Bangalore District Court
Syed Sadiq Ahmed vs Smt. Amreen Khanum on 11 January, 2017
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH-65) AT BENGALURU.
Dated this 11th day of January, 2017
-: P R E S E N T :-
Sri. MADHUSUDHAN B.,
B.Com, LL.B (Spl.),
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
CRIMINAL APPEAL No.1262/2016
BETWEEN:-
APPELLANT/ Syed Sadiq Ahmed,
S/o. Late Syed Basheer Ahmed,
(PETITIONER - IN
Aged about 39 years,
LOWER COURT) :
Zaid Home Appliances,
No.125, C.B.Cbicken Centre,
Chamundi Nagar Main Road,
R.T.Nagar post,
Bengaluru-560 032.
(By Sri. K.Akram Pasha, Adv.)
Vs.
RESPONDENTS/ 1. Smt. Amreen Khanum,
W/o. Syed Sadiq Ahmed,
(RESPONDENT - IN Aged about 28 years,
LOWER COURT) :
2. Syed Zaid Ahmed,
S/o. Syed Sadiq Ahmed,
Aged about 10 years,
M.C.Doon Public School,
2 Crl.A.No.1262/2016
3. Syed Zain Ahmed,
S/o. Syed Sadiq Ahmed,
Aged about 8 years,
M.C.Doon Public School.
Respondents No.2 and 3 are
minors, hence they are under
guardianship of respondent No.1,
who is their natural mother.
All are R/at. No.26,
Akbari Masjid Road,
Chamundi Nagar, R.T.Nagar post,
Bengaluru- 560 032.
(By Sri.Ikbal Ahmed, Adv.)
JUDG MENT
Appellant herein, who is respondent before trial court,
being aggrieved by the order dated 21.9.2016 awarding/granting
interim maintenance of Rs.3,000/- per month to the respondents
herein, who are petitioners before trial court in
Crl.Misc.No.160/2016 on the file of MMTC- VI, Bengaluru
preferred this appeal U/s.29 of Protection Of Woman From
Domestic Violence Act 2005 ( herein after referred to as D.V.Act
for short and convenience) in which he has challenged the legality
and correctness of the impugned order and prayed for setting
aside the order.
3 Crl.A.No.1262/2016
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. Brief facts of this case may be stated as under;
Petitioner No.1, who is respondent No.1 herein, is the
legally wedded wife of appellant, who is respondent No.1 before
trial court. Her marriage was solemnized on 5.2.2012 at Jamia
Masjid, Ganga Nagar, Bengaluru. At the time of marriage, parents
of petitioner given an amount of Rs.5,00,000/- in cash, furnitures
worth of Rs.2,00,000/- and other jewelries worth of
Rs.3,00,000/- to the parents of the respondent/appellant. After
the marriage, petitioner No.1 went to the house of respondents to
lead her marital life. During the wedlock, petitioner No.1 gave
birth to two children, who are residing with petitioner No.1. First
son is studying in 6th standard, while second son is studying in
third standard. But marital life of petitioner No.1 with respondent
No.1 was not happy, since she is subjected to domestic violence
in the hands of respondents. In this connection, petitioner No.1
initiated criminal case by filing report, on the basis of which,
police concerned have already registered a case in
Cr.No.170/2016 alleging commission of offences punishable
4 Crl.A.No.1262/2016
U/s.498-A and 324 of I.P.C. R/w.Section 34 of I.P.C., which is still
pending on the file of CMM., Court, Bengaluru. Thereafter
appellant filed necessary petition before MMTC.,-VI, Bengaluru
against respondents seeking different reliefs as provided U/s.17,
18, 10, 20, 21 and 22 of D.V.Ac6t. In the petition, petitioners
alleged that, petitioners are subjected to domestic violence in the
hands of respondents. Respondent No.2 is mother of respondent
No.1, thus, she is mother-in-law of petitioner No.1. It is
contended that, prior to marriage of petitioner No.1 with
respondent No.1, there was no any relationship, thus it is new
alliance. Though petitioner No.1 led her happy marital life for few
months, but thereafter, her martial life was not happy since
respondents used to pick up quarrel with petitioner No.1 without
reasonable cause. Respondents started illegal demands for which
petitioner No.1 subjected to mental as well as physical
harassment in the hands of respondents. Therefore, petitioner
No.1 returned to her parental home with her children. Thereafter,
respondent No.1 without providing proper maintenance and
without taking back these petitioners to his home, started sending
threatening calls to the members of the petitioner No.1.
