Karnataka High Court
Mr. Ashoka T vs Mrs. Varalakshmi M N on 28 August, 2023
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NC: 2023:KHC:30512
CRL.RP No. 647 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL REVISION PETITION NO. 647 OF 2022
BETWEEN:
1. MR. ASHOKA T
S/O MR THAMMEGOWDA
AGED ABOUT 38 YEARS
RESIDING AT PWD QUARTERS
SOLLAPURA ROAD
BASAVESHWARA CIRCLE
AFZALPURA, KALABURGI DISTRICT.
...PETITIONER
(BY SRI. M.T.NANAIAH SENIOR ADVOCATE FOR
SRI. RAJESH A., ADVOCATE)
AND:
1. MRS. VARALAKSHMI M N
Digitally
W/O MR ASHOKA T
signed by
SUMITHRA AGED ABOUT 33 YEARS
R RESIDINGA AT NO.202, 2ND FLOOR,
AMARTOWER 1ST CROSS
Location: GANDHINAGAR
High Court
BENGALURU - 560 009.
of Karnataka
AND ALSO RESIDING AT NO.638,
1ST CROSS, 1ST MAIN ROAD,
NAGARABHAVI 2ND STAGE,
ANNAPOORNESHWARI NAGAR,
BENGALURU - 560 072.
...RESPONDENT
(BY SMT. PRAMILA NESARGI, SRNIOR ADVOCATE FOR
SRI. SHIVSHANKER., ADVOCATE)
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NC: 2023:KHC:30512
CRL.RP No. 647 of 2022
THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC PRAYING
TO CALL FOR THE ENTIRE RECORDS IN CRL.MISC.NO.6/2019
ON THE FILE OF THE METROPOLITAN MAGISTRATE TRAFFIC
COURT II, BENGALURU AND SET ASIDE THE ORDER DATED
16.03.2020 AND 11.06.2020 ON I.A.NO.1 AND RECORDS IN
CRL.A.NO.675/2020 C/W CRL.A.NO.470/2021 ON THE FILE OF
THE LII ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
SET ASIDE THE COMMON JUDGMENT DATED 11.02.2022 BY
ALLOWING THE CRL.RP.
THIS PETITION IS COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The respondent in Criminal Miscellaneous No.6/2019 on the file of the learned Metropolitan Magistrate, Traffic Court-II, Bengaluru is impugning the orders dated 16.03.2020, 11.06.2020 awarding maintenance in favour of the petitioner and also the judgment dated 11.02.2022 passed in criminal Appeal No.675/2020 enhancing the maintenance to Rs.30,000/- per month to be paid to the petitioner.
2. The parties are referred to as per their ranks before the trial court.
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NC: 2023:KHC:30512 CRL.RP No. 647 of 2022
3. Brief facts of the case are that, the petitioner before the trial Court being the wife and the respondent being the husband were married on 23.04.2012. They have begotten a son in the marriage who is now aged 8 years. There was a matrimonial discord between the husband and wife and the petitioner being the wife, for herself and for her son claimed maintenance from the respondent-husband under the provisions of the Domestic Violence Act. The trial Court passed the impugned order on 17.01.2019 awarding ex-parte interim monthly maintenance of Rs.10,000/- to the petitioner and Rs.5,000/- to her minor child, from the date of petition. It is stated that subsequently on 11.06.2020, considering the application filed by the petitioner under Section 20 r/w Sec.23(2) of the Domestic Violence Act, enhanced the compensation to pay Rs.15,000/- per month to the petitioner and Rs.5,000/- to her son from the date of the order. Respondent was also directed to pay a sum of Rs.1,00,000/- towards educational expenses of the minor son.
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NC: 2023:KHC:30512 CRL.RP No. 647 of 2022
4. Being aggrieved by the same, the respondent - husband preferred criminal appeal No.675/2020 challenging the impugned order awarding monthly maintenance. In the meantime, criminal appeal No.470/2021 was filed by the wife seeking enhancement of the monthly maintenance. The first appellate Court considered both the appeals and passed the common judgment vide judgment dated 11.02.2022 dismissing criminal appeal No.675/2020 filed under Section 29 of Domestic Violence Act and allowing criminal appeal No.470/2021 by enhancing the monthly maintenance to Rs.30,000/- to the petitioner and her son from the date of the order on I.A. No.1 and also directing respondent No.1- husband to pay actual school fees, note books, text books, uniform, vehicle fees and other incidental expenses for the academic year 2021. Being aggrieved by the same, the respondent-husband is before this Court.
