Bangalore District Court
Both Are R/At. No. P/284/4 vs Are Referred As Appellants And on 15 May, 2015
IN THE COURT OF THE LXI ADDL. CITY CIVIL,
SESSIONS JUDGE: BENGALURU CITY.
Dated this the 15th day of May, 2015
-: PRESENT :-
SRI. NINGAPPA P.KOPARDE, B.A.,LL.B.(Spl.)
LXI Addl.City Civil & Sessions Judge
Criminal Appeal No. 1008/2014
Accused/Appellants 1. Sri. Ravinder. A.,
S/o. Arokia Dass,
Aged about 37 years,
2. Sri. Naveen Dass.,
S/o. Arokia Dass,
Aged about 31 years,
3. Smt. Pushparani.
W/o. Arokia Dass,
Aged about 56 years,
4. Smt. Kousalya,
W/o. Rajashekar,
Aged about 46 years,
5. Smt. Dhanalakshmi,
W/o. Thati,
Aged about 35 years,
All are R/at No. 82,
4th Cross, ITI Colony,
Cox town, Jeevanahalli,
Bangalore-560 005.
2 Crl.A.No. 1008/2014
.Vs.
Respondents/Complainant 1. Smt. Maria Theresa. D.
W/o. Ravinder. A.,
Aged about 26 years,
2. Kum. Calista Moreen.R.,
D/o. Ravinder. A.
Aged about 1 & ½ years.
Rep. by their mother and
Natural guardian
Petitioner.No.1.
Both are R/at. No. P/284/4,
Old IMH Area, GE, Jalahalli,
Bangalore. 560013.
JUDGMENT
This appeal is preferred under Section 29 of the Protection of the women from Domestic Violence Act 2005 against the respondents challenging the order dt: 18/8/2014, passed by the M.M.Tr.C-III, on I.A. No. 1 under Section 23(2) of the Domestic Violence Act in Crl. Misc. No. 130/2014.
3 Crl.A.No. 1008/2014
.2. For the sake of convenience, the appellants and respondent are referred as appellants and respondents respectively.
.3. The brief facts of the case are as follows:
The respondent No.1 filed an application under Section 12 of Domestic Violence Act, seeking various relief's under Section 18 for Protection order, Residence Order under Section. 19 and compensation order under Section 22 of the Domestic Violence Act. The respondent No.1 filed an application under Section 23(2) of Domestic Violence Act praying for granting interim maintenance of Rs. 20,000/- to herself and to her child and Rs. 25,000/- towards medical expenses to them alleging that the respondent No.1 has been residing with her parents from February 2014. Since may 2014 the respondent is not maintaining her and her child and thrown out them from the matrimonial house and the appellants is not intending to see her. The appellants are 4 Crl.A.No. 1008/2014 harassing and giving all sorts of harassment mental and physical torture. The respondent No.1 having no source of income to maintain herself and her child, the respondent is having sufficient source of income and he is working as an Electrical engineer and getting salary of Rs. 20,000/- P.M. and he has got own house and receives rent for a sum of Rs. 20,000/- P.M. The respondent is not taking caring of them. Thus, it is prayed to allow the application. .4. As against this the respondent No.1 appeared through his counsel and filed objections to the appeal and contended that the respondent No.1 is his first wife and second respondent is their child. It is contended that the appellant No.1 has not committed any Domestic Violence, but the respondent creating false story in order to harass the appellant No.1 filed false petition. It is further alleged that the first respondent is also an employee and she is getting 5 Crl.A.No. 1008/2014 salary of Rs. 20,000/- P.M, but in order to grab money creating false documents filed this false petition submitting that she has no sufficient source of income. Hence, it is prayed to reject the petition. .5. After hearing both sides and perusing the material placed on record, the learned Magistrate, M.M.Tr.C.-III, Bengaluru, allowed the application in part and directed the appellant No.1 to pay monthly maintenance of Rs. 5,000/- to the child of respondent No.1.
.6. The appellants being aggrieved by the impugned order on I.A. No.1, challenging propriety of the said order has preferred this appeal on following grounds:-
The impugned order passed by the court below dt: 18/8/2014 is contrary to law and evidence on record. The impugned order is liable to be set aside on the ground that the first respondent herein has not 6 Crl.A.No. 1008/2014 made out any prima-facie case for partly allowing the I.A No.1. The observations of the trial court in its order is wholly misconceived by the trial court without taking a note of Section. 23(2) of Domestic Violence Act. Since the documents of salary details having been ordered to be produced and without waiting for the same and passing the impugned order by the trial court is gross error on the part of the court below. The court below ought to have rejected the application filed by the first respondent instead of allowing the same. The court below ought to have not exceeded its jurisdiction and unnecessarily relied upon which was not proved by the first respondent herein in accordance with law and therefore the trial court totally erred in passing the impugned order. The court below failed to appreciate the factual of maintenance, while deciding the above said case and as unnecessarily traversed by allowing the I.A No.1 to be carried away by he concocted evidence of the first 7 Crl.A.No. 1008/2014 respondent herein in spite of objection by the appellants, which itself shows that the court below has exceeded its jurisdiction which was not empowered to do so and accordingly, the entire proceedings of the court below cannot be sustainable in law or on facts of the case. The court below failed to appreciate the fact while passing the order impugned which is required to be passed in respect of said application only after enquiry the court below is entitled to pass order, as such the court below is committed an error in passing the order which is required to be set aside by this hon'ble court. He impugned order passed by the court below without application of mind, against all probabilities of law and fact and by ignoring and mis understanding material available on record. On the above grounds, it is prayed to set aside the order passed by the court below dt: 18/8/2014 on I.A. No.1.8 Crl.A.No. 1008/2014
