Bangalore District Court
/ Accused : 1. Sri K.C.Ramesh vs / : Smt.Anusha.M. @ Sonali.M on 20 April, 2017
IN THE COURT OF THE LXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-62)
Dated this the 20th day of April, 2017
PRESENT :- SRI.N.P.KOPARDE, B.A.,LL.B.(Spl.)
LXI Addl. City Civil & Sessions Judge,
Bengaluru City.
Criminal Appeal No. 111/2017
Appellant / Accused : 1. Sri K.C.Ramesh
Aged about 32 years
S/o.Late Channahanumaiah
2. Smt.Puttaakshmamma
Aged about 55 years
W/o.Late Chnnahanumaiah
3. Smt.Bhagya
Aged about 36 years
D/o.Late Channahanumaiha
4. Smt.Geetha
Aged about 34 years
D/o.Late Channahanumaiah
All are R/a. of Kemapanahalli
Mayaganahalli Post, Kasaba Hobli,
Ramanagara Taluk, Ramanagara
District.
(By Sri.N.Anjangowda, Adv)
V/s.
Respondent / : Smt.Anusha.M. @ Sonali.M
Complainant Aged about 23 years
D/o.A.N.Manjunatha
W/o.Sri K.C.Ramesh
R/a. No.125, Sai Jyothi Road
2 Crl.A. No.111/2017
Kote Beedi, Kengeri
Bangalore-60.
(By Sri.D.D.S., Adv.)
JUDGMENT
The appellant/accused herein preferred this appeal under Sec.29 of the Domestic Violence Act assailing the order passed by the learned MMTC, Bengaluru in C.Misc. No.174/2016 dated 13.01.2017 praying for setting aside the impugned order by allowing the appeal.
2. The appellants are respondents in the Court below. For the sake of convenience, the parties are referred to as petitioner and respondents as per their ranks in the Court below.
3. The facts leading to the appeal are as under:
The petitioner Smt.Anusha filed the petition under Section 29 of the Protection of Women from Domestic Violence Act, 2005 against the respondents for various relief's. Along with the main petition, the petitioner filed another application under Section 20, 23(2) of Domestic Violance Act praying for granting interim maintenance. In response to the notice the respondents appeared and filed objection to the application under Sectin 20, 23(2) of D.V. Act. After hearing both sides and holding enquiry, the Court below passed the impugned order directing the respondents to pay 3 Crl.A. No.111/2017 interim monthly maintenance of Rs.15,000/- to the petitioners towards maintenance and medical expenses of child till disposal of the case. It was contended by the petitioner Anusha that the respondent No.1 is her husband and their marriage was solemnized on 4.6.2015 at Ramanagara as per the custom prevailing in the community and during the wedlock a female child was born who is now aged about 10 months. That the petitioner is unemployed and she is not having any source of income to maintain herself and her child. The child is premature baby, hence the child requires regular treatment. The respondent doing business and having sufficient source of income of Rs.80,000/- per month and inspite of having sufficient source of income, the respondents refused and neglected to maintain petitioner and her child. Therefore she sought interim maintenance of Rs.30,000/- per month towards their livelihood expenses etc., The respondent filed objection and admitted that the petitioner is his wife and a female child is born to them on 11.3.2016. The respondent used to look after the petitioner as the duty bound husband by providing all necessaries with love and affection, but the petitioner always insisted the respondent No.1 to make separate house, so that they could lead lavish life. When the respondent No.1 did not heed to the words of the petitioner she 4 Crl.A. No.111/2017 started quarrelling with respondents and also used to defame the respondents by saying that they are residing in old house. The petitioner without having any sufficient reasons deserted the respondents. The petitioner did not behave properly with respondents and she started quarrelling with the respondents. The respondents then started to construct new house. But the petitioner did not mend her attitude, she never wished to do house hold works and always insisted the respondent No.1 to bring food from Hotel. The mother of the petitioner and petitioner were always abusing the parents and used to degrade the respondent in front of neighbourers and friends. She used to abuse the respondent No.1 that he is not correct match to her and she got married only to satisfy her parents. She usually behaved arrogantly with disrespect to her husband and relatives. The petitioner on her own volition left the matrimonial house and never returned. All the efforts made by the respondent No.1 to bring her to matrimonial home went in vain.
