Bangalore District Court
Sri Syed Jabiulla vs Smt. Shahwar Taj @ Nikhath on 24 July, 2018
1 CRL.A.696/2017
IN THE COURT OF LXXI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE (CCH-72)
DATED THIS THE 13TH 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.696/2017
Appellant : Sri Syed Jabiulla,
S/o. Syed Rahamathulla
Aged about 31 Yrs,
R/at. No.14, Ist A Cross,
Patel Muniyappa Layout,
V.Nagenahalli, R.T. Nagar
Bengaluru
( By Sri P.M. Gopi, Adv.)
V/s.
Respondent : Smt. Shahwar Taj @ Nikhath
W/o. Syed Jabiulla,
D/o. Velu.P.K.
Aged about 31 Yrs,
R/at. No.81/11,
Patel Munivenkatappa Layout,
Ashwath Nagar,
Thanisandra Main Road,
Bengaluru.
2 CRL.A.696/2017
( By Sri C.B Abdul Sab, Adv.)
JUDGEMENT
Being aggrieved by the order dated 20.4.2017 passed by the learned Metropolitan Magistrate, Traffic Court-IV, Bengaluru in Crl. Misc.No.97/2016 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 disposal of I.A. No.1.
2. Before going to the merits of the appeal, let me briefly state the fact relevant for consideration of this appeal are the respondent 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.97/2016. The learned Magistrate on the application of the Respondent u/s. 23 of DV Act passed impugned order against the Appellant husband. Being aggrieved by the impugned order Respondent / Appellant preferred the present appeal on the following grounds :
3 CRL.A.696/2017(a) The impugned order passed by the learned Magistrate is opposed to law and erred by awarding interim monthly maintenance of Rs.4000/-per month basing on the affidavit of the Petitioner wife and the said order is arbitrary in nature. The trial Court without considering the objection filed by the Appellant blindly passed the impugned order without giving an sufficient opportunity to appellant to argue the matter. The order is one sided.
(b) The Appellant was working in furniture Shop and he was earning Rs.6000/- per month and he has to maintain himself and his aged parents and his younger sister. The Petitioner is working women and earning handsome salary.
The trial Court is not justified in awarding maintenance of Rs.4,000/- against the appellant On these ground prays for allow the appeal by setting aside the impugned order dated 20.4.2017.
(c) Respondent has appeared before the Court through counsel .
3. Having heard the arguments on both sides and perused the material placed before the Court, the following points arises for my consideration are:
1. Whether the impugned order dated 20.4.2017 passed by the learned MMTC-IV, Bengaluru in Crl.Misc. No. 4 CRL.A.696/2017 97/2016 awarding Ex-parte interim monthly maintenance of Rs.4,000/- is perverse, capricious and oppose to law and needs interference of this appellate Court ?
2. What order ?
4. My findings on the above points are:
Point No.1: In the Affirmative Point No.2: As per final order, for the following:
REASONS
5. Point No.1: Admittedly, Respondent is the wife of appellant. She filed a petition u/s 12 of DV Act against her husband and two others before the MMTC-IV Court, Bengaluru and also seeking Ex.parte order of interim monthly maintenance. Certified copy of the order sheet produced by the Appellant along with Appeal goes to show that the said criminal petition filed by her on 26.12.2016 and issued a notice to the Appellant through RPAD and CPO. For want of sufficient postage stamp no notice issued to the Appellant. On 23.2.2017 Respondent who is appellant appeared before the learned Magistrate Court along with his counsel and opposed to grant exparte order. On 25.3.2017 Respondent who is 5 CRL.A.696/2017 appellant filed objection to main petition along with adoption memo to I.A1- interim application. On 12.4.2017. Heard on petition side and posted to hear on I.A. 1 on Respondent side. On 3.9.2017 heard on both the side on I.A. u/s. 23 of DV Act and on 20.4.2017 passed impugned Ex-parte order by granting monthly maintenance of Rs.4000/- to the Petitioner till disposal of I.A.1. The said legality of the order questioned by the Appellant husband herein.
6. The grounds urged by the Appellant are that the impugned order passed by the learned Magistrate without application of judicial mind and basing on affidavit filed by the Respondent and not given sufficient opportunity to the appellant to establish his defence.
