Bangalore District Court
Smt.Ambika.N @ Putta Ambika W/O vs Chandrashekar C.K. S/O Patel Rajappa on 4 November, 2016
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
TRAFFIC COURT - III, AT BENGALURU
DATED THIS 4TH DAY OF NOVEMBER 2016.
PRESENT : Sri. SANTHOSH.M.S., B.A., LL.B., (HONS); LL.M.,
M.M.T.C-III, BENGALURU.
Crl.Misc.No.107/2015
PETITIONER Smt.Ambika.N @ Putta Ambika W/o
Chandrashekar C.K., 32 years, R/o
No.682, Muniyappa Building, 4th
Cross, Maruthi Layout,
Chokkasandra, Bengaluru.
(By Smt.R.D., Adv)
V/s
RESPONDENT Chandrashekar C.K. S/o Patel Rajappa,
35 years, R/o Kaduvina Hoisahalli,
Bagevaalu Post, Halekote Hobli,
Holenarasipura Taluk, Hassan District.
(By Sri.S.A, Adv)
JUDGMENT
This petition is filed by the petitioner under Sec.12 of the Protection of Women from Domestic Violence Act, 2005, seeking relief under Sec.18, 19, 20 and 22 of the said Act.
2 Crl.Misc.No.107/20152. The case of the petitioner in brief is as under; The petitioner contends that she is the legally wedded wife of respondent and they were married on 24.6.2007 at her native place Thamaganahalli, Sheetihali, Hasan as per Hindu rites. Out of the said wedlock a son by name Preetham is born to them. The petitioner contends that after the marriage she lived with respondent and led happy married life only for short period, thereafter respondent has never taken care of petitioner and he had no love and affection towards her and he used to insult, humiliate and using filthy language and scolding infront of others and neighbours and also assaulted her. She further contends that the respondent is earning more than Rs.20,000/- p.m. from agricultural lands and he is also doing real estate business. It is contended that respondent is working at M/s Empire Machine Tools, Metal Forming at Bengaluru and the respondent is getting handsome salary and income. The respondent has never taken care of petitioner and her child. The respondent intentionally refused to give money to her and that she has no money to meet her expenses and the expenses of her son. As such she is living on the borrowings from her friends and relatives. Now, the respondent has not cared about her well being. That the petitioner has no financial support to secure the future of her son. The respondent has caused physical, emotional, 3 Crl.Misc.No.107/2015 mental and financial abuse amounting to Domestic Violence. Hence, on these grounds she prays for allowing the petition.
3. After receipt of petition, notice was issued to the respondent and on appearance through his advocate the respondent has filed his statement of objection. In the statement of objection the relationship between the parties is not in dispute. However, the financial capacity of the respondent and the allegations relating to Domestic Violence have been denied. The contention of the respondent in brief are that he has studied till 8th standard and has secured a job as office boy at Empire Machine Tools, Bengaluru and earning Rs.5,000/- p.m. He contends that the petitioner being educated till PUC and having skilled in tailoring and she has joined garment factory and she is earning Rs.10,000/- p.m. The respondent contends that petitioner was desirous of leading luxurious life which was not suitable to his income and hence they used to have tussle between them which continued for many years. The respondent contends that the petitioner has left the matrimonial home in the month of May-2015 along with the child. Though the respondent made several attempts to reconcile relationship yet she did not turn up. Therefore he has issued notice through his advocate for restitution of conjugal rights which was not received by the petitioner and the same was 4 Crl.Misc.No.107/2015 returned with an endorsement as "no such person". Thereafter the respondent has filed case bearing No. 4837/2015 before the Hon'ble Family Court seeking restitution of conjugal rights. The respondent submits that he is always willing to lead matrimonial life with the petitioner and she has left him alone and she has taken away the child. The respondent submits that he has no agricultural lands and no source of income and he earns no income from eucalyptus trees as contended by the petitioner and that no act of Domestic Violence are committed on the petitioner as such he prays for dismissal of the petition.
