Bangalore District Court
Smt.Vaishnavi.C vs / : 1 Shri R.Srinivasan on 17 December, 2020
1
CRL.A.NO.1164/2017
IN THE COURT OF THE LXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-62)
Dated this the 17 th day of December, 2020
PRESENT :- SRI S.R.MANIKYA., B.Sc., LL.B.,
LXI Addl. City Civil & Sessions Judge,
Bangalore, (CCH-62)
Criminal Appeal No.1164/2017
Appellant/ : 1 Smt.Vaishnavi.C
Petitioner W/o.R.Srinivasan
Aged 43 years
2 Master Abhijith.S
S/o.R.Srinivasan
Aged about 15 years
Rep. by his natural guardian and
mother, Appellant No.1
Both are R/a.Flat No.101
32/3/1-02.
'Ramaleela Apartments'
Vajapayam Garden
6th Cross, Ashoknagar
N.R.Colony
Bengaluru-560 050.
V/s.
Respondent / : 1 Shri R.Srinivasan
Responded S/o.Ramaswamy Iyengar
Aged about 43 years
R/a. Flat No.104, 32/01-02
2
CRL.A.NO.1164/2017
Ramaleela Apartments
Vajapaem Garden,
6th Cross, Ashoknagara
N.R.Colony,
Bengaluru-560 050.
2 Smt.Leela Iyengar
W/o.Late A.S.Ramaswamy Iyangar
Aged about 72 years
Both are R/a.Flat No.103,
32/3/01-02
Ground Floor
Ramaleela Apartments
Vajapeyam Garden
6th Cross, Ashok Nagar
N.R.Colony
Bengaluru-560 050.
JUDGMENT
This appeal is preferred against the order passed by the learned MMTC 4th Court in Crl. Misc. No.18/2012 filed under Section 28 of DV Act R/w. Section 431 and 421 of Cr.P.C., and the order challenged before this court is the order passed on 15.07.2017.
2. The brief facts of the appellants case is that;
The 1st appellant is the wife of the 1st respondent and daughter in law of the respondent No.2. The petitioner has filed an application in Crl. Misc. No.72/2009 under Section 12 of the Protection of Women from Domestic Violence Act 3 CRL.A.NO.1164/2017 which was partly allowed and ordered to pay maintenance of Rs.20,000/- per month to the petitioner by the respondent No.1 and also awarded compensation of Rs.10,000/-. Further, it is also ordered that an alternative accommodation is to be provided in the event of respondent No.2 terminating the tenancy of the respondent No.1.
Against this Crl.A. No.36/010 was filed before the Fast Track Court which has been allowed in part and reduced the amount of Rs.12,000/- per month. Against this Crl.R.P. 831/2010 was filed before the Hon'ble High Court of Karnataka and the High Court has ordered on 03.02.2011 wherein the appeal preferred by respondent was dismissed. The appeal preferred by the petitioner was allowed and restored the original order of the trial court. The respondent preferred the SLP before the Supreme Court No.19858- 19859/2011 which came to be dismissed on 21.10.2011 and in the Hon'ble Supreme Court, the respondent has under
took to pay the educational expenses of the child of the petitioner. Though there was undertaking before Hon'ble Supreme Court and the order was passed to pay maintenance and to provide alternative accommodation and cost but that was not complied. Hence, the application was filed in Crl. Misc. No.18/2012 wherein on 16.01.2012 there was an order of attachment. Before the Hon'ble Supreme Court in another proceedings the SLP No.4362/2011 the respondent 4 CRL.A.NO.1164/2017 undertook to clear all the entire amount of maintenance in four installments on or before November 16, 2012. Inspite of the undertaking given before the Court, the petitioner approached the Hon'ble Supreme Court and the Hon'ble Supreme Court has directed the respondent No.1 to pay maintenance in accordance with the said protection order dated 05.10.2010. The learned Magistrate has submitted why the Crl. Misc. No.18/2012 should not be closed and the petitioner has produced the order of the Hon'ble Supreme Court and prayed for continuing the attachment to ensure to compliance inview of the order of the Hon'ble Supreme Court and the matter was heard on 03.07.2017 and on 10.07.2017 the respondent was heard on memo on 15.07.2017 the order was passed holding that the entire arrears of maintenance has been paid. Hence, the petition is not maintainable. Hence, the petition is closed.
