Bangalore District Court
Sri H.S. Rangaswamy vs Smt. G.R.Pavithra @ Yashodha on 28 July, 2018
1 CRL.A. 1622/2017
IN THE COURT OF LXXI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE (CCH-72)
DATED THIS THE 26TH DAY OF JULY 2018
PRESENT
SHRI. GOPAL, B.Com, LL.B.,
LXXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU URBAN DISTRICT, BENGALURU
Crl. Appeal No.1622/2017
Appellant : 1. Sri H.S. Rangaswamy,
S/o. Shivegowda @
K.R.Shivanna
Aged about 38 Yrs,
2. Sri Shivegowda @
K.R.Shivanna
S/o. Ramegowda,
Aged about 61 Yrs,
3. Smt. Parvathamma,
W/o. Shivegowda @
K.R.Shivanna,
Aged about 51 Yrs,
4. Smt. Bharathi,
D/o. Shivegowda @
K.R.Shivanna
Aged about 41 Yrs,
All are R/at. Kanthapura,
Hosuru Village, Dabbegatta,
2 CRL.A. 1622/2017
Hobli, Turuvekere Taluk,
Tumkur District.
( By Sri C.V.Nagesh Associates )
V/s.
Respondent : Smt. G.R.Pavithra @ Yashodha
W/o. H.S.Rangaswamy
Aged about 27 Yrs,
Presently working at
M/s. Nandana Sales Corporation,
At No.39, 7th Cross, Aswathappa,
Main Road, Kasthurbanagar,
Bengalurul.
Also attached to
M/s. Nupur Industries,
At No.108/9, 4th Cross, I Main,
Kannaswamy, New Extension,
Bengaluru.
Also available at:
No.1041/6, Sajjepalya,
4th Cross, Near Valsala Travels,
Veswaneedam post,
Bengaluru-560 091.
( Exparte )
3 CRL.A. 1622/2017
JUDGEMENT
Being aggrieved by the order dated 13.12.2016 passed by the learned Metropolitan Magistrate, Traffic Court-V, Bengaluru in Crl. Misc.No.230/2016 filed under section 12 of the Protection of Women from Domestic Violence Act, 2005 granting Ex-parte interim monthly maintenance of Rs.4000/- each to the Petitioner and her child till the disposal of I.A.1.
2. Before going to the merits of the appeal, let me briefly state the fact relevant for consideration of this appeal are that the respondent is a legal wedded wife of the Appellant and she filed a Criminal Miscellaneous petition against the appellant under section 12 of the Protection of Women from Domestic Violence Act, 2005 before the learned MMTC-V Court, Bengaluru which was registered in Crl.Misc.No.230/2016. The learned Magistrate on the application of the Respondent u/s. 23 of DV Act passed impugned order against the Appellant husband. Being aggrieved by the impugned order Respondent / Appellant preferred the present appeal on the following grounds :
4 CRL.A. 1622/2017(a) The Respondent wife has refused and neglected to lead a marital life with the first appellant and left company by her own without any justification. Appellants have no avocation and no means for their living. Respondent wife is employed and she is getting salary of Rs.28,000/- per month. Respondent wife is no way dependent on the Appellant for her maintenance. The impugned order liable to be reversed and set aside. On these ground prays for allow the appeal by setting aside the impugned order dated 13.12.2016 and filed application u/s 5 of Limitation Act to condone the delay of 342 days in preferring the appeal.
3. Notice issued to the Respondent through RPAD and it was returned not claimed by the Respondent. Service of notice was held sufficient and Respondent was placed Ex.parte.
4. Having heard and perused the record the following points arises for my consideration are:
Point NO.1: Whether the Appellant has made out a sufficient valid reason to condone the delay of 342 days in preferring the present appeal?5 CRL.A. 1622/2017
Point NO.2: Whether the impugned order dated 13.12.2016 passed by the learned MMTC-V, Bengaluru in Crl.Misc. No. 230/2016 awarding Ex-parte interim monthly maintenance of Rs.4,000/- is perverse, capricious and oppose to law and needs interference of this appellate Court ?
Point NO.3: What order ?
5. My findings on the above points are as under:
Point No.1: In the Negative Point No.2 : Negative.
Point No.3 : As per final order, for the following:
REASONS
6. Point No.1 & 2 : Admittedly, Respondent is a legally wedded wife of Ist Appellant. There is no dispute with regard to marital relationship of parties. Respondent filed a petition u/s. 12 of DV Act in Crl.Mis. 230/2016 against her husband and others before the MMTC-V 6 CRL.A. 1622/2017 Court, Bengaluru and also seeking Ex.parte order of interim monthly maintenance. On 13.12.2016 learned Magistrate passed Ex.Parte interim maintenance of Rs.4000/- per month till the disposal of I.A. No.1. The said legality of the order questioned by the Appellants herein.
