Bangalore District Court
Smt.Rajeshwari W/O V.Umesh Kumar vs Sri Umesh Kumar S/O Late Virupakshappa on 14 February, 2017
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
(CCH-61)
Dated this the 14th day of February, 2017
:Present:
Sri S.K.Vantigodi, B.A., LL.B.,
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. Appeal. No. 87 / 2016
Appellant :- Smt.Rajeshwari W/o V.Umesh Kumar
Aged about 42 years
R/o c/o R.Srikanth
No.1096, 9th Main,
5th Cross, Prakash Nagar
Bengaluru-560 021
(Sri Bharath Babu, Advocate for appellant)
Vs
Respondent:- Sri Umesh Kumar S/o late Virupakshappa
Aged about 46 years
R/o No.267, 11th Cross
Deveeramma Compound
Indiragandi Circle
J.P.Nagar 1st Phase
Bengaluru-560 078
(Sri V.Vishwanath, Advocate for respondent)
JUDGMENT
This appeal is filed U/sec. 29 of Protection of Women Against Domestic Violence Act by the appellant/petitioner, being 2 Crl.A.87/2016 aggrieved by the order dt.01.12.2014 in Crl.Misc.148/2012 on the file of MMTC-III, Bengaluru.
2. The appellant was the petitioner and respondent herein was the respondent before the trial Court and they are referred to as per the ranks assigned to them before the lower court.
3. The brief facts which give rise to this appeal can be stated as under:-
The petitioner being the wife of the respondent filed petition under Sec.12 of Protection of Women Against Domestic Violence Act (hereinafter referred to as 'D.V.Act' for short) seeking various reliefs against respondent. It was urged by the petitioner before the Court below that after her marriage with the respondent on 23.11.1998 she lived with the respondent in the matrimonial home up to 23.9.2011 and discharged her marital obligations as dutiful wife. Later the respondent drove the petitioner out of the matrimonial home and since then she is staying with her brother without any alternative way and avocation. She was subjected to harassment and domestic violence during her stay in the house of the respondent since beginning without any valid and reasonable cause.
3 Crl.A.87/2016 The respondent suppressed the fact of his impotency at the time of marriage and he cannot discharge his matrimonial obligations as a dutiful husband. The respondent and his family members concealed the fact of impotency of respondent and performed marriage of petitioner with him. The respondent used to threaten the petitioner that she should not disclose the fact of his impotency and he would always threaten her by saying that he would cause her death by opening gas cylinder or administering poison in her food. She tolerated all the inhuman attitude of the respondent to protect the image of the respondent and the family in the society. Though the brother of petitioner provided treatment to respondent on 2-3 occasions he did not take proper medical treatment. Because of his impotency, there was no consummation of marriage. The respondent never co-operated with the petitioner on account of his impotency in discharging marital obligations.
The respondent is incapable of performing sexual act with the petitioner. As and when the petitioner opposed the inhuman attitude of the respondent, she was subjected to physical and mental cruelty and drove her out of the house. The respondent had taken gold and silver articles and other valuable articles at the 4 Crl.A.87/2016 time of marriage from the parents of the petitioner. The Petitioner having no source of income is unable to maintain herself.
The respondent is a central government employee and he is getting salary of Rs.35,000/- p.m. He has got sufficient means and capacity to look after the petitioner. Since the petitioner was subjected to domestic violence, she was constrained to file petition under Sec.12 of Domestic violence Act against the respondent.
4. After appearance before the Court below, the respondent filed objections denying the allegations of the petitioner.
5. Then the petitioner examined herself as PW1 and got marked seven documents as Ex.P.1 to 7. Then the respondent examined himself as RW1 and got marked three documents as Ex.R.1 to 3.
6. The learned MMTC-III on hearing the arguments of both parties, dismissed the petition filed by the petitioner under Sec.12 of D.V.Act by order dt.1.12.2014. It is this order, which is now 5 Crl.A.87/2016 under challenge by the appellant / petitioner by means of this appeal on the following grounds:-
The impugned order is unsustainable and opposed to the settled principles of law, facts and probabilities of the case. The learned Magistrate failed to appreciate the evidence available on record in proper perspective. The learned Magistrate erroneously accepted the evidence of respondent with regard to depositing of Rs.2,75,000/- in the name of the petitioner. The learned Magistrate erred in not appreciating the case of the appellant in proper perspective. The learned Magistrate failed to notice that the appellant was forced to desert the respondent since he was impotent and never agreed to adopt a child. The impugned order is erroneous, illegal and unsustainable and hence prayed to set aside the order dt.1.12.2014 and to allow the petition filed under Sec.12 of D.V.Act in Crl.Misc.148/2012 and to grant such reliefs as prayed for by allowing this appeal.
