Bangalore District Court
K. Imran Pasha vs Hajeera Asma Khanum on 26 February, 2020
IN THE COURT OF LXXI ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH-72)
DATED THIS THE 26th DAY OF FEBRUARY 2020
PRESENT
Smt. SANDHYA.S, M.A., LL.B. (Spl.)
LXXI Addl. City Civil & Sessions Judge, Bengaluru.
CRL.A.No.1472/2017
Appellant K. Imran Pasha,
S/o. Late.K.Abdul Khalaqh,
Aged about 36 years,
No.51, Pooja
Mahalakshmi Layout,
Agrahara Road, Kogilu
Post, Yelahanka,
Bengaluru - 64.
(By Smt.Jamuna Bai,
Adv.)
-V/S-
Respondents 1. Hajeera Asma Khanum,
W/o. K.Imran Pasha, Aged about 30 years
2. Mohammed Umar Ali, S/o. K.Imran Pasha, Aged about 6 years, Both are R/at No.143, SABA Fragrance, 1st Floor, 5th Cross, Someshwarnagar, Jayanagar I Block, 2 Crl.A.No.1472/2017 Bangalore - 11.
(By Smt.H.B Advocate) * * * * * J UD GME N T The appellant/accused has assailed the legality and correctness of the order U/s 12 of Protection of Women from Domestic Violence Act 2005, allowed partly and so "the respondent No.1 directed to pay to the petitioner No.1, Rs.4 Lakhs (Rupees four Lakhs) as compensation and to pay maintenance of Rs.4,000/- (Four Thousand) per month to petitioner No.2 till he attains the age of majority."
passed by Learned IV MMTC in the Judgment dated, 12.09.2017 in Crl.Misc No.200/2013 in the interest of justice. The parties are referred to their original ranks.
2. The essential material facts lead to this appeal succinctly is as follows :-
Respondent/complainant who will be herein after referred as 'petitioner' has filed appeal U/s.12 against 3 Crl.A.No.1472/2017 respondent of Protection of Women from Domestic Violence Act 2005 seeking relief U/s.18, 19, 20 & 22 of the said act. The trial court after full fledged trail has passed the impugned judgment and allowed the petition partly in the above manner through impugned order.
3. Feeling aggrieved and dissatisfied with the above nature of verdict of the trial court, the respondent/appellant has preferred instant appeal. Appellant in his appeal memo specifically contended that the impugned Judgment and order passed by the Hon'ble Trail Court, is against the accused/appellant, is incorrect and the same is based on improper understanding of evidence, provisions of law and probabilities of the case. The impugned judgment passed by the Hon'ble Trail Court has caused gross injustice and irreparable loss to the appellant. That the Hon'ble Trail Court has placed heavy reliance on 4 Crl.A.No.1472/2017 the oral testimony of the prosecution witnesses. Except the oral testimony, there is nothing against the respondent. That there is no corroboration to the evidence of the petitioner that she was subjected to any sort of harassment or humiliation in her matrimonial home. The evidence of the petitioner has been treated as sacrosanct and the contradiction in her evidence about the very demand and receipt of the alleged dowry is not properly appreciated by the Hon'ble Trail Court. Placing heavy reliance on the oral testimony in the absence of cogent evidence is undesirable and unjust. That the Trail Court order passed by the Hon'ble MMTCourt-IV, Bangalore,in allowing the petition partly in Crl.Misc.No. 200/2013 filed under Section 12 of protection of women from Domestic Violence Act 2005, by directing the Appellant to pay to the Respondent No.1 Rs.4,00,000/- as compensation and Rs.4,000/- per 5 Crl.A.No.1472/2017 month of male child i.e., Respondent No. 2 from the date of petition till he attains the age of majority is not maintainable in law or on facts of the case.