3. Against this order, now the appellant has preferred this appeal and contending that inview of Section 31 and 32 of DV Act the order passed by the learned Magistrate is highly contrary to the law on facts and material on record. The learned Magistrate has passed order without assigning valid and cogent reasons. The trial court has failed to appreciate that the said attachment proceedings was stayed by the Hon'ble Supreme Court in SLP and as the stay is still in operation the trial ought not to have closed the proceedings.5
CRL.A.NO.1164/2017 The trial court has failed to appreciate that the proceedings in Crl. Misc. No.18/2012 was initiated and attachment of immovable property was ordered inview of the violation of the protection order. Though the respondent No.1 has breached the undertaking and the protection order passed by the trial court and failed to continue to pay maintenance. Under these circumstances, the order passed by the trial court is liable to be set aside. Hence, he prayed for allowing the appeal.
4. I have heard the arguments of both the petitioner and respondent counsel.
5. Now the only point that arose for consideration before this court is as follows;
1. Whether the appellant has made out a ground to allow the appeal and made out a ground to set aside the order passed by the learned MMTC-
IV Court?
2. What Order?
6. My findings on the above points are as under:
Point No.i : Inview of the arguments canvassed 6 CRL.A.NO.1164/2017 by both the counsels and by perusing the records and the proceedings recorded by the trial court in Crl.
Misc. No.18/2012 and by
appreciating the facts and
circumstances my answer to the
above point is in Affirmative to
remand the case for fresh disposal.
Point No.ii : As per the final order for the following;
R E A SON S
7. Point No.i:- Now, in this case, the appellant is contending that the Crl. Misc. No.72/2009 was allowed on 05.10.2010 wherein the learned Magistrate has ordered to pay maintenance of Rs.20,000/- per month and also awarded compensation of Rs.10,000/- and also ordered for providing alternative accommodation. Now against this order, the appeal was preferred before the District Court and High Court and as well as Hon'ble Apex Court and ultimately the Hon'ble Supreme Court has dismissed the SLP filed by the respondent and confirmed the order of the learned Magistrate Court.
8. Further, it is also to be noted in another proceedings which was pending before the Hon'ble Supreme Court of India bearing No.4362/2011 wherein it has been specifically passed 7 CRL.A.NO.1164/2017 an order that respondent No.1 would purchase and give two bed room flat to her in the city of Bengaluru, he would also bear the full expenses of their sons' education and upbringing. In the event of compliance of the order, all the cases will have to be withdrawn and the mutual consent divorce if it is filed the consent has to be given. This order was passed on 28.01.2013.
9. Now, as per the order passed in Crl. Misc. No.72/2009, the respondent has to pay maintenance as well as, as per the order of the Hon'ble Supreme Court the respondent has to pay educational expenses of her son and also he should meet the expenses of his child. The learned counsel appearing for the appellant has contended in his argument that though order was passed in the year 2010 since he has not complied the order, Crl. Misc. No.18/2012 was filed which was pending before the Court and various proceedings such as Crl. Appeal No.36/2020 on the files of FTC-16, Bengaluru and Crl.R.P. No.643/2020 on the files of the Hon'ble High Court of Karnataka and SLP No.8189/8190 of 2011 and Crl. Petition No.19858-19859 of 2011 before the Hon'ble Supreme Court of India were proceeded and by considering all these proceedings, the order passed by the MMTC Court has been confirmed.
10. Further in a parallel proceedings of SLP 8 CRL.A.NO.1164/2017 No.4362/2011 wherein the respondent has undertook to pay the entire arrears of maintenance on or before 16.11.2012 and as there was a undertaking before the Supreme Court that that respondent will pay the educational expenses of the child of the petitioner which was not complied and even the maintenance to which he undertook before the Hon'ble Supreme Court was also not complied.
11. In accordance with Section 31 and 32 of DV Act, it is specifically contended that - 'If any breach of protection order is made, the Magistrate has got power to frame charges for the breach of the order and after holding enquiry if it is satisfied that the protection order has been breached by the respondent then the punishment can also be given and under Section 32 of the DV Act - 'Any such petition is filed for violation of condition, the Magistrate has power to take cognizance of the offence and thereafter holding an enquiry, the order has to be passed'.
12. But whereas in this case the learned Magistrate has passed an order wherein it has been stated that the as the 1 st respondent has submitted the entire maintenance amount has been paid, hence the petition stands closed as satisfied. But the appellant has submitted before the learned Magistrate that though the respondent has paid the maintenance, but the other protection order which has been 9 CRL.A.NO.1164/2017 passed by the learned Magistrate has not been complied with respect to the compensation granted by the Court and as per the undertaking given before the Hon'ble Supreme Court, the educational expenses of the child will have to be paid by the respondent. When these conditions have not been fulfilled and not complied which is the continuation of protection order passed by the learned Magistrate, the petition ought to have been continued for holding an enquiry with respect to the breach of order with respect to the above non compliance of the protection order. Without considering all these facts, the petition has been closed. Hence, it is the violation of the protection of law and the learned Magistrate has erred in passing such order. Hence, he prayed for allowing the appeal.
