Bangalore District Court
Prema.N vs J. Somashekar on 20 April, 2022
IN THE COURT OF THE LXVIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU CITY
(CCH-69)
Dated this the 20 th day of April, 2022
:PRESENT:
Sri. Sabappa, B.Com., LL.B.,(Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
CRIMINAL APPEAL No.81/2021
PETITIONER/ Prema.N,
APPELLANT : W/o J. Somashekar,
D/o Narayanappa,
Aged about 38 years,
R/at No.1078, 5th 'A' Cross,
1st Main, Mathikere Layout,
Bangalore - 560 054.
(By Sri. Harsha D Joshi, Advocate)
V/s
RESPONDENT : J. Somashekar,
S/o A. Jayaramaiah,
Aged about 37 years,
R/at No.127, 6th 'B' Main,
60 Feet Road, (Kalpana Chawla
Road), Bhoopasandra New
Extension, Bangalore - 560 094.
2 Crl.Apl.No.81/2021
And also R/at Aradeshahalli
Village, Aradeshahalli Post,
Devanahalli Taluk,
Bangalore Rural District,
Bangalore - 562 110.
(By Sri. , Advocate)
JUDGMENT
The appellant has preferred this appeal under Sec.29 of the Protection of Women from Domestic Violence Act, 2005 challenging the orders passed by the learned 4th Metropolitan Magistrate, Traffic Court, Bengaluru, in Crl.Mis.No.116/2015 dated 25.09.2020.
2. The appellant was the petitioner and the respondent was the respondent before the trial court. For the sake of convenience, the appellant and the respondent are assigned the same rank in this appeal as assigned to them by the trial court.
3. The brief facts of the case is that, the petitioner invoking the provisions of Section 12 of the Protection of Women from Domestic Violence Act and sought for the relief as enshrined U/Sec.18 for an order of protection, under Sec.19 for a residential order and under Sec.20 seeking monetary relief and under Sec.22 3 Crl.Apl.No.81/2021 seeking compensatory orders. The petitioner married the respondent on 08.02.2005 and the marriage was solemnized at AECS Samudhaya Bhavan, Bangalore as per Hindu customs and traditions in the presence of family, friends and relatives. The petitioner has averred a sum of Rs.18,00,000/- was incurred towards marriage expenses and huge expenses were incurred at the insistence of the respondent and his family members that the marriage had to be performed with all pomp and glory as it was made known that the family of the respondent had a reputation to upkeep in the society and any glitch would have downgraded the said reputation of the respondent and having been left with no alternative and in order to fulfill these illegitimate demands the petitioner and the family members had to borrow and contract financial liabilities to perform the said marriage. After marriage the petitioner lived in her matrimonial house for a considerable period of time and were bless with a female child out of the wedlock. The respondent was in the habit of leading an lavish life and time and would leave the petitioner at her matrimonial house without informing about his whereabouts which acts was also taken into fold by the petitioner in order to not spoil the cordial relationship. Immediately, after the birth of female child the respondent left to Bellary living the petitioner at the mercy of two sisters of the respondent and her in-laws. During her second pregnancy the 4 Crl.Apl.No.81/2021 petitioner faced certain serious medical issues and as per the medical advise the pregnancy was terminated since the birth of the baby was not in the womb but in a tube bladder and the fructus was removed by performing major surgery and that surgery so performed had permanently caused a medical issue which resulted in the petitioner to not even deliver a baby in future. This unfortunate incidence of the medical emergency was a main cause for the petitioner being put to untold embarrassment cruelty and use of abusive language as both the parents of the respondent and respondent cursed the petitioner that she had brought misery to the entire family of the respondent as the respondent was the only son and at the uncage would end then and there.
Apart from the above and as stated para supra as on the days when the marriage of the petitioner was solemnized with the respondent there were two sisters of the respondent whose marriage was yet to be performed. The respondent and his parents had clearly set out on mission that one of the sister were to be given in marriage to the brother of the petitioner as he was well placed and also working as a permanent employee at Indian Institute of Science. However, this did not furctify as the horoscopes did not match. Since the brother of the petitioner refused to marry, the petitioner was also shown the doors of her 5 Crl.Apl.No.81/2021 matrimonial house and was left to fend for herself with a small child.