4. The grounds urged by the appellant are:
That the marriage between the Appellant and Respondent No.1 was solemnized on 14.02.2020 at Devanahalli, Bangalore as per Muslim rites and customs. The marriage was arranged by the parents of both the parties. After the marriage they started living together in the residence of the Appellant and their marriage was consummated and out of wedlock one male child was born. That at the time of marriage and after the marriage, the Appellant and his family members have not demanded any sort of dowry. After the marriage, the 1st Respondent was not faithful towards the Appellant or her in-laws and piratically she made the life of the Appellant miserable. The 1 st Respondent used to eat Panparag Gutka and the 1 st 6 Crl.A.No.1472/2017 Respondent and her family members have demanded Rs.12,00,000/- plus divorce failing which they threatened to file dowry case. Finally, the Appellant approached the Masjid in order to pacify the matter but in vain due to adamant nature of the 1 st Respondent. 1st Respondent has taken undue advantage of innocence of the appellant and without knowledge of the appellant, the 1st Respondent left the house and that she is leading life according to her whimsies and fancies. That the 1st Respondent never used to give time for the child and she used to scold and beat the child and many occasions she never used to provide milk in the late night. Appellant, as a father is personally attached to the child. All the members in his house are most affectionate towards the child. The Respondent have already filed Crl.Misc. No.9/2014 on the file of the VI Addl. Family Court, Bangalore against the Appellant for maintenance 7 Crl.A.No.1472/2017 under Section 125(1) of Criminal procedure Code and also filed interim application on 2.1.2014 against him for interim maintenance. The Hon'ble Family court after hearing, partly allowed the interim application on 29.11.2014 filed by the Respondent and directed the Appellant to pay monthly maintenance of Rs.3,000/- each to the Respondent and in addition to the education expenses of the 2nd Respondent from the date of application till the disposal of the case and also directed to pay Rs.2,000/- towards rent for the accommodation of the Respondents. Aggrieved by the said interim order, the Appellant has preferred the writ petition No.62985/2016 before the Hon'ble High Court of Karnataka and the same came to be allowed, reducing the maintenance amount from Rs.8,000/- to Rs.4,000/- per month. Now Crl.Misc No. 9/2014 on the file of the VI Addl. Family Court of Bangalore is pending disposal. That the Appellant is now 8 Crl.A.No.1472/2017 unemployed without any source of income and he does not have any business. Due to the continuous harassment and threatening of the 1st Respondent, the Appellant could not continue his business at shop No.2, N.E.S. Office shopping complex, Sante Beedi, Railway station road, Yelahanka, Bangalore and due to non payment of rent to the shop premises the Appellant could not do his business and hence the Appellant do not have any source of income. The Appellant hails from respectable family in view of the conduct of the 1st Respondent torturing through anti- social element and police, the life of the Appellant became miserable and she only deserted the Appellant. The Appellant has given Talaqnama to the 1st Respondent on 6th November, 2012 and she has also admitted the same in her cross examination. As per Shariath Law, after Talaqnama, the wife has no right to claim any maintenance from her husband. 9 Crl.A.No.1472/2017 Such being he case, the petition filed by the Respondent is not at all maintainable. That the 1 st Respondent has also lodged a complaint against the Appellant and his family members before MICO Layout police and the said police registered a case in crime No. 613/2012 for the offence punishable under Sections 498A, 506 UPC R/w 3 & 4 of D.P Act. After investigation, the said police filed charge sheet in C.C.No.16643/2014 which is pending disposal on the file of the VI Addl. Chief Metropolitan Magistrate at Bangalore.
5. Further that the judgment of the Trial Court is illegal, arbitrary, capricious, perverse and against to law, facts and probabilities of the case and deserves to be set-aside. The judgment passed by the trial court is not sustainable under law and the same is liable to be set aside. The learned Judge has filed to consider the point that the 1st Respondent in order to give 10 Crl.A.No.1472/2017 harassment and torture to the Appellant and his family members and also to extract money from the Appellant, has filed the petition and as such the judgment passed by the Metropolitan Magistrate is lopsided and needs to be set aside. The learned Judge has failed to note that the 1 st Respondent has also filed maintenance petition before the Family Court and there also she has extracted the money from the Appellant and on that count also, the learned Judge could have rejected the petition. The 1 st Respondent has been filing petitions one after the other in order to harass the Appellant and she has failed to fulfill the ingredients under Sec.12 of the Domestic Violence Act and as such she is not entitled to the judgment. The Court below has failed to consider the evidence of the Appellant and documents produced in support of his case. The Judgment of the Court below is without appreciating the facts and circumstances of the case 11 Crl.A.No.1472/2017 on hand and without looking into the technical aspects of the case. With these amongst other grounds the appellant prays to set aside the impugned judgment, dated 12.9.2017 passed in Crl.Misc.No.200/2013 on the file of the Matropolitan Magistrate Traffic Court - IV, Bangalore in allowing the petition partly filed U/sec. 12 of the Protection of Women from Domestic Violence Act.
6. In pursuance of service of notice, the respondent/petitioner appeared through their counsel and filed their written argument on their behalf and prayed her prayer to be considered.
7. The counsel for appellant has vehemently argued that the order of the Hon'ble Trial Court is unjust and it is fatal to the case of the petitioner. Hence, prayed for allowing the appeal as prayer for.