13. On the contrary, the respondent has took up a contention in his argument and submitted that when Crl. Misc. No.105/2011 has been filed and it is admitted fact that the order has been passed by the learned Magistrate with regard to the maintenance and other aspects. He has also specifically admitted that there were various proceedings with respect to the petition before the District Court, Hon'ble High Court and Hon'ble Supreme Court. It is also true that the respondent has undertook to pay the educational expenses of the child before the Supreme Court and as per the undertaking before the Hon'ble Supreme Court, the he has paid the entire arrears of maintenance which is the claim of 10 CRL.A.NO.1164/2017 Rs.4,10,000/- payment has been made in excess to the claim amount. When such being the circumstances, the question of continuing the petition does not arise at all and the learned Magistrate while passing the order has specifically stated that by perusing the available materials before this court, this court comes to the conclusion that the entire claim petition is found satisfied. Hence, stands closed. In such a circumstances, when the petition has been filed claiming maintenance of Rs.4,10,000/- in the petition and there is no further claim with regard to the compensation amount and educational expenses the question of continuing this petition does not arise at all. Under such circumstances, the learned Magistrate has rightly passed the order and there is no illegality in passing the order. Hence, he contended that the petition is liable to be rejected and appeal is liable to be dismissed.
14. Further, he has contended that under Section 31 of the DV Act, the action has to be taken when there is a breach of protection order or when there is a breach of interim protection order then only the question of holding the enquiry with respect to the breach of protection order will arise.
15. But where as in this case, though this petition has been filed in the year 2011 till 2017 the maintenance has been paid. In such a circumstances, when there is no breach 11 CRL.A.NO.1164/2017 of protection order and when there is no breach of any of the specified condition incorporated in the order, the question of attracting Section 31 and 32 of the DV Act as contended by the appellant in the appeal memorandum and as well as in the argument does not arise at all. At any stretch of imagination the attraction of Section 31 in this case does not arise at all. When the claim amount in the petition has been fully satisfied the question of breach of protection order as contended by the appellant does not arise at all. In such a circumstances, the question of continuing the petition and question of holding the enquiry or giving the finding on the breach of protection order by the learned Magistrate does not arise at all. Hence, he prayed for dismissing the appeal.
16. Now, in view of the rival contention of both the parties now this court has to consider about the attracting of Section 31 and 32 of the DV Act and whether the order passed by the learned Magistrate is in accordance with law will have to be considered. If the order passed is in accordance and if it is passed on a correct preposition of law, then the appeal filed by the appellant deserves to be dismissed. Now in this case the specific contention has been taken in the appeal memorandum that the protection order passed in Crl. Misc. No.72/2009 on 05.01.2010 was not complied. Hence, this Crl. Misc. 18/2012 was filed and though at the inception the section 31 and 32 of the DV Act 12 CRL.A.NO.1164/2017 was not included, but later on the petitioner has filed a memo to incorporate these sections and about consideration of that section has been rejected on 03.12.2011 holding that at this stage the application is not maintainable. But it is to be specifically noted under Section 31 of the DV Act, it specifically states as follows;
'A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees or with both'.
17. In that section it is specifically stated that if any allegation made with respect to the breach of protection order then after holding an enquiry charge has to be framed with respect to the offence and under Section 32 of DV Act and it is specifically stated that -'Cognizance can be taken on the sole testimony of the aggrieved person'.
18. Now where as in this case the aggrieved person namely the petitioner has filed the petition for non compliance of the order passed by the learned Magistrate and requested the court to pass the attachment order for compliance of the 13 CRL.A.NO.1164/2017 order passed of the learned Magistrate. In such circumstances, when there is a clear and specific allegation with respect to the non compliance of the protection order passed by the learned Magistrate it was the duty of the learned Magistrate to consider the Section 31 and 32 of the DV Act. But the learned Magistrate has rejected the petition. Further, it is also to be noted that though the claim in the petition was only with respect to the amount of Rs.4,10,000/- as arrears of maintenance, but where as in the subsequent proceedings and as there was undertaking before the Hon'ble Supreme Court that Educational expenses of the petitioner child will have to be borne by the respondent and compensation of Rs.10,000/- which is ordered also be paid and as contended by the petitioner counsel these things have not been complied. The learned Magistrate ought to have considered the contention of the petitioner with regard to those aspects and hold and enquiry with respect to the part of non compliance of the protection order and there upon give a specific findings with regard to the compliance or non compliance by the respondent.
