Bangalore District Court
Smt.C.Latha vs Sri.G.Sureshkumar on 28 January, 2020
IN THE COURT OF METROPOLITAN MAGISTRATE TRAFFIC
COURT - V, BENGALURU
PRESENT : SMT.POOJA SHETTI
BA., LL.B. (Hon's).
M.M.T.C - V, BENGALURU
DATED THIS 28th DAY OF JANUARY 2020
Crl. Misc.No.10 - 2013
PETITIONER: Smt.C.Latha,
W/o.Mr.G.Sureshkumar,
Aged about 35 years,
D/o.Chandra Doss,
Residing at No.115,
Haygriva 4th Cross,
Bloomfield Gardens,
Ramachandrapura,
Vidyaranyapura,
Bengaluru - 77.
// VS //
RESPONDENT : Sri.G.Sureshkumar,
S/o.G.Gopalakrishna,
Aged about 41 years,
R/at.No.36/16,
Kumaran Nagar, 1st Cross,
Abhirami Koli Street,
Chennai - 600 082.
ORDER
This is the petition filed by the petitioner against the respondent under section 12 of the Protection of Women from 2 Crl. Misc.No.10 - 2013 Domestic Violence At., 2005 (herein after referred as P.W.D.V. Act, 2005) seeking various relief.
2. After the registration of the petition, notice has been issued to the respondent through RPAD and P.O. After the service of said notice, the respondent appeared through his counsel and filed objection to main petition.
It is the contention of the respondent that, petitioner is taking advantage of provisions of special law to abuse the process of court, there are already pending proceedings before Hon'ble Family Court in Crl.Mis.No.605/2011 and M.C.No.3387/2012 at Bengaluru. The claims of the petitioner in form of monetary relief are totally untenable and she did not approached court with clean hands. According to respondent, petitioner is guilty of infidelity and disloyalty towards him. She got removed her uterus secretly to avoid pregnancy, hence she is avoiding medical examination to keep the respondent and his parents in the dark about her action. According to respondent, she is living a wayward life with men of her own choice in Bengaluru, keeping aloof from the respondent. According to respondent, during nine years of her marriage, she 3 Crl. Misc.No.10 - 2013 stayed in the matrimonial house at Madras only for 6 months that too without cordiality. The respondent further submits that, the petitioner used to threaten to commit suicide to cover up her affairs with her paramours and she deserted the respondent with the intention to live happily in the Bengaluru and to enjoy her choice, she is demanding Rs.30,000/- per month as maintenance, hence the petition is not maintainable. Further, petitioner's father is a affluent person, who has substantial property from his properties in Bengaluru. On the other hand, respondent is unemployed and he has no income and he is dependant on his father, who is a pensioner. Hence, prays to reject the application.
3. In order to prove her case petitioner got herself examined as PW.1 and also another witness examined as PW.2 and got marked 21 documents as Ex.P.1 to Ex.P.21. On the other hand, respondent in his defence examined himself as RW.1 and got marked 12 documents as Ex.R.1 to Ex.R.12.
4. Perused both documentary and oral evidence available on record. Heard argument.
4 Crl. Misc.No.10 - 2013
5. The points that arise for my consideration are;
1. Whether the petitioner proves that the respondent has subjected her to domestic violence ?
2. Whether the petitioner is entitled for the relief's sought in the petition ?
3. What order?
6. My findings on the above said points are as follows:
Point No.1: In the PARTLY AFFIRMATIVE;
Point No.2: In the PARTLY AFFIRMATIVE;
Point No.3: As per the final order
for the following :
REASONS
7. POINT No.1and 2: As these points are interlinked
with each other, they are taken up together for consideration in order to avoid repetition.
