Bangalore District Court
Smt.Vasanthi vs Sri.Pramod Kumar Jain P.R on 27 November, 2020
Crl.Appeal No.1899/2018
1
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.K.SUBRAMANYA, B.Com., LL.M.
LXVII ADDL CITY CIVIL & SESSIONS JUDGE ,
BENGALURU.
Dated this the 27 th day of November 2020.
Crl. Appeal No.1899/2018
APPELLANT : Smt.Vasanthi,
W/o.Pramod Kumar Jain,
38 years,
R/at.No.20, 5th Main Road,
Devanathachar Street,
3rd Cross, Chamarajpet,
Bengaluru.
Presently residing at :
No.65, 5th Main Road,
Opp. to SBI Bank,
Chamarajpet,
Bengaluru.
(By Sri.B.P., Advocate)
.Vs.
RESPONDENT : Sri.Pramod Kumar Jain P.R.
S/o.Late K.P.Rathna Chand Loda, 46 years, R/at.No.185/1, O.M.B.Road, Chikkaballapur.
(By Sri.S.F.G.C., Advocate) Crl.Appeal No.1899/2018 2 J UD GM E N T This Memorandum of Appeal is preferred by the appellant under Section 29 of PWDV Act challenging the order passed by the learned Metropolitan Magistrate, Traffic Court-V, Bengaluru in Crl.Misc.No.34/2010, dated:17.07.2018 as to dismissing the petition filed by the petitioner under Section 12 of PWDV Act.
2. The appellant herein was the petitioner and the respondent herein was the respondent before the trial court. For the sake of convenience, parties would be referred to by the ranks they were assigned before the trial court.
3. Brief facts of the case are as under:
The marriage between the petitioner and the respondent was solemnized on 30.06.2001 as per Jain Rites and Customs. Out of the said wedlock, they begotten two female children. At the time of marriage, the parents of petitioner had given 500 grams of gold ornaments, cash of Rs.5,00,000/-, silver articles to the respondent as per the demand of the respondent and his parents. The parents of petitioner have also borne the marriage expenses about Rs.6-7 lakhs. Apart from all these, the parents of petitioner had also given house hold articles to the respondent and Crl.Appeal No.1899/2018 3 his family. After the marriage, the petitioner started to reside with the respondent at the matrimonial house and during her stay, she was subjected to physical abuse and the respondent was violent and used to assault her and her children at the instigation of his parents, but the petitioner had tolerated all these tortures. Later, the respondent and his parents have demanded further dowry of Rs.10 lakhs, site, vehicle and threatened the petitioner that if she fails to bring the same, they will kill herself and her children. Further, they have planned to perform second marriage to the respondent by throwing the petitioner from the matrimonial house.
In the year 2008, the respondent and his parents have threatened the petitioner and man-handled her and when she failed to bring the dowry, she was thrown out of the matrimonial house. The respondent has deserted her without any justifiable reason. She is unable to maintain herself and the education as well as medical expenses of her children. On the other hand, the respondent is having a jewelery shop at Chikkaballapur and he has also constructed several houses and he is having both movable and immovable properties worth more than Rs.10 Crores. Though he is having sufficient means, he has neglected to maintain herself and her children.
Crl.Appeal No.1899/2018 4 It is also submitted by the petitioner that two interim applications were filed for maintenance and residential order and the same were rejected. Being aggrieved by the said order, the appellant/petitioner has preferred Criminal Appeal Nos.703/2010 and 846/2010 and the Hon'ble Court allowed the appeals and directed the respondent to pay a sum of Rs.6,000/- per month and set aside the trial court order. The respondent has paid the amount for few months and thereafter, he became defaulter. The observations of the appellate court may be considered in this appeal also. Even though, it is urged that the petitioner herself has left the company of respondent and he has not made any effort to take her back to his house to lead the matrimonial life. He had not made any arrangement for maintaining his wife and daughters, who are admittedly staying in the parental house. The respondent had also filed petition under Section 9 of Hindu Marriage Act in M.C.N.97/2011 before Senior Civil Jude & C.J.M., Chikkaballapur. The appellant has filed objections and after full fledged trial, the petition filed for restitution of conjugal rights came to be dismissed. In this impugned judgment, the trial court has not appreciated all these aspects and has not taken into consideration the pleadings mad in the petition and the evidence produced before the court. The judicial admissions are not considered.
Crl.Appeal No.1899/2018 5 After due process and procedure, the trial court has dismissed the petition filed by the petitioner. Hence, this appeal.