The respondent has to look after his old aged mother and sister and he is unable to pay maintenance to the petitioner. He further contended that the has no such source of income, so as to pay huge amount of interim monthly maintenance to the petitioner and prays to dismiss the petition.
5 Crl.A. No.111/2017
4. After hearing both sides the Court below passed the order directing the respondent to pay interim monthly maintenance of Rs.15,000/- to the petitioners towards maintenance and medical expenses of the child till the disposal of the main petition.
5. Being aggrieved by the said order the appellants approached this court in an appeal challenging the propriety and correctness of the order on the following grounds:
6. The impugned order passed by the learned Magistrate is bad in law and it is manifestly erroneous and argument employed by the Learned Magistrate is utterly unsustainable in law. The respondent has erred in coming to the conclusion that the respondent is entitled for interim maintenance and the order has been obtained by the petitioner by suppression on facts. The learned Magistrate has opined that the appellant No.2 to 4 are depending upon the appellant No.1 and appellant No.2 being aged requires Rs.2,000/- per month towards medical expenses. The learned Magistrate has erred to notice that the appellant No.1 is not having any income as stated by the respondent and absolutely no documents were produced by the respondent to show the income of the appellant No.1. The learned Magistrate has failed to appreciate the fact that the appellant No.1 is unemployed and 6 Crl.A. No.111/2017 struggling for livelihood, the said facts are suppressed by the respondent before the learned Magistrate. The impugned order passed by the learned Magistrate is too harsh and severe. Hence, it is prayed to set aside the impugned order dated 13.1.2017 in C.Misc. No.174/2016 by the Learned M.M.T.C., Bangalore by allowing the appeal.
7. In response to the notice the respondent appeared through her counsel and submitted that the order passed by the court below is just and proper and it is based on the sound principles of law and facts. So interference by this Court in the findings given by the Court below is not required. Hence, it is prayed to dismiss the petition.
8. Heard both sides.
9. The following points arise for my consideration;
1. Whether the order passed by the Court below requires any interference by this court?
2. What order?
10. My findings on the above points are as under:
Point No.1 : In the affirmative, Point No.2 : As per the final order for the following: 7 Crl.A. No.111/2017
REASONS
11. Point No.1:- It is the specific case of the petitioner/respondent that she is the wife of the appellant No.1, their marriage was solemnized on 4.6.2015 at Ramangara as per the customs prevailing in their community, after marriage she gave birth to female child who is now aged about 10 months. After the marriage her husband and respondent No.2 to 4 started ill-treating her. That the petitioner is unemployed, she is not having any source of income to maintain herself and her child. Her child is premature baby, it requires medical treatment. The respondent being a businessmen and having income of more than Rs.80,000/- refused and neglected to maintain herself and her child. As against this it is the contention of the respondent that even though the respondents looked after the petitioner with utmost love and affection she did not properly behave with the respondent, she was always insisting for making separate house and she insisted to lead lavish life. She used to pick up quarrel with respondents and used to defame the respondents by saying that they are residing in old house. It is further contended that the petitioner on her own volition without just and reasonable grounds deserted the respondents and left matrimonial home and never returned inspite 8 Crl.A. No.111/2017 of best efforts made by the respondents to bring her back to the matrimonial home.
12. The learned Magistrate conducted enquiry and recorded the evidence of PW-1 i.e., petitioner, she reiterated the averments of the application. But she did not produce any documents to show the income of the respondent No.1. The Court below observed that on careful reading of the evidence it appears that respondent has stated that he is not having any income, as stated by the petitioner and his old aged mother also depending upon him. He has to look after them. Absolutely no documents produced by the petitioner to show the income of the respondent. However, the petitioner being aggrieved person along with ten months female child may be unable to maintain herself and her child. Therefore, at this stage some order of maintenance is necessary to meet the ends of justice and observing that it has directed the respondent to pay monthly maintenance of Rs.15,000/- towards interim maintenance to the petitioner towards maintenance and medical expenses of the child.