8. Heard the argument of the counsel for appellant and respondent perused the papers and 12 Crl.A.No.1472/2017 also the citations relied by the parties. In the light of challenge of impugned judgment by the appellant and above materials, now the points that arise for my consideration are:
1. Whether the appellant has shown that the learned Magistrate has failed to appreciate the oral and documentary evidence available on record in proper perspective and thereby committed error in rejecting the reliefs sought for by her except the relief of compensation to the extent as granted under the impugned judgment?
2. Whether the appellant has made out any ground to show that he is entitled to the reliefs as sought for in the appeal?
3. Whether the appellant has made out any ground to interfere with the impugned judgment of the learned Magistrate at the hands of this Court in this appeal as sought for?
4. What order?
9. This court upon re-appreciation of available materials in, with reference to prevailing law of land, gives findings to the above point as follows:-
Point No.1 : In the Negative.
Point No.2 : In the Negative.
Point No.3 : In the Negative.13 Crl.A.No.1472/2017
Point No.4 : As per final order for the following:
REA S ON S
10. Points No.1 to 3: As these points are interrelated and interconnected, there are taken up for consideration together for avoiding repetition of discussion on the facts of the case and also regarding point of law.
11. On perusal of the charge sheet material, oral and documentary evidence on record, other materials available on record and impugned judgment, at the very outset it is very pertinent to note that there is absolutely no dispute of the fact that the respondent is wife of the appellant. That the judgment dated, 12.09.2017, passed in Crl.Misc. No.200/2013 on the file of the MMTC- IV, Bangalore in allowing the petition partly filed, U/sec.12 of the Protection of Women from Domestic Violence Act. Therefore, as held by the learned Magistrate in the impugned 14 Crl.A.No.1472/2017 judgment, after full fledged trial passed the order by ordering Rs.4,00,000/- as compensation to be paid to the petitioner No.1 and to pay maintenance of Rs.4,000/- (Four Thousand) per month to petitioner No.2 till he attains the age of majority. Being aggrieved by the judgment of the trial court the appellant has filed this appeal.
12. On careful perusal of the impugned judgment, it depicts that the petitioner was examined one witness as P.W.1. Further Ex.P.1 to P.8 are marked for the petitioner. Further the Respondent side got examined one witness as D.W.1 and no document were marked.
13. On perusal of the entire records and the judgment of the trial court, It is the case of the petitioner that she was married to respondent on 14.2.2010 and in grand way as per Muslims rites and customs. That at the time of the marriage, her father 15 Crl.A.No.1472/2017 had given Rs.1,00,000/- cash to respondent and Rs.50,000/- to purchase two wheeler as dowry, further Rs.2,500/- loan towards honey moon expenses as demanded by the respondents. That on demand her father had given Rs.12 lakhs worth gold jewelery, Rs. 2,12,000/- worth furniture and further Rs.1,70,000/- for clothes and Rs.21,000/- towards house hold articles etc., as per the list of articles given to the respondent at the time of marriage, the Chilla function (naming ceremony) Rs.75,000/- Medical expenses (delivery charges and other related expenditure, Rs.90,000/-, Aqheeqha and other expenses Rs.1,50,000/-. Totally Rs.15,50,000/- were given. That in the beginning she was taken good care of and after three months and the family members of the accused have given harassment to bring more dowry in order to purchase house. That the complainant was bearing all the torture and insult 16 Crl.A.No.1472/2017 and agony and stayed in her husband's house. Later the complainant came to her parents house for delivery and male child was born on 25.12.2010 and named as Mohammed Umar Ali. The hospital expenses was about Rs.90,000/- was borne by her father. That the accused had sold gold ornaments and gifts given during marriage. That on 20.05.2011, she was assaulted and further demanded dowry otherwise she would face dear consequences. That on 21.5.2011 the accused and his brother tired to kill her by pouring petrol and tired to lit fire. Somehow she escaped and ran out of the house and called her father for help. Soon her brothers came and saved her and took her to parent's house. That one Mr.Arshad had acted as mediator for dowry demands. Later the elder brother of the accused came to the house of the complainant's father's house, and assured that within six months he would make 17 Crl.A.No.1472/2017 arrangements for separate house. That the father of the complainant believed it and she had gone to accused house with the new born baby and stayed there for 15 days and again same torture started. No separate house was made for one year. That the accused had sent one undated and unsigned Talaqnama and told the father of the complainant to get it signed by the complainant. That in order to save their skin and fearing that the petitioner No.1 may lodge a dowry complaint against them. Hence prayed to pass orders U/s.18, 19, 20, 22, 23 and (b) To grant the reliefs claimed therein and pass such order as this court deems fit and proper under the given facts and circumstances of the case for protecting the aggrieved person from domestic violence in the interest of justice and thus render justice.