The petitioner before the trial court had also contended that a reconciliation has taken place between the respondent and the petitioner and started to live in a rented house in Bangalore having shifted from their matrimonial house. The respondent was reputed tutor and was imparting tuition in the core subjects of Mathematics and Science to the students perusing their studies in SSLC and PUC and was earning a sum of Rs.2 lakhs per month. However, the respondent failed to lookafter the petitioner and the child and since from 16.02.2015 the petitioner was physically thrown out after being subjected to filthy language. The petitioner started her practice as a Junior counsel, but even harassment continued and the respondents used to create nuisance and spread false and humiliating statements which caused mental trauma and hardship to the petitioner. In the petitioner it is borne out of the record that the respondent earning huge sum of Rs.3,25,000/- as on the date of filing of the petition.
Before the trial court the respondent entered appearance and denied the averments made in the petition and the main contention was canvased by the respondent before the trial court was about filing of the petition U/Sec.13(1)(ia) & (ib) of Hindu Marriage Act and it was further contended that the petitioner was 6 Crl.Apl.No.81/2021 earning Rs.50,000/- per month as an advocate and on 25.04.2010 she voluntarily went to the parental house and during January 2013 started to live separately and the adamant and rude behaviour was cause for the respondent to file a petition for divorce and the present petition is filed posterior to the said petition.
Both the petitioner and respondent have been subjected to cross-examination and documents have been marked on their behalf, but however without perusing the evidence on record more particularly the elicitation from the mouth of the respondent during cross-examination and not taking into consideration the admitted and uncontroverted facts, the trial cour thas dismissed the petition.
4. Being aggrieved by the said order the appellant preferred this appeal on the following grounds :
1) The above petition has been filed under Sec.12 of the D.V.Act and the trial court has completely failed to take note of the point that the case of the petitioners as an aggrieved women squarely falls under Sec.2(a) of the Act. Sec.2(a) of the act defines as who is an aggrieved person and it is clearly defines 7 Crl.Apl.No.81/2021 that it is women who was been in a domestic relationship and has been subjected to an act of domestic violence.
2) The domestic violence has been defined under Sec.3 of the D.V.Act which includes not only physical abuse but also verbal and emotional abuse.
3) In the instant case even during the cross-examination of RW.1 it is clearly admitted by the respondent that the respondent earlier in his life failed in a business venture and the said loss had caused mental agony and hardship. The loss more so particularly the time in the respondent incurred the loss the date and year on which the petitioner was put to an unreasonable demand of dowry and such circumstantial evidence is clearly borne out of there record and never even been looked into by the trial court which has been resulted in passing of the impugned order dismissing the petition of the petitioner.
4) The characteristic of cruelty and verbal abuse is clearly on record as it is un controverted fact that the respondent is aware and perusing his business in Bellary where he incurred loss.
5) The trial court has lost sight of the fact that the deprivations of economic and financial resources to the petitioner and the child was also on record with documentary evidence 8 Crl.Apl.No.81/2021 which clearly established the fact that the respondent was not taking care of the petitioner and the child and the refusal to take care of the petitioner and the child was nothing but an act of emotional abuse which un-doubtly an act of cruelty.
6) The trial court has failed to take note of the fact that after loss in business the respondent started his tuition as narrated in para supra and during cross-examination has not disputed the said fact. The trial court ought to have noted that the petitioner was subjected to an economic abuse as the abusive partner that is the respondent did maintain control and though there was complete dependance of the petitioner and the small child. There was no control and even basic necessity was not provided.
7) The trial court failed to notice that the economic abuse was manifest in different way and the petitioner was a victim to an abusive relationship as even though the petitioner as a Law Graduate and she was prevented from practicing.
8) The trial court has lost sight of the fact that the petitioner was thrown away from her matrimonial house and even the respondent though stayed with the petitioner for some time withdrew from the rented premises living the petitioner alone to look after and the petitioner behind deprived out of the shared house hold the provisions of Sec.19 of the D.V.Act was clearly 9 Crl.Apl.No.81/2021 attracted and it was also prima facie proved beyond all reasons doubts.