13. On perusal of the order sheet it can be seen that even though the Court below conducted enquiry it appears that evidence of PW-1 was recorded on 23.12.2016 and PW-1 was cross-examined on the same day and matter was posted on 9 Crl.A. No.111/2017 3.1.2017, on that day the learned Magistrate heard the arguments on I.A. No.1 and posted the matter for orders. It appears that no opportunity was given to the respondents to adduce their evidence. In the ruling reported in 2011(3) KCCR 2221 in a case of Krishnamurthy Nookula V/s. Y.Savitha the Hon'ble High Court has held that -
"The code of Criminal Procedure prescribes different procedures for trial of summons cases and warrant cases. It depends on the nature of offence committed and the punishment prescribed by the Indian Penal Code or other law for the time being in force. The provisions of Sections 18, 19, 20, 21, 22 and 23 of the Domestic Violence Act make contravention of the orders passed under the Act punishable as an offence under Section 31 of the act. To try a person for contravention of any of he orders passed (interim or final) under the provisions referred to above, Section 31 of the Act would apply. It postulates, a breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs.20,000/- or with both."10 Crl.A. No.111/2017
Thus punishment prescribed is imprisonment up to one year or fine of Rs.20,000/-. Undoubtedly, procedure prescribed for similar trial i.e. summons case has to be followed.
14. In all summons case both parties have to adduce their evidence of their choice, then only the order has to be passed. But in this case it appears that the evidence of PW-1 alone is recorded and after closure of the petitioners evidence no stage for respondent evidence is posted. On the very next day the learned Magistrate heard the arguments of the petitioner i.e., 3.1.2017 and passed the impugned order on 16.1.2017. The order sheet does not reflect as to whether the respondent was given an opportunity of establishing his case. Thus, I feel that the learned Magistrate has passed the impugned order without providing an opportunity of being heard to the respondent. Inspite of having no documents to show the income of the respondent it passed the order directing the respondent to pay interim monthly maintenance of Rs.15,000/- to the petitioner which is in my opinion is too harsh because the respondent is also having responsibility of maintaining his old aged mother and his sister. So, the order passed by the Court below suffers from some infirmities and therefore, liable to be set aside. Thus, I am of the opinion that the order passed by the 11 Crl.A. No.111/2017 Court below is erroneous and interference by this Court is required. Hence, I answer Point No.1 in the affirmative.
15. Point No.2: Having regard to my above observations and finding on point No.1 in the 'affirmative', I proceed to pass the following:-
ORDER The appeal preferred by the appellant under Sec.29 of Domestic Violence Act is hereby allowed.
Consequently, the order passed by the trial Court in C.Misc. No.174/2016 dated 13.1.2017 is hereby set aside and matter is remitted back to the Court below.
The learned trial judge is directed to reconsider the application filed by the respondent for grant of interim relief applying the procedure prescribed for trial of summons cases under the Code of Criminal Procedure after giving opportunity to the respondents and petitioner to led evidence as they may choose.
However, the respondent is directed to pay maintenance of Rs.8,000/- per month to the petitioner and her child till further orders passed by the Magistrate on the application for interim relief, from date of order of Court below. 12 Crl.A. No.111/2017 Send back the copy of the Judgment to the Court below forthwith.
(Dictated to the stenographer, transcribed and typed by her, corrected and then pronounced by me in the open Court on this the 20th day of April, 2017) (N. P. Koparde) LXI Addl. City Civil & Sessions Judge, Bengaluru City.
13 Crl.A. No.111/201719.4.2017 20.4.2017 App-NAG Respondent-DDG Judgment pronounced in the Open Court (vide separate order) ORDER The appeal preferred by the appellant under Sec.29 of Domestic Violence Act is hereby allowed.
Consequently, the order passed by the trial Court in C.Misc. No.174/2016 dated 13.1.2017 is hereby set aside and matter is remitted back to the Court below.
The learned trial judge is directed to
reconsider the application filed by the
14 Crl.A. No.111/2017
respondent for grant of interim relief
applying the procedure prescribed for trial of summons cases under the Code of Criminal Procedure after giving opportunity to the respondents and petitioner to led evidence as they may choose.
However, the respondent is directed to pay maintenance of Rs.8,000/- per month to the petitioner and her child till further orders passed by the Magistrate on the application for interim relief, from date of order of Court below.
Send back the copy of the Judgment to the Court below forthwith.
LXI Addl. City Civil & Sessions Judge, Bengaluru City.