Bangalore District Court
Smt.Nisha Rani @ Geetha.S W/O vs Shankar.A.T. S/O Thopanna on 27 October, 2016
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
TRAFFIC COURT - III, AT BENGALURU
DATED THIS 27TH DAY OF OCTOBER 2016.
PRESENT : Sri. SANTHOSH.M.S., B.A., LL.B., (HONS); LL.M.,
M.M.T.C-III, BENGALURU.
Crl.Misc.No.110/2015
PETITIONER 1. Smt.Nisha Rani @ Geetha.S W/o
Shankar.A.T. 31 years.
2. Shreya.S.Gowda D/o
Shankar.A.T., 4 years.
R/o No.914, ITI Layout,
nagarabavi, 2nd Stage,
Bengaluru.
(By Smt.C.T.P, Adv)
V/s
RESPONDENT Shankar.A.T. S/o Thopanna
Bommasetty, 40 years, R/o No.360,
'A' Block, 'D' Group, Srigandhakavalu,
Bengaluru.
((By Sri.T.C.M., Adv)
JUDGMENT
This petition is filed by the petitioner under Sec.12 of Protection of Women from Domestic Violence Act, 2005 seeking reliefs under Sec.18, 19, 20 and 22 of Domestic Violence Act.
2 Crl.Misc.No.110/20152. The brief facts of the petitioner's case are as under
3. The petitioner No.1 is the legally wedded wife of respondent and their marriage took place at Rudramma Rudregowda Conventional Centre, Bengaluru on 1.7.2010. Out of the said wedlock a female child was born to them by name Shreya.S.Gowda on 19.6.2011. After birth of the said child the attitude of respondent towards her has drastically changed and he has subjected her to physical abuse by beating her, assaulting her for trivial reasons. The respondent used to become violent for slight mistake of the petitioner. Inspite of these harassment and cruelty she tolerated and carried her duties more than as servant to be a true Hindu wife hailing from cultural background. The petitioner No.1 further contends that even if there is no cause respondent often and often in an anger used to assault her and she is fed up with the respondent as she made suicide attempts twice, mover over he used to heed to the ill advice given by his friends and relatives thereby causing mental harassment to the petitioner. It is further contention of the petitioner that the respondent had affair with other girls and same has been continued after the marriage and he used to spend most of his time with them and returning home late in the night and he used to abuse and threaten the petitioner with dire consequences and he was in the habit of comparing her 3 Crl.Misc.No.110/2015 with that girls in all aspect and were taunting her with all abuses and commenting her in all humiliating languages like she is not looking good compare to them. The petitioner further contends that the respondent availed hand loan from his colleagues, friends and relatives and petitioner cleared the loan out of her hard earned money and also forcibly took her salary and the respondent used to suspect her for everything and one day the petitioner returned home after her program the respondent assaulted, as a result she lost her conscious and admitted in the hospital for 2 days, very next day the respondent succeeded to destroy all the medical documents. The petitioner further contends that the respondent used to demand money from her when she refused to comply with the same he used to quarrel and lock her along with the child in the kitchen and attempted to burn them by cutting the LPG gas pipe. At that point of time she called the police who took no action. Thereafter at the intervention of friends and well-wishers of the respondent he apologized for which the petitioner accepted and continued to stay with him. Thereafter the respondent has again compelled her to obtain loans from the relatives and friends for his bad habits, namely, he is an alcoholic. When she refused to comply with the demands the respondent became angry and thrown a grinder stone on her because of which she got injured and admitted to the Hospital. It is 4 Crl.Misc.No.110/2015 contended by the petitioner that the respondent is a drunkard who used to come home in the late night and pick up quarrel with her. Finally, on 12.10.2014 the respondent demanded to arrange amount for his bad habits for which she was unable to fulfill, as such on that day the respondent came heavily drunk at night abused and scolded her and also assaulted her and threw her out of the house and retained her belongings with him. Ever since then the petitioner contends that she is residing with her parents with no other option. The petitioner further contends that the respondent is giving life threats to her through phone and also gives threat to her that he would kidnap her daughter, then the petitioner lodge a complaint, however the police have not taken any action against him as he is an influential person in the society. The petitioner further contends that the respondent is working as singer in Orchestra Group out of which he is earning more than Rs.25,000/- p.m. and he is having agricultural properties out of which he is leading luxurious life and now the petitioner has no source of income for expenses of her own and her child. Therefore she has filed the present petition seeking the above reliefs.
