Bangalore District Court
Sri.Bharath Kumar @ Pappu vs Smt.Raina Kumari @ Rinku on 22 February, 2022
Crl.Appeal No.1260/2018
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KABC010189792018
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.KASHIM CHURIKHAN.
B.A., LL.M.
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 22nd day of February 2022.
Crl. Appeal No.1260/2018
APPELLANT : Sri.Bharath Kumar @ Pappu,
S/o.D.Hemraj,
35 years,
R/at.Flat No.108, 1st Floor,
IHFD Apartments, No.11,
Vasavi Temple Road,
Bengaluru.
(By Sri.P.M., Advocate)
.Vs.
RESPONDENT : Smt.Raina Kumari @ Rinku,
W/o.Bharath Kumar @ Pappu,
D/o.Baulaji Gandhi,
34 years,
C/o.Govinda Raju,
No.13/1, Near Food Camp,
Temple Street, Malleshwaram.
Bengaluru.
(By Sri.S.S.K., Advocate)
Crl.Appeal No.1260/2018
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JUDGMENT
This appeal is preferred by the appellant under Section 29 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as PWDV Act) against the exparte ad-interim order passed in Crl.Misc.No.78/2017, dated:9.05.2017 by the learned Metropolitan Magistrate, Traffic Court-III, Bengaluru and prays to set aside the impugned order.
2. The appellant herein was the respondent No.1 and respondent herein was the petitioner 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 petitioner and respondent No.1 are wife and husband. Their marriage was solemnized on 28.07.2007 at V.V.Pura, Bengaluru. The parents of petitioner had paid gold and silver articles and bears the marriage expenses. Before the marriage, the parents of respondent No.1 have stated that the respondent No.1 is running silver factory and after the marriage the petitioner came to know that there is no such silver factory. For the period of 4-5 years, the petitioner and respondent No.1 lived together and on 25.03.2012, a baby boy was born. The respondent No.1 was addicted to alcohol and subjected the Crl.Appeal No.1260/2018 3 petitioner to cruelty, put demand to bring additional dowry, abused her in filthy language and gave life threat. On the advice of the relatives, the petitioner and respondent No.1 stayed in a separate house.
Frequently, the respondent No.1 took quarrel and in drunken condition, started violence against the petitioner. Therefore, the petitioner was constrained to file Crl. Petition as stated above.
On the request of the petitioner, the learned Metropolitan Magistrate, Traffic Court-III, Bengaluru on 9.05.2017 passed an exparte ad-interim maintenance order directing the appellant/respondent No.1 to pay maintenance of Rs.5,000/- per month to the petitioner and her son.
4. Aggrieved by the said order, the appellant/husband has filed this appeal on the grounds that the impugned order passed by the learned Magistrate is opposed to facts and circumstances of the case. No notice is served to the appellant. No opportunity is provided to the appellant to defend his case. It is contended that the respondent/wife herself has taken contention that the appellant has sustained loss in business and closed the business. It is contended that the appellant is being jobless, unable to maintain himself. The appellant was in Rehabilitation Centre for taking treatment. It is further contended Crl.Appeal No.1260/2018 4 that the respondent/wife is being B.Sc., Graduate, running Garments business and earning for Rs.40,000/- per month apart from it, she is managing her cousin business and earning Rs.20,000/- per month. So, the respondent/wife has no difficulty to maintain herself and her child. Prays to allow the appeal and to set aside the impugned order.
5. In pursuance of the service of notice, the respondent/wife has appeared through her counsel.
6. The case was posted for arguments. The learned counsel for appellant as well as respondent have filed their respective written arguments.
7. Heard the arguments.
8. The points raised for determination are as under:
1. Whether the appellant has made out sufficient grounds to interfere with the impugned order ?
2. What Order ?
9. My findings on the above points are as follows.
POINT No.1 - Negative, POINT No.2 - As per final order, for the following :
REASONS
10. POINT No.1 : The learned counsel for the appellant has reiterated the facts of appeal grounds in his written arguments. He has further submitted that Crl.Appeal No.1260/2018 5 the respondent/wife is running Garments business and assisting his cousin in his business and thereby, earning Rs.60,000/- per month. So, the respondent is capable to maintain herself and her child. He has further submitted that the appellant/husband is jobless person and he sustained loss in his business. Due to harassment made by the respondent/wife, he went in depression and took treatment at NIMHANS and other hospitals. The appellant is not in a position to maintain himself. He has stated that the impugned order passed by the learned Magistrate is not sustainable. Hence, prays to allow the appeal.