18 Crl.A.No.1472/2017
14. The petitioner got examined herself as witness and produced documents including mahajar, medical records and other relevant documents. The petitioner was examined as P.W.1, who has filed her affidavit and states that she is the resident of Bangalore, that second petitioner is her son, born out of the wed lock with the accused. That they were married on 14.2.2010 and in grand way as per Muslims rites and customs. The marriage certificate is marked as ExP.1 and the translation copy of the same is marked as Ex.P.2 and the marriage photos are marked as Ex.P.3. That at the time of the marriage, her father had given Rs.1,00,000/- cash to respondent and Rs.50,000/- to purchase two wheeler as dowry, further Rs.2,500/- loan towards honey moon expenses as demanded by the respondents. That on demand her father had given Rs.12 lakh worth gold jewelery, Rs. 2,12,000/- worth furniture 19 Crl.A.No.1472/2017 and further Rs.1,70,000/- for clothes and Rs.21,000/- towards house hold articles etc., as per the list of articles given to the respondent at the time of marriage, the Chilla function (naming ceremony) Rs.75,000/- Medical expenses (delivery charges and other related expenditure, Rs.90,000/-, Aqheeqha and other expenses Rs.1,50,000/-. Totally Rs.15,50,000/-.
15. That in the beginning she was taken good care of and after three moths the family members of the accused have given harassment to bring more dowry in order to purchase house. That the complainant was bearing all the torture and insult and agony and stayed in her husband's house. Later the complainant came to her parents house for delivery and male child was born who was named as Mohammed Umar Ali. The hospital expenses was about Rs.90,000/- which was borne by her father. These medical bills are marked as Ex.P.4. That the 20 Crl.A.No.1472/2017 accused had sold gold ornaments and gifts given during marriage. That on 20.05.2011 she was assaulted and further demanded dowry otherwise she would face dear consequences. That on 21.05.2011 the accused and his brother tried to kill her by pouring petrol and tried to lit fire. Somehow she had escaped and ran out of the house and called her father for help. Soon her brothers had come and saved her and took her to parent's house. That Ex.P.5 are the receipts of the gold pledged and sold. That one Mr.Arshad had acted as mediator for dowry demands. The child was born on 25.12.2010 and birth certificate of the child is at Ex.P.6. Later the elder brother of the accused came to the house of the complainant's father's house, and assured that within six month he would make arrangements for separate house. That the father of the complainant believed it and she had gone to accused house with the new 21 Crl.A.No.1472/2017 born baby and stayed there for 15 days and again same torture started. No separate house was made for one year. That the accused had sent one undated and unsigned Talaqnama and told the father of the complainant to get it signed by the complainant. The brief list of dowry articles duly acknowledge is marked as Ex.P.7.
16. That in order to save their skin and fearing that the first petitioner may lodge a dowry complaint against them tried to seek anticipatory bail before the Hon'ble Principal City Civil and Sessions Court in Cr.Misc.No.3796/2012, dated 19.07.2012 and the Hon'ble court was pleased to reject the bail petition the order copy and the same is marked as Ex.P8 That the respondent was sent to judicial custody in Crime No.613/2013, dated 25.01.2013 and the order copy is marked Ex.P9. That the first respondent bail application before the CCH-1 in Crl.Misc.No. 22 Crl.A.No.1472/2017 590/2013, dated 18.02.2013 before the FTC No.10 and obtained bail order and same is marked as Ex.P10. That the other respondent fearing pre-arrest by the concerned police move bail application before the CCH-1 in Crl.Misc.No.588/2013, dated 18.02.2013 before the FTC No.10 and obtained bail order and same is marked as Ex.P11. That she has lodge a police complaint U/s.498A and 307 of IPC, r/w Sec.3 & 4 of D.P.Act before the MICO Layout Police Station and copy of the complaint and FIR is marked as Ex.P12. That the respondent is running Real Estate business and Car dealing and wholesale supplier of Tea and pan masala at Yelahanka and earning monthly income of more than Rs.80,000/- to Rs.1,00,000/- and the respondent is not providing any maintenance amount. That the respondent has married another girl by name Heena Anjum, D/o. Ahmed Pasha for the second time and the marriage 23 Crl.A.No.1472/2017 was solemnized at Ramanagara on 06.11.2012 and the marriage register and its translation copy is produced and marked as Ex.P13 & P14. That she has filed a suit in O.S.No.3/2013 on the file of the principal court of the Ist Addl. Family Judge at Bangalore for restitution of conjugal rights and the said suit is pending adjudication. A copy of the petition is produced and marked as Ex.P16. That the first respondent has filed a case for custody of the child in G & WC No.36/2013 before the Hon'ble Family Court for harassing her. That the first respondent has reported the matter of Talaq to her before the Nodal officer, Vanitha Sahayavani Counselling Centre, Shivajinagar, Bangalore and has obtained a letter issued by Mr.Mohammed Haneef Afsar Azeezi, Imam and Khazi of Masjid-e-Beoparian, Jumma Masjid Road, OPH Road, Shivajinagar, Bangalore. That the counselling report sent by 24 Crl.A.No.1472/2017 counsellor and nodal officer of the police commissioner No.FCC-2013/151, dated 09.07.2013 to the jurisdictional police inspector, Mico Layout police station, Bangalore. Based on report of the Nodal officer from the police commissioner the jurisdictional police in Crime No.613/2012 apprehended the accused & sent him to judicial custody by the Hon'ble court on the charges of attempt to murder and dowry harassment. Copy of counseling report is collectively marked as Ex.P16 and the copy of FIR is produced and marked as Ex.P17. Hence prayed to pass orders U/s.18, 19, 20, 22, 23 and (b) To grant the reliefs claimed therein and pass such order as this court deems fit and proper under the given facts and circumstances of the case for protecting the aggrieved person from domestic violence in the interest of justice.
