Karnataka High Court
Sri Sushanth J vs Smt Navya B T on 28 June, 2023
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CRL.RP No. 1064 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 1064 OF 2022
BETWEEN:
SRI. SUSHANTH.J
S/O. J.RAJASHEKHARA
AGED ABOUT 34 YEARS
R/A #12, 1ST MAIN ROAD
5TH CROSS, LOKANAYAKA NAGAR
METAGALLI POST
MYSURU - 570 016.
...PETITIONER
(BY SRI. CHAMPOO KAVYA S, ADVOCATE)
AND:
1. SMT. NAVYA.B.T
W/O. SUSHANTH.J
D/O. B.C.THONTESH
AGED ABOUT 27 YEARS
2. KUM. MOULYA
D/O. SUSHANT.J
AGED ABOUT 4 YEARS
MINOR REP BY HER NATURAL
GUARDIAN MOTHER
SMT. NAVYA B.T
BOTH R/A. BINDIGANAVILE ROAD
T.B.EXTENSION
NAGAMANGALA TALUK
MANDYA DISTRICT
...RESPONDENTS
(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE FOR R1 AND 2)
THIS CRL.RP IS FILED U/S. 397 R/W SECTION 401 CR.P.C
PRAYING TO ALLOW THE INSTANT REVISION PETITION AND SET
ASIDE THE IMPUNGED ORDER DATED 07.07.2022 PASSED BY THE
HON'BLE 2ND ADDITIONAL DISTRICT AND SESSIONS JUDGE,
MANDYA IN CRL.A.NO.401/2021 AT ANNEXURE - A AND ETC.,
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED ON 06.06.2023, COMING ON FOR PRONOUNCEMENT
OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 1064 of 2022
ORDER
1. This petition is filed by the petitioner / husband being aggrieved by the order dated 07.07.2022 passed in Crl.A No.401/2021 on the file of the II Additional District and Sessions Judge, Mandya, wherein the petitioner herein was directed to pay interim maintenance of Rs.20,000/- per month to the respondents by exercising the power vested under Section 29 of the Protection of Women from Domestic Violence, Act 2005 (for short 'D.V Act').
2. The petitioner is the respondent before the Trial Court and the Appellate Court.
Brief facts of the case are as under:
3. It is the case of the respondent that, Smt.Navya- respondent No.1 is the legally wedded wife of the petitioner and their marriage was solemnized on 01.05.2016. The couple has a female child namely, Moulya. It is stated that, the respondent No.1 was being subjected to cruelty and harassment, both physically and mentally, by the husband and in-laws. Consequently, a complaint came to be lodged by the respondent No.1 before the Nagamangala Town Police Station -3- CRL.RP No. 1064 of 2022 on 16.06.2019 for the offences under Sections 498-A, 323, 506 read with Section 34 of IPC.
4. It is further stated that, at the time of marriage, dowry was given in the form of gold, cash to the petitioner on demand. It is further stated that, since the respondent No.1 could not tolerate the cruelty and harassment of the husband and in-laws, she has informed to her parents in that regard. In the meantime, she has conceived and the petitioner and his parents were not taking care properly, as a result, the parents of the respondent No.1 took her to their house in the month of August 2017.
5. Even after she gave birth to a child, the petitioner and his parents did not mend their ways, consequently, the respondent No.1 filed Criminal Miscellaneous Petition No.74/2019 before the Court of Senior Civil Judge and JMFC, Nagamangala, contending inter alia an application for interim maintenance was made before the Court. The Court kept the application in abeyance and proceeded further.
6. Being aggrieved by the same, respondent No.1 approached the Appellate Court. The Appellate Court considering the facts and circumstances of the case and also -4- CRL.RP No. 1064 of 2022 the precedents of various High Courts, awarded interim maintenance of Rs.20,000/- payable to the respondent Nos.1 and 2. Hence this revision.
7. Heard Shri Champoo Kavya S, learned counsel for the petitioner and Shri V. B. Siddaramaiah, learned counsel for the respondent - State.
