Bangalore District Court
Sri C. Rajesh vs Smt. Durga Mahadevi on 16 July, 2018
1 CRL.A.1641/2017
IN THE COURT OF LXXI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE (CCH-72)
DATED THIS THE 13TH DAY OF JULY 2018
PRESENT
SHRI. GOPAL, B.Com, LL.B.,
LXXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU URBAN DISTRICT, BENGALURU
Crl. Appeal No.1641/2017
Appellant : Sri C. Rajesh,
S/o. Late C. Chandrashekar,
Aged about 27 Yrs,
R/at. No.37, 3rd Floor,
New Bank colony,
Konanakunte,
Bengaluru-560 062
( By Sri Prakash.B.R., Adv.)
V/s.
Respondent : Smt. Durga Mahadevi,
Aged about 24 Yrs,
W/o. Rajesh, R/at. No.18/A,
Byraveshwara Nagar,
Chunchanaghatta Main Road,
Konanakunte post,
Bengaluru-560 062.
( By Sri C.H.Ramachandra Reddy.,
Adv.)
2 CRL.A.1641/2017
JUDGEMENT
Being aggrieved by the order dated 24.6.2017 passed by the learned Metropolitan Magistrate, Traffic Court-II, Bengaluru in Crl. Misc.No.109/2017 filed under section 23 of the Protection of Women from Domestic Violence Act, 2005 granting Ex-parte interim monthly maintenance of Rs.5000/- per month till further orders.
2. Before going to the merits of the appeal, let me briefly state the fact relevant for consideration of this appeal are the respondent filed a Criminal Miscellaneous petition against the appellant under section 12 of the Protection of Women from Domestic Violence Act, 2005 before the learned MMTC-II Court, Bengaluru which was registered in Crl.Misc.No.109/2017. The learned Magistrate on the application of the Respondent u/s. 23 of DV Act passed impugned order against the Appellant husband. Being aggrieved by the impugned order Respondent / Appellant preferred the present appeal on the following grounds :
(a) The impugned order passed by the learned Magistrate is opposed to law and erred by awarding interim monthly maintenance of 3 CRL.A.1641/2017 Rs.5000/- basing on the affidavit of the Petitioner wife and it is one sided order. There is no domestic violence caused by the Appellant to the Respondent. Sufficient opportunity not given to the Appellant to establish his defence.
(b) The Respondent herein as deserted the appellant and she is residing in her parental house. She is working in a green city hospital and getting salary of Rs.8533/- per month. In the said order obtained by the Petitioner wife by claiming fraud on the Court by suppressing the real facts. On these ground prays for allow the appeal by setting aside the impugned order dated 24.6.2017.
3. Having heard the arguments on both sides and perused the material placed before the Court, the following points arises for my consideration are:
1. Whether the impugned order dated 24.6.2017 passed by the learned MMTC-II, Bengaluru in Crl.Misc. No. 109/2017 awarding Ex-parte interim monthly maintenance of Rs.5,000/- is perverse capricious and oppose to law and needs interference of this appellate Court ?4 CRL.A.1641/2017
2. What order ?
4. My findings on the above points are:
Point No.1: In the Negative Point No.2: As per final order, for the following:
REASONS
5. Point No.1: Admittedly, Respondent is a legally wedded wife of appellant. There is no dispute regard to marital relationship of parties. Respondent filed a petition u/s. 12 of DV Act in Crl.Mis. 109/2017 against her husband before the MMTC-II Court, Bengaluru and also seeking Ex.parte order of interim monthly maintenance. On 14.6.2017 the said petition is filed by the Respondent. On 24.6.2017 Ex.Parte interim maintenance of Rs.5000/- was ordered by the learned Magistrate against the appellant till further orders. The said legality of the order questioned by the Appellant husband herein.
6. The grounds urged by the Appellant are that the impugned order passed by the learned Magistrate without application of judicial mind and basing on 5 CRL.A.1641/2017 affidavit filed by the Respondent are not given sufficient opportunity to the appellant to establish his defence.
7. On reading of Sec. 23 of DV Act deals with the power to grant interim and Exparte orders in any proceeding by the Magistrate. It appears from record that after filing of complaint u/s 12 of DV Act, the aggrieved person has filed an affidavit u/s. 23 (2) of DV Act seeking interim relief and the learned trial Court having being satisfied on such affidavit passed the impugned order of interim maintenance. Admittedly , the aggrieved person is the wife of the Appellant.
