Bangalore District Court
Sri M.Rajendra Prasad vs Smt. P.V. Thembavani on 31 July, 2018
1 CRL.A.1491/2017
IN THE COURT OF LXXI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE (CCH-72)
DATED THIS THE 31ST 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.1491/2017
Appellant : Sri M.Rajendra Prasad,
S/o. T.Muniswamy,
Aged about 53 Yrs,
R/at. No.G.88, Keshava Nagara,
I Cross, Magadi Road,
Bengaluru.
( By Sri Nagendra Shetty, Adv.)
V/s.
Respondent : Smt. P.V. Thembavani,
W/o. M.Rajendra Prasad,
Aged about 42 Yrs,
R/at. No.14, Behind Christ
the King School, Aditya layout,
Ramamurthy Nagar,
Bengaluru.
( By Smt Sheetal Soni, Adv.)
2 CRL.A.1491/2017
JUDGEMENT
Being aggrieved by the order dated 4.7.2017 passed by the learned Metropolitan Magistrate, Traffic Court-I, Bengaluru in Crl. Misc.No.132/2017 filed under section 12 of the Protection of Women from Domestic Violence Act, 2005 granting Ex-parte interim monthly maintenance of Rs.10000/- per month till disposal of I.A.
2. Before going to the merits of the appeal, let me briefly state the fact relevant for consideration of this appeal are that the respondent is the legally wedded wife of Appellant and their marriage was performed in the year 1998 and lead a marital life and they were blessed with two children who are Keertha Vardhini aged about 17 years and Abhishwaran aged about 15 years. Thereafter dispute arose between husband and wife and got separated. She 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-I Court, Bengaluru it was registered in Crl.Misc.No.132/2017 and also seeking Exparte interim relief of maintenance by filing application U/s. 23 of DV Act. The learned Magistrate on the 3 CRL.A.1491/2017 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 trial Court without properly assessing the salary of her husband has ordered to pay of Rs.10,000/- per month to the wife and two children for basic necessities till disposal of I.A. which is oppose to law and natural justice.
Appellant is drawing a salary of Rs.40,000/- per month. After deduction he will get take home salary of Rs.25,000/- out of which he has to spend nearly Rs.8,000/- to Rs.10,000/- towards medication and treatment of his parents.
(b) The Respondent wife is working women and earning for her and her children lively hood and he is ready to take back his children and providing all the facilities. The impugned Ex- parte order is erroneous and opposed to law and facts. On these ground prays for allow the appeal by setting aside the impugned order dated 4.7.2017.
3. Respondent has appeared through counsel and submitted her statement of objection to the main petition 4 CRL.A.1491/2017 and also to the application u/s. 397 (1) of Cr.P.C. and objection to the application u/s. 5 of the Limitation Act.
4. On 20.2.2018 after hearing on both sides I.A. 2 u/s. 5 of Limitation Act was allowed by condoning the delay of 76 days in preferring the present appeal.
5. 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 4.7.2017 passed by the learned MMTC-I, Bengaluru in Crl.Misc. No. 132/2017 awarding Ex-parte interim monthly maintenance of Rs.10,000/-
is perverse, capricious and oppose to law and needs interference of this appellate Court ?
2. What order ?
4. My findings on the above points are:
5 CRL.A.1491/2017Point No.1: In the Partly in the Affirmative (Modified monthly maintenance of Rs.10,000/- to Rs.5000/-) Point No.2: As per final order, for the following:
REASONS
5. Point No.1: Admittedly, Respondent is a legally wedded wife of appellant and their marriage was performed in the year 1998. After the marriage they lead a marital life and they were blessed with two children aged about 17 years and 15 years. Thereafter dispute arose between husband and wife and got separated on 29.10.2003.
6. Respondent wife filed a petition u/s. 12 of DV Act in Crl.Mis. 132/2017 against her husband before the MMTC-I Court, Bengaluru and also seeking Ex.parte interim monthly maintenance. On 4.7.2017 learned Magistrate granted Exparte Interim monthly maintenance of Rs.10,000/- per month for herself and her children till disposal of the I.A.1. The said legality of the impugned order questioned by the Appellant husband herein.
