Bangalore District Court
Naveen Kumar S/O Shankarappa vs Smt.Rajeshwari on 9 February, 2015
IN THE COURT OF THE FAST TRACK COURT-XIV,
BANGALORE CITY.
Dated this the 8th day of July 2014
PRESENT: Sri. Shivaji Anant Nalawade, B.Com., LL.B.(Spl)
Presiding Officer, Fast Track Court-XIV,
Bangalore City.
CRIMINAL APPEAL No.296/2013
APPELLANT : Naveen Kumar S/o Shankarappa,
Aged about 25 years,
Residing at No.20, Vatrkunte Palya,
Bangarpet Taluk, Kolar - 563 114.
(By Sri.Ganesh.R and Associates,
Advocates)
-Versus-
RESPONDENT : Smt.Rajeshwari
D/o Late.Ramachandrappa,
Aged about 29 years,
R/at No.64, Chikkadinne,
7th 'A' Cross, 1st Main, Attur Layout,
Yelahanka, Bangalore - 560 004.
JUDGMENT
The appellant/accused has preferred this appeal under Sec.29 of the Protection of Women from Domestic Violence Act challenging the order passed by the VI MMTC, Bangalore in Crl.Mis.No.90/2012 dated 16-03-2013, on the application moved by the petitioner under Sec.23(2) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the 'Act'), wherein application filed by the 2 Crl.Appeal.296/2013 petitioner is allowed and respondent is directed to pay Rs.3,000-00 p.m. to the petitioner from the date of petition till disposal of the case.
2. The appellant was the respondent and respondent was the petitioner before the trial court. For the sake of convenience rank of parties is referred to as stood before the court below.
3. The brief facts leading for disposal of this appeal are as follows:
Petitioner has filed petition under Sec.12 of the Protection of Women from Domestic Violence Act, 2005 praying to pass protection under Sec.18 of the Act, protection from restraining the respondent from dispossessing or throwing her from said household under Sec.19 of the Act and praying for directing the respondent to pay monitory relief of Rs.15,000-00 p.m. for her maintenance and directing the respondent a sum of Rs.15 lakhs as compensation to her under Sec.20 of the Act.
4. Petitioner has filed application under Sec.23(2) of the Protection of Women from Domestic Violence Act, 2005 praying the court to pass an order directing the respondent to pay a sum of Rs.15,000-00 p.m. towards her maintenance. 3
Crl.Appeal.296/2013
5. In support of the application, petitioner has sworn affidavit and wherein he has stated that respondent is her husband and she is the legally wedded wife of the respondent. Her marriage solemnized with the respondent on 05-09-2008 as per Hindu customs and her marriage was duly registered by executing the declaration of marriage before the Notary Public dated 15-09-2008. Further it is contended that after the marriage she and respondent lead marital life and at the time of her marriage respondent was working as a driver in Global Rent-a-car at Yelahanka and after her marriage respondent totally neglected her and harassed her mentally and physically. Respondent has addicted to bad habit of consuming alcohol. Respondent has not provided basic necessities to the petitioner. All the efforts made by the petitioner to advice respondent went in vein. The respondent developed illicit relationship with some other woman and neglected her. She has filed a complaint before the Yalahanka Police against the respondent. The said case is pending, several panchayaths were held to advice the respondent. Inspite of it, the respondent did not take care of her, so she has filed the present petition. Further petitioner has contended that respondent is working as a driver and he is 4 Crl.Appeal.296/2013 getting salary of Rs.15,000-00 p.m. along with additional bhata of Rs.150-00 per day. Respondent is also dealing with finance business and he is getting sufficient income more than Rs.35,000-00 p.m. She is not having any source of income and the respondent is in a position to pay maintenance as sought by her and prayed for allowing the petition.