4. In the grounds, the appellant/petitioner has contended that the impugned order is lack of probabilities and improper. The trial court has not taken note of the provisions of PWDV Act, 2005. The purport and object envisaged in the enactment is not enforced. Hence, it leads to mis-carriage of justice. The trial court has failed to see the pleadings and examination in chief properly and has not appreciated in its true spirit. The trial court has failed to appreciate that the respondent and his parents threatened and man-handled the appellant and demanded to bring dowry. They have thrown out the petitioner and her children from the matrimonial home. The respondent deserted the petitioner without any justifiable reason. Hence, the provision of PWDV Act is deserves to be invoked. The contention of the respondent that on 2.06.2008, the petitioner without informing to anybody, left the home of the respondent taking her belongings and handed over the key to the neighbours and failed to arrive to compromise in several panchayats and hence, the petitioner is not entitle for maintenance is not justified. Further, contention that the respondent is having business and earning in pawn Crl.Appeal No.1899/2018 6 broker business at Chikkaballapur and the trial court has not taken into consideration the account of the income of the respondent. Even in the dispute regarding property, the respondent relied and trusted upon his brother and his brother has discharged all the transactions relating to the property. The trial court has lost sight on the material records as well as judicial notice. The examination and cross examination of the parties are not properly appreciated. For throwing out the woman from the matrimonial home, no cogent or direct evidence could be placed and the evidence of such woman or wife is sufficient. These facts are not considered by the trial court. There is no reasons to refuse the maintenance. The respondent is a tempered man and exhibits anger and fury for slightest wrongs and all those aspects are not pleaded. But the trial court has not relied upon the pleadings and those aspects are not tested in the cross examination. The CDPO (Protection Officer) has filed domestic incident report containing the harassment and other aspects sustained by the petitioner, but the same has not been properly considered and the petition is erroneously dismissed.
Here in this case, there is no dispute regarding the marriage and having two female children and they are in the care and custody of the petitioner/appellant. The respondent had also not pleaded that the petitioner is Crl.Appeal No.1899/2018 7 capable of maintaining herself and her children are studying and the petitioner has to look after the expenses of the school, food, medical expenses, etc. The respondent is having substantial income not less than Rs.60,000/- to Rs.70,000/- per month, apart from having several properties standing in his name and few properties standing in the name of his brothers and parents. The strict proof of evidence could be accepted under the proceedings under PWDV Act. Hence, sought for setting aside the impugned order by allowing this appeal.
5. The respondent has put his appearance through his counsel.
6. After hearing the arguments, the points raised for determination are as under:
1. Whether the appellant has made out grounds to intermeddle with the impugned order ?
2. What Order ?
7. My findings on the above points are as follows.
POINT No.1 - In the Affirmative, POINT No.2 - As per final order, for the following :
R E A SON S
8. POINT No.1 : The trial court has clearly observed Crl.Appeal No.1899/2018 8 the factum of marriage between the petitioner and respondent, which was solemnized on 30.06.2001 according to the Jain Rites and Customs. It is also observed as to the customary ceremony and rituals performed while marriage. It is also an admitted fact that two female children were born due to the matrimonial relationship. It is also contended by the petitioner/appellant that while marriage, as per the demands of the respondent and his family members, they had given 500 grams of gold ornaments, cash of Rs.5 lakhs and borne the marriage expenses tune of Rs.7 lakhs. Even though in the evidence, the documents are not produced as to purchase of jewels and expenses borne in respect of the marriage. It is apparent that in the marriage performed with the customary rituals and other facilities prevailing in the family incidentally give rise to the expenses. Therefore, the family of bride or bride-groom will bear the expenses according to their understanding and requirement to suit their convenience to celebrate the marriage within their means. Therefore, everything that has been done or transpired while marriage need not be evidenced through documents. Such strict proof of evidence is not in any way desirable while appreciating the evidence in PWDV Act or matrimonial cases. Therefore, the trial court is not justified in observing that every aspect of the course of event Crl.Appeal No.1899/2018 9 occurred between the spouse in their matrimonial home requires to be evidenced. It is pertinent to note that the matrimonial relationship is between spouse and is with utmost confidence, privacy and trust. Under such circumstances, calling for oral or documentary evidence in strict proof is not in any way justified.
