Bangalore District Court
Mrs. Bethiya Sudarshini vs Mr. Ebenezer Shantharaj on 28 March, 2018
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE (CCH 70)
Present: Sri T.P.Ramalinge Gowda, B.Sc,LL.M.,MBA.
LXIX Additional City Civil and
Sessions Judge,
Bengaluru.
Dated this the 28th day of March, 2018
Crl.A.No. 1446/2015
Appellant : Mrs. Bethiya Sudarshini
w/o Ebenezer Shatharaj
aged about 40 years
r/at No. 2225, 2nd cross road,
Railway Parallel road
Kengeri Upanagar,
Bengaluru.
(By M.H.Hidayathulla, Advocate)
Vs.
Respondent : Mr. Ebenezer Shantharaj
Aged bout 47 years,
No. 901/C, Yegova Yeare, 1st floor,
Gundappa Mutt Cross road,
Lingarajapuram,
St. Thomas Town PO
Bengaluru 84.
(By Sri S.Ganesh Shenoy, Advocate)
: JUDGMENT:
This appeal is preferred against order dated 21.10.2015 in Crl.Misc.No.132/2012 on the file of MMTC-II, Bengaluru City dismissing the petition filed u/sec. 12 of PWDV Act, 2005.
2 Crl.A.NO.1446/2015The parties will be referred with their original ranks before the trial court.
2. Essential material facts leading to this appeal are as follow:-
The petitioner/Appellant is the wife of respondent and their marriage was solemnized on 19.2.2001 and their marriage is an arranged marriage, at the time of marriage gold ornaments worth 16 sovereigns and an amount of Rs. 50,000/- by way of cheque bearing No. 660457 dated 3.1.10201 was paid to the respondent, after few months of marriage the respondent and his family members had started harassing the petitioner both physically and mentally for silly reasons and they also demanded additional down, as such father of petitioner paid Rs. 25,000/- on 9.6.2011, another sum of Rs. 35,000/- on 275.2002. It is further alleged that even during the time of the pregnancy the respondent thrown her away and filed MC No. 1505/2002 on the false and baseless allegation that the petitioner has been suffering from mental disorder, the petitioner gave birth to a baby girl, but the respondent not bothered to see the child. The family court allowed the application of the petitioner and awarded maintenance to the girl child, thereafter the respondent has withdrawn the divorce petition as the matter was settled, but after some time the respondent again started illtreating the petitioner. Since the respondent thrown away the petitioner, she started to reside with her parents without having any employment or source of income for her basis necessities. That being the position, during the year 2011 the respondent has filed another divorce petition in MC No. 2525/2011 against the petitioner, which is 3 Crl.A.NO.1446/2015 pending for consideration. The parents and brother of the petitioner started to neglect her and also refused to maintain her, as such the petitioner left with no other alternative constrained to file Crl.Misc. No. 132/2012 before MMTC II seeking for various relief. The trial court after hearing and considering the evidence of both side, has passed the impugned order on 21.10.2015 and dismissed application filed u/sec. 12 of the Act.
3. As noted supra, feeling aggrieved by the above impugned order of court below, petitioner/appellant/wife preferred this appeal against her husband and in the appeal memo she contended that the learned Magistrate has gravelly erred in rejecting the claim of the petitioner without considering the oral and documentary evidence on record, the learned Magistrate has committed an error in coming to the conclusion that the petitioner has not filed any complaint before the police alleging the domestic violence inspite of producing the NCR acknowledgement dated 2.6.2002 issued by the Yeshwanthapura P.S. as per Ex.P.2, she had received back jewels and other items from the respondent before the police on 30.6.2002, by extracting the portion of cross-examination, the learned Magistrate erroneously come to the conclusion that; `it appears that respondent has not resided with the petitioner for long time, the allegation of respondent that the Appellant is suffering from mental disorder is false, she was working as Stenographer in Aranya Bhavan, the learned Magistrate came to wrong conclusion that the Appellant is still working and earning sufficient income without any documentary proof . Even if it is presumed that the petitioner is suffering from mental 4 Crl.A.NO.1446/2015 disorder which requires medical aid from the respondent, the learned Magistrate failed to consider the fact that it is the bounden duty of the husband to maintain his wife and children. The learned Magistrate out to have consider the fact that the Appellant is deprived of seeing and talking to her only child and love and affection towards her child from the year 2007. The learned Magistrate failed to consider the document dated 11.2.2014 obtained from Department of Forest, Aranya Bhavan. With these main contentions petitioner/Appellant prays to set aside impugned order of court below by allowing the appeal.
4. Respondent appeared through counsel and opposed the appeal.
5. Heard the counsel for parties and perused the citations produced by the parties The counsel for Appellant has relied on following citations;
i. AIR 2016(2) page 475.
ii. order of High Court of Rajastan in case of Smt. Manju vs. Rameshwar Changani and another.
iii. order of High Court of Calcutta in case of Priti Dey vs. Subhasish Dey and another iv.. 2012 STPL 104 SC v. (1975) 2 SC 386 vi. 2010 12 SCC 242 vii. 2013 (2) KLJ 258 On the other hand the counsel for respondent has relied on MFA (FC) 103381/2014 passed by our own High Court.
6. In the light of above materials and contentions of parties, following points fall for decision making of this court:-
1. Whether the impugned order of Trial Court is not proper and correct and the same is called for interference?5 Crl.A.NO.1446/2015
2. What order?
7. This court on re-appreciation of available materials with reference to prevailing legal aspects, give finding to the above points as follow:-
POINT NO.1 - In affirmative POINT NO.2 - As per final order, on the following;
:REASONS:
8. POINT NO.1 : The domestic relationship between wife and husband and the parental relationship of child is not in dispute so also the daughter of the petitioner is residing with her father and MC petition is filed by the respondent seeking divorce which is pending is also not in dispute. This court gone through the averments made in the petition and objection statement, the evidence led by the parties in support of their contention and the admissions elicited during their cross- examination coupled with documents relied by the parties. The trial court while rejecting the petition filed by the petitioner has extensively discussed the evidence on record by considering the oral and documentary evidence particularly the admissions of PW. 1 and 2 and observed that it has pleaded that the cause of action arose on 29.7.2007, but the present petition is filed in the year 2012, that too after filing of divorce petition by the respondent, therefore the petitioner has filed this petition as a counter blast to the divorce petition filed by the respondent. It is further observed by the learned Magistrate that on meticulous perusal of the entire evidence placed there is no 6 Crl.A.NO.1446/2015 domestic violence committed by the respondent and also the petitioner has got sufficient source of income from her employment and hence she is not entitled for any kind of maintenance from the respondent. It is further observed that since 2002 the petitioner was not resided with the respondent as such the respondent has not at all committed any kind of domestic violence upon petitioner and there is no allegation against the relatives of the respondent and hence prayer No.1 sought by the petitioner restraining the respondent from committing any acts of domestic violence by the relatives of the respondent cannot be granted.
9. The counsel for Appellant vehemently argued that the trial court has not properly appreciated the evidence led by the petitioner in a right prospective manner but wrongly held that the petitioner is a earning lady and hence she is not entitled for any relief. On this aspect no document is placed by the respondent. Further the trial court wrongly held that the petitioner is suffering from mental disorder without any material document and hence prays to set aside the impugned order.
10. On the other hand learned counsel for respondent argued that the trial court has rightly appreciated the materials available on record and hence prays to confirm the impugned order.
11. By keeping in mind the rival arguments and observation of the trial court, this court perused the evidence led by both parties and re-appreciated the same in the following manner. The factual matrix set out by the parties is not required 7 Crl.A.NO.1446/2015 to be repeated, as already stated supra. On perusal of the cross-examination of PW. 1, in her cross-examination at one stage she stated that after 3 months of her marriage respondent left her company and she was resided alongwith her parents and she further stated that after she become pregnant the respondent left her and further admitted that she expressed that she is not interested to live with him and after she left the company of respondent her daughter was born. She further admitted that after born of her daughter, respondent took her alongwith child and they started to reside in separate house and also admitted that respondent admitted the child to school and now also her daughter is living with respondent. She further admitted that she is not aware of the harassment given by the respondent and his family members. She further admitted that she had lodged the complaint before Yeshwanthpura police and in the presence of police on 30.6.2002 she has received back all her belongings from the respondent. She further admitted that at the time of marriage the respondent had not demanded for dowry, but her parents have given some dowry at the time of marriage and the same was received back in the presence of the police. She further admitted that prior to her marriage she took treatment due to her mental disorder. Further to the suggestion that in the month of July, 2017 her parents were took her to provide treatment for her mental disorder; she stated that since the first wife of respondent has become pregnant she herself left the company of respondent. Further it is also elicited that the respondent has filed the M.C. petition against this petitioner and the same was withdrawn at the wishes of the elders of both 8 Crl.A.NO.1446/2015 family and the C.Misc petition filed u/sec. 125 of Cr.P.C. by the petitioner was dismissed and the WP challenging the said order passed in C.Misc. was also dismissed by the Hon`ble High Court. On perusal of the entire admissions elicited during cross-examination, it contradicted the averments made in the petition and each admission goes contrary to each other. Further she also admitted that she was working as a Stenographer at Forest office for some time and the same was also admitted by father of the petitioner who is examined as PW.2 and he also admitted that she is having own house, but he denied the suggestion that PW. 1 is suffering from schizophrenia (paranoid).