8. In the present petition, respondent has not disputed his relationship with the petitioners and factum of living together in the shared household prior to their separation. Accordingly, domestic relationship between the petitioner and the 1st respondent as defined under section 2(f) of the P.W.D.V. Act, 2005 is proved. In 5 Crl. Misc.No.10 - 2013 order to grant relief under the provision of P.W.D.V. Act, 2005., it is incumbent on the part of the petitioner to prove that she has been subjected to domestic violence by the respondent and she is aggrieved person as per the provisions of the said act.
9. In order to prove the domestic violence, petitioner got herself examined as PW.1 and filed affidavit in lieu of her examination-in-chief, wherein it is the contention of the petitioner that, at the time of her marriage, her father has spent more than Rs.10,00,000/- towards marriage expenses and had given gold worth Rs.20,00,000/- as dowry to the respondent. On the other hand, respondent got himself examined as RW.1 and during his cross- examination dated 10.07.2014, the respondent denies the suggestion that, it is the father of the petitioner who has borne entire expenses of the marriage and contends that, he also have spent 50% of the expenses, however he has no receipts pertaining to the same. During the cross-examination of PW.1 dated 24.10.2013, the petitioner deposes that, she did not produced any document to prove that, they have incurred expenses of Rs.10,00,000/- towards her marriage. Further, during her cross-examination dated 13.06.2018, the petitioner claims that, she has produced photographs pertaining to 6 Crl. Misc.No.10 - 2013 her marriage expenses, however no such photographs has been produced. Further, according to petitioner, though she have not produced documents pertaining to purchase of articles worth Rs.20,00,000/- as dowry, it is her father who has informed her that, they have spent the said amount towards the purchase of articles. During her cross-examination dated 06.07.2018, the witness claims that, her father had given money to the respondent, however whether it was given in cash or cheque, she has no information. Further, she claims that, she has produced documents to prove the expenses to the tune of Rs.30,00,000/-, however she does not know as to what documents has been produced. In support of her contention, her father got himself examined as PW.2 and during his cross- examination dated 20.09.2019, the witness admits the suggestion that, he has not produced any document to prove the marriage expenses and purchase of gold articles. He proceeds further and deposes that, he has no documents with him. In view of above observation, petitioner fails to prove marriage expenses and dowry and all these allegations are prior to marriage allegations, when there existed no domestic relationship and shared household between the parties, hence those transactions are not covered under P.W.D.V. Act, 2005. The Hon'ble High Court of Delhi in Crl.M.C.No.3878/2009, 7 Crl. Misc.No.10 - 2013 held that, "The domestic violence can take place only when one is living in shared household with the respondents. The acts of abuses, emotional or economic, physical or sexual, verbal or nonverbal if committed when one is living in the same shared household constitute domestic violence. However, such acts of violence can be committed even otherwise also when one is living separate. When such acts of violence take place when one is living separate, these may be punishable under different provisions of IPC or other penal laws, but, they cannot be covered under Domestic Violence Act". Likewise prior to marriage incidents, though may amount offence under some other law but not covered under P.W.D.V. Act, 2005.