7. The learned counsel for the Appellant submits that the Respondent wife left her marital home and 6 CRL.A.1491/2017 stayed with her parental house since 29.10.2003. The said fact has been admitted by the Respondent in para-4 of her statement of objection. The act came into force during the year 2005. The trial Court has not satisfied with regard to the prima facie of the commission of acts of domestic violence by the Appellant prior to filing application U/s 12 of DV Act. There was no act of domestic violence committed by the Appellant to the Respondent. Before passing the impugned order the trial Court has not conducted enquiry with regard to the act of domestic violence committed by the Appellant to the Respondent and relied upon the decision reported in 2007 CRL.L.J. 2057 KERALA AND 1975 CRL.L.J. ALL.465, AIR 1977 CAL.244 and prays for allow the appeal.
8. Learned counsel for the Respondent submits that the trial Court has rightly passed the impugned order against the Appellant. He has to maintain his wife and children. Even the past act of the domestic violence against wife she is entitled claim maintenance from her husband after the act came into force. In support of argument relied upon the decision reported in LAWS(DLH)2017(5) 145 in Bharath Bararia V/s.
7 CRL.A.1491/2017Priyanka Bararia and 2014 (10) SCC 736 in Juveria Abdul Majid Patni V/s. Atif Iqbal Mansoor and another and prays for dismissal of the appeal.
9. On perusal of the order sheet in Crl.Mis 132/2017 discloses that on 3.7.2017 Respondent filed the petition under Sec. 12 of DV Act and also seeking interim relief by filing application U/s. 20 r/w Sec. 23 of DV Act 2005. On 4.7.2017, the trial Court has passed the impugned Exparte interim order of maintenance of Rs.10,000/- per month for herself and her children till the disposal of I.A and thereafter issued a notice to the Respondent through CDPO and call for DIR and posted to 08.08.2017. Thereafter the appellant appeared through counsel and submitted objection to main petition and adoption memo to I.A. on 25.9.2017 .
10. On reading of Sec. 23 of DV Act, deals with the power to grant interim and Exparte order in any proceedings by the Magistrate. It appears from record after filing 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 8 CRL.A.1491/2017 interim maintenance. Admittedly , the aggrieved person is the wife of the Appellant.
11. It is clear from sub section 2 of Sec. 23 of DV 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 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. Learned trial Court in exercise of his 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 9 CRL.A.1491/2017 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.
12. The learned counsel for the Appellant submits that the trial Court has not disposed the I.A. and Respondent procrastinating the proceedings and as per the admission of the Respondent in her statement of objection she stayed separately from the Appellant since 29.10.2003 and there was no domestic violence committed by the Appellant to his wife and petition itself is not maintainable. On the other hand learned counsel for the Respondent submits that in view of the decision of the Hon'ble Supreme Court of India reported in 2012 Page 3 SCC page 183 in V.D. Bhanot V/s. Savitha Bhanot which is relied by the Hon'ble Delhi High Court reported in LAW(DLH) 2017(5) 145 wherein their lordship has held that the conduct of the parties even prior to the coming into force of the DV act could be taken into consideration while passing an order u/s. 18, 19 and 20 10 CRL.A.1491/2017 thereof. Learned counsel for the appellant submits that the said decision of the Hon'ble Supreme Court of India it is not applicable as the said facts narrated in the decision and the facts of this case are entirely different and the said decision was passed on the merits on the petition .
13. In the present case, the materials on record shows that the respondent/aggrieved person is admittedly the married wife of the appellant 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 basing on the affidavit passed the impugned ex-parte interim order of maintenance 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 Respondent and the materials brought on record, the interim order of maintenance is modified only to the extent of reducing the quantum to Rs.5,000/-. Interim maintenance, shall be paid by the appellant @ Rs.5,000/- till disposal of the 11 CRL.A.1491/2017 I.A. from the date of order. It is necessary to mention 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 I.A. With the above observation and modification in the quantum of the interim maintenance, I answered the point No.1 in the partly Affirmative.
14. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER The Crl. Appeal No.1491/2017 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 in the Judgment and modification in the quantum of the interim maintenance from Rs.10,000/- to Rs.5000/- from the date of order.
It is hereby directed the trial Court to dispose of the I.A. within 2 months from 12 CRL.A.1491/2017 the date of receipt of the order by following the procedure laid down by the Honb'le High Court of Karnataka held in Crl.R.Petition No.815/2009 in Krihnamurhty Nooula V/s. Y.Savitha vide order dated 09.12.2009.
Send the copy of the Judgment to the MMTC-I, Bengaluru in Crl.Mis. 132/2017 (Dictated to the Typist Copyist, corrected and signed and then pronounced by me in open Court on this 31st day of July, 2018).
(GOPAL) LXXI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU