Bangalore District Court
Anitha.R vs / : 1 Harish Boregowda on 3 February, 2021
1
CRL.A. NO.352/2014 C/W. 490/2014
IN THE COURT OF THE LXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-62)
Dated this the 3 rd day of February, 2021
PRESENT :- SRI S.R.MANIKYA., B.Sc., LL.B.,
LXI Addl. City Civil & Sessions Judge,
Bangalore, (CCH-62)
Criminal Appeal No.352/2014 & 490/2014
Appellant/ : 1 Anitha.R
Petitioners in W/o.Harish Boregowda
Crl.A. Aged about 33 years
No.352/2014 R/a.No.6, 9th Cross,
Chandra Layout, Bengaluru.
(By Sri.R.S., Advocate)
V/s.
Respondent / : 1 Harish Boregowda
Responded in S/o.Boregowda
Crl.A. Aged about 43 years
No.352/2014 R/a.No.966, 4th E Block
10th B Main Road
Rajajinagar
Bengaluru-10
(By Sri.M.C.R., Advocate)
Appellant/ : 1 Harish Boregowda
Respondent in S/o.Boregowda.S.G
Crl.A. Aged about 42 years
No.490/2014 R/a.No.966
10th 'B' Main Road
4th 'E' Block,
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CRL.A. NO.352/2014 C/W. 490/2014
Rajajinagar
Bengaluru-10.
(By Sri.R.S., Advocate)
V/s.
Respondent/ : 1 Smt.Anitha.R
Complainant in W/o.Harish Boregowda
Crl.A. Aged about 35 years
No.490/2014 R/a.Present Address No.6/1B
1st Floor, 9th Cross, Chandra Layout
Bengaluru-40.
Previous Address
No.224, Grund Floor
East Side House
7th Cross, Canara Bank Colony
Nagarabhavi
Moodalapalya
Bengaluru-560 072.
(By Sri.N.M.T., Advocate)
COMMON JUDGMENT
As both these appeals have been arising out of the common order passed by the learned IV MMTC IV Court in Crl. Misc. No.103/2012 dated 15.04.2014 wherein the learned MMTC IV has allowed the application in part.
2. The original judgment is kept in Crl. A. No.352/2014 and the copy of the judgment is kept in Crl.A.No.490/2014.
3CRL.A. NO.352/2014 C/W. 490/2014
3. Against this order both husband and wife i.e., petitioner and respondent both of them have preferred this appeal challenging the order passed by the learned IV MMTC. Now, before the learned IV MMTC, the petitioner who is the appellant in Crl.A. No.490/2014 has filed an application under Section 25(2) of the DV Act for modification of the order dated 16.07.2010 by cancelling or reduction of maintenance payable to the petitioner, cancellation of payment of rent by the respondent to the house owner wherein the petitioner is residing, regarding change of school of child namely Kumari Sukruthi Harish from National Hill View Public School, Rajarajeshwarinagar to Siddaganga Public School, Chandra Layout, Bengaluru or any other equivalent school.
4. In support of the application the husband has filed affidavit stating that the Hon'ble Court has granted maintenance and other reliefs in Crl. Misc. No.103/2012 dated 16.07.2010 and also ordered for payment of rent and educational expenses of the child.
5. Against this order, Crl.Misc.555/2010 was preferred and Sessions Court has modified the order by its order dated dated 08.11.2010 and reduced the quantum of maintenance from Rs.20,000/- to Rs.15,000/-. Against which a Crl.R.P. 4 CRL.A. NO.352/2014 C/W. 490/2014 No.135/2011 was filed before the Hon'ble High Court and which was came to be dismissed. At the time of pendency of the Crl. Misc. Petition in which the order was passed the appellant was working for Sasken Communication Technologies Ltd., and drawing salary of Rs.74,000/- per month. In the mean while the parents of the appellant has also filed an application for maintenance in Crl. Misc. 56/2010 and granted award of maintenance of RS.25,000/- per month. The appellant has complied the order of this court and as well as the family court.
6. Now on account of the cases filed by the respondent and parents of the appellant the appellant was disturbed and there was a departmental enquiry also and allowed to continue in the work place. Thereafter, he was construed to submit his resignation from 07.11.2011.The appellant is not working any where and he is not having sufficient income. On the contrary the appellant who is the respondent in Crl.A. No.352/2014 has owned a three floor house property at Koramangala which is fetching the rent of Rs.30,000/- p.m., Apart from that she is working in CABAY Systems India Pvt. Ltd., But to get the maintenance amount, she has transferred the property to her sister and the respondent was also removed from the job. Under such circumstances, now it has become necessary to modify the order as the appellant was not having sufficient income. On the other hand, the 5 CRL.A. NO.352/2014 C/W. 490/2014 respondent is working in a eye hospital and getting hand sum salary. Hence, prayed for allowing the appeal.