9. It is also observed that the respondent has deserted the petitioner/appellant without any justifiable reason. It is also contended by the petitioner that she is unable to maintain herself and educational and medical expenses of her children are to be looked into. It is also apparent in the pleadings that the respondent is a businessman by profession and he owns a jewelery shop in a city of Chikkaballapur. He has constructed several houses and he is having both movable and immovable properties worth more than Rs.10 Crores. It is also contended that he has neglected to maintain the petitioner and her children and he is acting to the tune of his brothers, who are involved in criminal cases. Though all these factors put forth in the pleadings, the trial court has observed that the petitioner herself insisted the respondent for separate resident at Bengaluru so as to educate her children in a congenial atmosphere. She wanted to educate the children in high standard educational institution. Therefore, that aspiration Crl.Appeal No.1899/2018 10 to bring the children as Hon'ble citizens of the country does not in any way lead to presume that the petitioner herself left the matrimonial home and not ready to join the respondent. It is also observed by the learned Presiding Officer of Fast Track Sessions Court in Crl. Appeal Nos.703/2010 and 846/2010 vide order dated:19.01.2011 that the interim applications were dismissed by the trial court and this petitioner preferred an appeal under Section 29 of PWDV Act. In page No.7, the learned Presiding Officer of Appellate Court has framed the following points :
1. Whether the trial court is justified in dismissing the whole petition in Crl.
Misc.No.34/2010 by its order dated:29.11.2010 during the pendency of Crl. Appeal No.703/2010 ?
2. Whether the Crl.Misc.No.34/2010 is fit to be restored to its original stage by allowing Crl. Appeal No.846/2010 ?
3. Whether the order dated:1.10.2010 passed by trial court in Crl.Misc.No.34/2010 rejecting I.A.1 and 2 filed under Section 23(2) r/w.
20(3) and 23(2) r/w. 19(f) of PWDV act, 2005 calls for interference, by allowing Crl. Appeal No.703/2010 ?
4. What Order ?
10. Further, it is observed in para No.15 at Page No.11 Crl.Appeal No.1899/2018 11 that, "Admittedly, the relationship of petitioner with respondent is not in dispute. It is an admitted fact that the petitioner along with her daughters is now residing in the house of her parents. There is a specific allegation of dowry harassment and domestic violence against the respondent. There is nothing to show that the respondent made any efforts to take back the petitioner to his house. Further, the learned Magistrate has not taken into consideration and appreciated the domestic incident report, submitted by Protection Officer. Moreover, the wife need not justify her stay in her parental house. Further, it reveals from the records that the petitioner is running a jewelery shop at Chikkaballapur. It is also an admitted fact that the respondent is getting monthly earnings of Rs.15,000/- from the jewelery shop. In this background of the matter, when we carefully appreciate the facts of the case, we can safely come to the conclusion that the petitioner being the wife of respondent is entitled to claim interim maintenance from her husband. Because though it is alleged by the respondent that the petitioner herself left h is company on her own, he has not made any efforts to take her back to his house for leading matrimonial life. Even he has not made any arrangements for the maintenance of his wife and daughters, who are admittedly staying in the parental house of petitioner. Under these Crl.Appeal No.1899/2018 12 circumstances, the respondent is under the legal obligation to maintain his wife and daughters out of his available income".
11. It is further observed that the learned Magistrate has simply observed that it is not proper to award interim maintenance and to provide residence to the petitioner, Except assigning the reason that a detailed enquiry is required to decide as to the entitlement of interim maintenance. The learned Magistrate has failed to assign any convincing reasons to deny the interim maintenance. Therefore, the appellate court has set aside the order dated:1.10.2010 and 29.11.2010 and consequently, Crl. Misc.No.34/2010 is restored to its original stage and both the parties are hereby directed to appear before the trial court on 7.02.2011 without waiting for notice.
The respondent is hereby directed to pay Rs.3,000/- per month towards interim maintenance and Rs.3,000/- per month towards interim accommodation from the date of petition to the petitioner, till disposal of Crl. Misc. Petition No.34/2010.
Therefore, awarding of the interim maintenance would have considered by the trial court on merit also adverting to the appreciation of evidence. But, here in this case, the trial court has lost its sight that the maintenance is Crl.Appeal No.1899/2018 13 required to the children also irrespective of strained relationship and distress arose between the spouse. Both are equally responsible to the welfare and upbringing of the ward/child. Therefore, the trial court would have considered the necessities of the petitioner to maintain her two daughters. Section 6 of the The Hindu Minority and Guardianship Act, 1956, which reads thus :
Natural guardians of a Hindu minor.-- The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--
(a) in the case of a boy or an unmarried girl--the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
12. The concept and proposition of Section 13 in The Hindu Minority and Guardianship Act, 1956 is to be considered, which reads thus :
Welfare of minor to be paramount
consideration.--
(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
Therefore, the evidence and its appreciation and Crl.Appeal No.1899/2018 14 reasonings assigned by th trial court as to voluntarily withdrawing from the company of respondent by the petitioner by itself does not absolve the liability of the husband/respondent to maintain his wife and children.