Respondent No.1 though having sufficient mesne but refused
5 Crl.A.No.1262/2016
and neglected petitioners. Parents of petitioner No.1 unable to
meet out illegal demands of respondents. Therefore, with these
among other grounds, petitioners sought for different reliefs by
filing petition U/s. 12 of D.V.Act.
4. Along with petition, petitioners have filed application
U/s.23 of D.V.Act for grant of interim maintenance of Rs.50,000/-.
That application was supported by sworn affidavit of petitioner
No.1. Even petitioners have also filed relevant documents.
5. Learned Magistrate after hearing counsel appearing
for petitioners, passed exparte orders on I.A.No.I by granting
interim maintenance of Rs.3,000/- per month to each of the
petitioners No.1 to 3. It is this order which is challenged by
respondent No.1, who is husband of petitioner No.1, on following
main grounds;
Main Grounds of Appeal
Impugned order neither maintainable in law nor on the
facts, thus, liable to be set aside. Impugned order is passed
exparte without giving an opportunity to oppose I.A.No.I, thus
same is totally illegal and improper. Main petition U/s.12 of
D.V.Act is filed only after registration of one criminal case against
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respondents, thus just to support that criminal case, which was
filed/ initiated without any base. In view of principles laid down
by Hon'ble High Court of Karnataka, Bengaluru in
Crl.R.P.No.815/2009 in a case of Krishnamurthy Nookula V/s.
Y.Savitha, impugned order is not sustainable. Learned Magistrate
without conducting necessary enquiry with reference to the
defence as put forth by the respondent, passed impugned order
which is clearly against the mandate of provisions of D.V.Act. In
awarding quantum of interim maintenance, Learned Magistrate
committed grave error, since income of the respondent No.1 has
not at all being taken into consideration. Whole sale chicken
Centre is not owned by respondent No.1, but same belongs to
one Rafiq Ahmed, who is elder brother of respondent
No.1/appellant. Petitioner No.1 is not interested to reside with
respondent No.1 without reasonable cause. Learned Magistrate
committed grave error in granting interim exparte maintenance
order directing respondent No.1/appellant to pay interim
maintenance, without following the procedure. Therefore, with
these among other grounds, appellant prayed for allowing this
appeal by setting aside impugned order.
7 Crl.A.No.1262/2016
6. Notices of this appeal memo were ordered to be
issued to respondents, who appeared through their counsel.
7. Heard arguments.
8. On the material placed before this court, following
are the points for my consideration:
1. Whether appellant/respondent No.1
substantiate that, impugned order is
illegal, thus liable to be set aside?
2. Whether interference of this appellate
court is necessitated?
3. What Order?
9. My findings on the aforesaid points are held as under:-
Point No.1: In Negative
Point No.2: In Negative
Point No.3: As per final order below,
for the following:-
REASONS
10. POINTS NO. 1 and 2:- I have taken these two points
together to avoid repeated discussions.
11. During course of arguments, learned advocate
appearing for appellant vehemently argued contending that,
Learned Magistrate has ignored basic principles of natural justice
8 Crl.A.No.1262/2016
of being heard, thus, he insisted this court to allow this appeal by
setting aside the impugned interim maintenance order. He
further submitted that, impugned order is not only against the
procedure, but also not in conformity with the principles laid down
by Hon'ble High Court of Karnataka, Bengaluru in
Crl.R.P.No.815/2009 which is decided on 9.12.2009. He also
argued contending that, Learned Magistrate without giving an
opportunity to submit the counter to main petition, rushed to
grant exparte interim maintenance which is illegal order. Hence,
he sought for allowing this appeal.
12. Per contra, learned advocate appearing for
respondents/petitioners supported the impugned order. He also
submitted that, Learned Magistrate neither committed error nor
ignored the procedure as laid down U/s.23(2) of D.V.Act. Thus,
sought for dismissal of appeal with costs.
13. Keeping these rival contentions as well as principles
laid down in the dictum, which is relied upon by the appellant, I
have gone through the material on record.