12. I have also gone through the evidence of DW.1. DW.1 has been cross examined by the counsel for the petitioner at length, it shows that he is doing the work of repair of telephones and earning meager income, he is taking care of his child and giving education to her, he came to know about the disease of the petitioner after the marriage, she was working as Stenographer, but he has not produced any document in this respect, MC petition is pending against her, she left his company in the year 2002 and since from that time she is living in her parental house. He denied that he is not taking care of the child.
13. I have gone through the impugned order. The trial court observed each and every aspect and come to the conclusion that there is no domestic violence committed by the respondent. This observation of the trial court is seems to be 9 Crl.A.NO.1446/2015 proper and correct. As per the settled position of law the admissions are the best piece of evidence and under Section 58 of Indian Evidence Act admitted facts need not be proved. As such the admissions made by the petitioner/Appellant goes against her averments made in the petition, rather it supports the contention of the respondent/husband. The another observation of the learned Magistrate that the petitioner is not entitled for maintenance, is not proper for the following reasons. The admissions of PW.1 goes to show that she worked for 6 months only and that itself is not sufficient to hold that she is earning her livelihood. Moreover the respondent has not produced any document to show that at present she is earning income for her livelihood or she is doing employment. Mere earning capacity is not the only criteria to reject the maintenance. The available evidence on record shows the Appellant is not mentally fit to work eventhough she has such a capacity. At this juncture this court wants to rely upon the decision reported in AIR 2016 Kar 169 in case of Shilpa vs. Praveen wherein the Hon`ble High Court held that ; alleged mental disorder or unsoundness of mind - schizophrenic condition of wife /schizophrenia is a curable ailment with regular medication. It is not a out of control situation and further held that the Family Court was insensitive in branding the wife as suffering with completely incurable paranoid schizophrenia. ... This observation is aptly applicable to the case on hand also. Here the trial court without any basis of medical evidence come to the conclusion that the Appellant is suffering from schizophrenia. In another decision reported in 2016 (2) AKR 475 it is held that; ...... considered all material admissions from 10 Crl.A.NO.1446/2015 respondents witness - Finding that there was continued marital relationship between husband and wife inspite of there being no sexual contact - No perversity or illegality found - No intereference.... Maintenance - Married lady thrown out of matrimonial home by her husband even before coming into force of Act - Entitled to seek maintenance under provisions of the Act". By keeping in mind the above ratio, since there exists the relationship of husband and wife and since no dissolution of marriage is taken, it is the bounden duty of the husband to lookafter the wife or to pay the maintenance for her livelihood and if she is suffering from schizophrenia which is a curable ailment with regular medication, it is the responsibility of the husband to provide medical treatment to her. Their marriage is solemnized in the year 2001 and both husband and wife lived together for one year only and from 2002 she is residing with her relatives. The M.C. petition is also pending. The cross- examination of PW. 1 goes to show that really she is suffering from mental disorder and as such she require regular medication. Though the domestic violence is not proved, since the relationship exists, she is entitle for monthly maintenance. Moreover it is the moral and legal duty of the husband to maintain his wife and child. Accordingly this Court feels that the impugned order of trial court needs interference. Hence point No.1 is answered in affirmative.
14. POINT NO.2: In the light of finding on above point, this court proceeds to pass the following:
11 Crl.A.NO.1446/2015: ORDER :
Appeal is allowed.
Impugned order of trial court in Cr.Misc.No. 132/2012 dated 21.10.2015 is hereby set aside.
The respondent is directed to pay monthly maintenance of Rs. 5000/- to the Appellant.
Send copy of this judgment to the trial court for needful.
(Dictated to the Judgment Writer on computer, then corrected, signed and pronounced by me in the open court on this the 28th day of March, 2018) (T.P.Ramalinge Gowda) LXIX Addl.City Civil & Sessions Judge, Bengaluru.12 Crl.A.NO.1446/2015
28.3.2018 Appellant - MHH Respondent - HSS For judgment;
Judgment pronounced in open court, vide separate order.
: ORDER :
Appeal is allowed.
Impugned order of trial court in Cr.Misc.No. 132/2012 dated 21.10.2015 is hereby set aside.
The respondent is directed to pay monthly maintenance of Rs. 5000/- to the Appellant.
Send copy of this judgment to the trial court for needful.
(T.P.Ramalinge Gowda) LXIX Addl.City Civil & Sessions Judge, Bengaluru.13 Crl.A.NO.1446/2015