9) The entire order of the trial court is based on para NO.45 of the Judgment. In the said para the trial court has come to conclusion that the petitioner did leave the matrimonial house on 12.10.2010 has lost sight of the fact that the respondent has admitted that the petitioner and the respondent were living in rented premises till 2015 and this could not have been a reason for the trial court to hold the petitioner had voluntarily withdrawn from matrimonial home. In fact the petitioner was mercilessly thrown out from the matrimonial home.
10) The trial court has come to a strange conclusion that it was the respondent who was having more love and affection to take care about the petitioner and the child, which is not borne out of any records and a mere withdrawal of the complaint.
11) The trial court has lost sight of the fact that the petitioner has completely deprived of a shelter overhead and she is left with her own mercy along with her child. The share household applies to owned and tenanted premises and also an household that may belong to joint family and in the instance case it is not in dispute that the petitioner lived in a matrimonial home upon marriage which notwithstanding legally having been accepted by the family members of the respondent and the petitioner having 10 Crl.Apl.No.81/2021 consummated in the said house. Hence rejection of petitoner without assigning any ground not to invoke the provisions of Sec.19 which mandates an order of residence is violative of the statute.
12) Sec.18 of the Act, clearly enjoins for protection order and commissioning an act of Domestic Violence has been prima facie satisfied by the petitioner by placing cogent evidence on record. The word prima facie is to be construed in its true sense and with regar to the nature of the case the enactment i.e., invoke as in the instant case the trial court while treating the petition filed under Sec.12 of the D.V.Act has held an enquiry as if it is a suit between parties inter-se. The powers under the D.V.Act have been vested the Court of a Magistrate since the enquiry may not strictly be defendant-nova in the nature. But however, there is also an absece of a full fledge enquiry.
13) The petitioner has satisfied the ingredients of prima facie case by leading oral evidence and there is no proof or anything contrary. The impugned judgment passed by the court below is illegal, arbitrary and perverse. Hence, appellant prayed to set-aside the order passed by the Trial Court.
5. On receipt of the appeal records, notice was issued to the respondent and also lower court records was called for in 11 Crl.Apl.No.81/2021 connection with Crl.Mis.116/2015, accordingly the respondent has appeared before this court through his counsel. Lower Court records has been secured.
6. Heard the arguments of both sides and perused the material available on record.
7. In the light of above materials and contentions of parties, following points fall for decision making of this Court:-
1) Whether the appellant has made out sufficient grounds to allow the appeal and set-aside the impugned order of the Trial Court?
2) What Order?
8. On appreciation of the trial court record i.e., the oral and documentary evidence and also on appreciation of the reasons assigned by the trial court in its judgment, my findings to the above said points are as follows:
Point No.1 : In the Negative,
Point No.2 : As per final order
For the following ;
12 Crl.Apl.No.81/2021
REASONS
9. POINT No.1: The learned counsel for the appellant submitted the written arguments. I have gone though the same. It is the replication of facts, evidence and documents relied by the trial court. It is further submitted that the petitioner has been deprived of her livelihood and so also the child. The child is still pursuing education and at this juncture to deprive the child of the benefit of a decent education would remain as a permanent scar throughout her life. The deprivation of a proper education would rather be an irreparable loss and injury which would indeed be a right which would indefeasibly be denied. The petitioner has no independent source of income and she is an apprentice and hence it is just and necessary interim maintenance may be granted as the measures would be towards the welfare of the petitioner and the child which the respondent is duty bound to lookafter. It is further submitted the appellant is able to prove the case with oral and documentary evidence. But the trial court has ignored the same. The trial court has not properly assessed the evidence and documents. Hence, the appeal may be allowed in the interest of justice and equity.
13 Crl.Apl.No.81/202110. The learned counsel for the appellant relied the decision reported in Crl.A........../2019, Arising out of SLP (Crl.) No.6422/2018) and M.F.A.No.2299/2020.
