Bangalore District Court
/ 1. Smt. M.Sahana @ Sahana Madan vs N.S.Madan on 31 October, 2015
IN THE COURT OF LXIII ADDL., CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
(CCH-64)
DATED THIS THE 31st DAY OF OCTOBER 2015.
PRESENT
SRI.JOSHI VENKATESH, B.A.LL.B,(Spl),
LXIII Addl., City Civil & Sessions Judge,
Bangalore.
Crl.Appeal No.1413 of 2014
Appellants / 1. Smt. M.Sahana @ Sahana Madan,
Petitioners : W/o N.S.Madan
Aged about 37 years,
2. Shivani Madan, D/o N.S.Madan
Aged about 15 years,
Both are r/o No.49/6, 2nd Floor,
Shankaramath Main Road,
Shankarapuram,
Bangalore - 560 004.
(By Sri.S.Ganesh Shenoy, Adv.,)
/Vs/
Respondent/ N.S.Madan,
Respondent : S/o N. Satish Chander,
Aged 41 years,
R/at No.14/3, 1st Floor, Rangarao Road,
Shankarapuram,
Bangalore - 560 004.
(By Sri.H.M., Adv.,)
*****
Crl.A.1413/2014
JUDGMENT
1. Petitioners/appellants filed this appeal U/Sec.29 of Protection of Women from Domestic Violence Act, 2005 and prayed this Court to allow the appeal and set aside order dated 08-07-2014 rejecting the I.A.No.1 filed by the appellants under sec. 23(2) of D.V. Act 2005 denying the Interim Maintenance sought on behalf of the second petitioner.
2. Parties to the appeal are referred as per their ranks in the trail court. Petitioners are the appellants and respondent is the respondent in the trial court.
3. Brief facts of the case are as under :
Petitioners filed C.Misc.No.97/2014 under section 12 of the protection of women from domestic violence act 2005 and sought following relief's.
(1) Direction to respondent to pay sum of
Rs.5,23,360/- as shown in the annexure towards
educational expenses of the petitioner no.2, (2) Direction to respondent to pay sum of Rs.10,000/-
pm towards monthly rent to the first petitioner Crl.A.1413/2014 (3) Direction to respondent to pay sum of Rs.10,000/- pm towards monthly maintenance of the 2nd petitioner.
In the said petition petitioners filed I.A.No.1 seeking interim maintenance of Rs.10,000/- p.a. to the 2nd petitioner.
4. After service of notice respondent appeared before the trial court and filed objection to the main petition and also to the I.A.No.1 filed by the petitioner. Respondent prayed the Court to reject the I.A.No.1 filed by the petitioner. Trail court after hearing passed order on I.A.No.1 and rejected the application of the petitioners. Trial court while passing its order dated 08.07.2014 on I.A.No.1 was of the view that, the above petition in so far as that relate to the claims made by the 1st appellant U/Sec.12 of the D.V.Act is not maintainable. As such she is not entitled to the relief's claimed by her. Trial court came to the conclusion that, second appellant not placed any material to show that respondent is capable of paying the amount and it is only after enquiry court has to decide the monitory relief sought by petitioner no.2.
Crl.A.1413/2014
5. Hence the present appeal is filed on the following grounds:
The order passed by the trial court is contrary to law and facts and the same is unsustainable. Trial court has totally misdirected itself to the facts of the case and has failed to appreciate the material available on record on their proper perspectives. Trial court not taken into consideration all the evidence of PW.1 and PW.2 in the earlier proceedings. As far as finding of the trial court on Point No.1 formulated in the impugned order is concerned, it is seen that, even for enhancement of the rental to the extent of Rs.10,000/- she needs to make an application under the provisions of D.V.Act. Sec.12 reads that "An aggrieved person may present an application to the Magistrate seeking one or more relief's". Sec.25 (2) of the Act provides that, if the Magistrate on receipt of the application for the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may for reasons to be recorded in writing pass such order, as he may deem appropriate. The relief sought in the present petition U/Sec.12 of the D.V.Act includes a prayer Crl.A.1413/2014 for enhancement of rental amount which claim was well competent and trial court has totally misconstrued and misdirected itself in holding that the petitioner cannot seek enhancement U/Sec.12 of the D.V.Act. The said finding is illegal. The finding of the trial court in para 11 of the impugned order that the petitioner is not entitled to seek relief U/Sec.12 of the D.V.Act and the same is hit by res judicata is liable to be set-aside. The appellants had placed ample evidence as to the expenses incurred by them and also duly pointed out the hardship that is being faced by the appellants in relation to meeting the recurring expenses of 2nd petitioner before the trial court. Further trial court rejected I.A.No.1. Trial court erred in holding that there was no material placed on record to show that, the respondent is capable of paying the interim maintenance amount sought for the 2nd petitioner. Trial court further erred in holding that it is only after enquiry it can decided as to the financial capacity of the respondent and monetary relief that may be ordered by the Court. Along with other grounds shown in the petition prayed this Court to allow the appeal as prayed.
