Karnataka High Court
Mrs. Bobby Elizabeth Rajeendran vs Mr. Rajeendran P on 20 March, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:11400
CRL.RP No. 19 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.19 OF 2024
BETWEEN:
1. MRS. BOBBY ELIZABETH RAJEENDRAN,
AGED ABOUT 53 YEARS,
R/AT FLAT NO.B-006, SPARTA I,
PRESTIGE ACROPOLIS APARTMENT,
HOSUR ROAD, KORAMANGALA,
BENGALURU-560029
...PETITIONER
(BY SMT. RASHMI GEORGE, ADVOCATE)
AND:
1. MR. RAJEENDRAN P.,
AGED ABOUT 54 YEARS,
R/AT FLAT NO.B-006, SPARTA I,
Digitally signed
by SHARANYA T PRESTIGE ACROPOLIS APARTMENT,
Location: HIGH HOSUR ROAD, KORAMANGALA,
COURT OF BENGALURU-560029
KARNATAKA
...RESPONDENT
(BY SRI. S.M. ANEES AHMED, ADVOCATE)
THIS CRL.RP. IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED
31.10.2023 PASSED IN CRIMINAL APPEAL NO.1054/2023 IN
THE COURT OF LIX ADDL. CITY CIVIL AND SESSIONS JUDGE,
AT BENGALURU BY ALLOWING THIS PETITION.
THIS PETITION COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC:11400
CRL.RP No. 19 of 2024
ORDER
Heard the learned counsel for the petitioner and the learned counsel for the respondent.
2. This Court earlier heard both the counsel in part and directed the respondent to pay all the arrears of maintenance as on date. Inspite of the said direction, the respondent has not complied with the order of this Court. The learned counsel for the respondent has placed some documents with regard to the application, orders and objections filed before the Trial Court, but not made any statement with regard to compliance of the order of this Court dated 13.03.2024, wherein the respondent was directed to pay the arrears of maintenance as on today within one week.
3. Now, the learned counsel for the petitioner has filed a memo of calculation of arrears of maintenance with details of payments made from 17.12.2022 to 04.01.2024 i.e., payment of Rs.5,000/- each made on 17.12.2022, 23.12.2022, 28.12.2022, 30.12.2022 and 02.01.2023, Rs.45,000/- paid on 11.01.2023, Rs.25,000/- paid on 17.02.2023, 20.07.2023, 18.08.2023 and 11.09.2023, Rs.2,000/- paid on 06.12.2023 and -3- NC: 2024:KHC:11400 CRL.RP No. 19 of 2024 Rs.1,000/- paid on 04.01.2024. In all, an amount of Rs.1,73,000/- is paid and balance arrears is Rs.2,27,000/-.
4. The learned counsel for the respondent submits that the entire arrears is paid and when this Court specifically asked for having made the payment, no answer from the mouth of the learned counsel for the respondent.
5. Now this Court has to consider the order passed by the Trial Court when an application was filed before the Trial Court under Sections 23(2) and 19(1)(b) of the Protection of Women from Domestic Violence Act, 2005 ('PWDV Act' for short) praying the Court to order directing the respondent to remove himself from the shared household at Flat No.B-006, SPARTA I, Prestige Acropolis Apartment, Hosur Road, Koramangala, Bengaluru - 560 029 and creating any impediments to the peaceful and safe living of the petitioner and children in the shared household during the pendency of the petition. In support of the application, an averment is made that the petitioner, respondent and children were living in the above said flat i.e., jointly owned and purchased with mutual contribution of the respondent and the petitioner. It is also her case that the respondent's cruelty and harassment towards the petitioner and -4- NC: 2024:KHC:11400 CRL.RP No. 19 of 2024 even the girl children had gone to the extreme of denying the girl children of even basic school education by refusing to pay the school fees for the last three years and both the younger daughters are still not attending any normal school. Due to this denial of education and other social stigmas associated when living in a posh apartment without going to school, the girl children have become mental wrecks and are exhibiting suicidal tendencies and pleas for medical and psychological treatment were denied by the respondent.