7. For this application, the respondent wife has filed detailed objection and denied all the contention taken in the petition and the question of resigning the job by the petitioner is to be decided upon recording of evidence and under Section 25(2) of the DV Act. The respondent has to satisfy before the court that there is a changed circumstances and the law is very clear if any person with an intention to defeat the order of the court does intentionally, then it cannot be considered as a changed circumstances. At the time of granting maintenance there was seven cases pending, now there are only four cases pending and 498(A) case was also filed and in all the cases the courts has up held the contention of the wife. Now to avoid the liability the respondent has come up with a plea that he has resigned the job. It is not the case of the respondent that he is physically or mentally disabled and the respondent has made intentionally the transfer of property and selling of vehicle to deprive the right of the petitioner. Hence, she prayed for rejection of application.
8. After recording of evidence of the parties the learned Magistrate has partly allowed the petition against which both husband and wife have preferred the appeal and husband as 6 CRL.A. NO.352/2014 C/W. 490/2014 contended that the order passed by the learned Magistrate is not in accordance with law. The learned Magistrate has miserably failed to note the fact that the husband was unemployed. On the contrary the wife was getting a salary of Rs.16,000/- p.m., Deliberately she has left the job and now she is working in Vijay Nethralaya. But that has been suppressed in the evidence and that was also suppressed before the Hon'ble High Court of Karnataka. The respondent has not disclosed regarding her employment and also her earning in the objection. It was only at the time of cross- examined it has been admitted about the employment. Even though the appellant was unemployed, he did not stop paying the maintenance amount inorder to respect the orders of the Hon'ble Court. However, the present salary of the appellant is only Rs.20,000/- p.m., In such a circumstances the maintenance award need to be modified as it is not possible to make payment and it is very difficult to comply the order of the Hon'ble Magistrate court. It is contended that the learned Magistrate is not property considered the other liability of the appellant and hence he prayed for allowing the appeal and to modify the order of maintenance award.
9. Against this order the wife has also preferred appeal and contended that the order passed is opposed to spirit of principle of Domestic Violence Act. The order of the learned Magistrate cancelling the payment of rent order is an 7 CRL.A. NO.352/2014 C/W. 490/2014 erroneous approach. The learned Magistrate has absolutely failed to see the changed circumstances. The learned Magistrate has failed to note that he has intentionally left the job which was giving him gross salary of Rs.75,000/-. Also contended that the learned Magistrate has not properly appreciated the answers given in the course of cross- examination of petitioner. Without considering the details of the order passed in Crl. Misc. No.364/2009 the learned Judge has modified the order. Now under Section 20 of the DV Act, the compensation has to be awarded and under DV Act there is no bar for claiming any benefit even if the wife is working. The documents produced only to get an order or snatch an order from the learned Magistrate. Now, the expenses of her child education has come up to Rs.1,22,000/-. But inspite of that she has agreed to receive Rs.35,000/-. Under such circumstances the question of considering the order for modification does not arise at all. As the appellant was working in C.B.A.Y Systems wherein the respondent brother was in good position and appellant was terminated from service because of the respondent. Various decisions in which it has been specifically held that merely because the husband is not having income it was not absolve the liability under Section 125 of Cr.P.C., to maintain his wife and child until he has got capacity to work. Under such circumstances, the order passed by the learned Magistrate is liable to set side.
8CRL.A. NO.352/2014 C/W. 490/2014
10. Both the parties have submitted written arguments.
11. Now, the only point that arose for consideration before this court is as follows;
1. Whether the appellants in both the appeals i.e. in Crl.A. No.352/2014 and 490/2014 have made out grounds to allow the appeal?
2. What Order?
12. My findings on the above points are as under:
Point No.i : Partly Affirmative
Point No.ii : As per the final order for the following;
R E A SON S
13. Point No.i:- Now it is to be specifically noted that these two appeals have been arising out of the order passed in Crl. Misc. No.103/2012 wherein the husband who is the respondent in Crl.A. No.352/2014 and appellant in Crl.A. No.490/2014 have filed the petition under Section 25 of the DV Act to modify the order passed in Crl.Misc. No.103/2012 on 16.10.10 wherein the learned IV MMTC has granted maintenance amount, rent for residence to the appellant in Crl. A. No.352/2014 and also directed to pay the educational 9 CRL.A. NO.352/2014 C/W. 490/2014 expenses of the child to the appellant in Crl.A. No.490/2014.