11. Per contra, the learned counsel for the respondent vehemently argued and submitted that, the trial court has properly assessed the evidence and documents. The appellant is not able to made out sufficient grounds to grant compensation. Moreover, the trial court has gone through the evidence of both sides and come to the right conclusion of the case on hand. He has relied upon the decisions reported in Crl.Pet.No.11476/2013, 2012 Cri.L.J 309, copy of the order passed in Writ Pet.No.6964/2018, copy of the order passed in M.C.2835/2014 and copy of the circular with the copy of the certificate issued by Kendriya Vidhyalaya. Hence, the appeal may be dismissed.
12. I have gone through the trial court records, evidence and documents. Before going to discuss the merits of the appeal, I would like to mention some of the admitted facts of the parties before the trial court. It is undisputed fact that the appellant is the wife of respondent. It is undisputed facts that the marriage of the appellant and respondent was solemnized in the year 2005 and they were residing together. It is undisputed fact that the 14 Crl.Apl.No.81/2021 appellant gave birth to the female child on 29.12.2006 and now the said child is studying in Kendriya Vidyalaya. All these facts are clearly goes to show the relationship of the appellant and respondent is admitted by both the parties. It is not proper to discuss in detail regarding the relationship of the parties.
13. It is the case of the appellant that the respondent is not taking care of the appellant and her child. Moreover, the respondent has not maintained the appellant properly. It is further case of the appellant that, the respondent is a reputed tutor and imparting tuition and earning a sum of Rs.2 lakhs per month. Inspite of it, the respondent has not provided basis needs to the appellant. In order to substantiate this fact, the appellant examined herself as PW.1 and got marked documents before the trial court. At the same time, the respondent appeared and contested the case. The respondent has also led his evidence and got marked some documents. On the basis of evidence and documents adduced by both the sides the trial court has come to the conclusion that the appellant has not made out sufficient grounds to allow the application filed U/Sec.12 of the D.V.Act and dismissed the said petition. The same is challenged by the appellant before this Court and contended the facts as stated in the appeal memo.
15 Crl.Apl.No.81/202114. In order to substantiate the case putforth by the appellant before the trial court, it is better to appreciate the facts and evidence adduced by the parties. Now, I would like to refer the evidence of the appellant. The appellant has narrated the facts as mentioned in the petition averments. The appellant is testified by the respondent's counsel. At that point of time, she has admitted some documents confronted by the respondent's counsel got marked at Ex's.R.1 to R.10. These are copy of the complaint submitted by the appellant before Karnataka State Women Commission and complaint lodged by appellant against the respondent before Sanjaynagar police station. Later those complaints are withdrawn by the appellant. In view of the material admission on the part of the appellant, one thing is clear that there is no cordial relationship between the appellant and respondent. Thereby, the appellant lodged so many complaints against the respondent. Later she has withdrawn the same. The appellant admitted that, in the year 2013 she was residing along with the respondent and her daughter at house No.41, 1st Floor, 1st Cross, Siddaiahpura Layout. Within 3 months she vacated the said house and started to reside at house No.39 in the same area. This goes to show that in the year 2013 appellant was not residing with the respondent. This admissions falsify the case of the appellant.
16 Crl.Apl.No.81/2021The respondent's counsel confronted one document i.e., the order passed by the Family Court on I.A filed U/Sec.24 of the Hindu Marriage Act to grant interim maintenance. It reveals that, the very appellant has filed application for maintenance from the respondent before the Family court. This goes to show that the appellant is seeking maintenance before the Family Court and she has filed petition before the Magistrate Court U/Sec.12 of the D.V.Act. The appellant has proceeded in both the cases. This goes to show that the respondent filed M.C.No.2835/2014 U/Sec.13(1)(ia) and (ib) of Hindu Marriage Act, 1955. The appellant appeared and contested the said case. The said documents are marked at Ex's.R.8 and R.9. In the said divorce proceedings both the parties have led evidence. Later on the Family Court passed judgment in M.C.No.2835/2014 dated 10.12.2019. It is ordered that :
"The petition filed by the petitioner U/Sec.13(1)(ia) and (ib) of Hindu Marriage Act allowed in part. The petition filed by the petitioner U/Sec.13(1)(ia) of the Hindu Marriage Act is hereby allowed. The marriage solemnized between the petitioner and respondent on 08.06.2006 at AECS Samudhya Bhavan is hereby dissolved by granting decree of divorce. The petition filed by the petitioner U/Sec.13(1)(ib) of the Hindu 17 Crl.Apl.No.81/2021 Marriage Act is hereby dismissed. No order as to costs."
