Bangalore District Court
/ Ramesh S/O Late Pitteningi Sanne vs Gowda on 21 October, 2015
IN THE COURT OF LXV ADDL CITY CIVIL AND
SESSIONS JUDGE; BANGALORE CITY
(CCH.NO.66)
PRESENT
SRI.N.R.CHENNAKESHAVA B.A.,LL.B.,
LXV ADDL CITY CIVIL & SESSIONS JUDGE,
BANGALORE
Dated this the 21st day of October, 2015
CRL.APPEAL.NO.365/2014
Appellant / Ramesh S/o Late Pitteningi Sanne
respondent: Gowda, Aged 42 years, R/at Induvalue
Village, Kothathi Hobli, Mandya Taluk
and District.
(By Sri M.R.Rajagopal, Adv)
V/s
RESPONDENTS/ 1. Smt.Gayathri @ Lakshmi W/o
Petitioners: Ramesh, Aged 37 years,
2. Kum.Devika D/o S.Ramesh, Aged
about 16 years,
3. Kum.Bhoomika D/o S.Ramesh, Aged
about 6 years.
(Respondent No. 2 & 3 since minors,
are reptd by their natural guardian
mother Respondent No.1)
All are residing at No.790, SRS Road,
Peenya, Bengaluru.
(By Sri M.T.R Adv)
*****
2 Crl.A.No.365/2014
JUDGMENT
Appellant preferred this Appeal U/s.29 of Protection of Women from Domestic Violence Act, 2005, being aggrieved by the impugned order passed by learned MMTC III, Bangalore, in Crl.M.C.17/2011 dated 21.6.2011, allowing the petition in part, with a direction to Appellant to pay monthly maintenance of Rs.6,000/- to the respondents herein, from the date of filing petition.
2. Appellant was the respondent and respondents were the petitioners before the trial court. Hence, I would like to refer the parties in this Appeal with reference to ranks, which they held in the trial court.
3. Trial court records secured. Respondents are represented through their counsel.
4. Brief facts of the case, are as follows:
Before the trial court petitioners filed petition against respondent U/s.12 of Protection of Women from Domestic Violence Act, 2005, seeking maintenance and other relief's.3 Crl.A.No.365/2014
It is alleged that respondent married 1st petitioner on 14.2.2013, as per customs prevailed in their community.
After the marriage, she lived with the respondent at her matrimonial house and then they shifted to Bangalore. From their wedlock, petitioner gave birth to 2nd and 3rd petitioner. At the time of marriage 1st petitioner parents gave dowry of Rs.1,00,000/- to the respondent and apart from 75 grams of gold ornaments given to him. After marriage, the couples lived cordially for some years. After that, 1st respondent developed bad vises and he started to quarrel with 1st petitioner and he subjected her into cruelty both physically and mentally and in spite of it, she tolerated all those tortures. Her parents made efforts to change his attitude but those efforts went to vein. In the meanwhile respondent tried to enter into 2nd marriage. After that, he neglected petitioners in maintaining them.
5. Respondent is a Junior Lineman at BESCOM, Shivajinagar, Bengaluru and he is getting salary of Rs.12,000/- p.m. Apart from that he is having immovable 4 Crl.A.No.365/2014 properties and he is getting income of Rs.32,000/- from immovable property by growing rice, sugarcane etc., Hence, respondent is having sufficient income to pay maintenance to the petitioners. 2nd petitioner is studying 1st PUC and 3rd petitioner is studying at LKG. Presently petitioners are residing in a hut at slum area. Respondent has not paid any amount to them towards their maintainance and he is not paying educational fees of 2nd and 3rd petitioner. He has not provided basis necessities to them. Hence, petitioners prayed this court to direct the respondent to pay monthly rent of Rs.5,000/-, medical expenses of Rs.25,000/-, maintenance of Rs.10,000/- to 1st petitioner and Rs.5,000/- each to the 2nd and 3rd petitioner.
6. Before the Trial Court, respondent placed exparte. Thereafter, petitioner herself got examined as PW1 and her father K.G.Putte Gowda examined as PW2. 5 documents marked at Ex.P.1 to Ex.P.4. After hearing arguments, Trial Court by pronouncing the impugned order and partly allowing the petition, has directed the respondent to pay 5 Crl.A.No.365/2014 monthly maintenance of Rs.6,000/- to the petitioners, from the date of filing of petition.