6. The respondent has not paid the interim maintenance for the month of March 2023, April 2023 and May 2023 and also has not paid any fees towards the education expenses. The respondent is not cooperating and taking any initiatives to rejoin the second daughter Miss Ranjana Angel, after five years of non schooling, to some online school yet and is not allowing the younger daughter even to use the computer for attending online classes. Inspite of being aware of the interim orders, the respondent was continuously creating havoc and abusing her and she was forced out of the residence on 22.02.2023 and currently she has taken shelter in a paying guest accommodation temporarily. That on 20.03.2023, the girl children also fled out of the house because the children were -5- NC: 2024:KHC:11400 CRL.RP No. 19 of 2024 unable to bear the harassment and havocs in the house, finally culminating in a complaint with ref No.LPT No.37/2023 in the Adugodi police station at night around 8.00 p.m. based on the complaint filed by the petitioner citing the breach of the protection orders by this Court. The Adugodi police did not take necessary action to enforce the protection orders citing its family issue, but only took an undertaking from the respondent that he will take care of the children. The respondent has already thrown her out from the jointly owned shared household, but the children were not willing to go back with the respondent being utterly scared of the respondent due to the violence behaviour and shouting in the police station. In the police station the respondent also misbehaved with her lawyer and the police also registered an NCR 77/2023. The respondent sold her car for Rs.4.5 lakhs without her knowledge. The children are now being prevented from calling her from their phone and keeping in touch with her by the respondent and threatening them to cut off all connections with her. On 26.05.2023, her children called and said that they want to see her, for that she went there and saw that children living without any proper food and cleanliness. It is further alleged that her daughter Ranjana Angel is having suicidal tendencies and she -6- NC: 2024:KHC:11400 CRL.RP No. 19 of 2024 attempted to suicide on 06.01.2023. The children are making distress phone call to her to find some ways to maintain their mental stability and hence application is filed.
7. The respondent appeared and filed objections denying all the averments made in the application and contended that the present application is based on the report of Protection Officer and the said report is obtained by the petitioner by coercing the children without any direction from the Court, which is an abuse of law. The report filed by the Protection Officer is within malafide intention by threatening and scaring the children. Hence, the same cannot be considered. He has further contended that the respondent and his children are happily living in the shared household and the respondent is taking good care of the children. He has never harassed or ill treated the petitioner or the children. He submits that the petitioner herself has deserted the children and has started residing separately at a paying guest accommodation at Koramangala and she is also working for the same paying guest accommodation. It is also the contention that the petitioner has not visited the house of the respondent and has also neglected to take care of the children since third week of February 2023. It is also the contention that when he had gone out for the work, -7- NC: 2024:KHC:11400 CRL.RP No. 19 of 2024 the petitioner without permission of the respondent or the Court, entered the house of the respondent and pressurized the children and obtained their statement. He submitted that he has filed a separate application to appoint the Court Commissioner to record the statement of the children in order to ascertain the true facts.
8. The Trial Court having considered the application and the objections filed by both of them, taken note of the averments made by the respective parties and in paragraph No.7 taken note of the definition of 'shared household' for a proper consideration. The Trial Court in paragraph No.8 taken note of the relationship defined under Section 2(f) of the PWDV Act and also taken note of the premises in which they were residing is purchased in joint name. Both the petitioner and the respondent have submitted that their daughters went missing on 20.03.2021 due to an argument with the respondent and a missing compliant was filed by the respondent. The Trial Court also taken note of that as per the scheme of the act, the Magistrate if he is satisfied the application prima facie discloses that the respondent is committing or has committed an act of domestic violence or there is likelihood of such violence and he may grant an order against the respondent on the basis of an -8- NC: 2024:KHC:11400 CRL.RP No. 19 of 2024 affidavit of aggrieved person. If the domestic violence has taken place, he can pass residence orders restraining the respondent from dispossessing the aggrieved person or in any manner disturbing her peaceful household or direct the respondent to remove himself from the shared household, or pass an order restraining from selling the suit property. It is not in dispute that this Court has granted exparte protection order on 02.01.2022 against the respondent directing him not to dispossess the petitioner from the shared household, but inspite of the same, the petitioner is currently residing in a paying guest accommodation. The dispute is whether the respondent had driven her out of the shared household or whether the petitioner herself has walked out of the house and the Trial Court comes to a conclusion that the same has to be decided in a full fledged trial. Whether the daughters were coerced and pressurized by the petitioner to give false statement implicating the respondent before the Protection Officer is also to be considered in a full fledged trial.
