Bangalore District Court
Sri.K.T.Pradeep vs Smt.Ranjitha.S.R on 10 January, 2023
KABC010012012022
Presented on : 12-01-2022
Registered on : 12-01-2022
Decided on : 10-01-2023
Duration: 0 years, 11 months, 29 days
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH67)
DATED: This the 10th day of January, 2023
PRESENT
Sri.S.Nataraj, BAL.,LL.B.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
Crl.A.No.59 of 2022
Appellant : Sri.K.T.Pradeep,
S/o Thimmegowda,
Aged about 32 years,
R/at No.92/2, Near Pallad Factory,
Kodigehalli Post,
Yeshwanthapura Hobli,
Bengaluru 560 091.
(By Sri.H.N.Kumara Gowda, Advocate.)
/Vs/
Respondent : Smt.Ranjitha.S.R.
W/o Pradeepa.K.T.
D/o S.R.Raju,
Aged about 24 years,
R/o No.190, 7th Cross,
2
Crl.A.No.59/2022
Soap Factory Layout,
Bagalagunte, Nagasandra PO,
Bengaluru 560 073.
(Dispensed)
JUDGMENT
The appellant filed appeal under Section 29 of Protection of woman from Domestic Violence Act, 2005 (herein after referred to as 'PWDV Act') challenging the exparte order of interim maintenance passed by the III Metropolitan Magistrate Traffic Court, at Bengaluru (herein after referred to as 'trial court'), dated 11.12.2020 in Crl.Mis.77/2020, wherein the appellant was directed to pay maintenance of Rs.8000/ per month to the respondent herein from the date of order till filing of objections (herein after referred to as 'impugned order').
2. The appellant is the respondent, the respondent herein is the petitioner before the trial Court in Crl.Mis.77/2020. For the sake of convenience the parties are referred to as per their ranks in the trial Court.
3. The brief facts of the case leading to filing of this appeal are that;
3
Crl.A.No.59/2022 The petitioner Smt.Ranjitha S.R. filed a petition under Section 12 of PWDV Act against respondents 1 to 5 seeking monthly maintenance of Rs.30,000/ per month prohibiting the respondents from committing act of domestic violence, to direct the respondent No.1 to provide residence, food and clothing and directing to provide medical treatment, to direct the respondents to pay compensation of Rs.5,00,000/ to the petitioner and to direct the respondents Nos.1 to 3 to return the gold jewelry ornaments and household articles.
4. The petitioner along with petition has filed application under Section 20 of the PWDV Act praying for interim maintenance of Rs.30,000/ per month and to direct the respondents to pay Rs.50,000/ towards legal expenses. The trial Court having satisfied prima facie material that respondent Nos.1 to 3 have committed domestic violence against the petitioner and passed exparte interim order against respondent No.1 directing him to pay Rs.8000/ per month as maintenance to the petitioner and dismiss the petition against respondent Nos.4 and 5. 4
Crl.A.No.59/2022
5. Being aggrieved by the impugned order of exparte the respondent No.1 has filed the present petition challenging the order of the trial court on various grounds that;
a) The trial court without giving opportunity to the appellant has passed an exparte order, it is bad in law.
b) The appellant has filed objections to IA.No.1 but not considered by the trial Court. The respondent has not produced any documents in support of source of income of the appellant.
c) The appellant was working in private company, after COVID 19 he was relieved from the service, he has no source of income and unable to pay interim maintenance. The trial Court has not considered the said fact.
d) The appellant is unemployed he has to look after his aged parents and not in a position and not in a position to pay maintenance.
On these grounds he prayed for setting aside the order of the trial Court.
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6. The notice to respondent was dispensed. The appellant has not chosen to address arguments. Taken as heard. The trial court records are dispensed.
7. Out of above said facts and circumstances of the case, the points that arose for the due consideration of this Court are;
Point No.1: Whether the exparte interim order of maintenance passed by the trial court directing the appellant herein in Crl.Mis.77/2020 is liable to be interfered at this stage in the Appeal? ?
Point No.2 : What order?
[
8. The answer of this Court to the above points are;
Point No.1 : Partly Affirmative
Point No.2 : As per the final order for the
following reasons.