6 Crl.A.87/2016
7. After filing of this appeal, the respondent made appearance through his counsel. The trial Court records have been secured.
8. Heard the arguments on both sides. Perused the records.
9. In the light of the contentions taken up in the memorandum of appeal, the points that arise for my determination are as follows;
1) Whether the impugned order is erroneous, illegal and opposed to settled principles of law, facts and probabilities of the case?
2) Whether the learned Magistrate erred in
not properly appreciating the evidence
available on record in proper
perspective?
3) Are there any grounds to interfere with the order under appeal?
4) What order?
10. My findings on the above points are as follows:
Point No.1 to 3 : In negative 7 Crl.A.87/2016 Point No.4 : As per final Order for the following:-
REASONS
11. Point No.1 to 3:- All these points are taken together for discussion for the sake of convenience and to avoid repetition of facts.
12. I have carefully gone through the contents of appeal memo, impugned order and the trial Court records. It is the specific case of the appellant herein that since the respondent being impotent, subjected her to domestic violence, she is entitled to seek the relief sought for as prayed in the application filed Under Sec.12 of D.V.Act. It is also her case that she was being threatened by the respondent saying that he will kill her by opening gas cylinder and by administering poison in her food and she was forced not to disclose the fact of his impotency before others. In view of the threat given by her husband and in view of subjecting her to domestic violence, she is justified in staying separately by leaving company of her husband.
13. On the other hand, it is the case of the respondent herein that he never subjected the petitioner to domestic violence, 8 Crl.A.87/2016 nor put her in fear of life and he has not extended any kind of harassment and cruelty to his wife. It is also his case that his wife falsely alleged against him that he is impotent. He has had affection towards petitioner and as such he had kept amount of Rs.2,75,000/- in the joint account of his wife and also purchased a LIC bond for a sum of Rs.35,000/-. His wife has already filed a petition for maintenance in Crl.Misc.No.353/2012. Since he has not extended any such domestic violence, petition is not maintainable and hence prayed to dismiss the appeal.
14. In the light of these rival contentions, I have carefully gone through the impugned judgment and trial Court records. Obviously burden is on the petitioner to prove that she was subjected to domestic violence by respondent during her stay in the matrimonial home. In this regard, petitioner examined herself as PW1 who in her chief examination has reiterated the averments of petition and got marked marriage invitation card, copy of legal notice, postal receipts, postal acknowledgments, courier receipts, reply notice and report of Protection Officer as per Ex.P.1 to 7.
9 Crl.A.87/2016
15. In the cross examination, petitioner admits that she never filed any complaint against her husband alleging any kind of harassment before police. She admits that a two wheeler is also purchased in her name by respondent. She has not filed any complaint that her husband /respondent made an attempt to kill her by administering poison or by opening gas cylinder. She has not produced any medical records of herself and her husband i.e., respondent with regard to providing medical treatment to her husband. She denied the suggestions that she herself left the company of respondent on 23.9.2011.
16. She states that if she invited by respondent to live with him in the matrimonial home, she is not ready to go with him since he was impotent. She admits that she had also filed divorce petition against respondent. She also filed a maintenance petition under Sec.125 of Cr.P.C. She had withdrawn Rs.2,00,000/- from the account pertaining to herself and her husband. She does not remember whether the respondent had deposited such amount to her account. She denied all other suggestions.
17. On careful appreciation of evidence of PW1 coupled with contents of Ex.P.1 to 7, it can be said that though she states 10 Crl.A.87/2016 that she was subjected to domestic violence during her stay with the respondent, her evidence is not substantiated by any material on record and further her evidence is not worthy to be relied upon for the reason that right from the date of marriage i.e., from 1998 she lived with the respondent till the year 2011. Further, she never filed any complaint against her husband alleging harassment and cruelty during this period. Even she had not made any complaint with her brother alleging that she was unable to pull on with respondent in view of his impotency. Though she states that she got provided medical treatment to her husband for his impotency, she has not produced any such medical records to prove the same. Even the petitioner has not chosen to examine her brother to substantiate her evidence.
18. So, all these facts elicited during cross examination of PW 1, create doubt as to the domestic violence extended by the respondent towards the petitioner. She has not assigned any reasons as to why she did not file any complaint before the police alleging that her husband attempted to kill her by administering poison or by opening gas cylinder. Thus, the conduct of petitioner in keeping mum for all these years and living with the respondent 11 Crl.A.87/2016 from 1998 till 2011, goes to show that she was not subjected to any kind of domestic violence by the respondent.
19. However, it is her contention that her husband having suppressed the fact of impotency, subjected her to mental and physical cruelty. But it does not amount to domestic violence. Because petitioner herself has filed a petition seeking divorce against respondent on the ground of impotency. Such being the fact, alleging impotency against respondent, does not amount to domestic violence. However, it may be a ground for seeking divorce.