9. Having taken note of the very contentions of the respective parties, the Trial Court comes to the conclusion that the statement of the elder daughter before the police, report of the Protection Officer, conduct of the elder daughter in -9- NC: 2024:KHC:11400 CRL.RP No. 19 of 2024 attempting to commit suicide, neglectful conduct of the respondent in not paying the outstanding fees and interim maintenance, it is prima facie clear that the relationship between the respondent and the two daughters is antagonistic. Admittedly, the respondent is the only earning member, whereas the petitioner and two children have no financial source to maintain themselves. Hence, the Trial Court passed an order for over all well being of the children and directed the respondent to remove himself from the shared household and allowed the application filed under Section 23(2) and 19(1)(b) of the PWDV.
10. Being aggrieved by the said order, an appeal is filed in Criminal Appeal No.1054/2023. The Appellate Court having considered the material on record and also the earlier protection order and having considered the provisions of Sections 23(2) and 19(1)(b) of the PWDV Act, which has been discussed in paragraph No.18, comes to the conclusion in paragraph No.19 that the Trial Court has committed an error in passing the order of removal of the appellant from the flat. The Appellate Court observed that if any domestic violence has taken place, the Magistrate can pass residence order restraining the respondent from dispossessing the aggrieved person or in any manner
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NC: 2024:KHC:11400 CRL.RP No. 19 of 2024 disturbing her peaceful household or direct the respondent to remove himself from the shared household, or passing an order restraining from selling the suit property. It has also taken note of the fact that the Court has granted exparte protection order on 02.01.2022. Whether the respondent/husband had driven her out of the shared household or whether the petitioner/wife herself has walked out of the house, is a question to be decided in a full fledged trial. However, taking note of the order passed by the Trial Court, the Appellate Court comes to the conclusion that the property i.e., flat where the husband and wife were living, is a jointly purchased property and it requires full fledged trial for consideration of allegations made against each other. The Appellate Court also taken note of the allegations made by each of the parties and according to the respondent, the wife has occupied the house belonging to him and she is not allowing him to enter the house and threatening to file another complaint before the police and he has no enough money to have an alternative accommodation. It is also observed by the First Appellate Court that the wife has been misusing the orders passed by the Trial Court, as contended by the respondent. Taking note of the same, the Appellate Court made an observation that both the parties have ample opportunity to put
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NC: 2024:KHC:11400 CRL.RP No. 19 of 2024 forth their defence before the Trial Court during trial. In such condition, if the appellant/husband is ordered to go out of their residential house where the parties were/are living, it requires a full dressed trial as observed by the Trial Court and therefore interference is necessary and the impugned order and the challenge deserves to be set aside and reversed the order. Hence, the present revision petition is filed.
11. The main contention of the learned counsel for the revision petitioner in this petition is that when the protection order was given by the Trial Court, the same has been misused. The respondent is not taking care of the petitioner and children, who are pursuing their education and in view of the non- payment of educational fee, the daughter who went to Canada could not continue her education and also not making any payment towards school fee and unable to send other daughter also to school. The learned counsel would contend that inspite of the order is passed to pay maintenance of Rs.25,000/- per month, the same is not paid and still Rs.2,27,000/- is due as on today. The First Appellate Court committed an error and only discussed the order passed by the Trial Court and comes to the conclusion that the matter requires to be tried before the Trial Court. The learned counsel brought to the notice of this Court
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NC: 2024:KHC:11400 CRL.RP No. 19 of 2024 the provisions of Section 19 of the PWDV Act and the provision is very clear that while disposing of an application under sub- Section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order directing the respondent to remove himself from the shared household in terms of Section 19(1)(b) of the PWDV Act. The Trial Court's order is in consonance with Section 19(1)(b) of the PWDV Act. The learned counsel also brought to the notice of this Court Section 23 of the PWDV Act, wherein granting interim and exparte order in any proceedings before him under this Act, the Magistrate may pass such interim order as he deems just and proper. Hence, the First Appellate Court has committed an error and without any reasons set aside the order of the Trial Court and no discussion was made with regard to threat caused to the petitioner.
12. Per contra, the learned counsel for the respondent would contend that as on today, entire arrears of maintenance is paid. The learned counsel contend that the petitioner herself walked away from the house leaving the children and the report which has been relied upon by the petitioner is created one. The home visit report made by the conservation officer and the children opinion is created for the purpose of driving out the
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NC: 2024:KHC:11400 CRL.RP No. 19 of 2024 respondent from the house. The learned counsel would contend that the flat has been jointly purchased and the respondent is not having money to make his other accommodation. The learned counsel would contend that the Appellate Court has taken note of the fact that the case was set out for cross- examination of P.W.1 and almost case is pending for final adjudication and when such being the case, at this juncture, the question of removing the respondent does not arise and the Appellate Court has taken note of the said fact into consideration and passed the order.