8. It is the submission of the learned counsel for the petitioner that, the impugned order passed by the Appellate Court is erroneous and opposed to the facts and circumstances of the case and hence, it is liable to be set aside.
9. It is further submitted that, the respondents are the resident of Nagamangala Taluk and petitioner is the resident of Mysuru, however, working at Bengaluru. It is further contended that, respondents before the Trial Court prays for maintenance of Rs.20,000/- per month in the main prayer. However, the Appellate Court granted interim maintenance of Rs.20,000/-, which is against to the facts of the case.
10. It is further submitted that, the Appellate Court should have considered the judgment of the Hon'ble Supreme Court in the case of Rajesh v. Neha1. The Appellate Court 1 (2021) 2 SCC 324 -5- CRL.RP No. 1064 of 2022 before passing any interim order for maintenance, it should have obtained the affidavit of the parties to clarify the income. Even though the petitioner herein had filed an affidavit to comply the judgment of the Hon'ble Supreme Court, the respondent No.1 had not filed the said affidavit to disclose her income, hence, the order passed by the Appellate Court requires to be set aside.
11. Per contra, Sri V.B.Siddaramaiah, learned counsel for the respondents justified the order of the Appellate Court in granting Rs.20,000/- per month to the respondents and submits that, the Appellate Court after appreciating the financial capacity and also the domestic violence, which the respondent No.1 had been subjected to in the matrimonial home, granted interim maintenance in accordance with law.
12. It is further submitted that, the Act is enacted for the purpose to provide remedy under the civil law, which is intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. The petitioner is working as Software Engineer and it is established that, he is earning handsome salary and it is also established that the respondent No.1 is the legally wedded -6- CRL.RP No. 1064 of 2022 wife of the petitioner, hence, the interim maintenance granted by the Trial Court is justified and prays to dismiss the petition.
13. After having heard the learned counsel for the respective parties, it is necessary to have a cursory look upon the divergent opinion expressed by the Courts below in granting interim maintenance.
14. On application being filed for interim maintenance before the Trial Court, the Trial Court kept in abeyance the said application on the ground that, the respondent No.1 entered appearance in the case, it is held that, once the respondent No.1 appeared, enquiry has to be made before any interim order is passed. Being aggrieved by the same, the respondent No.1 herein had preferred an appeal before the Appellate Court under Section 29 of the D.V Act.
15. The Appellate Court after appreciating the facts and circumstances and also after considering the income of the petitioner herein, directed the petitioner herein to pay a sum of Rs.20,000/- per month to the respondents herein.
16. Be that as it may, now it is relevant to refer the provision of Section 23 of the DV Act, which reads thus: -7- CRL.RP No. 1064 of 2022
"23. Power to grant interim and ex parte orders.--
(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent."
17. On careful perusal of the above said provision, it appears that, if a Magistrate is satisfied, prima facie, the respondent No.1 having been subjected to domestic violence, the Court may grant interim order on the basis of the affidavit in such form as may be prescribed. No doubt, the said provision describes about the interim order.
18. On careful perusal of the objection filed by the respondent / husband and also the application filed by the petitioners before the Appellate Court, it appears that, the Appellate Court passed an interim order arbitrarily without -8- CRL.RP No. 1064 of 2022 following the procedure established under law and also not followed the precedents in the case of Rajesh v. Neha stated supra. Hence, it is appropriate to interfere with the order of the Appellate Court and also necessary to modify the same by considering the salary of the petitioner and also the expenditure.
19. Accordingly, I proceed to pass the following:
ORDER
(i) The Criminal Revision Petition is allowed in part.
(ii) The order dated 07.07.2022 passed in Crl.A No.401/2021 by the II Additional District and Sessions Judge, Mandya, is modified.
(iii) The petitioner shall pay interim maintenance of Rs.10,000/- per month from 07.07.2022 to till disposal of main petition pending before the Trial Court to the respondents.
(iv) No order as to costs.
Sd/-
JUDGE
UN