4. In order to prove her case the petitioner has examined herself as PW.1 and got marked Ex.P.1 to 45. PW.1 was cross-examined. Though the respondent has filed his objection and cross-examined PW.1. he has not come forward to lead his evidence and the respondent has also not complied the interim order of payment of maintenance passed by this court up to date.
5. Perused the records, deposition and exhibits placed on record. Since there was no representation for both parties, their arguments are taken as heard. The following points that arises for my consideration are as under;
5 Crl.Misc.No.107/20151. Whether the Petitioner proves that she has been subjected to Domestic Violence and neglected by the respondent?
2. Whether the petitioner is 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 reiterated the contents of the petition. She has furnished and got marked Ex.P.1 to 45, they are Ex.P.1 is the school fees paid letter, Ex.P.2 is the rental agreement, Ex.P.3 to 11 are the medical records, Ex.P.12 to 29 are the medical bills, Ex.P.30 to 37 are the lab reports, Ex.P.38 is the certified copy of complaint, Ex.P.39 is the FIR in Cr.No.664/2015, Ex.P.40 is the certified copy of order sheet in Cr.No.664/2015, Ex.P.41 is the identity 6 Crl.Misc.No.107/2015 card of petitioner, Ex.P.42 to 44 are the photographs Ex.P.45 is the C.D.
8. In order to be entitled for the relief under the provision of PWDV Act it is incumbent on the part of the petitioner to prove that she is in domestic relationship with the respondent and that they have resided together in the shared household and during said residence the petitioner was subjected to Domestic Violence as such she is aggrieved person as per the provision of the said Act. Though the proceedings are governed by Cr.P.C. yet the burden on petitioner is to prove her case to the preponderance of the probability unlike other cases were standard of proof is expected beyond reasonable doubt. Though the petitioner has to prove her case to the preponderance of the probability yet initial burden of proving her contention and to substantiate her case as mentioned above are to be discharged by her. The petitioner in this case has filed petition seeking various reliefs. It is to be noted that the provisions of the PWDV Act confer right on the petitioner to claim relief for her sufferings arising out of Domestic Violence and proof of such Domestic Violence is a condition precedent for claiming relief. Domestic Violence has been widely worded in PWDV Act. However to prove her case of Domestic Violence the petitioner is expected to make out 7 Crl.Misc.No.107/2015 specific case against the respondent and vague or ambiguous pleadings and evidence does not come to her aid. As per the provisions of PWDV Act while deciding the aspect of Domestic Violence, overall facts and circumstances of a given case are to be examined. Hence, this being the position of law let me now analyze the allegations of the petitioner made against the respondent in the main petition as well as her affidavit.
9. On perusal of pleadings of both the parties the relationship between the parties is not in dispute. Hence, there exists "domestic relationship" between the parties through marriage. Out of the said wedlock child by name Preetham is born. This is also an admitted fact. The fact in dispute is that the respondent has not subjected the petitioner to Domestic Violence. Therefore, it is burden on the petitioner to prove her case regarding Domestic Violence so as to be entitled for relief under the PWDV Act. In support of her contention the petitioner has produced and got marked Ex.P.38 this is the complaint filed by the petitioner on 20.7.2015. In the said complaint the petitioner has alleged that she has been subjected to physical and mental cruelty by the respondent on the pretext of demanding dowry and she has been abused in filthy language. On receipt of Ex.P.38 the jurisdictional police has registered FIR as per Ex.P.39 8 Crl.Misc.No.107/2015 and a case is registered against the respondent as per Ex.P.40 which is the certified copy of order sheet in Cr.No.664/2015. On perusal of the exhibits marked above and the cross-examination of PW.1 this court has noticed that even though PW.1 has been cross-examined there is no material statement elicited form her mouth which would favour the defence of respondent in denying the allegations of commission of Domestic Violence. Though the allegations of Domestic Violence are denied yet mere denial is not sufficient as the petitioner by leading her oral evidence and by furnishing documentary evidence as discussed above as proved to the preponderance of probability the commission of act of Domestic Violence.
10. On the contrary the respondent who has denied the said allegations yet he has not stepped into witness box to prove his case by leading evidence and not come forward to lead his evidence to disprove the allegations made against him. Therefore, the evidence placed on record by the petitioner is unshaken and it goes to establish the factum of Domestic Violence. Hence, I answer Point No.1 in the affirmative.