13. Section 20 of PWDV Act reads thus :
Monetary reliefs- (1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but is not limited to -
(a) the loss of earnings ;
(b) the medical expenses ;
(c) The loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person ; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973(2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved Crl.Appeal No.1899/2018 15 person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the Police Station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
14. It is also clearly observed in the earlier orders that the respondent has not made any efforts or called for any Crl.Appeal No.1899/2018 16 panchayats or negotiated with the elder relatives so as to make it convenient to reunion of the petitioner with the respondent. The restoration of matrimonial home and its attempts made is not properly made out by the respondent nor it is evidenced on record. Therefore, the burden of proof equally rest with both the petitioner and respondent so as to prove their contention. Hence, the burden though initially cast on the petitioner to prove the desertion, harassment and cruelty lead to withdrawing the matrimonial home or otherwise forcibly driven out from the matrimonial home. That apart, the respondent is also obligation to make effort to restore the relationship of husband wife so as to look after the children and their paramount welfare and interest. That facts are not observed by the trial court nor it is evidenced by the respondent when we appreciate the evidence on record.
15. Even the trial court has observed that the complaint and other aspects of habit of respondent is not established, that is not a ground to reject the maintenance. Even P.W.1 in her evidence refused to go with the respondent and to reside at Chikkaballapur, even though the respondent is ready and willing to look after them. Anyhow, the demand for separate residence at Bengaluru by itself will not only the cause for withdrawing from the matrimonial home.
Crl.Appeal No.1899/2018 17 There is associated aspects, which is stated by the petitioner that the brother of respondent is having command in all family matters and looking after the properties and he is involved in murder case and also he is threatening the petitioner with dire consequences to the life. But, the trial court has observed that such contention is not taken in the petition nor it is stated in the examination in chief in affidavit. The respondent has denied the same in evidence. Hence, there is no corroborative evidence as to such contention. Therefore, the trial court concluded that the respondent is still ready to live with the petitioner and also take the responsibility to look after the petitioner and her children.
16. It is also observed in M.C.No.97/2011 on the file of learned Senior Civil Judge & J.M.F.C., Chikkaballapur that the restitution of conjugal rights has been dismissed. Therefore, the observations of the trial court that the petitioner is not entitled for maintenance or right of residence is not in any way justified under the facts and circumstances of the case. Even though, the cause for which the petitioner is not desired to join with the respondent is vital, it is apparent that the respondent is having sufficient means and could have convince the petitioner and her children to join the matrimonial home.
Crl.Appeal No.1899/2018 18 Even otherwise, if the education of the children were given at Bengaluru, would have made his children a very good educated personalities.
17. It is also pertinent to note that Crl. Misc. Petition No.34/2010 is filed in the year 2010 and so far, the respondent has not paid any amount for maintenance towards food, education and medical expenses of the children.
18. In the decision reported in 1991(2) SCC 375 (K.Vimala .Vs. Veeraswamy ), Their Lordships have clearly observed as under:
Section 125 of the code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term "Wife" consistent with the objective. Thus, man who lived with woman for a long time made liable to pay maintenance. The man should not be allowed enjoy advantage of a de-facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to "vagrancy and destitution"
which the provision of maintenance under Section 125 of Cr.P.C., is meant to prevent".
Crl.Appeal No.1899/2018 19
19. In another decision reported in (2014) ACR 436 (Shamim Bano .Vs. Asraf Khan) , Their Lordshis have clearly observed as under:
"Another aspect which has to be kept uppermost in mind is that when the marriage breaks up, a woman suffers from emotional fractures, fragmentation of sentiments, loss of economic and social security and in certain cases, inadequate requisites for survival. A marriage is fundamentally a unique bond between two parties. When it perishes like a mushroom, the dignity of the female fame gets corroded. It is the law's duty to recompense and primary obligation is that of a husband. Needless to emphasize the entitlement and necessitous provisions have to be made in accordance with the parameters of law".
20. In another decision reported in 1982 Criminal Law Journal 485 (Basanta Kumari Mohanty .Vs. Sarat Kumar Mohanty) , Their Lordshis have clearly observed as under:
"The object of the provisions being to prevent vagrancy and destitution, it has to be found out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious; but is modestly consistent with the status of the family. The needs and requirements of the wife, child or parents for a moderate living, the Crl.Appeal No.1899/2018 20 earnings of the husband, son or father or his capacity to earn and his commitments are relevant factors".