11. In the written arguments submitted by the learned counsel for respondent, reiterated the fact that the appellant was being husband of the respondent, he and his parents subjected the respondent to cruelty, started abusing in filthy language and gave life threat. The appellant addicted to alcohol. It is submitted by the learned counsel for respondent that the appellant and his parents started to put demand to bring additional dowry from the parents of respondent and neglected her and her son. The respondent/wife does not have any source of income. From 2013 to 2015, the respondent/wife was running Garments business and in the year 2015, it was closed. Even the stock of the shop is given to the appellant. In turn there is a condition that the appellant should pay the amount in Crl.Appeal No.1260/2018 6 respect of the stock. Therefore, the stock was valued at Rs.3,28,548/-. In this regard, the appellant had issued the cheque, it was bounced. So, there is a case against the appellant for the offence punishable under Section 138 of N.I.Act, which is pending consideration.
12. The learned counsel for appellant has submitted that in the said proceedings for dishonour of cheque against the appellant by the respondent, the respondent has stated that she is running Garments business under the name and style M/s.Moksha and earning. Therefore, there is source of income to the respondent to maintain herself. Hence, prays to allow the appeal.
13. I have gone through the materials placed on record. The respondent/wife and her son had filed Crl.Misc.No.78/2017 before the learned Metropolitan Magistrate, Traffic Court-III, Bengaluru. Along with the petition under Section 12 of PWDV Act, the respondent/wife had filed an interim application under Section 23 of PWDV Act and prays to pass an exparte ad-interim order for maintenance. Considering the necessity of maintenance to the respondent and her son, the learned Magistrate had passed an exparte ad- interim maintenance order directing the appellant/respondent No.1 to pay a sum of Rs.5,000/- per month as maintenance to his wife and son.
Crl.Appeal No.1260/2018 7
14. Admittedly, the said impugned order is an exparte ad-interim maintenance order. While passing such exparte ad-interim maintenance order, question of issuance of notice prior to passing the order does not arise at all. Section 23 of PWDV Act has given power to the learned Magistrate to pass such exparte ad-interim maintenance order on the basis of satisfactory grounds put forth by the petitioner. Therefore, the grounds put forth by the appellant/respondent No.1 in this appeal that prior to passing exparte ad-interim maintenance order, no notice is served nor opportunity is provided to the appellant does not hold any water.
15. The respondent/wife has alleged that her husband/appellant and his parents subjected her to cruelty, started violence against her, abused in filthy language and gave life threat to her. Therefore, the respondent was constrained to file the petition before learned Metropolitan Magistrate, Traffic Court-III, Bengaluru and sought for an exparte ad-interim maintenance order against the appellant.
16. It is submitted by the appellant's side that the appellant is jobless due to loss in the business and harassment made to him by his wife, he went in depression and he took treatment at NIMHANS and Crl.Appeal No.1260/2018 8 other hospitals. He is not in a position to maintain himself. It is further submitted that the respondent/wife is running Garments business and by assisting his cousin in business, earning Rs.60,000/- per month. The respondent/wife is capable of maintaining herself and her son.
17. In support of it, the appellant's side has produced the xerox copies of medical certificates as well as copy of complaint in C.C.No.4375/2019 and sworn statement of P.W.1.
18. On perusal of the materials placed on record, the medical records goes to show that the appellant took treatment at NIMHANS and other hospitals. These documents would not go to show that the appellant is not capable to do business or job. Further, on perusal of the sworn statement and the complaint lodged by the respondent/wife, it is true that she has stated before the court in her sworn statement that she was running Garments business from 2013 to 2015. It also reveals that she has stated that in the year 2015, the said business was closed. The stock was given to the appellant, in turn the appellant had issued the cheque for Rs.3,28,548/- and it was bounced. Here what I would like to go to mention that at the time of filing of Crl.Misc.Petition before the learned Metropolitan Magistrate, Traffic Court-III, Bengaluru, the Crl.Appeal No.1260/2018 9 respondent/wife was not doing any job or business. Her business was closed itself in the year 2015. Under the circumstances, the appellant is being husband and father of her son has had bounded duty to maintain his wife and son.
19. Coming to the impugned order passed by the learned Metropolitan Magistrate, Traffic Court-III, Bengaluru, the learned Magistrate has directed the appellant/respondent No.1 to pay ad-interim maintenance of Rs.5,000/- to his wife and son. In these hard days, the cost of living is in escalation. Looking to the standard and position of the parties, the learned Magistrate has not erred in passing exparte impugned order against the appellant/respondent No.1. Therefore, this court does not wish to interfere in the said order. Accordingly, I answer the Point No.1 in the Negative.
20. POINT No.2 : In view of my finding on Point No.1 as above, my finding on this point is as per the following :
ORDER The Crl. Appeal filed by the appellant is hereby dismissed. Consequently, the impugned order passed by the learned Metropolitan Magistrate, Traffic Court-III, Bengaluru in Crl.Misc.No.78/2017, dated:9.05.2017 stands confirmed.
Crl.Appeal No.1260/2018 10 If any I.A., is pending in this proceedings stand disposed accordingly.
Send the copy of this judgment 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 22nd day of February 2022) (KASHIM CHURIKHAN) LXVII Addl.City Civil & Sessions Judge, BENGALURU.