7. Being aggrieved by the impugned order, respondent preferred this Appeal by setting out the grounds of Appeal, as follows:-
Impugned order is illegal and contrary to law and facts of case. Trial court has not provided in opportunity to respondent to defend to contest the petition. Notice of the petitioner has not been served on him and he has not refused notice. Trial court has not followed the procedure u/Sec.65, 66 and 67 of Cr.P.C., while placing him as exparte. Trial court has not enforced its powers to secure the respondent. Trial court failed to appreciate the fact that petitioners have failed to prove beyond all reasonable doubt that respondent is having sufficient income and the committed act of domestic violence against petitioners. On the contrary trial court come to a wrong conclusion in holding that respondent is getting sufficient income and he has committed any act of domestic violence. Hence, 6 Crl.A.No.365/2014 respondent contends that impugned order needs to be set aside. Therefore, on these grounds, it is prayed to allow the Appeal and to set aside the impugned order.
8. Heard argument on behalf of Respondent. In spite of providing opportunity, learned counsel for petitioners has not come forward to address arguments. Hence, argument on behalf of petitioners is taken as heard and posted the case for judgment. I have perused the available materials on record and the grounds urged.
9. Now the points that arise for my consideration are:
1. Whether the impugned order dt.21.6.2011 passed by learned MMTC III, Bangalore, in Crl.Mis.17/2011, is illegal and hence liable to be set aside and consequently the matter has to be remitted back to the Trial Court for fresh disposal, in accordance with law?
2. What Order?
10. My findings on the above points are:
POINT NO.1: In the Affirmative 7 Crl.A.No.365/2014 POINT NO.2:- As per the final order for the following----
REASONS
11. POINT No.1: Learned counsel for Appellant/respondent would submit that respondent has not been served with the notice of petition and inspite of it, trial court passed an order placing him exparte and then based on the materials placed by the petitioner, it has proceeded further and come to a wrong conclusion in allowing the petition and hence, impugned order is liable to be set aside. He further argued that as far as service of notice of petition is concerned, the procedure laid down under U/Sec. 65 & 66 Cr.P.C., are to be followed. However, trial court without following section 65 and 66 of Cr.P.C., has passed incorrect order, placing respondent as exparte. To support the contention, learned counsel has drawn the attention of the court to the notice, which has been dispatched by the trial court to the respondent, wherein concerned process server made an endorsement to the effect that when he had been 8 Crl.A.No.365/2014 to serve the notice, respondent has refused to receive the notice, on the ground that there is no relationship between him and his wife i.e. petitioner. Therefore, basing on the very report trial court has passed an order to the effect that service of notice of petition on the respondent, is held sufficient. He also argued that respondent is an employee in BESCOM. Hence, as per section 66 of Cr.P.C., notice of petition should have been issued in duplicate to the Head of office of respondent, in order to cause notice to him. However, Trial court has failed to comply Sec.66 of Cr.P.C. In my view, very argument having considerable force, in the light of Sec.65 and 66 of Cr.P.C., for the simple reasons that as per Sec.65, Process Server, who has been sent with notice of the petition to serve the same on the respondent, has not followed the procedure laid down under Sec.65 and 66 of Cr.P.C. For the sake of convenience, I would like to refer the Sec.65 and 66 of Cr.P.C as follows:-------
Sec. 65: Procedure when service cannot be effected as before provided: If service cannot by the 9 Crl.A.No.365/2014 exercise of due diligence be effected as provided in section 62, section 63 or section 64 the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides; and thereupon the court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper.
Sec. 66:Service on Government servant: Where the person summoned is in the active service of the Government, the court issuing the summons shall ordinarily sent it induplicate to the head of the office in which such person is employed; and such head shall thereupon cause the summons to be served in the manner provided by sec. 62 and shall return it to the court under his signature with the endorsement required by that section. Such signature shall be evidence of due service.
10 Crl.A.No.365/2014
12. In view of Sec.65, certainly, process server should have affix one of the duplicate of the notice on the conspicuous place of the house of the respondent. That apart, in view of Sec.66 Cr.P.C. certainly, trail court should have issue notice to the Head of the office of respondent. However, order sheet of trial court clearly disclose that Sec.65 and 66 of Cr.P.C. has not at all been complied. Hence, I am of the considered view, that certainly order passed by the trial court in placing respondent exparte, is illegal.