10. The petitioner further contended that, whenever the respondent was in need of money, he used to abuse, assault and send her to her parent's house to bring the money, whenever petitioner refused to fulfill their demand, respondent and his parents used to ill-treat her and she was not allowed to talk to her parents, relatives or to attend any function, they used to lock her in a room. During August - 2011, she and respondent came to her 8 Crl. Misc.No.10 - 2013 father's house to attend her younger brother's wife's baby shower function, the said function was arranged in a grand manner, hence the respondent got upset and started to abuse the petitioner in the function itself. Thereafter, he threatened brother and father of the petitioner and deserted the petitioner. In order to take back the petitioner, the respondent demanded Rs.5,00,000/- from her father, thereafter the petitioner tried to contact the respondent over phone, however he was very rigid and refused to take back the petitioner to matrimonial house without money, hence, petitioner and her father went to Chennai during 1st week of October, however respondent and his parents did not allowed them to enter the house and used vulgar language and insulted them and when the petitioner again tried to go to Chennai, the respondent threatened to file false complaint against her, hence she has filed complaint against the respondent. According to petitioner, from the date of desertion, she is living at her parent's house and in spite of having sufficient income, respondent failed to provide maintenance to the petitioner. On the other hand, it is the contention of the respondent that, immediately after 6 month of the marriage, the petitioner left the matrimonial house stating that, she does not 9 Crl. Misc.No.10 - 2013 want to live at Chennai. He further contends that, as the petitioner had relationship with her uncle, she used to visit Bengaluru again and again. Whenever he called her, the petitioner failed to respond and when the same was brought to the knowledge of father of the petitioner, he threaten the respondent stating, he will file false dowry harassment complaint against him. In the year 2005, the petitioner demanded Rs.10,00,000/- to give divorce and during 2010, when respondent asked for the separation, the petitioner demanded Rs.25,00,000/-. According to respondent, he has no ability to pay the maintenance to the petitioner and petitioner has the ability to earn. Apart from that, her father owns a factory, hence petitioner is economically sound. Hence, as per the contention of respondent, after 6 month of marriage itself, the petitioner has deserted him. However, as per the contention of petitioner, during the year 2011, the respondent has deserted her. At the time of argument, counsel for respondent relies upon Judgment of Hon'ble High Court of Karnataka in Crl.Revision.Petition.No.1146/2019 in Smt.N.S.Leelavathi Vs. Smt.Dr.R.Shilpa Brunda and contends that, as per the Judgment meaning of phrase "at any point of time" does not mean living 10 Crl. Misc.No.10 - 2013 together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship. Hence, the petition is barred by limitation. During the cross-examination of PW.1 dated 13.06.2018, the petitioner deposes that, she lived in the house of respondent for two years after marriage and when it has been questioned that, "¥Àæ±ÉßB DzÀgÉ ¤ªÀÄä CfðAiÀÄ°è ¤ÃªÀÅ JzÀÄgÀÄzÁgÀ£À ªÀÄ£ÉAiÀÄ°è 8 ªÀµÀðUÀ¼À PÁ® ªÁ¸À«zÀÄÝzÀÝzÁV ºÉýgÀÄwÛÃj C®èª?É GvÀÛgÀB £À£Àß £Á¢¤ «ªÁºÀ «ZÉÑÃzÀ£À ¥ÀqÉzÀ £ÀAvÀgÀ JzÀÄgÀÄzÁgÀ£À ªÀÄ£ÉUÉ §A¢zÀÝjAzÀ £À£Àß CvÉÛ £Á£ÀÄ D ªÀÄ£ÉAiÀÄ°è EgÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è JAzÀÄ £À£ÀߣÀÄß £À£Àß vÀAzÉAiÀÄ ªÀÄ£ÉUÉ PÀ¼Ài»¹gÀÄvÁÛgÉ", hence according to petitioner, as her sister-in-law obtained divorce and started to reside in the house of respondent, her mother-in-law sent her to her father's house. However, as per the contention of the respondent that, after 6 month of marriage, the petitioner never visited his house. During his cross- examination dated 10.07.2014, when it has been suggested that, from 2004 to 2010, he was working at Bengaluru in BLK Welders Company, though the witness denies the same, he claims that, during 2009, due to the force of petitioner, for 6 month, he came to Bengaluru and worked there. Which is in contradiction with the 11 Crl. Misc.No.10 - 2013 contention of the respondent and the admission goes to show that, during 2009 he has resided with the petitioner at Bengaluru for 6 months. Further, during the cross-examination of PW.2 dated 20.09.2019, counsel for the respondent makes suggestion that, after August - 2011, when petitioner returned from Chennai, she did not went back to Chennai. Further, during the cross- examination of PW.2 dated 04.10.2019, counsel for respondent makes a suggestion that, after returning from Chennai, during August - 2011, the petitioner used to force the respondent to come to Bengaluru. Further, during the cross-examination of PW.1 dated 06.07.2018, counsel for the respondent makes a suggestion that, on 17.10.2011, when petitioner along with her relatives, went to the house of respondent situated at Chennai, they quarreled with the respondent, hence a complaint has been lodged against them. All these suggestions goes to show that, petitioner and respondent have lived together till 2011 and the petitioner has made efforts for re-union. In order to constitute shared household, it is necessary that, parties should resided under same roof and it is not necessary whether they resides at Chennai or at Bengaluru. Further, the facts and circumstances of the case relied upon by 12 Crl. Misc.No.10 - 2013 counsel for the respondent is entirely different from the present case in hand. In the case relied upon by the respondent, the petition under P.W.D.V. Act, 2005., has been filed by sister against mother and brother and in the said case, she was residing in her husband's house and there was long standing separation. Further, when she set up her own house with her husband, her right to reside in the parent's house ends and though she may be entitled for share in the property, she cannot claim the said residence as her "shared household". However, mere desertion does not end the right of the petitioner to reside in the matrimonial house and in the objection to main petition, the respondent himself has stated that, divorce proceeding is pending, hence at the time of filing of petition, domestic relationship was intact.