14. Now in the petition the appellant in Crl.A. No.490/2014 and respondent in Crl.A. No.352/2014 have specifically took up a contention that on account of changed circumstances and on account of changed situation now the order has to be modified or altered or cancelled because at the time of granting the maintenance the husband was getting salary of Rs.74,000/- p.m. and accordingly the learned Magistrate after considering the salary of the husband awarded the maintenance amount and also ordered for payment of rent and also ordered for payment of educational expenses to his child. Now he has contended in the petition that after filing of this petition, the parents of the respondent i.e., the parents of the husband have also filed a Crl. Misc. claiming maintenance for them and in that petition also the husband was directed to pay maintenance of Rs.21,000/- p.m., and there was a case filed under Section 498(A) also and he was remanded to judicial custody. On account of that the departmental enquiry has been conducted and he was continued in the employment with a specific condition. But on account of frustration and stress of the cases filed, he was forced to resign from the job and accordingly now he is unemployed getting salary of Rs.21,000/- p.m, only. In such a circumstances, it has become very difficult to pay maintenance as ordered. Hence, 10 CRL.A. NO.352/2014 C/W. 490/2014 he prayed for modifying or altering the order.
15. For this petition, the respondent has took up a contention in the objection statement that there is no changed circumstances as contended. The question of modifying or alternating or cancelling the order passed by the IV MMTC does not arise because there is no specific changed circumstances which are stated under the law. On the contrary it was intentionally the respondent has resigned from the job and though he is qualified to get a good job he intentionally took up the job which is getting a meager salary. Only with an intention to avoid the liability and only with an intention to get the order and to snatch the order from the court.
16. The specific contention has been taken by the husband that since the wife is employed and getting salary she is not entitled for maintenance. But according to the well established principle of law the question of employment of the wife will not dis entitle to get the maintenance amount. Though expenses of education of the child has raised to Rs.1,22,000/- the wife has accepted a sum of Rs.31,000/- as educational expenses, in such a circumstances the learned IV MMTC ought to have enhanced the maintenance amount towards education expenses and he could not have passed the order to reduce the maintenance, on account of non 11 CRL.A. NO.352/2014 C/W. 490/2014 bearable ill treatment the wife is residing in a separate house. In such a circumstances it is the duty and bounden duty of the husband to provide the rent for the wife and child. But where as the learned Magistrate has cancelled the payment of rent which is uncalled for and according to the various decision of Hon'ble High Court and Apex Court the changed circumstances will have to be established by a person who pleads it. But no such changed circumstances has been established in this case. Hence, the order passed by the learned Magistrate has to be set aside by confirming the earlier order passed by the IV MMTC by allowing the appeal. Hence, he prayed for allowing the appeal.
17. Now, it is to be specifically noted in this case the husband who is an appellant in Crl.A. No.490/2014 has also challenged the order passed and claimed that the maintenance amount will have to be reduced further to the amount granted by the learned IV MMTC. On the other hand the appellant in Crl.A. No.352/2014 who is the wife has contended that the modification order has to be cancelled and original order has to be restored by allowing the appeal.
18. In such a circumstances now this court has to consider whether the grounds urged by both the parties has been satisfactorily established for allowing the appeal or there are no grounds established by both the parties to allow the 12 CRL.A. NO.352/2014 C/W. 490/2014 appeal. Based on the available evidence on record before the trial court and the written arguments submitted by both the counsels this court has to decide the point No.1. Now, according to the petition filed by the respondent the petition was filed for modification of the order under Section 25 of the DV Act. To modify the order passed by the IV MMTC in granting maintenance to the petitioner under changed circumstances, now it has to be specifically noted at the time of allowing the appeal and granting maintenance the wife was not employed. But after passing or the order now the wife has been employed in Vijay Nethralaya and getting salary of Rs.16,000/- p.m., as contended in the petition. This fact of employment has been specifically admitted in the course of cross-examination. Now the specific contention has been taken by the wife in that petition that the husband has resigned the job only with an intention to avoid the liability and with a willful conduct he has resigned the job during the pendency of the petition which clearly establishes that the husband has intended to avoid liability.