13. Having heard the learned counsel for the petitioner and the learned counsel for the respondent, the Trial Court while passing the removal order of the respondent from the flat, taken note of the fact that earlier children went missing in lieu of the strained relationship between the petitioner and the respondent and missing complaint was filed by the respondent. In paragraph No.9, the Trial Court taken note of the scope of Domestic Violence Act and also taken note of the report submitted before the Court with regard to domestic violence and also taken note of the earlier order passed by the Trial Court i.e., exparte protection order dated 02.01.2022. No doubt, it is the allegation of the petitioner that due to harassment, the
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NC: 2024:KHC:11400 CRL.RP No. 19 of 2024 petitioner left the house. The contention of the respondent that the petitioner left the house on her own and staying in paying guest accommodation is also considered by the Trial Court. The conduct of the elder daughter in attempting to commit suicide is also taken note of by the Trial Court while passing an order of removal of the respondent himself from the shared household. The First Appellate Court while reversing the order of the Trial Court, taken note of the protection order as well as allegations made against each other and while passing the order in paragraph No.22, taken note of the complaint filed by the petitioner before the concerned police and also taken note of the fact that the wife has occupied the house belonging to him. In view of the order of the Trial Court, the petitioner is not allowing the respondent to enter the house.
14. When such pleadings are made before the Court and also when there is a report before the Court that there is an act of domestic violence and apart from that, when the daughter also made an attempt to commit suicide, only observation is made that both the parties have ample opportunity to put forth their defence before the Trial Court during trial. No doubt, the matter is still pending for consideration on merits and both are making allegations against each other. The material on record
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NC: 2024:KHC:11400 CRL.RP No. 19 of 2024 shows that both of them are living in the same shared household. The material also discloses that the petitioner once left the house and was staying in paying guest accommodation and now in view of the order passed by the Trial Court to remove the respondent from the shared house, she joined the house along with children. The statement of the children was also recorded and to that effect, documents are also produced before the Court and the children's opinion is that they want to stay with their mother and they want to stay away from father and like to live in different house with their mother. When such statement is made by the children, the respondent can make other alternative residence to wife and children, but the same has not been made and even when the Trial Court has granted maintenance and the same is not paid regularly. According to the petitioner, there is an arrears of Rs.2,27,000/-. It is also the specific allegation that the respondent has not met the educational expenses of the children and due to the conduct of the respondent, one of the daughter left Canada and not pursued the education. Though this Court directed the respondent to pay the arrears of maintenance, since the petitioner has to take care of herself and two children, who are pursuing their education, the respondent is not making
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NC: 2024:KHC:11400 CRL.RP No. 19 of 2024 payment. When this Court asked the respondent to place the document with regard to for having made the payment from September till date, there is no answer from the mouth of respondent. When the respondent is not taking care of the children and not making payment of arrears of maintenance in order to take care of wife and two children, the Appellate Court has not discussed anything about all these aspects while reversing the order of the Trial Court and simply passed an order in coming to the conclusion that the matter has to be decided in a full fledged trial before the Trial Court and committed an error in reversing the order of the Trial Court. The Trial Court has given the reason for invoking Section 19 of the PWDV Act. The very proviso under Section 19(1)(b) of the PWDV Act is clear that the Court can direct the respondent to remove himself from the shared household and the same is in conformity with Section 19 of the PWDV Act. Under Section 23 of the PWDV Act, in any proceedings, the Magistrate can pass such interim order as he deems proper. When the interim order has been passed to pay maintenance of Rs.25,000/- per month, the same is not paid regularly and the petitioner each and every year has to file a petition before the Trial Court for enforcing the same. The Appellate Court without assigning any reasons
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NC: 2024:KHC:11400 CRL.RP No. 19 of 2024 reversed the order of the Trial Court and comes to an erroneous conclusion that the matter requires a full fledged trial. The Appellate Court passed the order without application of judicious mind and hence it requires interference of this Court.
15. In view of the discussions made above, I pass the following:
ORDER
(i) The revision petition is allowed.
(ii) The order of the Appellate Court dated 31.10.2023 passed in Criminal Appeal No.1054/2023 is set aside.
(iii) The order passed by the Trial Court is restored.
(iv) Insofar as the grievance with regard to non-payment of maintenance is concerned, the petitioner can enforce the order of maintenance by filing necessary petition before the appropriate Court.
Sd/-
JUDGE MD List No.: 1 Sl No.: 53