25 Crl.A.No.1472/2017
17. During the cross-examination, PW.1 deposed that she was doing B.A. first year and accused husband was her relative. That they did not know about the character of the accused before the marriage. Before one month of the marriage, the accused had come and agreed to marry her. The witness admits the suggestion that usually the articles are given in marriage as per customs and the same way her father also has given the house hold articles. The witness denied the suggestion the suggestion that the accused had no bad habbits and states that he has the habit of tobacco and in relation with the bar girls. That the accused had girl friends before the marriage. The the complainant had stayed for 3-4 month in the husband's house and later went to the fathers house as she was pregnant. That after that four months, the accused or there relatives have not contacted her. The witness admits the suggestion 26 Crl.A.No.1472/2017 that before this case she had filed dowry harassment case. The witness admits the suggestion that her marriage was performed in mass community marriage and in those marriages there will not be any arrangements of food. The witness admits the suggestion that later the accused had organized Olima. For the question whether the complainant is ready to stay with the accused if he provides her a house and all comforts, the witness states that the accused had given talak to her. The witness denies that no harassment was given to her by the accused and states that the accused has remarried and has one child from that marriage. The witness denied the suggestion that the respondent was ready to take her back, and the witness further states that the respondent had left the house and emptied the house and went to Chintamani. The witness admits the suggestion that after filing the present petition she 27 Crl.A.No.1472/2017 has filed Crl.Mis.09/2014 before the Family Court. The witness denied the suggestion that the said Crl.Misc is still pending, witness states that order has been passed on the said petition for Rs.8,000/- and she does not know the said order is an Interim order or final order. The witness denied the suggestion that she has sought maintenance in the present petition and in the Crl.Misc.94/2014 U/s.125 of Cr.P.C witness states that in the present petition we have sought for return of the money spent on the wedding expenses and for the domestic violence inflicted on me. That she has filed OS.03/2013 seeking for restitution of conjugal rights. The witness admits the suggestion that the said case is pending. The witness admits the suggestion that even the respondent had filed the O.S.No.55/2013 seeking for restitution of conjugal rights. Witness voluntarily states that in O.S.No.55/2013 the respondent agreed to make a 28 Crl.A.No.1472/2017 separate house so she had agree to go with him but the respondent fail to make separate house. The witness denied the suggestion that though the respondent had made separate house she has not joined the respondent. The witness admits the suggestion that G & W C filed by the respondent seeking for the custody of the child is still pending. That he had given talak and the talak which was issued by the Masjid is not yet signed by her. That she has produced the talak notice issued by the respondent in the present petition. That she is interested in rejoining the respondent but respondent has issued talak notice and the respondent married another lady and is having a child. The witness denied the suggestions that the respondent has not issued the talak notice, nor has given her talak and that she is deposing falsely before the court. That she is not interested in leading the life with him. That she 29 Crl.A.No.1472/2017 doesn't remember the date, month and the year when she received the talak notice, witness states that talak notice has been given to Iqbal the consilator of Vanitha Sahaya Vani. The respondent advocate posed a question that Iqbal is consilator, hence talak notice can't be issued through Iqbal, witness states that in Vanitha Sahaya vani respondent had issued talak notice. That if the respondent make a house near my child's school then she is ready to lead the life with respondent. The witness admits the suggestion that after filing the present petition she has register C.C.No. 16643/2014 against the respondent and his family members for dowry harassment. The witness admits the suggestion that dowry case is also pending. The witness admits the suggestion she had vacated the house through a petition filed by the owner of the previous rented house. The witness denied the suggestion that she has stayed only 