6. The respondent has filed objections to the application moved by the petitioner under Sec.23(2) of Protection of Women from Domestic Violence Act, 2005 and contended that the application is not maintainable in law and fact. The petitioner has filed false petition. The provisions of Protection of Women from Domestic Violence Act, 2005 are not attracted in the present case. He and petitioner never lived in his house. He was residing with her in her parent's residence. The petitioner and her family thrown him away from their house when he lost job and could not pay for vices of petitioner and her family members. On the alleged date of marriage the respondent was aged about 20 years, his date of birth is 16-05-1988, so the marriage between him and the petitioner is invalid. At the time of his marriage he was not completed 21 years. So, the petition is not maintainable. Petitioner, her sister and mother are addicted to bad habits of 5 Crl.Appeal.296/2013 consuming alcohol. They demanded unnatural favours from him and use to assault him. In order to harass him the petitioner has filed false petition and application and prayed for rejecting the same.
7. The trial court heard the arguments advanced by the learned counsel for the petitioner and respondent on the application moved by the petitioner under Sec.23(2) of Protection of Women from Domestic Violence Act, 2005 in length and allowed the application moved by the petitioner in part awarding maintenance of Rs.3,000-00 p.m. to the petitioner. Respondent being aggrieved by the order passed by the court on the application moved by the petitioner under Sec.23(2) of Protection of Women from Domestic Violence Act dated 16-03-2013 came in appeal on the following among other grounds:
8. The order of the trial court under appeal is contrary to law, facts, evidence on record and the same is liable to be set aside. The reasons assigned by the trial court while passing the impugned order is erroneous resulting substantial miscarriage of justice. The trial court has totally failed to consider that marriage performed as per Hindu rites and customs and also that the age of the respondent at the 6 Crl.Appeal.296/2013 time of marriage was 20 years. The trial court has not taken into consideration the fact that petitioner has not prima-facie proved his income. The trial court has not taken into consideration the fact that the petitioner has not produced any documentary evidence to prove the income of respondent. The trial court has committed error in allowing the petition in part.
9. On these grounds and among other grounds the appellant/respondent has prayed for allowing the petition by setting aside the order under appeal and dismissing the application moved by the petitioner under Sec.23 of the Protection of Women from Domestic Violence Act, 2005.
10. This appeal was presented before the Hon'ble Prl. City Civil and Sessions Judge, Bangalore, it is registered as Crl.Appeal No.296/2013 and made over to this court for disposal according to law. After receipt of the records this court has issued notice to the respondent, respondent appeared through his counsel thereafter LCR's were secured and they are before the court.
11. Even though sufficient opportunity is given to the appellant to advance arguments, he has not advanced any arguments. Hence, it is taken that appellant has not 7 Crl.Appeal.296/2013 arguments. Even though sufficient opportunity is given to the respondent, she has not advanced arguments. Hence, it is taken that respondent has no arguments.
12. The points that arise for my determination are as under:
1. Whether the trial court has committed any error in holding that petitioner has proved that respondent is her husband and he has neglected her?
2. Whether the trial court has committed any error in holding that the respondent is having means to pay maintenance of Rs.3,000-00 p.m. to the petitioner?
3. Whether the interference is necessary in the impugned order under appeal from this court?
4. What order?
13. My findings to the above points are as follows:
Point No.1 to 3 : In the Negative;
Point No.4 : As per final order
For the following
REASONS
14. POINT No.1 TO 3: The above points are
inter-connected, hence they are taken up for discussion together in order to avoid repetition.
15. It is the case of the petitioner that she is the wife of respondent, she is not having any means to maintain herself. Respondent is having means to pay separate maintenance to her, respondent has neglected her so 8 Crl.Appeal.296/2013 petitioner has sought maintenance. Respondent has not denied that petitioner is his wife but it is the case of respondent that at the time of his marriage, his age was below 20 years so the marriage between him and the petitioner is not valid marriage, so petition is not entitled for maintenance.