11. In the objection, it is the contention of the respondent that, petitioner is guilty of infidelity and disloyalty towards him. She got removed her uterus secretly to avoid pregnancy, hence she is avoiding medical examination to keep the respondent and his parents in the dark about her action. According to respondent, she is living a wayward life with men of her own choice in 13 Crl. Misc.No.10 - 2013 Bengaluru, keeping aloof from the respondent and the petitioner used to threaten to commit suicide to cover up her affairs with her paramours and she deserted the respondent with the intention to live happily in the Bengaluru and to enjoy her choice. The respondent makes vague allegation upon the character of the petitioner and fails to mention the name of the persons. However, at the time of examination-in-chief of RW.1, the respondent claims that, petitioner had illicit relationship with her uncle, hence she used to visit Bengaluru again and again. If the petitioner really had such relationship why the respondent failed to mention the name of that person in the objection, that itself goes to show that, it is an after thought. During the cross-examination of PW.1, the counsel for respondent confronts a photo and petitioner identifies the person in photograph as herself and her uncle, hence the said photograph was marked as Ex.R.2. Thereafter, she admits the suggestion that, the person in the photograph is her elder sister's husband, however she denies the suggestion that, she has illicit relationship with him. During the cross-examination of RW.1, when he was confronted with a photograph, the respondent admits the suggestion that, persons in the photograph are elder sister and 14 Crl. Misc.No.10 - 2013 brother-in-law of the petitioner, hence the said photograph was marked as Ex.P.6. When he was confronted with Ex.R.2, the witness claims that, after marriage he came to know that, person in the photograph is husband of sister of the petitioner. According to respondents own contention, petitioner is daughter of his mother's brother and during the cross-examination of PW.2, counsel for the respondent makes a suggestion that, mother of the respondent is his own sister and she is part of his family. He further makes a suggestion that, prior to marriage, they had cordial relationship. In view of the same, the contention of the respondent that, only after marriage he came to know that, person in Ex.R.2 is brother-in-law of the petitioner cannot be relied upon. Further, on perusal of Ex.R.2 and Ex.P.6, it is clear that, Ex.R.2 is edited photograph and in view of above observation, it is very clear that, the respondent is making vague allegations against the character of the petitioner. He further fails to prove that, petitioner has got her uterus removed and no corroborative evidence has been placed on record to that effect. In Vijaykumar Ramachandra Bhate Vs. Neela Vijaykumar Bhate, 2003(6) SCC 334, the Hon'ble Supreme Court of India held that, character assassination of wife by Appellant husband in 15 Crl. Misc.No.10 - 2013 the written statement constitutes mental cruelty for sustaining the claim for divorce under section 13(1)(i-a) of Hindu Marriage Act. The Hon'ble Court further held that, leveling, disgusting accusations of unchastely and indecent familiarities with the person out side wedlock and allegations of extra marital relationship is a grave assault on character, honor, reputation, status as well as health of the wife. In view of above observation, though the petitioner fails to prove physical abuse, she successfully proves that, the respondent has subjected her to mental and economic abuse.