19. In accordance with the established principle of law if the husband has intentionally left the job that cannot be considered as a changed circumstances according to the arguments of the wife submitted in the written arguments. But it is to be specifically noted in the course of evidence and in the course of cross-examination the husband has 13 CRL.A. NO.352/2014 C/W. 490/2014 specifically stated that on account of number of cases filed against him under various provisions, he has made to resign the job. Further, he has also specifically stated in the chief examination and as well as in the cross-examination that after awarding maintenance in the petition, the parents have also filed an application for granting maintenance in which the maintenance amount of Rs.21,000/- has been awarded. Now inorder to establish the employment and his salary, the husband has produced document which establishes that he is only getting an income of Rs.21,000/- p.m., On the contrary it is also admitted and also proved by the document by adducing evidence before the court inorder to decide the factum of modification of order, the wife is employed in Vijay Nethralaya, and getting salary of Rs.16,000/- p.m., No doubt as contended by the wife in the written argument employment of wife may not dis entitle for maintenance. But that income will have to be considered by the court while granting the maintenance or rejecting the maintenance. Now in this appeal the husband has contended that the modification was not justifiable because further reduction of maintenance has to be made by allowing the appeal. But that argument of appellant counsel cannot be accepted because when the learned IV MMTC has considered the changed circumstances in a proper prospective manner and considered the relevant facts stated by the husband in the petition and also the evidence adduced by the wife and come to a conclusion that the maintenance 14 CRL.A. NO.352/2014 C/W. 490/2014 amount will have to be reduced to the extent wherein the order is passed and reduced the amount from Rs.15,000/- to Rs.10,000/- which is most reasonable in the circumstances of the case.
20. Further, by considering the income of the husband and considering the evidence adduced by the husband the learned IV MMTC has also passed an order for cancellation of rent. Because the wife is getting an income and also having properties in her name and getting rent. Now though the appeal has been preferred by the wife also challenging the order stating that there is no changed circumstances and without considering the contention of the wife the order has been passed. Hence, it is liable to be set aside. But the arguments of wife cannot be accepted because in the cross- examination of wife she has specifically admitted about the income and also about the possession of the property and based on that fact the learned IV MMTC has passed the modified order which is in accordance with law. Now under Section 25 of the DV Act under Section 2 it has been specifically stated that in case of changed circumstances, if the aggrieved person or the respondent is satisfied that there is a change in the circumstances requiring alternation, modification or revocation of any orders made under this act, he may for reasons to be recorded in writing pass such order, as he may deem appropriate.
15CRL.A. NO.352/2014 C/W. 490/2014
21. By looking into this provision it is clearly established that inorder to pass an order for modification or alteration and revocation, three things must be satisfied. One is the changed circumstances (ii) must be through a recorded reasons in writing. (ii) It must be held as he may deemed appropriate. If these three things are satisfied or if all these three things have been considered by the learned Iv MMTC while passing the order the question of setting aside the order passed by the learned Magistrate does not call for or it does not require any interference from the appellate court.
22. Now where as in this case though the wife has took up a specific contention that the husband has intentionally resigned the job and though he is qualified to get a more salaried job he has joined the lesser salary employment that is not convincingly established before the trial court. On the other hand it has been established that she is having an income. By way of employment and it is also established by a convincing documents about the income of the husband for paying the maintenance and also about the capacity of the wife to make payment of the rent and educational expenses of her child. When the learned Magistrate is convinced by the evidence adduced by both the parties with regard to the fact in issue and he has decided the fact in issue in accordance with law by considering both the parties cases adduced before 16 CRL.A. NO.352/2014 C/W. 490/2014 him, by properly analyzing the facts, circumstances of the case and also he has come to a proper and just decision. As a appellate court by reassessing and re-appreciating the evidence adduced by both the parties with respect to the modification of the order and alteration of the order, I have also come to the conclusion that the order passed by the learned MMTC IV, is absolutely in accordance with law and it has been passed in a proper manner and also by considering the relevant factors to be considered by the court to pass such an order, he has also given a specific reasons in writing to pass such an order which is deemed fit to the circumstances of the case. In such a circumstances in my opinion the order passed by the learned Magistrate under Section 25(2) of the DV Act in all probability is a correct one probable one and acceptable one. When such being the circumstances, though both the respondent and appellant have preferred appeal on various grounds but none of the grounds have been established by both the parties in both the appeals to cause interference with the order passed by the learned IV MMTC. It is a well established principle of law that the questions of interference by the appellate court arises only when there is an error on the face of record and when the judgment or order passed by trial court is on a erroneous approach. Then only the question of interference by the appellate court arises. But where as in this case no such grounds have been established by both the parties. Under 17 CRL.A. NO.352/2014 C/W. 490/2014 such circumstances I have no hesitation to answer Point No.1 in the negative.
23. POINT No.2:- Inview of the above, I proceed to pass the following:-
OR D E R The appeal preferred by the appellant in both the appeal i.e., in Crl.A. No.352/2014 and Crl.A. No.490/2014 is here by dismissed as no merits.
Consequently, the order passed by the learned IV MMTC in Crl. Misc. No.103/2012 dated 15.04.2014 is hereby confirmed.
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 3 rd day of February, 2021) (Sri.S.R.Manikya) LXI Addl. City Civil & Sessions Judge, Bengaluru City.
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