5. Heard Sri M.T.Nanaiah , learned Senior advocate for Sri Rajesh.A, learned counsel for the -5- NC: 2023:KHC:30512 CRL.RP No. 647 of 2022 petitioner and Smt. Pramila Nesargi, learned Senior Advocate for Sri Shivashanker, learned counsel for the respondent. Perused the materials including the Trial Court records.
6. Learned Senior advocate for the respondent before the trial Court contended that initially an ex-parte order awarding maintenance of Rs.10,000/- to the wife and Rs.5,000/- to the minor child was passed as per order dated 17.01.2019. The same was enhanced to Rs.15,000/- to the wife and Rs.5,000/- to the child from the date of the order. However, the first appellate court without any basis enhanced the maintenance to Rs.30,000/- to the petitioner and the child which is challenged before this Court. Learned Senior advocate contended that as per the interim order passed by this Court the respondent was directed to pay Rs.15,000/- per month to the wife and Rs.5,000/- to the child, as ordered by the trial Court. However, the petitioner-wife is now gainfully employed since January 2023 as a defence counsel and earning Rs.75,000/- per month. Since she is gainfully employed and earning more -6- NC: 2023:KHC:30512 CRL.RP No. 647 of 2022 than the income of the respondent-husband, she is not entitled for any maintenance. Therefore, the respondent will continue to pay Rs.5,000/- as maintenance to the minor son and the contentions of the parties may be kept open to be considered by the trial Court during trial.
7. The learned Senior Advocate also brought to the notice of the Court the conduct of the petitioner-wife before the trial Court as recorded in its order dated 09.12.2021 and prays for passing appropriate orders.
8. Per contra, learned counsel for the respondent submits that the appointment of the wife as defence counsel is only on contract basis with effect from 13.01.2023. She is not permanently employed to deny the maintenance. Therefore, the amount of maintenance awarded by the first appellate Court may be ordered to be paid by the respondent-husband. He submits that the petitioner has tendered unconditional apology to the Court for her conduct as recorded in the order sheet dated -7- NC: 2023:KHC:30512 CRL.RP No. 647 of 2022 09.12.2021. Hence, he prays for dismissal of the revision petition.
8. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the impugned judgment of conviction and order of sentence passed by the First Appellate Court suffers from any infirmities and calls for interference by this Court?"
My answer to the above point is 'partly Affirmative' for the following:
REASONS
9. The relationship between the parties is not in dispute. There was matrimonial discord between the husband and wife which led to filing of the petition under the provisions of DV Act, by the wife against the husband. Admittedly, they have a minor son now aged 8 years. It is also not in dispute that earlier the petitioner was not employed but since 13.01.2023 she is appointed as a -8- NC: 2023:KHC:30512 CRL.RP No. 647 of 2022 defence counsel to defend the cases on behalf of the legal Services Authority and getting the salary of Rs.75,000/-. Even though it is not a permanent job admittedly, she is getting the income of Rs.75,000/- per month since January 2023.
10. It is the contention of the respondent that he who was working as a judicial officer was compelled to resign, as the petitioner is in the habit of filing complaints. He is now practicing as an advocate. In view of the latest development the petitioner is earning a definite salary of Rs.75,000/- whereas the respondent is practicing as an advocate and no materials are placed before the Court to prove his income. Under such circumstances, I deem it appropriate to confirm the order of the trial Court with regard to payment of interim maintenance of Rs.5,000/- to the child by the respondent-husband till conclusion of the trial, with 50% of the educational expenses incumbent for the minor son, from the date of petition. However, the petitioner-wife is entitled for interim maintenance of -9- NC: 2023:KHC:30512 CRL.RP No. 647 of 2022 Rs.15,000/- per month from the date of petition till the end of December 2022 and not thereafter. Hence, I answer the above point in the Affirmative and proceed to pass the following:
ORDER Revision petition is allowed in part. Impugned order passed in Criminal Appeal No.675/2020 c/w Criminal appeal No.470/2021 dated
11.02.2022 on the file of the LII Additional City Civil and Sessions Judge, Bengaluru is hereby set aside.
The order awarding interim maintenance of Rs.15,000/- to the wife from the date of petition till 31.12.2022 is confirmed. Awarding interim maintenance of Rs.5,000/- to the child from the date of petition, along with 50% of the educational expenses to the minor son is also confirmed.
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NC: 2023:KHC:30512 CRL.RP No. 647 of 2022 It is brought to the notice of the Court that the matter is now pending before the learned V MMTC, Bengaluru.
With the cooperation of both the parties the trial Court is directed to dispose of the petition expeditiously, atleast within six months.
SD/-
JUDGE HB List No.: 1 Sl No.: 13