11. POINT No.2 : Under the provisions of PWDV Act entitlement of any relief is only dependent of the proof of 9 Crl.Misc.No.107/2015 Domestic Violence. When the said aspect is proved the petitioner is entitled for the relief suitable for the commission of such Domestic Violence.
12. The petitioner has prayed for protection order against the respondent. It is the case of the petitioner that she is not residing with the respondent. It is not her case that the respondent has committed an act of Domestic Violence at her present residence which is different from the residence of respondent. Therefore, this court is of the considered view that the said relief is liable to be declined.
13. The petitioner has prayed for a direction against the respondent for securing same level of alternative accommodation or to pay rent for the same. However, the petitioner has not lead any evidence in support of her case. To prove that the respondent has his right in a shared household, as such she is entitled for the residence order under PWDV Act. This is the view taken by the Hon'ble Supreme Court of India reported in 2007(3) SCC 169 between S.R.Batra and another Vs. Tarun Batra where in it is held that:
"section 2(s) and 17-'Shared house hold'- Wife's right to reside therein-House which exclusively belonged to mother-in-law of the woman where she only lived with her husband for some time on the past after the marriage-Held- not a 'Shared 10 Crl.Misc.No.107/2015 house hold' within the meaning of section 2(s) and respondent is entitled to claim right to live therein under section 17-In order to claim such a right the property should belong to her husband or it should have been taken on rent by her husband or it should have been joint family property in which her husband was a member.
Therefore the said relief is liable to declined.
14. The petitioner has sought for monetary relief directing the respondent to pay Rs.5,000/- for maintenance. This court deems it proper for directing the respondent to pay Rs.3,000/- p.m. to the petitioner till her marriage subsists with him. This court also deems it proper to issue direction against the respondent to pay sum of Rs.2,000/- p.m. towards the maintenance of his son till he attains the age of majority.
15. The petitioner has sought for compensation order under Sec.22 of the PWDV Act for a sum of Rs.10,00,000/- . The order of compensation is to be passed looking to the facts, circumstances and position of the parties. On perusal of the materials placed before this court this court deems its proper to pass an order directing the respondent to pay an amount of Rs.50,000/- to the petitioner as compensation towards physical, emotional and verbal abuse 11 Crl.Misc.No.107/2015 by the respondent. Hence, I answer Point No.2 partly in the affirmative.
16. 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.3,000/- p.m. (Rupees three thousand only) to the petitioner from the date of petition till her marriage subsists with him and also respondent is directed to pay an amount of Rs.2,000/- p.m. (Rupees two thousand only) to the child of the petitioner as maintenance till he attains the age of majority. The amount of maintenance paid by the respondent during pendency of this petition is ordered to be deducted in the said amount.
The respondent is further directed to pay an amount of Rs.50,000/- (Rupees fifty 12 Crl.Misc.No.107/2015 thousand only) as compensation to the petitioner.
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 4th day of November, 2016) (SANTHOSH.M.S.) MMTC-III, BENGALURU.
ANNEXURE WITNESSES EXAMINED FOR THE PETITIONER:
PW.1 Smt.Ambika N @ Putta Ambika DOCUMENTS EXHIBITED FOR THE PETITIONER:
Ex.P.1 School fees paid letter
Ex.P.2 Rent agreement
Ex.P.3 to 11 Medical records
Ex.P.12 to 29 Medical bills
Ex.P.30 to 37 Lab reports
Ex.P.38 CC of complaint
Ex.P.39 CC of FIR in Cr.No.664/2015
Ex.P.40 CC of order sheet in Cr.No.664/2015
Ex.P.41 Election ID card
Ex.P.42 to 44 photographs
Ex.P.45 CD
13 Crl.Misc.No.107/2015
WITNESSES EXAMINED FOR THE RESPONDENT :
NIL DOCUMENTS EXHIBITED FOR THE RESPONDENT :
NIL MMTC-III, BENGALURU.14 Crl.Misc.No.107/2015