Bangalore District Court
Sri Nataraju S/O Manoharachar vs Smt. Babitha W/O Nataraju on 19 March, 2018
IN THE COURT OF THE LXXI ADDL.CITY CIVIL AND SESSIONS
JUDGE, BENGALURU [CCH-72)
Present: SRI.GOPAL,B.Com. LL.B.,
LXXI ADDL.CITY CIVIL AND SESSIONS JUDGE
BENGALURU CITY.
DATED: THIS THE 19th DAY OF MARCH, 2018
Crl. Appeal No.1477/2017
APPELLANT: Sri Nataraju S/o Manoharachar,
Aged about 42 years, R/at
No.356, 1st MainRoad,
Moodalapalya,
Panchasheelanagar, Bengaluru
- 560 072.
(By Sri S. Vinod, Advocate)
RESPONDENT: Smt. Babitha W/o Nataraju,
Aged about 33 years, R/at
No.730, 6th Cross, 5th Block,
Rajajinagar, Bengaluru - 560
010.
(By Smt. A. Lalitha, Advocate)
JUDGMENT
This appeal is preferred by the appellant under section 29 of the Protection of Women from Domestic Violence Act, 2005 against the order dated 31.7.2017 passed by the learned MMTC-V, Bengaluru in Crl.Misc.No.148/2016 2 Crl.Misc.No.1477/2017 directing issuance of FLW against the respondent/appellant for recovery of arrears of maintenance.
2. Before going to the merits of the appeal, let me, briefly state the fact relevant for consideration of this appeal.
That the respondent filed Crl. Misc.No.183/2009 before MMTC-V Court, Bengaluru under section 12 of the Domestic Violence Act which was later renumbered as C.Misc.No.256/2011 and obtained an interim maintenance for a sum of Rs.4,000/- which was challenged by the appellant in Crl.R.P.No.89/2010. During the pendency of the revision petition, Crl. Misc.No.256/2011 came to be dismissed on 6.11.2011. The said order remained unchallenged and the interim order passed thereby was also not confirmed by MMTC-V Court and the interim order does not exist for execution. After lapse of 6½ years, she filed application under section 28 read with section 31 of Domestic Violence Act and sought for recovery of interim maintenance awarded on 2.2.2010 in Crl.Misc.No.256/2011 3 Crl.Misc.No.1477/2017 before the MMTC-V Court, Bengaluru. The appellant appeared through counsel and filed objections. Thereafter, the learned Magistrate passed the impugned order by issuing FLW against the accused on 31.7.2017. Being aggrieved by the said order, the appellant preferred the present appeal on the ground that the impugned order passed by the Court below is arbitrary, illegal and capricious and the trial Court has committed error in passing the impugned order and failed to conduct enquiry and exercised judicious discretion. The order sheet regarding maintainability of the petition is taken contention in its objections. After hearing both sides, the learned Magistrate failed to order on maintainability, but passed the impugned order which is non-speaking order and not showing any reason and liable to be set aside. On these grounds he prays for allowing the appeal.
3. The respondent appeared through her counsel. On 20.2.2018 the learned counsel for the respondent submitted no objection. The learned counsel has no objection to the 4 Crl.Misc.No.1477/2017 application filed under section 5 of Limitation Act and endorsed the same on the application. Accordingly, the application filed under section 5 of the Limitation Act is allowed. Both the counsel submitted written arguments and also addressed their arguments.
4. Having heard perused the records, the following points arise for my consideration:
1. Whether the impugned order dated 31.7.2017 passed by the learned MMTC-
V, Bengaluru in Crl. Misc.No.148/2016 by issuing FLW against the appellant for recovery of arrears of maintenance is capricious, perverse and contrary to law and needs interference of this Court ?
2. What order ?
5. My findings on the above points are:
Point No.1: In the affirmative.
Point No.2: As per final order, for the following:
REASONS
6. Point No.1: Undisputed facts which emerge from the pleadings and evidence is that the respondent is the legally 5 Crl.Misc.No.1477/2017 wedded wife of the appellant. She filed a petition under section 12 of Domestic Violence Act in Crl.Misc.No.183/2009 which later renumbered as Crl.Misc.No.256/2011 and obtained interim maintenance of Rs.4,000/-. The said order was challenged by the appellant in Crl.Misc.No.89/2010 which came to be dismissed and not confirmed the interim order. After lapse of 6½ years, she filed petition in Crl. Misc.No.146/2016 under section 28 read with section 31 of Domestic Violence Act for recovery of arrears of maintenance passed in Crl.Misc.No.256/2011.
7. On perusal of the order sheet in Crl.Misc.No.148/2016 filed by the respondent/wife under section 28 read with section 31 of Domestic Violence Act against the appellant for recovery of arrears of maintenance. The appellant put in his appearance on 31.8.2016 through counsel and sought time for filing of the objections. On 3.10.2016 the appellant filed objections to the main petition and posted for maintainability of the petition. On 28.10.2016, the learned cou8nsel for the 6 Crl.Misc.No.1477/2017 respondent filed three documents and heard on maintainability in part and adjourned to 3.11.2016. On the said date, the learned counsel for the respondent filed a memo with two citations. Heard arguments and reply with regard to the maintainability of the application and posted for orders on 10.11.2016 On that day, heard on clarification and posted for orders to 4-5 dates. On 18.7.2017 the learned counsel for the petitioner filed a memo claiming maintenance pending upto the disposed for default of the original miscellaneous petition and posted for orders. On 31.7.2017 passed the impugned order by issuing FLW against the respondent for recovery of a sum of Rs.84,000/-. The order sheet discloses that the trial Court has not passed orders with regard to maintainability of the petition filed by the respondent and abruptly passed the impugned order by issuing FLW against the appellant based on the memo filed by the counsel for the respondent.
7 Crl.Misc.No.1477/2017
8. Apparently, the order sheet discloses the error committed by the trial Court. Without passing an order on the maintainability of the petition, as contended by the appellant/husband in the statement of objections, the trial Court has passed the impugned order by issuing FLW against the respondent/appellant. Hence, interference of this Court warrants and the impugned order is liable to be set aside by directing the trial Court to pass an order with regard to the maintainability of the petition filed by the appellant/respondent in accordance with law. Accordingly, I answer the point No.1 in the affirmative.
9. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER The Crl. Appeal No.1477/2017 filed by the appellant under section 29 of Protection of Women from Domestic Violence Act, 2005 is hereby allowed.8 Crl.Misc.No.1477/2017
The impugned order dated 31.7.2017 passed in Crl. Misc.No.148/2016 passed by the learned MMTC-V, Bengaluru City is hereby set aside and the trial Court is directed to pass an order with regard to the maintainability of the petition filed by the appellant and after hearing both sides give findings in accordance with law.
Send a copy of this order to the Court below, forthwith.
(Dictated to the Judgment writer, transcript computerized by him, corrected and signed and then pronounced by me in open Court on this 19th day of January, 2018).
(GOPAL) LXXI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU 9 Crl.Misc.No.1477/2017