In view of the judgment passed by the Family Court on 10.12.2019, one thing is clear that the marriage of first appellant and respondent is dissolved. Thereby, it is not possible to hold that the appellant and respondent lived as husband and wife. This aspect clearly goes to show that the marriage solemnized between the appellant and respondent is dissolved. The Family Court passed decree regarding dissolution of the marriage. Moreover, the Family Court passed the order under the application filed by the appellant U/Sec.24 of the Hindu Marriage Act to grant maintenance of Rs.30,000/- per month to the appellant and her minor child and litigation expenses of Rs.30,000/-. The said application is partly allowed. The Family Court directed the respondent to pay Rs.8,000/- to the child by name Lahari, aged about 12 years from the date of application pending disposal of the case. In default he shall pay at the rate of 8% p.a. Three months time is given to the respondent to pay arrears of maintenance and he shall pay future maintenance on or before 10th of every succeeding month. Respondent is directed to pay Rs.10,000/- to the appellant as one time litigation expenses. The Family Court has also passed an order on application filed 18 Crl.Apl.No.81/2021 Under Sec.26 of Hindu Marriage Act, filed by the respondent. The same is partly allowed. The respondent is permitted to visit the child once in 15 days on Sunday between 10 a.m to 2.00 p.m near the house of the appellant. The appellant is directed to handover the child to the respondent once in 15 days on Sunday at 10 a.m to exercise his visitation rights. After exercising visitation rights, the respondent is hereby directed to handover the child to the appellant at 2.00 p.m in the same place without fail.
15. Thereafter, the appellant has filed petition U/Sec.12 of the D.V.Act before the Magistrate Court. After hearing both the sides, the trial court has come to the conclusion that on careful perusal of the documents produced by the RW.1 i.e., Ex.R.1 the legal notice issued by the respondent to the petitioner on 12.07.2010. The contents of Ex.P.1 shows that the petitioner voluntarily left her matrimonial home with her daughter in the year 2010. Further, the contents of Ex.R.3 to R.5 are clearly establishes that RW.1 having more love and affection with PW.1 and he take care about her and child. The same has been stated by the PW.1 in said documents. It is further observed that these documents reveals that the respondent did not give any physical and mental harassment to the petitioner. On perusal of the entire records, the trial court has come to the conclusion that the 19 Crl.Apl.No.81/2021 appellant has not made out any grounds that the respondent has made any harassment or cruelty or subjected her to domestic violence. It is further observed that the documents and oral evidence is not sufficient to grant compensation to the appellant. In view of the observations made by the trial court, one thing is clear that the material admissions on the part of the appellant and documents clearly goes to show that there is no force in the submissions made by the appellant's counsel.
16. On perusal of the document Ex.P.1 rental agreement reveals that, this rental agreement is held between one Mrs.S.Kalavathi and appellant. This document come into force on 01.04.2015. This indicates that the appellant is residing separately along with her daughter. In case appellant is residing along with the respondent, there is no necessity to mention the name of the appellant as lessee in Ex.P.1. This indicates that the appellant and her daughter are residing separately since 2015. Another material suggestion put by the appellant's counsel to the respondent during the course of cross-examination is that, the appellant and her daughter was residing separately. The respondent deposed that he do not know. The respondent admitted that he was residing along with his parents at Aradeshahalli Village. The learned counsel for the appellant suggested that the said house is 20 Crl.Apl.No.81/2021 the own house of the respondent. The respondent deposed that it belongs to his father. The learned counsel for the appellant suggested that in the year 2013 he was residing at Boopasadra. It is admitted by the respondent. The learned counsel for the appellant testified the respondent regarding Ex's.R.2 to R.9. The same is admitted by the respondent and stated that in view of the complaint lodged by the appellant he has gone to the police station and executed documents and assured that he will take care of appellant and child in the year 2011. It is further suggested by the learned counsel for the appellant that in the year 2013 he was residing at Nagashettyhalli. The learned counsel for the appellant suggested that the appellant and her child were residing along with the respondent till 06.02.015. It is admitted by the respondent. The learned counsel for the appellant suggested that, from March 2015 till today the appellant and his daughter are residing at Mathikere. The learned counsel for the appellant suggested that, the appellant is a practicing advocate. It is admitted by the respondent. This material admissions clearly reveals that, the appellant and her daughter is not residing with the respondent in the same house since 2015. The suggestions put by the learned counsel for the appellant to the respondent clearly goes to show that the appellant and respondent are not residing together since 2015.
