Bangalore District Court
Sri. T. Suresh vs Smt. Kokila on 18 September, 2021
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU CITY (CCH66)
PRESENT
SHRI.SUBHASH SANKAD,
B.A., LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 18th day of September, 2021
CRL.A.No.2249/2019
PETITIONER/S : SRI. T. SURESH,
s/o late Thavamani,
Aged about 52 years,
R/at behind Acharya College,
Seethappa Layout,
Cholanayakanahalli, R.T. Nagar,
Bengaluru560032.
(By Sri. CJP, Advocate)
V/s.
RESPONDENT/S: SMT. KOKILA,
w/o T. Suresh,
Aged about 30 years,
R/at No.83, 2nd Cross,
Seenappa Layout,
Behind Acharya College,
Cholanayakanahalli, R.T. Nagar,
Bengaluru560032.
(By Sri. Y., Advocate)
2 Crl.A.No.2249/2019
JUDGMENT
This appeal is filed under Section 29 of Protection of Women from Domestic Violence Act, praying to set aside the impugned judgment passed by the Metropolitan Magistrate Traffic CourtVI, Bengaluru, in Crl.Misc.No.72/2017 dated 20.09.2019.
2. The appellant herein is the respondent No.1 and the respondent herein is the petitioner before the trial Court, for the sake of convenience parties are referred by their ranks before the trial Court.
3. Facts of the case are as follows. The petitioner wife filed claim petition before the Metropolitan Magistrate Traffic CourtVI, Bengaluru under Section 12 of Protection of Women from Domestic Violence Act, for the following reliefs.
a) Directing the respondent Nos.1 and 2 not to commit physical violence or cause mental torture.
b) Restraining the respondents from coming to the house of the petitioners' parents house from casting aspersions with the petitioner and her parents.
c) Directing the 1st respondent to return back all the jeweleries such as gold necklace, gold chain, gold finger ring, gold ear ring, one pair to the petitioner.
3 Crl.A.No.2249/2019d) Directing the 1st respondent to pay a sum of Rs.25,000/ monthly maintenance in favour of the petitioner.
e) Directing the 1st respondent to pay compensation of Rs.20,00,000/ towards mental harassment, loss of dignity and reputation and getting remarried while the petitioners' marriage with the 1st respondent is still subsisting.
f) Directing the 1st respondent to pay compensation of Rs.50,00,000/ for mental and physical violence harassment, emotional abuse, economic abuse to the petitioner.
g) Directing the 1st respondent to pay a sum of Rs.15,000/ to pay the cost towards the litigation and legal expenses incurred by the petitioner by initiating the complaint.
4. The petitioner herein has contended in the petition that the marriage between herself respondent No.1 was solemnized on 03.06.2013 in a temple. After her marriage, she went to her matrimonial home to lead her marital life. After going to his home the respondent started showing his true colour they started harassing her and demanding more dowry from the petitioner. Further, the respondent No.1 took all her gold ornaments for construction of the house. Even after giving all gold ornaments he started demanding more money from her parents. When the petitioner expressed her inability to get dowry he deserted her on 4 Crl.A.No.2249/2019 03.10.2014. With this she has sought for allowing the petition by granting aforementioned reliefs.
5. The respondent husband appeared and filed objections to the petition contending that the claim made by the petitioner is a false claim, the petitioner has come up with the false allegation. He has further contended that the petitioner herself has deserted the company of the 1st respondent without any reasonable cause without performing her marital obligation as wife. The respondent has never caused any kind of domestic violence against the petitioner. Now also he is ready to take her back provided that she should perform her duties as a dutiful wife. It is further contended by the 1st respondent that when the petitioner is residing separately from past four years from the respondent there is no question of subjecting her to domestic violences and there is no cause of action for this petition. The petitioner is living separately from more than four years, she has lived with the respondent for one year and seven months from the date of marriage i.e., 03.06.2013. Now she was come up with false claim. Hence she is not entitle for relief. There is no domestic violence between the petitioner and 1st respondent and there are no instance of domestic violence, he further denied the demand for dowry and receiving of gold ornaments from her towards construction of his house. With this he has sought for rejection of the petition.
5 Crl.A.No.2249/20196. The trial court, after hearing both sides, has allowed the petition filed by the wife, directing the respondent husband to pay Rs.10,000/ per month to the petitioner towards maintenance, from the date of presentation of the petition till her life time or her remarriage and further directed to pay compensation of Rs.2,00,000/ to the petitioner within three months.
7. Now the present appeal is filed on the various grounds by the respondent husband. The petitioner wife has appeared and filed her objection. Both side counsels have submitted their written arguments. I have heard both sides, perused the records and the written arguments.
8. Now the points that arise for my consideration are.
1. Whether the impugned order dated 20.09.2021 passed by the Metropolitan Magistrate Traffic CourtVI, Bengaluru, in Crl.Misc.No.72/2017 needs to be interfered with?