4 30 Crl.A.No.1472/2017 months in the matrimonial home and became pregnant hence she went to the parents house, respondent harassed me. After 5 months of her marriage she had to leave the matrimonial home due to harassment in the month of May 2010. The witness denied the suggestion that she had not gone to her husband's house after May-2010 though she wanted to go but the respondent did not entertain. The witness denied the suggestion that she did not inform about the birth of the child to the respondent. The witness denied the suggestion that through 3 rd person of respondent had come to know about the birth of the child but she had threatened the respondent that she would file a case about him. Witness states that respondent had come but respondent parents had not come though her mother had informed the respondent parents. The witness admits the suggestion that respondent had filed an 31 Crl.A.No.1472/2017 application before the Vanitha Sahaya Vani on 09.07.2013 seeking to set right the relationship with the petitioner. For the said application the respondent was not ready to take the petitioner and her child and wanted to get rid of the petitioner and her child. That she has not sought maintenance in the present application as she has already told that she want to recover the marriage expenses and child expenses. That she know the case of the present petition. The witness admits the suggestion that in the present case the protection officer have not visited her. That she does not know when and on what day talak was given. That it is a responsibility of the respondent/appellant to take care of the child. This witness has denied other suggestions put to her during the cross- examination.
18. On the other hand the Respondent/appellant has also got marked his affidavit and states that the 32 Crl.A.No.1472/2017 averments made in para 1 and 2 of the petition need no reply. That the averments made in para 3 of the petition is true and correct to an extent that the first petitioner was married to the first respondent on 14.02.2010 on Sunday at Devanahalli, Bangalore, the marriage was celebrated in a grand scale and the marriage was arranged by the parents of both the parties, the marriage was solemnized as per the Muslim rites and customs. The averments in para 4 & 5 are false and denied and put to strict proof. That on demand her father had given Rs.12 lakh worth gold jewelery, Rs. 2,12,000/- worth furniture and further Rs.1,70,000/- for clothes and Rs.21,000/- towards house hold articles etc., as per the list of articles given to the respondent at the time of marriage, naming ceremony Rs.75,000/- Medical expenses (delivery charges and other related expenditure, Rs.90,000/-, Aqheeqha and other 33 Crl.A.No.1472/2017 expenses Rs.1,50,000/-. Totally Rs.15,50,000/-. That averments made in para 6 & 7 that the petitioner was treated well for three months and later the family members of the accused have given harassment to bring more dowry in order to purchase house in posh area and Rs.12,00,000/- for acquisition of shop premises in commercial street for running a business stating that they have no capital to start the businss. That the petitioner was bearing all the torture and insult and agony and stayed in her husband's house. Later the petitioner came to her parents house for delivery and male child was born on 25.12.2010 and named as Mohammed Umar Ali. The hospital expenses was about Rs.90,000/- was borne by her father is false. That the accused had sold gold ornaments and gifts given during marriage. The respondent/appellant has denied all the averments made in the petition. Further the respondent No.1 is 34 Crl.A.No.1472/2017 not capable of providing separate maintenance to the petitioners. If respondent is ordered to pay maintenance per month as alleged then he will be put to great hardship. The respondent hales from respectable family and in view of the conduct of petitioner torturing through anti-social element and police, the respondent life has become miserable. There is no cause of action to file the above petition and the alleged cause of action is false. There is no sufficient reason to extent protection under D.O.A act to the petitioner and the respondent belongs to Mohammedan Caste, the provision of DOA act are not applicable and enforce against him. No gold jewels were presented to the respondent as alleged and the petitioner is not entitled to any of the relief or monitory benefits claimed in the petition and the respondent has not deserted the petitioner. Further 35 Crl.A.No.1472/2017 R.W.1 has denied other suggestions put to him by the counsel for petitioner and deposed.