7. In pursuance to the notice issued in this appeal, the respondents appeared through their Counsel.
8. Lower court records are secured.
9. I heard the arguments of Learned Counsels for the both sides and perused the materials placed on record.
10. The following points arise for my considerations are:
1. Whether the impugned order is perverse, illegal and liable to be set aside?
2. Are there sufficient grounds for interference with the order of the court below?
3. What Order?
11. My findings on the above points are as under:
Point No.1 : In the negative Point No.2 : In the negative Point No.3 : As per the final order for the Following:9 Crl.A.No. 1008/2014
REASONS
12. Points No.1 & 2:- The appellants have challenged the propriety and correctness of the order passed by the court below on I.A.No.1 dated: 18.8.2014 in Crl.Misc.No.130/2014 on the grounds that prior to passing the said order the appellants herein and respondent No.1 had filed two separate applications U/s 91 of the Cr.P.C., praying for securing the salary certificates of appellant No.1 and respondent No.1 respectively. Before securing the said documents the court below hurriedly passed this order. So, the order passed by the court below is perverse, illegal and arbitrary one. The court below has exceeded its jurisdiction. The Counsel for the respondents submitted their arguments that the order passed by the court below is proper and interference by this court is not warranted. At the very out set it is to be noted that the appellant No.1 herein had filed an application U/s 91 of the Cr.P.C., 10 Crl.A.No. 1008/2014 to call for the salary certificate of the respondent No.1. If the said document is produced and if it is proved that she has got sufficient source of income to maintain herself, what would be the effect. At the most the respondent No.1 will be not entitled for any maintenance, since, she is having sufficient source of income to maintain herself. The documents sought for by the appellant No.1 will not disentitled the child of the respondent No.1, because, the child who is aged about 1-1/2 years is naturally unable to maintain itself. If the respondent No.1 is proved to have sufficient source of income it cannot absolve the responsibility of the appellant No.1 to maintain his child. The very object of enacting the domestic violence Act 2005 is to prevent vagrancy and restitution of deserted wife and children. This provision enacted to support certain Sections of society especially female and children. The intention of legislature behind this enactment was to prevent 11 Crl.A.No. 1008/2014 any starvation. Whether the court below exceeded its jurisdiction and the order passed is suffering from any infirmities is concern I am of the view that the order passed by the court below is based on sound principles of law and evidence placed on record Section 28 of the D.V.Act 2005 provides that [No.1] -
Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973.
(2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23.
13. From the plain reading of the above provision it becomes clear that the Magistrate need not follow any procedure while granting interim maintenance or passing ex-parte order. So, the 12 Crl.A.No. 1008/2014 Magistrate was not expected to wait until the salary certificate of the respondent No.1 is produced before the court before passing the impugned order. So, I am of the view that the order passed by the court below is proper and correct and no interference by this court is required. Accordingly, I answer points No.1 and 2 in the negative.
14. Point No.3:- Having regard to my above observations and finding on points No.1 and 2 in Negative, I proceed to pass the following:-
ORDER The Criminal Appeal No.1008/2014 preferred by the appellants is dismissed with cost.
Order dated: 18.8.2014 passed by the Learned MMTC III on I.A.No.1 U/s 23(2) of D.V.Act is hereby confirmed.13 Crl.A.No. 1008/2014
Send back the LCR forthwith keeping the copy of this judgment.
(Dictated to the Judgment Writer, transcript there of is corrected and then pronounced by me in the open court on this the 15th day of May, 2015) (Sri. N. P. Koparde), LXI Addl. City Civil & Sessions Judge, Bengaluru City, *** 14 Crl.A.No. 1008/2014
15.5.2015 Judgment (vide separate Orders) pronounced in open Court.
The Criminal Appeal No.1008/2014 preferred by the appellants is dismissed with cost.
Order dated: 18.8.2014 passed by the Learned MMTC III on I.A.No.1 U/s 23(2) of D.V.Act is hereby confirmed.
Send back the LCR forthwith keeping the copy of this judgment.
(N. P. Koparde), LXI Addl. City Civil & Sessions Judge, Bengaluru City,