4. After the case was registered summons was issued to the respondent. The respondent has put his appearance 5 Crl.Misc.No.110/2015 but failed to file his objection to the main petition. As such the matter was posted for evidence. The petitioner No.1 has examined herself as PW.1 and got marked Ex.P.1 to 16. The petitioner was not cross-examined.
5. Heard the arguments of learned counsel for the petitioner. The following points that arises for my consideration are as under;
1. Whether the Petitioner No.1 proves that she has been subjected to Domestic Violence and neglected by the respondent?
2. Whether the petitioners are entitled for the reliefs as sought in the petition?
3. What order?
6. On perusal of materials before this court, my findings on the above points are as follows;
Point No.1 : In the affirmative;
Point No.2 : Partly in the affirmative;
Point No.3 : As per final order for the following;
REASONS
7. POINT No.1 : The petitioner in order to prove her case has examined herself as PW.1 and got marked Ex.P.1 to 6 Crl.Misc.No.110/2015 16, they are Ex.P.1 is the marriage invitation card, Ex.P.2 is the rental agreement, Ex.P.3 is the gold purchase receipts, Ex.P.4 and 5 are the receipts pertaining to the Kalyana mantapa, Ex.P.6 is the school fees paid receipts, Ex.P.7 is the DIR, Ex.P.8 is the certified copy of order sheet in MC No.6/2010, Ex.P.9 is the certified copy of petition in MC No.6/2010, Ex.P.10 and 11 are the photographs, Ex.P.12 is the CD, Ex.P.13 is the bank challan, Ex.P.14 and 15 are the admission tickets of Sheshadripuram Law College and Ex.P.16 is the medical bills.
8. It is settled principles of law that the petitioner in order to be entitled for the relief under the provisions of PWDV Act has to prove her case to the preponderance of probability and not beyond reasonable doubt as is done in other criminal cases. The provision of PWDV Act are meant for securing the interest of aggrieved woman who has suffered Domestic Violence as such the relives provides under the said Act are civil in nature and to expeditious procedure prescribed under the said Act is governed by Cr.P.C.. Hence, the burden of petitioner is to prove her case to the probability and not beyond reasonable doubt. Keeping this legal aspect in mind let me now examine the evidence and documents furnished by the petitioner.
7 Crl.Misc.No.110/20159. The petitioner No.1 has filed her affidavit as examination-in-chief which contains the reiteration of contention of main petition. The case of the petitioner No.1 in brief is that she is married to the respondent on 1.7.2010. to substantiate this aspect she has filed Ex..1, 4, 5, 10, 11 and 12 which are the marriage invitation card, receipts pertaining to the Kalyana Mantapa, photographs and CD. As discussed above the respondent has failed to file his objection to the main petition and the only objections that he has filed in the above case is in relation to the interlocutory application filed by the petitioner seeking interim order. To ascertain the truth in so far as relationship between the parties is concerned this court has perused the said objections filed by the respondent to the I.A. on 2.11.2015. In the said objection the respondent has contended that it is the petitioner who has withdrawn herself from the respondent and he has not subjected her to Domestic Violence and that she has deprived him from seeing his daughter Shreya who has love and affection towards the child. Hence, on perusal of this contention the objection to I.A. this court is of the considered view that the relationship between the parties and the birth of child are not seriously disputed. Therefore the essential pre condition for the petitioner in order to obtain relief under PWDV Act is to prove that she is in domestic relationship 8 Crl.Misc.No.110/2015 with the respondent. Hence in the above case the petitioner No.1 has proved and this court has finds that the aspect of domestic relationship is not seriously contested by both the parties.
10. The petitioner No.1 on proof of domestic relationship alone is not entitled for the relief under the PWDV Act. The another essential pre-condition to be proved before the court is that she has been subjected to Domestic Violence as such she is entitled for various relief under the said Act. The petitioner No.1 in the present case has deposed in her chief-examination that after the birth of child on 19.6.2011 the attitude of respondent towards her has drastically changed and he has subjected her to physical abuse by beating her, assaulting her for trivial reasons. The respondent used to become violent for slight mistake of the petitioner. Inspite of these harassment and cruelty she tolerated and carried her duties more than as servant to be a true Hindu wife hailing from cultural background.