19. During the cross-examination this witness he has stated that he was married to the petitioner on 14.02.2010 and has a son by name Humar Ali. The witness denied the suggestion that he has got married for the second time. Further denied that he has admitted the said fact before the family court. The witness denied the suggestion that he has got 2 children from the second marriage. This witness denied that on demand the dowry of Rs.1,00,000/- was paid. That The witness denied the suggestion that an amount of Rs.50,000/- was paid by the petitioners side for the purchase of the two wheeler, where as he states that it was taken by him through the loan. Further he denied the suggestion that petitioners had given 6 Lakh value golden ornaments. That 12 lakh worth household articles have already been returned 36 Crl.A.No.1472/2017 to the petitioner. He deposed that during the delivery around Rs.60,000/- was spent. That he has given 60,000/- to the petitioner but does not posses any document in support of that. This witness has denied all the suggestion put to him regarding the second marriage. This witness has denied the suggestion put to him regarding his earnings. This witness admits that dowry case is filed against him but denies any acceptance of dowry. This witness deposes that he cannot make the separate house. The witness admits the suggestion that he had paid the maintenance to the child as per the order of the family court. The witness denied the suggestion that the signature is found on talak nama, that he does not know. Nothing much benefiting the defence was deposed by this witness and his evidence creates doubt. Hence the evidence of this witness cannot be wholy taken into 37 Crl.A.No.1472/2017 consideration to discard the contention of the petitioner.
20. The counsel for the present appellant has relied on the following citation in support of their say:
1. Prakash Kumar Singhee v.
Amrapali singhee 2018 (5) M.L. L.J 665.
2. Mamta Gautam Wankede v Gautam Sukhdev Wankhede.
Manu/MH/0222/2018.
3. Koushik V. Sangeeta Koushik Ghrami Manu /MH/ 1127/2014
4. Abhijit saha v. Sangita saha 2015 Scc online cal 7119
5. Jayanthi -vs- Jayapaul Unreported decision Crl R.C (MD) No 138/2014
6. Anil Kumar v. Shashi Bala & others 2017 Cri LJ 4821 Although there is no dispute of the principles of law laid down in the above referred decisions of their lordships, with due respect to their lordships, the 38 Crl.A.No.1472/2017 citations referred above does not apply to the facts & circumstances of the case on hand.
21. It is true that the learned Magistrate has come to the conclusion that the petitioner has failed to prove that she was subjected to any kind of act of domestic violence at the hands of respondent. The learned magistrate has also negatived the protection relief claimed by the aggrieved person. Also the prayer for residence is also rejected by the learned magistrate. But the learned Magistrate has ordered for payment of compensation of Rs.4,00,000/- by the respondent to the petitioner under the impugned judgment. The question here is that "Under the Protection of Woman from Domestic Violence Act, domestic violence is elaborately defined under Sec.3. Any harm which endangers the health, safety, life, limb etc., and physical abuse, sexual abuse, verbal and emotional abuse, economic abuse all constitute domestic 39 Crl.A.No.1472/2017 violence." Further U/s.22 of the act states, "Compensation orders - In addition to other reliefs as may be granted under this act, the magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by the respondent". Now, the question is, when there was no domestic violence by the respondent to the petitioner, the petitioner is also not entitled for any compensation. Whereas, the aggrieved person has prayed seeking for order of compensation for grant of compensatory costs for the damages as a result of injuries which include torture and emotional abuse, verbal abuse caused by the act of domestic violence by the respondent. The order of Rs.4,00,000/- as compensation to the petitioner is right and just. By 40 Crl.A.No.1472/2017 the reading of entire case paper, LCR, it is seen that the appellant has filed one M.C. petition. Therefore, there is no reason to modify the impugned judgment of the learned Magistrate in any way. Further, in the grounds of appeal it is contended that the balance of convenience lies in favour of the petitioner. The said ground does not arise for consideration, as the petition was disposed of by the learned Magistrate under the impugned judgment on its merits. Therefore, the question of petitioner making out any prima facie case and also the question of balance of convenience lying in favour of petitioner while considering the petition on merits does not arise on the facts of the case and also in law. Meticulous consideration of the reasoning of the learned Magistrate in the impugned judgment clearly goes to show that the learned Magistrate has touched each and every aspect of the oral evidence of P.W.1 in 41 Crl.A.No.1472/2017 proper prospective and thereby the learned Magistrate has come to the proper conclusion that the appellant has failed to prove his case as contended. From the oral evidence, it is clear that the respondent/appellant is not diligent enough to put up his defence through cross-examination of the prosecution witnesses and put up his defense that he has not done any act as such. If it is looked at the cross-examination of P.W.1, literally there is no cross- examination benefiting the appellant to totally nullify the said order. Nothing much is elicited during the cross-examination in their favour to disbelieve the case of the petitioner. Hence it can be inferred that the order passed by learned Magistrate was just & proper. Further the petitioner was throughly cross-