8. It is clear from sub section 2 of Sec. 23 of DV Act It is clear from Sub-Section (2) of Section 23 of D.V. Act that the ex-parte interim order of maintenance was passed at the preliminary stage even before issuance of notice, and therefore, there was no scope for giving the chance of hearing to the respondent. The magistrate is supposed to pass such order only on the basis of the affidavit filed by the aggrieved person and in the instant case also, learned trial Court has passed the interim ex- parte maintenance order on the basis of affidavit filed by the aggrieved person. Sub-Section (2) of Section 25 of 6 CRL.A.1641/2017 D.V. Act lays down that the aggrieved person or the respondent may approach the magistrate for alteration, modification or revocation of any order if the change of circumstances so deserves. Therefore, any interim order passed by the learned magistrate can very well be modified or altered or revoked by the learned trial Court itself on the application of the aggrieved person or the respondent. In the instant case, if the situation was such, that the appellant was incapable of paying the interim maintenance for any practicable reason, the appellant could have approached the trial Court for alteration or modification of the interim order of maintenance. Without taking to such recourse, which could be time saving, it has become the common practice of filing the appeal against any ex-parte interim order which indeed tends to frustrate the very object of the legislation to give speedy remedy to the aggrieved person under the D.V. Act. May that as it be, when admittedly the aggrieved person is the wife of the appellant and the magistrate having been satisfied on the basis of the affidavit, that there was domestic violence, granted the interim maintenance, such order of interim maintenance passed by the learned trial Court in exercise of his 7 CRL.A.1641/2017 judicial discretion conferred by the Statute cannot be held to be illegal or perverse or capricious merely on the ground that the appellant was not given an opportunity of being heard, in as much as, there is no scope for giving such opportunity of hearing to the respondent at the time of passing such ex-parte interim order. Evidently, the impugned order is an interlocutory ex-parte order and such order also falls within the ambit of the judicial discretion of the learned trial Court.
9. Hon'ble Supreme Court while dealing with the power of the Appellate Court and the scope of appeal against any interim order which is discretionary in nature, held in Ramdev Food Products Pvt. Limited - Vs - Arvindbhai Rambhai Patel & Ors., AIR 2006 (SC) 3304 as under -
"The grant of an interlocutory injunction is in exercise of discretionary power and hence, the appellate Courts will usually not interfere with it. However, the appellate Courts will substitute their discretion if they find that discretion has been exercised arbitrarily, capriciously, perversely, or where the Court has ignored 8 CRL.A.1641/2017 the settled principles of law regulating the grant or refusal of interlocutory injunctions. This principle has been stated by this Court time and time again."
10. The principle laid down by the Apex Court with regard to scope of appeal or the power of the appellate Court in interfering with an interlocutory order, is very much applicable in the instant case where the appeal is against an interlocutory order. Thus from the ratio laid down by the Apex Court as well as Hon'ble Bombay High Court in Abhijit Bhikaseth Auti - Vs - State of Maharashtra & Anr. (Supra) it can be held without hesitation, that unless the interlocutory order passed by the learned trial Court in the exercise of judicial discretion is arbitrary, capricious, perverse or against the basic and settled principles of law, the appellate Court should not interfere with such interlocutory order.
11. In the present case, the materials on record shows that the respondent/aggrieved person is admittedly the married wife of the appellant Manoj Choudhury and a petition U/s 12 of D.V. Act has been filed alleging domestic violence. The learned trial Court having prima-facie satisfied about the domestic violence, 9 CRL.A.1641/2017 passed the impugned ex-parte interim order of maintenance on the basis of the affidavit filed by the aggrieved person U/s 23(2) and such interim order passed by the learned trial Court in exercise of his judicial discretion, in the facts and circumstances of the case does not appear to have suffered from any infirmity and therefore, I do not find any cogent reason to interfere with such order. However, having considered the submission of the learned counsel for the appellant and the materials brought on record, the interim order of maintenance is modified only to the extent of reducing the quantum to Rs.3,000/-. Interim maintenance, shall be paid by the appellant @ Rs.3,000/- till disposal of the main petition. Be it mentioned that the learned trial Court shall not be influenced by such quantum while passing any maintenance order at the time of final disposal of the petition.
12. With the above observation and modification in the quantum of the interim maintenance, I answered the point No.1 in the negative subject to the above observation.
10 CRL.A.1641/201713. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER The Crl. Appeal No.1641/2017 filed by the appellant under section 29 of Protection of Women from Domestic Violence Act, 2005 is disposed off with the above observation of the order of the Judgment and modification in the quantum of the interim maintenance.
Send the copy of the Judgment to the MMTC-II, Bengaluru in Crl.Mis. 109/2017 (Dictated to the Typist Copyist, corrected and signed and then pronounced by me in open Court on this 16th day of July, 2018).
(GOPAL) LXXI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU 11 CRL.A.1641/2017 (Order pronounced in Open Court) ORDER The Crl. Appeal No.1641/2017 filed by the appellant under section 29 of Protection of Women from Domestic Violence Act, 2005 is disposed off with the above observation of the order of the Judgment and modification in the quantum of the interim maintenance.
Send the copy of the Judgment to the MMTC-II, Bengaluru in Crl.Mis. 109/2017.
(Dictated to the Typist Copyist, corrected and signed and then pronounced by me in open Court on this 16th day of July, 2018).
(GOPAL) LXXI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU 12 CRL.A.1641/2017