21. The evidence adduced by the petitioner/appellant has not been properly considered by the trial court in proper perspective with the object and purport of the statute PWDV Act. The detailed discussion and appreciation of evidence is essential so as to correlate with the facts and circumstances of the case. It is relied by the trial court that the petitioner even though called by the respondent to lead the life with him, she refused to go and settle him in the matrimonial home. That itself will not in any way deny the maintenance, as the dispute between the parents should not deprive the children from growing in congenial atmosphere in the society to brought up in a respectable manner as respectable citizen of India. The child shall not be made destitute or orphan due to irretrievable and irreconcilable relationship between the spouse. They should not suffer from due to lack of love and affection of the parents. They have to be mentally and physically healthy and have need association of the parents, who are looking after their paramount interest.
22. If the petitioner/appellant would have lived with the respondent and if the respondent is inclined to look after Crl.Appeal No.1899/2018 21 them in association and consortium, then would have been made expenses more than the amount awarded in this petition. Therefore, the awarding of maintenance is just and necessity in this case. The plaintiff has also relied upon the documents in 'P' series, which shows that th respondent is having sufficient income apart from movable and immovable properties and pawn broker business. During this pandemic COVID-19 situation, it is difficult to maintain the family and children without being proper income earned by the appellant/petitioner, who is unable to maintain herself and her children. The petitioner has incurred educational expenses of her daughters namely Kum.Disha Jain and Kum.Methali Jail. The receipts of educational institution are also produced in the evidence. The I.T.Returns are also marked in "R" series. As per the admissions in the cross examination of R.W.1 at page No.9, the respondent is running Pawn Broker Shop. Therefore, he is having sufficient income is forthcoming. It is also admitted that they are advancing the loan on pledging of the gold. Even though, the respondent has stated that on 19.03.2009, when his second daughter was born, he has paid Rs.2.5 lakhs to his father-in-law, but that is not evidenced by any relative witnesses. The same is denied by the petitioner in the cross examination. It is further admitted in page No.11 of the cross examination that he is Crl.Appeal No.1899/2018 22 paying tax and SBI Bank Account and payment of tax is also evidenced and it is mentioned in Ex.R.3. It is also admitted that he has got register for running the Pawn Broker Shop with license and has got entries right from 2005 till the date regarding the transactions and the particulars of pledged articles and advancing of loan. Therefore, it is apparent on record that the respondent is having considerable income apart from immovable properties owned by him or by his joint family members.
23. The welfare and paramount interest of the child is to be looked into while passing the order in consonance with purport and object of the statute. The Hindu Minority and Guardianship Act, 1956 and The Guardian & Wards Act provides for protection to the minor so as to lead the life under the guardianship of parents. The provisions of PWDV Act also provides for awarding maintenance in correlation with the other beneficial provision enure to the benefit of wife and children. Therefore, the respondent being the father, has to maintain the children. The obligation is incidental to the marriage and birth of the children and it cannot be stated that the mother only capable and responsible to maintain the children. Therefore, the petition is deserves to be allowed. Accordingly, I answer the Point No.1 Partly sin the Affirmative.
Crl.Appeal No.1899/2018 23
24. POINT No.2 : My finding on this point is as per following :
O R DE R The Crl. Appeal filed by the appellant is hereby allowed. Consequently, the impugned order passed by the learned Metropolitan Magistrate, Traffic Court-V, Bengaluru in Crl.Misc.No.34/2010, dated:17.07.2018 is set aside.
The respondent is directed to pay the interim maintenance as per the directions in Criminal Appeal Nos.703/2010 and 846/2010 vide order dated:19.01.2011.
Further, in this appeal,the respondent is directed to pay the maintenance of Rs.5,000/- per month to the petitioner/appellant towards her maintenance from the date of impugned order of appeal.
Further, the respondent is directed to pay the maintenance of Rs.5,000/- each per month to the daughters for their maintenance to bear their basic necessities till they attain majority and got married, as and when the same fell due from the date of impugned order in the appeal.
Further, a lump sum of Rs.50,000/- each to be paid to the daughters annually towards their educational expenses from the date of impugned order in Crl.Misc.No.34/2010, dated:17.07.2018.
Crl.Appeal No.1899/2018 24 Send the copy of this order to the trial court.
(Dictated to the Judgment-writer, transcript thereof is corrected and then pronounced by me in the open court on this the 27th day of November 2020) (K.SUBRAMANYA) LXVII Addl.City Civil and Sessions Judge, BENGALURU.