11. One of the contention raised by the petitioner No.1 is that the respondent used to demand money from her when she refused to comply with the same he used to quarrel and lock her along with the child in the kitchen and attempted to burn them by cutting the LPG gas pipe. At 9 Crl.Misc.No.110/2015 that point of time she called the police who took no action. Thereafter at the intervention of friends and well-wishers of the respondent he apologized for which the petitioner accepted and continued to stay with him. Thereafter the respondent has again compelled her to obtain loans from the relatives and friends for his bad habits, namely, he is an alcoholic. When she refused to comply with the demands the respondent became angry and thrown a grinder stone on her because of which she got injured and admitted to the Hospital. It is contended by the petitioner that the respondent is a drunkard who used to come home in the late night and pick up quarrel with her. Finally on 12.10.2014 the respondent demanded to arrange amount for his bad habits for which she was unable to fulfill, as such on that day the respondent came heavily drunk at night abused and scolded her and also assaulted her and threw her out of the house and retained her belongings with him. Ever since then the petitioner contends that she is residing with her parents with no other option.
12. Though the respondent has engaged an advocate yet he has failed to file his objections denying the allegations made against him. The respondent has also failed to cross-examine the petitioner as such her cross- examination was taken as nil and thereafter the respondent 10 Crl.Misc.No.110/2015 filed an application for recalling PW.1. The said application was allowed on cost of Rs.300/-. Thereafter though the PW.1 was present yet the respondent failed to cross-examine her as well as to comply the order of the court. Hence, her cross-examination has been taken as nil. Therefore in the absence of cross-examination there is n material placed before this court to doubt the allegations made against him. As discussed by me above the petitioner No.1 has to prove her case to the preponderance of the probability. By examining herself as PW.1 she has discharged her burden as such I answer Point No.1 in the affirmative by holding that the petitioner No.1 has proved that she was subjected to Domestic Violence by the respondent.
13. POINT No.2 :- The petitioner has sought for protection order. As per the contents of her affidavit, the petitioner has contended that ever since 12.1.2014 she is residing with her parents in the parental home. The petitioner No.1 has made no allegation that the respondent has committed any act of Domestic Violence ever since then till filing of the petition. Therefore it is not the case of the petitioner that she has been subjected to Domestic Violence even during her stay at her parents house. Hence, this court is of the opinion that the petitioner is residing with her 11 Crl.Misc.No.110/2015 parents is not entitled for protection order as that is not place where Domestic Violence took place.
14. The petitioner has claimed maintenance under Sec.20 of PWDV Act. The petitioner has sought for rent of Rs.5,000/-. To substantiate this the petitioner has furnished Ex.P.2. Ex.P.2 is the lease deed for a period of 3 years commencing from 2.5.2012 to 1.5.2015. This court on perusal of the said document has noticed that the said deed is unregistered documents. As per the provisions of Sec.107 of Transfer of Property Act any lease deed exceeding a period of one year shall be made through a registered instrument. Hence Ex.P.2 which fails to comply with this mandatory requirement cannot be looked into for want of compliance with it. Further, the petitioner claims an amount of Rs.5,000/- towards rent. Except Ex.P.2 no other document is furnished to the court to establish that she is paying rent of Rs.5,000/- . On the other hand, Ex.P.2 is a lease deed and no such rent has been fixed to be paid in transaction relating to lease. Furthermore the period under Ex.p.2 has come to an end on 1.5.2015. The petitioner has examined herself in the month of January-2016. Ever since the date of expiry of Ex.P.2 till her chief-examination the petitioner has not furnished and marked any documents in 12 Crl.Misc.No.110/2015 support of her claim for maintenance. Hence the said relief is liable to be declined.