21 Crl.Apl.No.81/202117. Another point to be noted here is that the respondent examined one Pavan Kumar as RW.2. He deposed on oath stating that he is working as teacher in Kendriya Vidyalaya. The daughter of appellant and respondent is studying in their school. As per the rules of their school there is fee concession from 6 th Standard to 12th standard. In view of the direction issued by the Court he has produced the documents. He further deposed that, the school has given fee concession to the daughter of appellant and respondent. This witness is not testified by the appellant's counsel. In view of these material admissions on the part of the appellant and document, one thing is clear that the appellant is not able to prove the case with cogent evidence and documents before the trial court. At the same time, on perusal of the evidence of the respondent, it is noticed that the respondent has admitted about the relationship of the appellant. He has stated that since 2015 appellant is not residing along with him. The document confronted to the appellant got marked at Ex's.R.1 to R.10 reveals that there is so many complaints and notice issued by the appellant to the respondent. Later on the appellant has withdrawn those complaints in view of the settlement between the parties before the police. All these facts are elaborately discussed by the trial court and come to the conclusion that the appellant has not 22 Crl.Apl.No.81/2021 made out any grounds to allow the petition filed U/Sec.12 of the Protection of Women from Domestic Violence Act.
18. At this juncture, I would like to refer Sec.12 of the Protection of Women from Domestic Violence Act. It is very clearly mentioned that :
"An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act. Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
The relief sought for under sub-section(1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent.
Provided that where a decree for any amount as compensation or damages has been passed by any Court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 , or any other law for the time being in force, be executable for the balance amount, if any, left after such set off."23 Crl.Apl.No.81/2021
19. In view of this provisions, before going to pass an order U/Sec.12 of the Protection of Women from Domestic Violence Act, the Magistrate has to obtain the report from the Protection Officer. Here in this case, there is no report found in the record. Moreover, the appellant had filed application before the Family Court seeking Maintenance. The said application was partly allowed and the Family Court directed the respondent to pay Rs.8,000/- p.m to his daughter. Moreover, there is divorce decree between the appellant and respondent. Thereby, the question of payment of maintenance to the appellant does not arise at all. All these facts clearly goes to show that the appellant was not residing along with the respondent. Then the question does not arise that the appellant was subjected to domestic violence and harassment. All these facts are elaborately discussed by the trial court while assessing the evidence and documents relied by the parties and come to the right conclusion of the case on hand. There are no materials to interfere in the order of the trial court. The material admission on the part of the appellant is sufficient to hold that she was not residing along with the respondent as on the date of petition. More over, the appellant is not able to prove her case with cogent evidence and documents. The suggestion put by the learned counsel for the appellant clearly goes to show that the 24 Crl.Apl.No.81/2021 appellant is a practicing advocate. She is having sufficient source of income. Moreover, there are no materials to show that the appellant is residing with the respondent in the same house. All these facts are properly discussed by the trial court and come to right conclusion of the case on hand.
20. The respondent has preferred the Writ Petition against the maintenance order passed by the Family Court, wherein the appellant appeared through her respective counsel. After hearing both the sides, the Hon'ble High Court of Karnataka partly allowed the petition filed by the respondent and directed the respondent to pay a sun of Rs.5,000/- per month. Thereby, the respondent is liable to pay a sum of Rs.5,000/- to his daughter.