Further it is the contention of respondent that petitioner has not produced any documentary evidence to show his income and the trial court in spite of it has awarded maintenance of Rs.3,000-00 p.m. The trial court in its order has stated that the present petition filed under Sec.23(2) of the Protection of Women from Domestic Violence Act and as per Sec.2(f) of the said Act, if aggrieved person lives or at any time has lived in a household either singly or along with respondent, such household be considered as shared household and the persons living in shared household or have lived in shared household when they are related by marriage or in the nature of marriage, be considered that those persons have domestic relationship. Though the respondent and petitioner might have lived in house of parents of petitioner, this fact is not helpful to respondent to prove that he has no domestic relationship with petitioner. The trial court has rightly concluded that petitioner has proved that she has domestic 9 Crl.Appeal.296/2013 relationship with the respondent within the meaning of Sec.2(f) of Protection of Women from Domestic Violence Act.
16. Petitioner in the petition has contended that respondent has neglected her and not cared for her maintenance, the respondent has disputed the same, respondent has contended that petitioner and her mother thrown him from their house, nowhere respondent has stated that he is providing maintenance to the petitioner. It is the duty of the husband to maintain his wife when she is unable to maintain herself. In the present case, it is the case of petitioner that respondent had neglected her and not cared for her maintenance. Respondent has admitted that petitioner is his wife and it is no where case of the respondent that he has made any arrangement for the maintenance of petitioner. Further it is nowhere case of the respondent that petitioner is having means to maintain herself. Nowhere in the objections respondent has stated that petitioner is having her own income and she is able to maintain herself. When petitioner is not having means to maintain herself, husband is bound to maintain his wife even when she is residing separately. Petitioner has contended that respondent has neglected her so she is residing separately and there are bonafide reasons for 10 Crl.Appeal.296/2013 the petitioner to reside separately. So, the respondent is bound to maintain his wife. Petitioner has not produced any document to show that respondent is having income of Rs.40,000-00 p.m. and the trial court in its order also mentioned the same. However the trial court has awarded maintenance of Rs.3,000-00 p.m. Respondent in the objections has contended that earlier he was working as driver at Global rent-a-car at Yelahanka and he has left his job and he has purchased the vehicle and he was doing the business and the same was also not there. Respondent has admitted that he was a driver by profession. It is nowhere contention of the respondent that he is having any physical disability. Respondent is a healthy bodied person knowing driving and now-a-days a driver will get daily wages of Rs.300-00 per day. If a person is having daily income of Rs.300-00, his monthly incomes comes to Rs.9,000-00, out of that he has to spend for himself and looking to the income of the respondent i.e., Rs.9,000-00 respondent is in a position to pay Rs.3,000-00 p.m. to his wife. So respondent is in a position to pay maintenance of Rs.3,000-00 p.m. as ordered by the trial court. There is no illegality committed by the trial court. The order of the court is well reasoned, so the interference is not 11 Crl.Appeal.296/2013 required from the hands of this court. Petitioner has proved that respondent is her husband and prima-facie petitioner has proved that respondent has neglected her, respondent is having means to pay maintenance of Rs.3,000-00 p.m. So, no interference is required in the order under appeal. Hence, for the above discussion, I answer point No.1 to 3 in the NEGATIVE.
17. POINT No.4: In view of my findings on point No.1 to 3, I proceed to pass the following:
ORDER The appeal preferred by the appellant/accused is dismissed with cost.
The judgment of the trial court under appeal is confirmed.
Send back the LCR's along with the copy of judgment to the trial court. (Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 8th day of July 2014).
(SHIVAJI ANANT NALWADE) Presiding Officer, Fast Track Court-XIV, Bangalore City.12
Crl.Appeal.296/2013 08-07-2014 JUDGMENT PRONOUNCED IN THE OPEN COURT VIDE SEPARATE ORDER ORDER The appeal preferred by the appellant/accused is dismissed with cost.
The judgment of the trial court under appeal is confirmed.
Send back the LCR's along with the copy of judgment to the trial court.
Presiding Officer FTC-XIV, Bangalore.