9 Crl.A.No.1262/2016
14. On going through the averments of main petition as
well as grounds urged in this appeal memo, it is clear that,
relationship of petitioners with respondents as contended by
petitioners is admitted fact. Legitimacy of petitioners No.2 and 3
with petitioner No.1 and respondents No.1 is also not in dispute.
Ofcourse, it would be premature to hold that, petitioners are
subjected to domestic violence, but suffice it to hold that,
petitioners/respondents were having domestic relationship with
appellant. Now question to be decided in this appeal is whether
impugned order is sustainable in law or not. On perusal of the
records, it is clear that, Learned Magistrate granted interim
maintenance of Rs.3,000/- per month to petitioners No.1 to 3,
without hearing this appellant, which means order under
appeal is exparte maintenance order. Main attack of the appellant
is that, Learned Magistrate though having powers to grant interim
maintenance but such interim maintenance can be granted only
after conducting due enquiry. But language used U/s.23(2) of
D.V.Act is very much clear that, Magistrate is having powers to
grant exparte reliefs, including exparte interim maintenance, if he
is satisfied that an application prima facie discloses that,
10 Crl.A.No.1262/2016
respondents committed act of domestic violence. I feel it
necessary to re-produce Section 23 of D.V.Act, which reads thus;
23. Power to grant interim and ex part
orders:- (1) In any proceeding deems just and
proper.
(2) If the Magistrate is satisfied that an
application prima facie discloses that the
respondent is committing, or has committed
and act of domestic violence or that there is a
likelihood that the respondent may commit an
act of domestic violence, he may grant an
exparte order on the basis of the affidavit in
such form, as may be prescribed, of the
aggrieved person under section 18, Section 19,
Section 20, Section 21 or, as the case may be,
section 22 against the respondent."
Therefore, Section 23 of D.V.Act deals with granting
interim reliefs. In the instant case, it is borne by the records
that, Learned Magistrate passed order by which exparte interim
maintenance is awarded. If interim maintenance is granted,
after issuance of notice to the appellant/respondent, and after
appearance of the appellant/respondent before trial court, then
contention of appellant that Learned Magistrate committed
grave error while granting interim maintenance without
11 Crl.A.No.1262/2016
conducting enquiry, would have been accepted. In the instant
case, as already observed, exparte interim maintenance order is
passed which is very well permissible under Sub-Section 2 of
Section 23 of D.V.Act. Even if the principles laid down in a
decision in Crl.R.P.No.815/2009 on the file of Hon'ble High Court
of Karnataka, Bengaluru is applied to the case on hand, it helps
the contention of respondents/petitioners No.1 to 3. Because,
their lordships have clearly held that, Sub-Section 1 of Section 28
of D.V.Act refers to proceedings U/s. 23(1) of The Act. In the
instant case, Learned Magistrate passed order of exparte interim
maintenance by invoking provisions of Section 23(2) of D.V.Act.
Therefore, if said principle is applied to the case on hand, it helps
the contention of respondents/petitioners No.1 to 3.
15. Thus it is clear that, Learned Magistrate neither
committed error nor exceeded his powers in the matter of
granting exparte interim maintenance order. In that view of the
matter, grounds urged in appeal memo are not sustainable. On
the other hand, impugned order passed by Learned Magistrate
on the application U/s.23(2) D.V.Act is very well sustainable in
law.
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16. In view of my above discussions and in the result
appellant failed to substantiate that, impugned order is illegal.
Thus, order under appeal is very well sustainable in law, in which
case, interference of this court is not necessitated. Accordingly, I
answer points No.1 and 2 in Negative.
17. POINT NO.3 :- In view of my findings on the above
points No.1 and 2, grounds urged in appeal memo as well as
raised during course of arguments are not sustainable. This
appeal is devoid of merits, thus liable to be dismissed by
confirming the impugned order. Being of that opinion, I proceed
to pass the following:
ORDER
Criminal Appeal filed U/Sec.29 of D.V.Act is hereby dismissed.
Consequently, impugned order dated 21.9.2016 passed in Crl.Mis.No.160/2016 on the file of MMTC- VI, Bengaluru is hereby confirmed.
Office is directed to send certified copy of this judgment to the trial court, forthwith. 13 Crl.A.No.1262/2016
Further, office is directed to furnish certified copy of this judgment to the respondents, free of costs.
(Dictated to the Judgment Writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 11th day of January, 2017) (MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.