitioner granted relief No.3 i.e. "If the respondent
-1 resigned from the job, then all the benefits which accrued to shall be given to the petitioner." Since the respondent no.1 has not challenged the residence order and monthly maintenance and since the respondent no.1 gave consent for passing the said order on 18.1.2010 and not challenged the order dated 29.3.2010 and the order passed by the Hon'ble High Court in W.P. No. 8770/2010 and Writ Petition No. 27890/2010, this court cannot set aside the order as far as the relief no.1 and 2 granted by the lower court. But since the relief no.3 granted by the lower court in the order dated 19.6.2010 is not sought by the petitioner in the main petition, this court has to set aside the order in respect of relief No.3 only and this court has to confirm the order in respect of other reliefs granted by the lower court.
28 Crl.A.574/2010
21. The petitioner has made several allegations against the respondent no.1. The respondent no.1 has not filed any objection to the main petition and the respondent has not cross-examined P.w.1 and he has not stepped into the witness box to deny the allegations made by the petitioner in the petition regarding domestic violence meted out by the respondent to the petitioner. Further the domestic incident report submitted by CDPO dated 23.12.09 clearly establishes that there was domestic violence against the petitioner and the respondent has not challenged the domestic incident report submitted by the CDPO and therefore, the appeal filed by the appellant has to be allowed partly and order passed by the lower court in respect of relief no.3 is concerned has to be set aside and rest of the reliefs has to be confirmed.
22. The respondent no.1 has produced one statement containing the details of the amount remitted to 8th ACMM, Bengaluru after deducting the same from the salary of K.M.Revanasiddeshwar, Lecturer in Economics Government Arts college, Bengaluru. The respondent no.1 has not taken steps to stop the recovery of the amount from his salary and he has produced one statement along with memo dated 11.5.2015 and at 29 Crl.A.574/2010 column no.8, he has stated that the amount remitted to 8th ACMM court, Bengaluru by misinterpreting court order. Since there is no specific order to remit the said amount and since the respondent has not taken any steps to stop the recovery of the said amount from his salary, this court cannot make any remarks in this regard. Looking to the order passed by the lower court, remanding of the case for fresh trial does not arise. Accordingly, I answer point no.1 in the affirmative and point no.2 and 3 partly in the affirmative.
23. Point No.4: In view of my findings on point Nos. 1 to 3, I proceed to pass the following:
ORDER The appeal filed by the appellant u/sec. 29 of Prevention of Women from Domestic Violence Act, 2005 is hereby partly allowed.
The order passed by the VIII ACMM, Bengaluru in Crl. Misc. No. 1915/2009 dated 19.6.2010 is herby partly set aside in respect of relief No.3 only i.e. "If the respondent -1 resigned from the job, then all the benefits which accrued to shall be given to the petitioner." The rest of the reliefs granted by the lower court are herby confirmed.
30 Crl.A.574/2010 Parties shall bear their costs. Send the lower court records along with copy of this order to the lower court.
(Dictated to the Judgment Writer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 15th day of September 2015) (B.Jayantha Kumar) LX Addl.City Civil & Sessions Judge, Bengaluru.