examined by the counsel for the respondent/appellant. The quantum of compensation as alleged to be fixed by earning capacity of husband 42 Crl.A.No.1472/2017 and needs of child. The amount of maintainance awarded for the child until he attains majority is just and proper and needs no modification. Since already the petitioner has filed application under section 125 of cr.p.c as admitted by her, claiming maintenance for the child, as granted by the learned magistrate is just and proper. Further the respondent/appellant mentioning that he has paid the maintenance to the child but has no documents arises doubt. Further that during the delivery of the child, he had paid the entire amount of Rs.60.000/-, but does not posses any documents for the same again creates doubt on the say of the respondent/appellant. The oral testimony and the papers on record have corroborated the fact in support of her say, the matter adduced by the witness in her evidence and thus supported her say. The documents clearly establish that the petitioner was staying in her father's house for long, 43 Crl.A.No.1472/2017 shows that all was not good, in between the petitioner and the appellant. The documents and the testimony of the evidence adduced, increase the possibilities of the act has happened. The appellant cross- examination to certain extent, but was not able to elicit any answer in their favour. If the entire oral and documentary evidence is appreciated, it reveals and clearly points out that as held by the trial court,The documents exhibited by the wife petitioner in the trial court depicts that the is help sought by the police in the matrimonial life of the petitioner, due to various reasons and one being the present petition through appeal. Further, all these documents reveals that various cases were filed by this petitioner against the respondent/appellant. Further that offence against women and child have to be treated with care, otherwise wrong message will be given to the society. Further, the learned magistrate has aptly ordered to 44 Crl.A.No.1472/2017 grant of compensation, as it is evident to note that the appellant is the father of the child. The child born out of the relationship of the wedlock of the parties of the appeal. Further more, this amount of Rs.4,000/- is just and proper to the child for his future upbringings. The appellant is responsible to maintain his child. That the compensation granted is also just and proper. The appellant tried to put up a version that no such harassment and demand and incident occurred, but failed substantially. The trial court after appreciating all the oral and documentary evidence has come to proper conclusion and passed order. All the contentions of appellant in his appeal memo do not hold water. The trial court with application of sound judicial approach and mind, properly appreciated the material on record. There are no grounds whatsoever to discard the finding of learned Magistrate. Further, in the grounds of appeal it is 45 Crl.A.No.1472/2017 contended that the balance of convenience lies in favour of the petitioner. The said ground does not arise for consideration, as it was disposed of by the learned Magistrate under the impugned judgment on its merits. Therefore, the question of appellant making out any prima facie case and also the question of balance of convenience lying in favour of appellant while considering the petition on merits does not arise on the facts of the case and also in law. This court does not find any amount of irregularity and error committed by the Learned Magistrate. Meticulous consideration of the reasoning of the learned Magistrate in the impugned judgment clearly goes to show that the learned Magistrate has touched each and every aspect of the oral evidence of the witness in proper prospective and thereby the learned Magistrate has come to the proper conclusion without leaving any room for doubt. That the appellant has failed to 46 Crl.A.No.1472/2017 prove his case as contended. Further, offences against women by the family members has to be taken serious note of. Therefore, impugned judgment and order passed by the trial court is correct and is in accordance with law and same does not call for interference by this court. Hence, the appellant has not made out sufficient ground, much less any ground urged in the present appeal to interfere with the impugned order of the learned Magistrate on the file of this Court in this appeal.
22. For the reasons stated herein above, it is clear that the petitioner has failed to show that the learned Magistrate has failed to appreciate the oral and documentary evidence available on record in proper prospective. The petitioner has also failed to show that the learned Magistrate has committed any error in rejecting the reliefs sought for by her except the relief of compensation to the extent as granted 47 Crl.A.No.1472/2017 under the impugned judgment. Hence, the petitioner has not made out sufficient ground, much less any ground urged in the present appeal to interfere with the impugned order of the learned Magistrate at the hands of this Court in this appeal. Consequently, the points No.1 to 3 are answered in the negative.
23. Point No.5: From the discussion made herein above, it is clear that this appeal is liable to be dismissed. In the result, therefore, this court proceeds to pass the following:
ORD ER This appeal filed by the appellant/ petitioner under Section 29 of Protection of Women from Domestic Violence Act is hereby dismissed.
Consequently, the judgment dated 12.09.2017 of the learned 4 th MMTC, Bengaluru in Crl.Misc.No.200/2013 shall stands confirmed.
In the circumstances, there shall be no order as to cost.
48 Crl.A.No.1472/2017
The LCR shall be returned to the concerned MMTC Court along with copy of this judgment forthwith for information. (Dictated to the Stenographer directly on the computer, transcript corrected by me and then pronounced in open Court on this the 26th day of February, 2020) (Smt. SANDHYA S.) LXXI Addl. City Civil & Sessions Judge Bengaluru 49 Crl.A.No.1472/2017