REASONS
9. POINT No.1: The petition averments filed by the petitioner/Smt.Ranjitha S.R. disclose that she is the legally wedded wife of the 1st respondent, their marriage was solmanized on 6.6.2019 at MVM Kalyana Mantapa, 6 Crl.A.No.59/2022 Nelamangala. Respondent Nos.2 and 3 are the parents of respondent No.1. Respondent No.4 is the sister of respondent No.1 and respondent No.5 is the husband of respondent No.4. It appears after marriage the petitioner has led marital life with respondent No.1 in the matrimonial house for few months and thereafter the respondents allegedly committed domestic violence. The petitioner has filed complaint in Cr.No.275/2020 under Section 498A, 323, 324 IPC and Sections 3 and 4 of DP Act. It is alleged that the 1st respondent working in private company getting salary of Rs.6000/ per month and also selling milk products earning Rs.50,000/ the respondents owned the landed properties on these grounds the petitioner has sought for interim order of maintenance.
10. Under Section 23 of PWDV Act the Magistrate has power to grant an exparte order if the Magistrate satisfied an application prima facie discloses that the respondent is committing or has committed act of domestic violence or likelihood of committing domestic violence may grant exparte order on the base of affidavit. 7
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11. The trial Court having satisfied from the petition and affidavit has granted interim maintenance of Rs.8000/ per month. The first respondent after receipt of notice from the trial Court has appeared before the trial Court on 28.5.2021 and sought time to file objections. As on 22.9.2021 order sheet disclose the stage was set down for objections of respondent No.1.
12. The appellant in his appeal memo has contended that he has no income to pay the interim maintenance, he has left the company and unemployed, he has not given opportunity before passing exparte order. Since the order of the trial court itself is an exparte order. The question of granting opportunity at that stage to 1st respondent would not have raised. Regarding the financial capacity of the 1 st respondent is concerned he can place the material before the trial Court. As per the judgment of Rajanesh Vs Neha in Crl.A.730/2020 dated 4.11.2020, it is mandate for both parties to file assets and liabilities declaration affidavit. Therefore the appellant husband has every 8 Crl.A.No.59/2022 opportunity to put forth his contention before the trial court by filing objections.
Section 25 of PWDV Act reads as follows:
25: Duration and alteration of orders - (1) A protection order made under Section 18 shall be in force till the aggrieved person applies for discharge.
(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate."
13. In view of above said provision there is a specific remedy available to the appellant 1st respondent by way of alteration, modification or revocation of an exparte order has been provided under that, the filing of appeal challenging the exparte order at this stage is appears to be premature. Under the circumstances, no ground to interfere in the exparte impugned order of the trial Court. On the other hand if the trial court is directed to consider 9 Crl.A.No.59/2022 IA.No.1 filed by the petitioner after hearing both sides expeditiously would be suffice. All the contentions of the appellant/1st respondent are kept open with liberty to agitated before the trial Court. Hence, answer the point No.1 partly in Affirmative.
14. POINT No.2: In view of findings given on point No.1, this Court pass the following order.
ORDER
Appeal filed by the
Appellant/Pradeepa.K.T. under Section 29 of PWDV Act 2005 is disposed off with a direction to the trial Court to dispose of I.A.No.I filed under Section 20 of PWDV Act by the respondent/Smt.Ranjitha.S.R. on merits, after giving opportunity to both parties in Crl.Mis.77/2020 in accordance with law by considering the principles laid down by Hon'ble Apex Court in Rajanesh Vs Neha in Crl.A.730/2020 dated 4.11.2020, expeditiously. 10
Crl.A.No.59/2022 Office to send copy of this order to the trial Court for compliance.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 10th day of January, 2023).
(S.NATARAJ), LXVI Addl.CC & SJ, Bengaluru.
11 Crl.A.No.59/2022 The Judgment is pronounced in the open Court vide separate Judgment with following operative portion.
ORDER
Appeal filed by the
Appellant/Pradeepa.K.T. under
Section 29 of PWDV Act 2005 is
disposed off with a direction to the trial Court to dispose of I.A.No.I filed under Section 20 of PWDV Act by the respondent/Smt.Ranjitha.S.R. on merits, after giving opportunity to both parties in Crl.Mis.77/2020 in accordance with law by considering the principles laid down by Hon'ble Apex Court in Rajanesh Vs Neha in Crl.A.730/2020 dated 4.11.2020, expeditiously.
Office to send copy of this order to the trial Court for compliance.
LXVI Addl.CC & SJ, Bengaluru .
12 Crl.A.No.59/2022