2. Whether the appeal filed by the appellant deserves to be allowed.
3. What order
9. My findings on the above points are. Point No.1: In the Negative Point No.2: In the Negative Point No.3: As per the final order for the following 6 Crl.A.No.2249/2019 REASONS
10. Points No.1 & 2: The present appeal is filed mainly on the ground that the order passed by the trial court is erroneous and the same is passed without considering the evidence and documents of the appellant husband. The trial court has not considered the objection filed by the appellant. The appellant has declared his monthly income and his assets and the same is not considered by the trial court. The trial has not taken into consideration the financial capacity of the appellant husband. The appellant husband has shown that he is getting monthly income of Rs.5,000/ only. The respondent wife is getting income of Rs.25,000/ per month the trial court has not considered all these aspects and passed the impugned judgment.
11. The contention of the counsel for respondent wife in her objection before the trial court that the trial court has come to the logical conclusion. The same is passed after going through the entire material on record. The trial court has considered the evidence on record in a proper perspective, there is no error or illegality in the impugned judgment. With this submission he has sought for dismissing the appeal.
12. Further, both parties have submitted the written argument.
7 Crl.A.No.2249/201913. The sum and substance of the written argument of the appellant is that admittedly the claim petition filed by the respondent wife is beyond limitation. She has clearly admitted in her evidence that she left the house on 03.10.2014, and she started living separately from 03.10.2014 and petition was filed on 11.04.2017, after lapse of two years seven months. Hence the claim petition is barred by limitation. The trial court has not taken this aspect into consideration. It is further stated that the petitioner has not filed any claim petition immediately after she left the house of the husband. As per the settled principle of law the woman must filed petition under Section Domestic Violence within one year. The present petition is filed after lapse of two years seven months is barred by limitation. It is further contended that the respondent wife is earning income of Rs.25,000/ per month and the appellant husband is getting monthly income of Rs.5,000/ only. The trial court has failed to take note of these aspects and passed an order directing the respondent to pay exorbitant amount of compensation and maintenance. The respondent wife has not filed any piece of material to support of her claim inspite of the same the trial court has come to the conclusion. In support of her contention the counsel for appellant has relied upon the following judgment passed by the Hon'ble High Court of Karnataka.
1) Criminal Petition No.2419/2009 in J. Srinivas Vs. G. Dhanalakshmi.
8 Crl.A.No.2249/20192) Criminal Petition No.11476/2013 in Gurudev & another Vs. Jayashree.
14. The counsel for respondent wife has stated in her written synopsis that the appellant has simply denied the allegations made against him and created a story to take back her to get sympathy from this Hon'ble court. The judgment passed by the trial court is in accordance with settled principle of law and the same is passed after taking into consideration the evidence, oral and documentary adduced by both sides. The impugned judgment passed by the trial court does not call for any interference by this court. The trial court has clearly analysed the pleading and the documents produced by both parties and arrived at a proper conclusion by awarding the proper amount of maintenance and the compensation. The impugned judgment does not call for any interference by this court. Hence, she has sought for dismissal of the appeal.
15. In support of her contention she has relied upon the following judgments.
1) Criminal Revision Petition No.730/2009 in Sri. Puttaraju v/s. Smt. Shivakumari.
2) (2006) 2 SCC 705 (para32)
16. Keeping in view the points for arguments it is necessary to mention the relief granted by the passed by the trial 9 Crl.A.No.2249/2019 court. The trial court has directed the husband to pay Rs.10,000/ per month towards maintenance and Rs.2,00,000/ towards compensation. The petition was allowed in part by granting the aforementioned relief and other relief sought in the petition was rejected by the trial court. The wife had claimed several reliefs in the claim petition. First being the direction to the respondent Nos.1 and 2 not to commit physical violence or cause mental torture. Secondly, restraining the respondents from coming to the house of the petitioners' parents house from casting aspersions with the petitioner and her parents. Thirdly, directing the 1 st respondent to return back all the jewelleries such as gold necklace, gold chain, gold ring, gold earnings etc. Fourthly, the maintenance of Rs.25,000/, compensation of Rs.20,00,000/ and another Rs.50,00,000/ towards mental and physical violence harassment and Rs.15,000/ towards medical expenses. All these claims were not granted to the petitioner wife except the aforementioned relief with regard to maintenance of Rs.10,000/ and compensation of Rs.2,00,000/.
17. At this juncture, it is necessary to mention the settled principle of law that whenever a courts are dealing with the matrimonial dispute, the courts have to adopts all together different approach, taking into consideration the interest of the wife and the relation between the wife of the husband so as to subserve relation. Admittedly in the present case the petitioner wife has admitted that she has left the matrimonial house on 10 Crl.A.No.2249/2019 03.10.2014 and the petition came to be filed on 10.04.2017. The appellant herein has come up with the new grounds in the present appeal. The petition is barred by limitation as per Section 468 Cr.P.C. The respondent husband has created the documents. His main contention that he has no capacity to earn more than amount of Rs.5,000/ he cannot effort the maintenance of Rs.10,000/ per month to wife and Rs.2,00,000/ to the compensation. With regard to this it is necessary to mention the trial court has given reason that the respondent husband admits of owning 3 - 4 buildings and he has no difficulty to give one floor to her wife towards resident and he had further stated that he has leased out all the buildings to some other person, at present he is residing in work place where he is in contractor. Taking note of his income from the leased out premises the trial court has granted that much amount. So the finding of the trial court with regard to awarding maintenance of Rs.10,000/ per month and Rs.2,00,000/ towards compensation cannot be found fault with.