Crl.A.1413/2014
6. After filing of the appeal, the same is registered and made over to this Court for disposal in accordance with law. This Court issued notice to the respondent for his appearance before the court. Respondent appeared before the Court through advocate and filed detailed objections praying this court to reject the appeal filed by the appellant/petitioner.
7. Heard both the advocates. LCR not called as advocate for the appellant/petitioners filed the necessary records before the court. Both the advocate advanced the arguments. Perused the records.
8. The point that arise for consideration are:
Point No.1: Whether finding of the trail court regarding maintainability of petition of the 1st petitioner is sustainable?
Point No.2: Whether 2nd petitioner is entitled for the interim maintenance as sought in the I.A.No.1 ?
Point No.3 : What Order ?
9. My findings on the above points are as under:
Point No.1: In the Negative, Point No.2: In the Negative, Point No.3: As per the final order for the following:
Crl.A.1413/2014 REASONS
10. Point No.1: After hearing the arguments and on perusal of the records before the Court it is seen that, petitioner filed petition U/Sec.12 of the Protection of Women from Domestic Violence Act, 2005 before the trial court and sought relief of (1) Direction to the respondent to pay educational expenses of Rs.5,23,360/-,(2) Monthly maintenance to the second petitioner and (3) To pay Rs.10,000/- towards monthly rental to the 1st petitioner. Respondent is husband of the first petitioner and father of the second petitioner. The relationship between petitioners and the respondent is not disputed. Respondent filed detailed objections and prayed the court to reject the application filed by the petitioner. Along with the main petition I.A.No.1 is filed by the petitioner No.2 for interim maintenance of Rs.10,000/- p.m. till disposal of the above application. Affidavit is also filed in support of the application. In the affidavit petitioner No.1 stated that, petitioner apprehends repetition of the acts of domestic violence by the respondent against which relief is sought in the accompanying application. Respondent has Crl.A.1413/2014 threatened the applicant that he will not pay any amount to them for maintenance. Respondent appeared before the Court and filed objections stating that, respondent's father is financially assisting the respondent by paying Rs.6,000/- p.m. for house rent and has paid the fees of the 2nd petitioner as ordered by the Court. Therefore, petitioners cannot again file the petition under the same provision.
11. It is vehemently argued by the advocate for the petitioner that, order of the trial court is not sustainable in law. Admittedly there is no any provision is made for future educational expenses of petitioner No.2 and maintenance of petitioner No.2. Under changed circumstances there is enhancement of rent. To show the same the petitioner filed Xerox copy of the rental agreement before the Court. Finding of the trail court petition filed by the 1st petitioner is not maintainable is not correct. Hence petitioner No.1 seeks alteration or modification of the earlier order and prayed for enhancement of monthly rental to the extent of Rs.10,000/- p.m. On the contrary it is argued by the advocate for the respondent that, already respondent complied with the order Crl.A.1413/2014 of the Court. Hence successive application is not maintainable. It is hit be the principles of res judicata.
12. I have gone through the order passed by the trial court. Even though I.A.No.1 is filed for interim maintenance to the second petitioner, trial court raised the point of maintainability of the petition filed by the petitioner No.1 and 2 U/Sec.12 of the D.V.Act. Trial court came to the conclusion that the petition filed by the petitioner U/Sec.12 of the D.V.Act is not maintainable. Trail court in the order stated that, petitioner No.1 cannot seek the relief U/Sec.12 of the D.V.Act, as change in circumstances is specifically governed U/Sec.25 of the D.V.Act. Trail court is of the view that in Crl.Misc.No.101/2008 petitioner no.1 granted protection order. Hence present petition of the 1ST petitioner is hit by respondent-judicata. Court feels finding of the trail court is not proper. Merely in the petition petitioner shown wrong provision of the act, it itself is not sufficient say that, petitioner is not entitle for relief as sought. Petitioner has sought the relief of enhancement of the rent amount to the extent of Rs.10,000/- per month under the changed circumstances. Whether 1st petitioner is entitle for the Crl.A.1413/2014 enhancement of the rent or not as sought is to be looked into after the evidence led by the parties to the petition.