13. Respondent has placed enough materials on record to hold that he has not been given enough opportunity to challenge the petition before the trial court. Suffice it to say that order passed by the trial court in placing exparte prima facie is illegal, in view of the fact that while passing order placing respondent is exparte, trial court has not at all followed the procedure laid down under Sec.65 and 66 of Cr.P.C. More importantly as far as procedure to be followed in dealing with petition filed 11 Crl.A.No.365/2014 u/Sec.12 of Act is concerned, the procedure under Cr.P.C is to be followed by the court. Hence, considering these facts, I hold that certainly impugned order is illegal. Learned counsel for petitioners has not addressed arguments, inspite of opportunity given. Hence, arguments on behalf of petitioners is taken as closed. In my view, respondent being the Appellant herein has not been provided with enough opportunity to challenge the petition before the trial court. More so, impugned order disclose that trial court has proceeded with impugned order, on the basis of materials placed by the petitioners. Therefore, under such circumstances, the matter has to be remitted back to the trial court for fresh disposal, by providing reasonable opportunity to the respondent to contest the petition. Therefore, to meet the very purpose, the matter has to be remitted back to the trial court for fresh disposal in accordance with law. In the light of above discussion, I need not discuss about merits and demerits in this petition. During the course of argument, learned counsel for the respondent also relied upon following judgment: 12 Crl.A.No.365/2014
1) CDJ 2011 Kar HC 562, Krishna Murthy Nookula V/s Y.Savitha.
2) CDJ 2009 MPHC 265 Madhusudan Bhardwaj V/s Mamia Bhardwaj.
14. I have carefully gone through the ratio laid down in the above judgments. However, ratio laid down in the above case laws, are not applicable to the case on hand, for the simple reason that both cases not arose on the basis of exparte order. The facts come out in the said case laws disclose that the concerned trial courts have not followed the procedure laid down u/Sec.28 of the Act, while passing interim order. However, the present case on hand is entirely different, since the respondent being the Appellant herein challenged the impugned order, on the ground that he has not been served with notice of the petition by the trial court. Hence, in the above circumstances, ratio laid down in the above case laws are not applicable to the case on hand. In my view, since trial court has not provided an opportunity to the respondent to contest the petition, that too trial court without following the procedure u/Sec.65 and 13 Crl.A.No.365/2014 66 of Cr.P.C., has proceeded further by passing an order, placing Respondent exparte. Therefore, I hold that impugned order is illegal. Hence, the matter has to be remitted back to the trial court for fresh disposal in accordance with law. For the foregoing reasons, I answer above point in "Affirmative".
15. POINT NO.2: In view of my findings to Point No.1, certainly the matter has to be remitted back to the Trial Court, for fresh disposal in accordance with law. In the result, I proceed to pass the following:-
ORDER Appeal preferred by Appellant/ respondent u/Sec.29 of Protection of Women from Domestic Violence Act, 2005, is partly allowed.
Impugned order passed by learned MMTC III, Bangalore, in Crl.Misc.No.17/2011 dated 21.6.2011, is set aside and Consequently, the matter is remitted back to the trial Court for fresh disposal in accordance with law, in the light 14 Crl.A.No.365/2014 of observation made above, by providing reasonable opportunity to respondent, to contest the petition by filing statement of objection and to lead evidence to both parties, if they so desire and then dispose off the petition, as expeditiously as possible.
Re-transmit the Trial Court Records with a copy of this order, forthwith.
(Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 21st day of October, 2015.).
(N.R.CHENNAKESHAVA) LXV Addl.City Civil and Sessions Judge, (CCH-66), BANGALORE.15 Crl.A.No.365/2014
Judgment pronounced in the open court, vide separately.
ORDER Appeal preferred by Appellant/ respondent u/Sec.29 of Protection of Women from Domestic Violence Act, 2005, is partly allowed.
Impugned order passed by learned MMTC III, Bangalore, in Crl.Misc.No.17/2011 dated 21.6.2011, is set aside and Consequently, the mater is remitted back to the trial Court for fresh disposal in accordance with law, in the light of observation made above, by providing reasonable opportunity to respondent, to contest the petition by filing statement of objection and to lead evidence to both parties, if they so desire and then dispose off the petition, as expeditiously as possible.
Re-transmit the Trial Court Records with a copy of this order, forthwith.
(N.R.CHENNAKESHAVA) LXV Addl.City Civil and Sessions Judge, (CCH-66), BANGALORE.
16 Crl.A.No.365/2014