12. At the time of argument, counsel for respondent contends that, at the time of filing of petition, there was no pleading, hence petition needs to be dismissed. However, though at the time of filing petition, petitioner has not filed pleadings, she has filed interim application, wherein she has made same allegation, as that of her affidavit in lieu of her examination-in-chief and based upon those averment, respondent has filed objections to main petition. Further, it is the duty of the counsel to comply the procedure and due to the lapses on part of the counsel, party 16 Crl. Misc.No.10 - 2013 should not suffer. The Hon'ble Supreme Court of India in number of judgments has held that, procedure is hand made of justice and not the mistress. Procedural law should not be tyrant but a servant and not an obstruction but an aid to justice. The Hon'ble Supreme Court of India in Sushil Kumar Sen Vs. State of Bihar reported in 1975 (1) SCC 774 held that, the humanist rule that, procedure should be the hand made, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. Hence, a petition cannot be dismissed merely on a technical ground, when there is a genuine case of domestic violence. Further, in Ramesh Chander Kaushal Vs. Venna Kaushal (1978) 4 SCC 70, held that "This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statues calling for construction by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation, if it has to have 17 Crl. Misc.No.10 - 2013 social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation, if it has to have social relevance. So viewed, it is possible to be selective to picking out that, interpretation out of two alternatives which advance the cause of the derelicts". Though, the said observation was made pertaining to section 125 of Cr.P.C., purpose of P.W.D.V. Act, 2005., is also to protect women from domestic violence, which also includes economic abuse, hence the observation is applicable to the present case.
13. In the present petition, the petitioner is not entitled to protection order, as she has failed to prove the physical abuse. She has also prayed for residence order, monetary relief of Rs.5,000/- per month towards medical expenses, Rs.10,00,000/- towards compensation and Rs.30,000/- per month towards maintenance. With respect to income of respondent, it is the contention of the petitioner that, respondent is a Diploma Degree holder in Civil Engineering and has also completed his Hotel Management course, he is working in a private construction company and earning more 18 Crl. Misc.No.10 - 2013 than Rs.30,000/- per month, respondent and his parents have let out 8 house and getting rental income of Rs.80,000/- per month, he has fixed deposit for huge amount and also invested in various companies. On the other hand, it is the contention of the respondent that, he is unemployed and he is dependant on his father, who is a pensioner, hence he has no capacity to pay the maintenance to the petitioner and petitioner is also qualified and she is capable of earning livelihood. During the cross-examination of PW.1 dated 13.06.2018, she admits the suggestion that, she has no documents to prove that, the respondent is getting salary of Rs.30,000/-. She further admits the suggestion that, in the complaint lodged by her against the respondent i.e., Ex.P.4, she herself has stated that, the respondent is not doing any work. Thereafter, witness claims that, after marriage for 6 to 7 years, the respondent did not worked anywhere. During the cross- examination of RW.1, he himself has admitted that, during 2009, due to the force of petitioner, for 6 month, he came to Bengaluru and worked at BLK Welders Company. During the examination-in- chief, petitioner has produced employment certificate issued by BLK Weld Engineering and got that marked as Ex.P.8. On perusal 19 Crl. Misc.No.10 - 2013 of Ex.P.8, the respondent has worked there from 01.07.2009 till 01.03.2010 and during the said period, he was drawing salary of Rs.6,500/- per month. Further, during the cross-examination of RW.1 dated 10.07.2014, the respondent deposes that, there is a house in the name of his father and there is another house in the name of his mother. According to him, he is getting rent of Rs.5,000/- from the house which is in the name of his mother. However, no corroborative evidence has been placed on the record to that effect by the respondent to prove that, he is getting only Rs.5,000/- as rent. Further, it is not the case of the respondent that, he is suffering from any illness or ailment or he is having any disability, his only contention is he is not earning and he is unemployed. Being educated, able bodied, a person cannot be allowed to take the defense of unemployment only to defeat the right of maintenance of his wife. In Shamima Farooqui Vs. Shahid Khan reported in 2015 (5) SCC 705, the Hon'ble Supreme Court of India held that, "some times, a plea is advanced by the husband that, he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If 20 Crl. Misc.No.10 - 2013 the husband is healthy, able bodied and he is in position to support himself, he is under legal obligation to support his wife".