20. Therefore, there is no such cogent and convincing evidence produced by petitioner, to believe that she was subjected to domestic violence. As such, learned Magistrate has elaborately discussed all these facts and arrived at a just and fair conclusion in the case on hand.
21. Further more, in the cross examination, a suggestion was put to PW1 that "whether she is ready to join the respondent if she is invited to the matrimonial home", for which she states that "since the respondent is impotent and has cheated her, she is not ready to join his company". It shows that except the allegation that 12 Crl.A.87/2016 her husband/respondent is impotent the petitioner has not urged any other ground against her husband to prove domestic violence so as to grant any relief under Sec.12 of D.V.Act.
22. Further, the fact that the respondent has opened joint account in the name of petitioner and the fact that she had already withdrawn Rs.2 lakhs from the said account indicates that she is able to manage herself from that amount. Therefore, question of awarding any maintenance under the provisions of Sec.12 of DV Act does not arise at all. Anyhow, the petitioner can agitate such ground in the petition filed under Sec.125 of Cr.P.c. The petitioner never alleged that since there was threat to her life, she is not able to join the company of her husband/respondent. If really petitioner was subjected to any kind of domestic violence, she would not have kept mum without filing any complaint against her husband/respondent and without initiating any kind of legal action against him.
23. Further, it is pertinent to note that in the legal notice issued by the petitioner as per Ex.P.2, she has invited her husband for filing joint petition for divorce. It shows that she is interested to take divorce from the respondent rather than leading 13 Crl.A.87/2016 life with him. It is no where stated in the said notice that the respondent subjected her to any kind of domestic violence. It is simply alleged in the notice that the respondent is impotent and not able to discharge his marital obligations. Therefore, if really the respondent is impotent that would be a good ground for the petitioner to seek divorce. But she has failed to make out any case that she was subjected to domestic violence during her stay with respondent.
24. On the other hand, the respondent examined himself as RW1 who has categorically deposed that in spite of discharging his duties as dutiful husband towards the petitioner, the petitioner herself left his company on her own. He never subjected any kind of domestic violence towards his wife. In the cross examination no worth material is elicited from his mouth to establish that petitioner was subjected to any kind of domestic violence. He withstood the test of cross examination. Hence his evidence indicates that the petitioner herself left his company and he never subjected her to domestic violence.
25. Having regard to all these facts and circumstances of the case, I am of the considered view that there is no error or 14 Crl.A.87/2016 illegality committed by the learned Magistrate in dismissing the petition filed under sec.12 of D.V.Act. Since the petitioner has already filed petition for divorce, she can very well urge the fact of impotency of respondent in said petition. But herein this case, appellant herein has failed to make out a case that she was subjected to any kind of domestic violence so as to grant any relief under Sec.12 of D.V.Act.
26. During the course of arguments, learned counsel for appellant referred to an authority reported in (2007)4 SCC 511 in the case of Samar Ghosh Vs. Jaya Ghosh. I have carefully gone through the said authority, which deals with the provisions of Special Marriage Act, 1954 - Divorce - Mental cruelty and what constitute mental cruelty. In the above said authority, the factum of mental cruelty has been discussed. But herein this case, the appellant failed to make out a case that she was subjected to domestic violence. Therefore, the facts involved in the said authority are entirely different to the facts involved in the case on hand. The ratio observed in the above said authority is distinguishable on the facts involved in this case. I do admit the proposition of law laid down in the above said authority. But the ratio observed is not applicable to the case on hand. Herein this 15 Crl.A.87/2016 case, the petitioner has to establish that she was subjected to domestic violence by her husband/respondent to claim any relief under Sec.12 of D.V.Act.
27. Looking into all these facts and circumstances, I am of the view that the appellant has failed to make out any case so as to interfere in the reasoning and findings of the Court below. Absolutely, there are no grounds to interfere or modify the impugned order passed by the trial court. Appellant herein has failed to make any ground to interfere and to set aside the impugned order. Hence the impugned order is in accordance with settled principles of law, facts and probabilities of the case and it deserves to be confirmed with. Accordingly, I answer point No.1 to 3 in negative.
28. Point No.4: In view of my findings on point No.1 to 3, I proceed to pass the following:
ORDER The appeal filed by appellant U/sec.29 of Protection of Women against Domestic Violence Act is hereby dismissed.
16 Crl.A.87/2016 The impugned order passed by the MMTC-III, Bengaluru, in Crl.Misc.148/2012 dt.01.12.2014 is hereby confirmed.
Send a copy of this judgment to the lower court along with L.C.R. (Dictated to the Judgment Writer, transcribed and typed by him, corrected and then pronounced by me in the open court on this the 14th day of February, 2017) (S.K. VANTIGODI) LX Addl.City Civil & Sessions Judge, Bengaluru.
Rrt*