18. So far as the maintainability of the petition on the ground of petition is concerned, firstly, it is necessary to discuss the judgment relied upon by the appellant in Criminal Petition No.2419/2019, the Hon'ble High Court has made an observation that the complaint ought to have been filed within a period of one year in terms of Section 468 of Cr.P.C., and admittedly, the case having been registered in the year 2009 in respect of the offence alleged in the year 2004, the complaint was hopelessly barred by 11 Crl.A.No.2249/2019 time and could not have been entertained. It is further observed that though the allegations are spread over a period of time it does appear that the complaint was not filed within one year from the date of alleged cause of action. Therefore, the proceedings could not have been entertained by the court below.
19. In Criminal Petition No.11476/2013 the Hon'ble High Court has observed that the petition under Section domestic violence the Hon'ble High Court in Criminal Petition No.2419/2009 has quashed the criminal proceedings as the same were filed after lapse of 8 years. By placing relies on these observations the counsel has vehemently submitted that the petition filed by the petitioner wife hopelessly barred by limitation the same could not have been entertained. Thus, the impugned judgment is liable to be set aside.
20. Now it is necessary to refer the judgment passed by the Hon'ble High Court in Criminal Revision Petition No.730/2019. In this petition the Hon'ble High Court by referring to the Section 468 of Cr.P.C., has made the following observation. 'Reading of Section 468(1) and 468(2)(b) of Cr.P.C., itself shows that the bar of limitation for taking cognizance is intertwined with an offence. Section 468 of Cr.P.C., comes into picture only if there is an offence. If there is no offence, no limitation'.
21. By referring to Section 12 of the DV Act, the Hon'ble High Court has observed that 'Thus in Section 12 of the DV Act if 12 Crl.A.No.2249/2019 domestic violence is not called or treated as an offence, it speaks of Court granting relief and not of conviction and sentence'.
22. Further, by referring to Section 20 and Section 21 of the Protection Women from Domestic Violence Act, the Hon'ble High Court has further held that 'even Sections 20 and 21 of the DV Act do not treat the domestic violence as offence', and further held that 'To attract Section 468 of Cr.P.C., essentially the Act alleged must be an offence. Under the DV Act, the offence is not defined, as defined in Section 40 of IPC. Therefore, we have to revert to the General Clauses Act, 1897. Section 3(38) of the General Clauses Act defines the offences as follows. 3(38). 'Offence' shall mean any act or omission made punishable by any law for the time being in force.
Perusal of the above provision makes it clear that to call an act as offence, act or omission must be made punishable under law. As already pointed out, under Sections 12, 20 and 21 of the DV Act have not made the domestic violence alleged thereunder punishable or defined them as offence. Section 12 of the DV Act is only an enabling provision to initiate enquiry to find out whether such act or omission is committed.
23. Again by referring Section 31 of the DV Act, the Hon'ble High Court has held that 'When the application under 13 Crl.A.No.2249/2019 Section 12 of the DV Act is not covered under the term 'offence', Section 468 of Cr.P.C., is inapplicable. Therefore, the application of Section 468 of Cr.P.C., to an application under Section 12 of the DV Act is clearly a misconception'. One has to bear in mind that the proceedings under the DV Act are neither purely criminal nor civil proceedings. The very object of the DV Act as could be seen from the preamble is to protect the women against violence of any kind occurring within the family. If at all the Act intended to make each and every Act of domestic violence offences, then Parliament would not have legislated separate law i.e., IPC dealing with offences against Women like 498A, 306, 304B or offences against body in Chapter XVI of IPC. The purpose of the DV Act is to protect and save the family.
24. Keeping the contentions of the appellant with regard to maintainability of the petition, on the ground that the petition is barred by limitation, and in the light of the aforementioned observation made by the Hon'ble High Court, I hold that there is no substance in the contention of the appellant with regard maintainability. As the Hon'ble High Court of Karnataka in the aforementioned judgment, has categorically held that the definition of the aggrieved person and domestic relationship remains and the act of domestic violence attracts the term continuing offence, therefor does not get time barred. With these reasoning I hold that there is no error or illegality in the order passed by the trial court, 14 Crl.A.No.2249/2019 the same does not call for any interference by this court. Accordingly, I answer points No.1 & 2 in the 'Negative'.
25. Point No.3: In view of my findings on points No.1 and 2, I proceed to pass the following: ORDER The appeal filed by appellant under Section 29 of Protection of Women from Domestic Violence Act, 2004, is hereby dismissed.
The impugned judgment passed by the Metropolitan Magistrate Traffic CourtVI, Bengaluru, in Crl.Misc.No.72/2017 dated 20.09.2019 is confirmed.
Send a copy of this judgment to the trial Court.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 18th day of September, 2021) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.