7. The appellant has stated that the impugned order passed on 13.12.2016. Right from beginning he was persuading his wife to take back her to her marital home but the Respondent wife one or the other reason protracting and the matter was not settled between husband and wife and hence, they did not preferred an appeal in time on the against the impugned order. I need to note that the appellant have put their appearance through counsel after service of summons. They knows the passing of interim order on the date of their appearance before the learned Magistrate. They have not placed any material or affidavit of the panchas for having tried to take back his wife to her marital home. Hence, the reason assigned by the Appellants are not convenienced and they have not shown valid reason to 7 CRL.A. 1622/2017 condone the delay of 342 days in preferring the appeal. Accordingly I answered the Point No.1 in the Negative.
8. Point NO.2: The grounds urged by the Appellants are that the Respondent wife has refused and neglected to lead a marital life with the first appellant and left company by her own without any justification. Appellants have no avocation and no means for their living. Respondent wife is employed and she is getting salary of Rs.28,000/- per month. Respondent wife is no way dependent on the Appellant for her maintenance. The impugned order liable to be reversed and set aside.
9. On perusal of the order sheet of the trial Court in Crl.Mis 260/2016 discloses on 13.12.2016 respondent wife filed the petition u/s. 12 of DV Act and also seeking Ex-parte interim relief. On the same day the learned Magistrate passed impugned order of Exparte interim maintenance of Rs.4000/- per month till the disposal of IA.1. Thereafter issued notice to the Appellants. On 13.1.2017 Appellants have appeared through counsel and sought for filing objection to the petition. On 4.7.2017 Appellants filed objections along with 8 CRL.A. 1622/2017 application u/s. 25 of DV Act and the case was referred to mediation and mediation was failed between the parties and case was posted for Petitioners evidence on 2.8.2017 and evidence of Petitioner wife was examined as PW1 and got marked Ex.P.1 to Ex.P23 and case is posted for Cross of Pw1 on 4.10.2017 and 3.11.2017. Further order sheet was not produced by the Appellants.
10. On reading of Sec. 23 of DV Act deals with the power to grant interim and Exparte orders in any proceeding by the Magistrate. It appears from record that after filing of complaint u/s 12 of DV Act, the aggrieved person has filed an affidavit u/s. 23 (2) of DV Act seeking interim relief and the learned trial Court having being satisfied on such affidavit passed the impugned order of interim maintenance. Admittedly , the aggrieved person is the wife of the Appellant.
11. It is clear from sub section 2 of Sec. 23 of DV Act that the ex-parte interim order of maintenance was passed at the preliminary stage even before issuance of notice, and therefore, there was no scope for giving the chance of hearing to the respondent. The magistrate is supposed to pass such order only on the basis of the 9 CRL.A. 1622/2017 affidavit filed by the aggrieved person and in the instant case also, learned trial Court has passed the interim ex- parte maintenance order on the basis of affidavit filed by the aggrieved person. Sub-Section (2) of Section 25 of D.V. Act lays down that the aggrieved person or the respondent may approach the magistrate for alteration, modification or revocation of any order if the change of circumstances so deserves. Therefore, any interim order passed by the learned magistrate can very well be modified or altered or revoked by the learned trial Court itself on the application of the aggrieved person or the respondent. In the instant case, the Appellant not filed application for alteration, modification or cancellation of Exparte order . Without taking to such recourse, which could be time saving, it has become the common practice of filing the appeal against any ex-parte interim order which indeed tends to frustrate the very object of the legislation to give speedy remedy to the aggrieved person under the D.V. Act. Learned trial Court in exercise of his judicial discretion conferred by the Statute cannot be held to be illegal or perverse or capricious merely on the ground that the appellants were not given an opportunity of being heard, in as much as, 10 CRL.A. 1622/2017 there is no scope for giving such opportunity of hearing to the respondent at the time of passing such ex-parte interim order. Evidently, the impugned order is an interlocutory ex-parte order and such order also falls within the ambit of the judicial discretion of the learned trial Court. The order sheet reflected that the Appellants have not press for disposal of I.A.1 before the trial Court and the case is already posted for cross of Pw1 on merits of the petition. In the facts and circumstances of the case it does not appear to have suffered from any infirmity and therefore, I do not find any cogent reason to interfere with such order. Accordingly I answered the point No.2 in the negative .
12. Point No.3: In view of my findings on point No.1, I proceed to pass the following:
ORDER The Crl. Appeal No.1622/2017 filed by the appellants under section 29 of Protection of Women from Domestic Violence Act, 2005 is dismissed.11 CRL.A. 1622/2017
Send the copy of the Judgment to the MMTC-V, Bengaluru in Crl.Mis. 230/2016.
(Dictated to the Typist Copyist, corrected and signed and then pronounced by me in open Court on this 28th day of July, 2018).
(GOPAL) LXXI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU 12 CRL.A. 1622/2017 (Order pronounced in Open Court) ORDER The Crl. Appeal No.1622/2017 filed by the appellants under section 29 of Protection of Women from Domestic Violence Act, 2005 is dismissed.
Send the copy of the Judgment to the MMTC-V, Bengaluru in Crl.Mis. 230/2016.
(Dictated to the Typist Copyist, corrected and signed and then pronounced by me in open Court on this 28th day of July, 2018).
(GOPAL) LXXI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU 13 CRL.A. 1622/2017