21. The learned counsel for the respondent relied on the citations reported in Crl.Pet.No.11476/2013, wherein the Hon'ble High Court of Karnataka has held as under :
"In the said case also, the wife alleged that she lived with her husband in the matrimonial home up to November 2004 and she was pregnant by then. She was treated cruelly by the petitioner and his parents during that time. The wife left the matrimonial home as she could not tolerate the torture of her husband and she was compelled to eat certain substance in order to 25 Crl.Apl.No.81/2021 abort pregnancy. Making such allegations she filed a petition under Section 12 of the Protection of Women from Domestic Violence Act. The Trial Court has taken cognizance of an offence which has taken place in the year 2005 an dissued summons to the petitioners. The learned Judge of this Court has observed the cause of action in the said case was 4 years prior to the filing of the complaint. Under Section 468 of Cr.P.C, the complaint could have been filed within one year. If the allegations made in the complaint are proved, the punishment is one year. One these grounds, this Court allowed the petition under Section 485 of Cr.P.C and quashed the entire proceedings."
22. The Hon'ble High Court of Karnataka has relied upon another decision reported in 2012 Cri.L.J.309, Inderjit Singh Grewal V/s State of Punjab & another, therein it is held that "
"(A) Protection of Women from Domestic Violence Act (43 of 2005), S.12(2)(b) - "Domestic relationship" - Complaint under S.12 filed by wife seeking relief of custody of minor son, right of residence, restoration of dowry articles - However, parties had already obtained decree for divorce by mutual consent - Unless decree for divorce passed by Civil Court is set aside, complaint U/Sec.12 of Act is not maintainable - Nor can Criminal court sit in appeal against decree of competent Civil Court and declare same as null and void."26 Crl.Apl.No.81/2021
The facts and circumstances of the above respected judgment and the facts and circumstances of the present case are one and the same. Hence, above citations are aptly applicable to the present case on hand.
23. The learned counsel for the appellant relied upon the citation reported in Crl.A....... of 2019 (Arising out of SLP (Crl.) No.6422/2018). I have gone through the above citation. The facts and circumstances of the above citation and the facts and circumstances of the present case are different. Hence, it is not applicable to the present case on hand. Moreover, the Family Court has granted maintenance of Rs.8,000/- per month to the daughter of the appellant. The same is challenged by the respondent before the Hon'ble High Court of Karnataka in Writ Pet.No.6964/2018. After hearing both the sides, the Hon'ble High Court of Karnataka has partly allowed the said petition and directed the respondent to pay an amount of Rs.5,000/- per month to his daughter as maintenance. The same is not challenged by the appellant before the Hon'ble High Court of Karnataka. In view of the above discussions, this Court come to the conclusion that the appellant has not made out sufficient grounds to interfere in the order of the trial court. Therefore, I am of the opinion that, no fault could be found with the reasoning assigned by the learned 27 Crl.Apl.No.81/2021 trial Judge in the impugned order. Under these circumstances, I do not find any merits in the appeal nor infirmities or irregularity in the judgment impugned herein of the trial court. As such, I answer point No.1 in the NEGATIVE.
24. POINT NO.2: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER The Criminal Appeal filed by the appellant under Sec.29 of the Protection of Women from Domestic Violence Act, 2005, is hereby dismissed.
The order passed by the learned M.M.T.C-IV, Bengaluru, in Crl.Misc.No.116/2015 dated 25.09.2020, is hereby confirmed.
No order as to cost.
Send back the LCR to the trial court with a copy of this judgment forthwith.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 20 th day of April, 2022) (SABAPPA) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.28 Crl.Apl.No.81/2021 29 Crl.Apl.No.81/2021
JUDGMENT PRONOUNCED IN THE OPEN COURT, VIDE SEPARATE ORDER The Criminal Appeal filed by the appellant under Sec.29 of the Protection of Women from Domestic Violence Act, 2005, is hereby dismissed.
The order passed by the learned
M.M.T.C-IV, Bengaluru, in Crl.Misc.
No.116/2015 dated 25.09.2020, is hereby
confirmed.
No order as to cost.
Send back the LCR to the trial court
with a copy of this judgment forthwith.
LXVIII A.C.C & S.J,
Bengaluru City.