13. Sec.12 reads that "An aggrieved person may present an application to the Magistrate seeking one or more relief's". Sec.25(2) of the Act provides that, if the Magistrate on receipt of the application for the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may for reasons to be recorded in writing pass such order, as he may deem appropriate Hence this court is of the opinion that the said findings of the trail court that petition filed by the 1st petitioner under sec.12 of the D.V.Act is not maintainable is liable to be set-aside. This Court is of the opinion that, petition filed by the petitioner No.1 seeking direction to respondent to pay Rs.10,000/- p.m. towards house rent is maintainable one and it is for the trail court to decide rent on the basis of the evidence and records available before it. It is for the trail court to grant or reject the claim of the petitioner after evidence of the parties to Crl.A.1413/2014 the petition. Accordingly Point no.1 answered in the Negative.
14. Point no.2: Trial court while answering Point No.3 clearly observed that, petitioner has not produced any documents before the Court to show that, respondent is capable to pay the interim maintenance amount. It is only after enquiry this court can decide as to the financial capacity of the respondent and the amount to be granted. It is vehemently argued that records of the earlier proceedings in CrlMisc.101/2008 were placed on record as per directions. Respondent cannot be allowed to escape from his obligations to maintain his wife and child.
15. In unreported decision of Hon'ble High Court of Karnataka in C.R.815/2009dated 09.12.20109 Hon'ble High Court of Karnataka clearly held that If order passed by the Magistrate is not a ex-parte order and order passed is after issuing notice to the respondent, then the Magistrate is required to held an enquiry as prescribed in the Cr.P.C. and then record his finding.
16. Grant of interim maintenance is provided under sub-section (1) of Sec.23 of the Act. But sub-section (2) of the Act i.e., Crl.A.1413/2014 23(2) permits the Magistrate to grant an ex-parte order on the basis of the affidavit in such form without notice to the respondent or it is the order after notice to the respondent. The distinction has to be drawn between granting of ex- parte interim maintenance order and order passed granting interim relief after notice to the respondent. Sub-section (1) of Section 28 it is clear that, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offence under section 31, the procedure for enquiry as prescribed by Cr.P.C., shall be followed. Therefore it can be safely concluded that even grant of interim relief is permissible U/Sec.23(1) of the Act procedure prescribed by the Cr.P.C. has to be followed. However there is exception that sub-section (2) of Sec.28, it reads as under "nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23".
17. If notice is issued to the respondent, then Magistrate has to make a preliminary enquiry to grant interim maintenance. Admittedly in this case as on the date of passing of the order on I.A.No.1 by trail court no evidence is recorded or Crl.A.1413/2014 enquiry is conducted as it reflects from the records before the Court. Respondent filed detained counter to the application of the petitioners and denied the contents of the application of the petitioners. He also stated that he has no means to pay. Admittedly there is no enquiry to such contentions and defense. When it is so, trial court is proper it is findings that, granting of monthly rental requires enquiry. This court is also of the view that enquiry is required for granting the interim maintenance. Hence the view of the trial court in rejecting the application filed by the petitioner No.2 for granting interim maintenance is not require any interference. Trial court passed proper order rejecting the application of the petitioner to grant interim maintenance. Hence, I am of the opinion that, looking to any angle the application filed by petitioner No.2 for grant of interim maintenance requires no interference. Accordingly Point No.2 is answered in Negative.
18. Point No.2: In view of the discussion made above and the findings given on point No.1, this court is court is of the opinion that petition filed by the petitioner no.1 under sec. 12 of D.V.Act is maintainable. Hence appeal filed by the Crl.A.1413/2014 appellant is partly allowed. Hence I am going to pass the following:
ORDER
1. Appeal preferred by the appellant against the order on I.A.No.1 passed in Crl.Misc.No.97/2014 by M.M.T.C.-IV, dated 08.07.2014 is partly allowed.
2. Finding of the trail court regarding maintainability of the petition of the petitioner No.1 is set aside and it held that petition filed by the petitioner no.1 before the trail court is maintainable.
3. Finding of the trail court in rejecting the claim of the petitioner no.2 for interim maintenance is confirmed.
4. Office is directed to return the trial court records along with the copy of this order to the trial court as early as possible.
(Dictated to the Stenographer, the transcript revised by me and then pronounced in st the open court on this the 31 day of October 2015).
(JOSHI VENKATESH), LXIII Addl., City Civil & Sessions Judge, Bangalore.
Crl.A.1413/2014