7. Learned counsel for the Respondent herein submits that the learned Magistrate has rightly passed the order of interim maintenance by giving an opportunity to the both the parties and the appeal is liable to be dismissed.
8. On reading of Sec. 23 of DV Act deals with the power to grant interim and Exparte orders in any 6 CRL.A.696/2017 proceding 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.
9. 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 question is whether the impugned order is an Ex-parte order without notice to the Respondent or is it an order after notice to the Respondent. Thus a distinction has to be drawn between an Exparte order passed granting interim relief and an order passed granting interim relief after notice to the Respondent. If it is not an Exparte order then the procedure prescribed by the code of criminal procedure u/s 28(1) becomes applicable. If it is an Ex-parte order then the procedure prescribed u/s.23(2) of the D.V. Act would be applicable.
7 CRL.A.696/201710. In the instant appeal order sheet discloses that after appearance by the Appellant / Respondent and submitted statement of objection to the main petition and adoption memo to I.A. 1 and after hearing both side passed impugned order. Thus the said order is not an Exparte order and Sec.28 (1) of Cr.P.C. becomes applicable to follow the procedure while passing interim order.
11. On perusal of the impugned order the learned magistrate basing on the affidavit passed impugned order of monthly maintenance of Rs.4000/- till the disposal of the I.A. 1 against the appellant herein. The learned Magistrate has not followed the procedure enumerated u/s 28(1) of Cr.P.C. while passing impugned order. The learned Magistrate was required to have held an enquiry under the said provision and then to record his finding in view of the decision of the Hon'ble High Court of Karnataka reported in AIR-KAR.2016.Part-2, Page 57 in krishnamurthy Nookula Vs. Y.Savitha. Since the learned Magistrate not followed the said procedure of enquiry the impugned order is unsustainable and the matters requires remained. However , the direction regarding 8 CRL.A.696/2017 payment of monthly maintenance needs modification. Taking into consideration all attending circumstances Appellant is directed to pay monthly maintenance of Rs.3000/- to his wife till further orders on interim application by the learned Magistrate from the date of this order and the impugned order by granting monthly maintenance of Rs.4000/- dated 20.4.2017 is set aside. The learned Magistrate shall not be influenced by such quantum while passing any maintenance order at the time of disposal of interim application or final disposal of the petition. Accordingly I answered the point No.1 in the Affirmative subject to the above observation.
12. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER The Crl. Appeal No.696/2017 filed by the appellant under section 29 of Protection of Women from Domestic Violence Act, 2005 is disposed off with the above observation of the order of the Judgment and modification in the quantum of the interim maintenance.9 CRL.A.696/2017
It is hereby directed the learned
Magistrate to consider the interim
application filed by the Respondent for grant of interim relief applying the procedure prescribed for trial of summons cases under the code of Criminal procedure after giving due opportunity to the Petitioner and the Respondent to lead such evidence as they may choose keeping in the mind of the requirement of the act, the learned Magistrate is directed to dispose off the matter on top priority.
Send the copy of the Judgment to the MMTC-IV, Bengaluru in Crl.Mis. 97/2016 (Dictated to the Typist Copyist, corrected and signed and then pronounced by me in open Court on this 24th day of July, 2018).
(GOPAL) LXXI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU 10 CRL.A.696/2017 (Order pronounced in Open Court) ORDER The Crl. Appeal No.696/2017 filed by the appellant under section 29 of Protection of Women from Domestic Violence Act, 2005 is disposed off with the above observation of the order of the Judgment and modification in the quantum of the interim maintenance.
It is hereby directed the learned Magistrate to consider the interim
application filed by the Respondent for grant of interim relief applying the procedure prescribed for trial of summons cases under the code of Criminal procedure after giving due opportunity to the Petitioner and the Respondent to lead such evidence as they may choose keeping in the mind of the requirement of the act, the learned Magistrate is directed to dispose off the matter on top priority.11 CRL.A.696/2017
Send the copy of the Judgment to the MMTC-IV, Bengaluru in Crl.Mis. 97/2016 (Dictated to the Typist Copyist, corrected and signed and then pronounced by me in open Court on this 24th day of July, 2018).
(GOPAL) LXXI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU (Dictated to the Typist Copyist, corrected and signed and then pronounced by me in open Court on this 16th day of July, 2018).
(GOPAL) LXXI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU 12 CRL.A.696/2017