14. In the present case, if the respondent is maintaining himself even without employment then that itself goes to show that, even without employment, he is having sufficient means, hence having regard to facts and circumstances of the case, as there are no dependants on the petitioner, this court is of the considered view that, awarding Rs.6,000/- per month towards maintenance of petitioner and Rs.2,00,000/- towards compensation would be just and proper. Hence, I answered both Point No.1 and Point No.2 in the PARTLY AFFIRMATIVE.
15. Point No.3: For the foregoing discussion and finding on Point No.1 and 2, following order is passed;
ORDER The petition filed by the petitioner under section 12 of the Protection of Women from Domestic Violence Act., 2005 is hereby Partly allowed.
The respondent is directed to pay
maintenance of sum of Rs.6,000/- (Six
21 Crl. Misc.No.10 - 2013
Thousand) per month to the petitioner, from
the date of this order, till her lifetime or till she remarries whichever is earlier.
Further, the respondent is directed to pay compensation of sum of Rs.2,00,000/- (Two Lakh) to the petitioner, within three month from the date of this order.
The parties shall bear their own cost.
The office is directed to supply free copy of this order to the parties and to the protection officer.
(The order dictated to the Stenographer, transcribed and typed by him and corrected and pronounced and signed by me on this 28th day of January 2020) (POOJA SHETTI) METROPOLITAN MAGISTRATE, TRAFFIC COURT- V, BENGALURU.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PETITIONER:
P.W.1 Smt.C.Latha. P.W.2 Chandradasa.P. LIST OF DOCUMENTS MARKED FOR PETITIONER Ex.P.1 Marriage Invitation Card. Ex.P.2 Marriage Photo. Ex.P.3 C.D. Ex.P.4 Copy of complaint along with Acknowledgement. 22 Crl. Misc.No.10 - 2013 Ex.P.5 Photo. Ex.P.6 Photo. Ex.P.7 C.D. Ex.P.8 Employment Certificate. Ex.P.9 Certified copy of Town Survey Register. Ex.P.10 Certified copy of petition for dissolution of Marriage. Ex.P.11 Pelvic Scan Report given by Raheja Diagnostics. Ex.P.12 Pelvic Scan Report given by Suman Scans. Ex.P.13 Photos. Ex.P.14 Print-Out of property details and property tax receipt. Ex.P.15 Print-Out of property details and Property Tax Receipt. Ex.P.16 Print-Out of property details and Property Tax Receipt. Ex.P.17 Print-Out of property details and Property Tax Receipt. Ex.P.18 Photos and C.D. Ex.P.19 Certificate under section 65(B) of Indian Evidence Act. Ex.P.20 Service Certificate issued by Bharath Electronics Limited. Ex.P.21 Copy of Pay Slip. LIST OF WITNESSES EXAMINED FOR RESPONDENT R.W.1 Sri.G.Sureshkumar. LIST OF DOCUMENTS MARKED FOR RESPONDENT: Ex.R.1 Photo. 23 Crl. Misc.No.10 - 2013 Ex.R.2 Photo. Ex.R.3 to 8 6 Photos. Ex.R.9 C.D. Ex.R.10 Marriage Invitation Card.
Ex.R.11 & 12 Two Hotel Bills issued by Hotel Dasaprakash.
(POOJA SHETTI) METROPOLITAN MAGISTRATE, TRAFFIC COURT- V, BENGALURU.