15. The petitioner has claimed monetary relief of Rs.5,000/- towards the education of child, Rs.4,000/- towards household expenses, Rs.2,000/- towards other expenses. As discussed above the petitioner has proved Domestic Violence in the above case. The relationship between the parties is not in dispute therefore the respondent being the husband of petitioner is duty bound to maintain her as well as the child i.e., petitioner No.2. This is the law laid down by the Hon'ble Supreme Court of India in decision Savitaben Somabhai Bhatiya V/s State of Gujarat reported in AIR 2005 SC 1809. It is held that it is the fundamental and natural duty of the husband to maintain his wife. Hence on considering the facts and circumstances of this case this court is of the considered view that Petitioner No1 is entitled for the monthly maintenance of Rs.4,000/- and petitioner No.2 is entitled for Rs.2,000/- towards maintenance. In order to secure the interest of child and its future as well as the education this court deems it proper to direct the respondent to pay Rs.30,000/- on or before 31st of March every year towards education expenses of the child.
16. The petitioner No.1 has sought for compensation of Rs.25,00,000/-. The compensation for the pain suffering 13 Crl.Misc.No.110/2015 by the petitioner is to be ascertained looking to the facts and circumstances of the case. Hence, on examination of facts and circumstances this court is of the view to grant Rs.1,00,000/- as compensation which would meet the ends of justice.
17. The petitioner No.1 has sought for return of golden jewellery worth Rs.3,00,000/-. Except the prayer there is no pleading either in the main petition or the statement in the deposition regarding the petitioner giving articles to the respondent or the respondent retaining the same. However, the petitioner has submitted Ex.P.3 . Ex.P.3 is noticed to be 13 documents which are price estimation of ornaments, they are not cash bills. Apart from this, any amount of evidence without proper pleading cannot be appreciated. Further, the petitioner has failed to narrate the details of the articles retained by the respondent or to provide the list of articles in his custody. In the absence of such cogent and minimum evidence this court cannot grant such relief on hypothetical grounds. Therefore, the said relief is liable to be declined for being ambiguous and lack of proper proof and pleading. Hence, I answer Point No.2 partly in the affirmative.
14 Crl.Misc.No.110/201518. POINT No.3 :- In view of the materials placed before this court, pleadings, deposition and documentary evidence this court proceeds to pass the following:
ORDER The petition filed by the petitioner under Sec.12 of The Protection of Women from Domestic Violence Act, 2005 is allowed in part.
The respondent is directed to pay an
amount of Rs.4,000/-p.m. (Rupees four
thousand only) to petitioner No.1 and
Rs.2,000/-p.m. (Rupees two thousand only) to petitioner No.2 towards maintenance from the date of petition till the marriage of petitioner No.1 subsists with him and petitioner No.2 till her marriage is solemnized.
The respondent is directed to pay a sum of Rs.30,000/- (Rupees thirty thousand only) to the petitioner No.2 on or before the month of 31st of March every year for her educational expenses.
The respondent is further directed to pay an amount of Rs.1,00,000/- (Rupees one 15 Crl.Misc.No.110/2015 lakh only) as compensation to the petitioner No.1.
No order as to costs.
Office is directed to furnish a copy of this order free of cost to both the parties.
(Dictated to the Stenographer, transcript computerized by her, revised corrected and then pronounced by me in the open Court on this the 27nd day of October, 2016) (SANTHOSH.M.S.) MMTC-III, BENGALURU.
ANNEXURE WITNESSES EXAMINED FOR THE PETITIONER:
PW.1 Smt. Nisha Rani @ Geetha.S DOCUMENTS EXHIBITED FOR THE PETITIONER:
Ex.P.1 Marriage invitation card
Ex.P.2 Rental agreement
Ex.P.3 Gold purchase receipts.
Ex.P.4 & 5 Receipts.
Ex.P.6 School fees paid receipts
Ex.P.7 DIR
Ex.P.8 CC of order sheet in MC No.6/2010
Ex.P.9 CC of petition in MC No.6/2010
Ex.P.10 & 11 Photographs
Ex.P.12 CD
16 Crl.Misc.No.110/2015
Ex.P.13 Bank challan
Ex.P.14 & 15 Admission tickets of Sheshadripuram Law College Ex.P.16 Medical bills.
WITNESSES EXAMINED FOR THE RESPONDENT : Nil DOCUMENTS EXHIBITED FOR THE RESPONDENT : Nil MMTC-III, BENGALURU.