19. But where as in this case the learned Magistrate has not opted that. On the contrary, the learned Magistrate has passed an order stating that as the 1 st respondent has complied the order by paying the entire arrears of maintenance. Question of maintaining the order of the 14 CRL.A.NO.1164/2017 attachment does not arise and accordingly the entire claim made in the petition is find satisfied and petition stands closed as fully satisfied. But it is to be specifically noted where as petitioner has filed the petition claiming for breach of protection order and it is only the petitioner who is competent to say about the full satisfaction of the petition unless until the petitioner says that this petition has been fully satisfied. Hence, petition may be closed. The Court cannot pass an order to proceed to close the petition. No doubt if the petitioner has not turned up inspite of sufficient opportunity given to the petitioner to submit about the satisfaction of the petition then of course the court has got power to go through the records and pas suitable order.
20. But where as in this case the petitioner has contended before the court that petition should be continued and the non compliance of the protection order has to be analyzed and non compliance of the protection order will have to be considered before coming to the conclusion of closing the case. That was not considered by the learned Magistrate which has caused prejudice to the petitioner and this non compliance made by the learned Magistrate cause for miscarriage of justice which leads to file this appeal.
21. More particularly it is to be noted the respondent has dragged the proceedings by filling the appeal before the 15 CRL.A.NO.1164/2017 District Court and the Hon'ble High Court and also Hon'ble Supreme Court and inspite of the order passed by the Hon'ble Supreme Court he has not complied the order well in time and for that purpose this petition has been filed. When the learned Magistrate has passed an order stating that Rs.20,000/- maintenance is to be paid from the date of petition and also passed an order for providing alternative accommodation and when the respondent has took up a specific contention that order has been complied and entire amount has been paid in such an event the order could have been passed by holding an enquriy preliminary with regard to the compliance of the protection order by giving opportunity for both the parties to lead their evidence and after cross- examination the specif finding will have to be give whether there is a breach of protection order or not.
22. But where as in this case the learned Magistrate has passed an order without applying any provision of law. Only on the basis of memo filed by the respondent the order has been passed. According to the well established principle of law and under Section 31 of the DV Act if the petition is filed for breach of protection order, then court must consider that petition and it must give a specific finding with regard to the breach of protection order and it must give a specific finding whether there was any breach of protection order or not. Without considering that aspect the petition cannot be closed 16 CRL.A.NO.1164/2017 as satisfied. More particularly in this case when the petitioner has not filed a memo that the petition has been fully satisfied, the case is closed which has been caused great prejudice to the petitioner and made the appellant to file this appeal. Under such circumstance, I am of the opinion that the order passed by the learned Magistrate is required to be set aside by allowing the appeal and matter has to be remanded to consider the petition afresh by holding enquiry with respect to the breach of protection order and there upon pass a specific order with regard to the breach of protection order as contended by the appellant. Under such circumstances, I am of the opinion that the grounds urged in the appeal has been established before this court to allow the appeal. Hence, I have no hesitation to answer point No.1 in the affirmative.
23. Point No.ii: Having regard to my above observations and finding on point No.1 in the 'affirmative', I proceed to pass the following:-
OR D E R The appeal preferred by the appellants under Sec.29 of the Protection of Women from Domestic Violence Act, 2005 is hereby allowed.
Consequently, the order dated 17 CRL.A.NO.1164/2017 15.07.2017 passed by the learned IV MMTC Bengaluru is hereby set aside and the matter is remanded to the trial court for holding afresh enquiry on the breach of protection order and to pass suitable orders about the breach of protection as expeditiously as possible.
Sent the copy of this order along with the LCR to the trial court forth with.
(Dictated to the stenographer, transcribed and typed by her, corrected and then pronounced by me in the open Court on this the 17 th day of December, 2020) (Sri.S.R.Manikya) LXI Addl. City Civil & Sessions Judge, Bengaluru City.18
CRL.A.NO.1164/2017 17.12.2020 APP-HVV R1,2 -SB Judgment pronounced in open court vide separate typed order OR D E R The appeal preferred by the appellants under Sec.29 of the Protection of Women from Domestic Violence Act, 2005 is hereby allowed.
Consequently, the order dated 15.07.2017 passed by the learned IV MMTC Bengaluru is hereby set aside and the matter is remanded to the trial court for holding afresh enquiry on the breach of protection order and to pass suitable orders about the breach of protection as expeditiously as possible.
Sent the copy of this order 19 CRL.A.NO.1164/2017 along with the LCR to the trial court forth with.
(Sri.S.R.Manikya) LXI Addl. City Civil & Sessions Judge, Bengaluru City.