Bangalore District Court
Sri Raghavendra vs Smt. R.Keerthi Prasad on 26 July, 2018
1 CRL.A.1681/2017
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.1681/2017
Appellant : 1. Sri Raghavendra,
S/o. S.R.Thyagaraj
Aged about 32 Yrs,
2. Smt. M.R. Bhagya,
W/o. S.R. Thyagaraj
Aged about 65 Yrs,
Both are R/at. No.11,
8th Main Road,
Palace Guttahalli,
Bengaluru.
( By Sri A.N.Gangadharaiah, Adv.)
V/s.
Respondent : Smt. R.Keerthi Prasad,
D/o. Late Rajendra Prasad,
Aged about 30 Yrs,
R/at. No.295, Sri Krupa,
Ist A Cross, 3rd Block,
2 CRL.A.1681/2017
3rd Main, Dasappa Layout,
Ramamurthy Nagar,
Bengaluru.
( Ex-parte)
JUDGEMENT
Being aggrieved by the order dated 18.7.2017 passed by the learned Metropolitan Magistrate, Traffic Court-IV, Bengaluru in Crl. Misc.No.60/2017 filed under section 12 of the Protection of Women from Domestic Violence Act, 2005 granting Ex-parte interim monthly maintenance of Rs.4000/- per month 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 being a wife of the Appellant 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-IV Court, Bengaluru which was registered in Crl.Misc.No.60/2017. The learned Magistrate on the application of the Respondent u/s. 23 of DV Act passed impugned order against the Appellant husband. Being 3 CRL.A.1681/2017 aggrieved by the impugned order Respondent / Appellant preferred the present appeal on the following grounds :
(a) The impugned order passed by the learned Magistrate is opposed to law and probabilities of the case. Ist Appellant is the Engineer and Builder and earning Rs.2 lakhs as per the allegation of Respondent wife. Ist Appellant is not an engineer or builder and he is working as office assistant and earning meager amount.
(b) Respondent wife being employed and she voluntarily left the company of the Appellant with her all belongings. All efforts made by the Appellant to bring her back but went in vein.
Ist Appellant filed a divorce application before the Family Court, Bengaluru. He came to know the impugned order on 3.11.2017. Hence, he filed the appeal along with application u/s. 12 of limitation Act. The impugned order suffers from legal infirmities. On these ground prays for allow the appeal by setting aside the impugned order dated 18.7.2017.
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. Appellant counsel not addressed argument despite of given several opportunities.
4 CRL.A.1681/20174. Having perused the material placed before the Court, the following points arises for my consideration are:
Point NO.1: Whether the Appellant has made out a sufficient reason to condone the delay of 100 days in preferring the present appeal?
Point NO.2: Whether the impugned order dated 18.7.2017 passed by the learned MMTC-IV, Bengaluru in Crl.Misc. No. 60/2017 granting 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 5 CRL.A.1681/2017 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 regard to marital relationship of parties. Respondent filed a petition u/s. 12 of DV Act in Crl.Mis. 60/2017 against her husband before the MMTC-IV Court, Bengaluru and also seeking Ex.parte order of interim monthly maintenance. On 18.7.2017 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 Appellant husband herein.
7. The appellant has stated that the impugned order passed on 18.7.2017. After service of summons he engaged counsel and defend the matter. He came to know the impugned order on 3.11.2017 When the other side counsel made a submission regarding non payment of interim maintenance on 30.10.2017 and seeking condone the delay of 100 days in preferring the appeal. I need to note that the appellant has put his appearance through after service of summons. He knows the passing 6 CRL.A.1681/2017 of interim order and the interim application along with main petition was served to the Respondent on the day of appearance. It is not the case of the appellant that the I.A.1 has not served to the appellant along with main petition on the date of his appearance. Hence, the reason assigned by the Appellant not acceptable and he has not shown valid reason to condone the delay of 100 days in preferring the appeal. Accordingly I answered the Point No.1 in the Negative.
8. Point NO.2: The grounds urged by the Appellant are that the impugned order passed by the learned Magistrate is error and suffer from legal infirmities and he is not working as Engineer or builder and working as office Assistant and earning meager amount.
9. On perusal of the order sheet of the trial Court in Crl.Mis 60/2017 discloses on 13.7.2017 respondent wife filed the petition u/s. 12 of DV Act and on 18.07.2017 learned Magistrate passed impugned order of Exparte interim maintenance of Rs.4000/- per month to the Petitioner till disposal of IA.1. Thereafter issued notice to the Appellant husband. Appellant also admitted after 7 CRL.A.1681/2017 passing Exparte order he appeared and came to know the said order passed by the learned Magistrate.
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 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 8 CRL.A.1681/2017 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 appellant was not given an opportunity of being heard, in as much as, 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 9 CRL.A.1681/2017 trial Court. In the facts and circumstances of the case 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.1681/2017 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-IV, Bengaluru in Crl.Mis. 60/2017.
(Dictated to the Typist Copyist, corrected and signed and then pronounced by me in open Court on this 26th day of July, 2018).
(GOPAL) LXXI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU