Bangalore District Court
Smt. Lakshmi Bhat vs Sri. C.H. Venkata Krishna on 26 November, 2015
THE COURT OF THE LV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE (CCH-56)
:Present :
Sri Kotrayya M. Hiremath, B.Sc., LL.B.(Spl).
LV Addl. City Civil & Sessions Judge,
Bangalore.
: Crl.Appeal.No.726/2012 :
DATED: THIS THE 26th DAY OF NOVEMBER, 2015.
APPELLANT/ : Smt. Lakshmi Bhat,
PETITIONER D/o Late P.L. Ramakrishna Bhat,
W/o C.H. Venkata Krishna,
Age: 42 years, r/at F-001, Falguna Block,
Gaanaridhi Apartment, Upadhyaya Layout,
Nagadevanahalli, Jnanabharathi Post,
Bangalore-560 056.
(by Sri. K.J.G, Advocate))
- V/s -
RESPONDENT/ : Sri. C.H. Venkata Krishna,
RESPONDENT S/o M.Gopala Krishna Bhat,
Age: 45 years, 'Akshaya', Anusha Farm,
Edanadu Post, Via Kumbla, Kasargodu Taluk
& District, Kerala-671 321.
(by Sri.D.P.L, Advocate)
JUDGMENT
This is a Criminal Appeal filed u/sec. 29 of the Protection of Women from Domestic Violence Act, 2005 by appellant/ petitioner against the respondent/respondent challenging the order dated 31-10-2012 passed by the 5th MMTC, Bengaluru in Crl.Misc. No. 335/2011 (old No. 1326/2008) dismissing the said case for non-prosecution.
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2. For the sake of convenience the 'appellant/
Petitioner' and 'respondent/respondent' are referred to by their respective ranks mentioned in Criminal Miscellaneous case as the 'petitioner' and 'respondent' respectively.
3. The facts leading to this Criminal Appeal, in brief, are as under:
3(a) The petitioner is the legally wedded wife of respondent. Their marriage was an arranged marriage and it was solemnized on 19-1-1998 in Mosco Unity Hall at Talapadi, Kerala as per Hindu customs and rites (Brahmins). Prior to the marriage, the petitioner Smt. Laxmi Bhat was an artist and a classical dancer and also she was working as a marketing executive in a private company. The respondent Sri Venkatakrishna was working as an accountant in a commercial organization at Dubai. The respondent agreed to settle himself along with petitioner at Dubai. After 3 months after marriage the petitioner went to Dubai on 27-3-1998 on temporary VISA basis and joined the respondent. After lapse of two months the respondent started domestic quarrel and violence with petitioner. He was addicted himself to alcohol and other vices. The petitioner was unable to bear the cruel treatment given by respondent. She came back to India during the month of June- July 1998. Later after some days the respondent and his parents assured the petitioner about the good behaviour of respondent. Then only the petitioner agreed to go to Dubai with the hope that the good sense will prevail upon the respondent and that he
-3- Crl.A.No. 726/2012 would behave properly with petitioner and would discharge the matrimonial obligations as a dutiful husband. Accordingly on 3-9-1998 she again went to Dubai on temporary VISA and joined the respondent. Later when the petitioner became pregnant she came back to India and went to the matrimonial home. The respondent continued his business at Dubai and he used to come to India as and when time permitted him.
3(b) A female child is born to them on 26-4-2001 out of their wedlock. Because of the birth of female child the respondent became very careless towards petitioner and he expressed his dissatisfaction about the birth of the female child instead of a male child. He started abusing the petitioner more and more in foul and filthy language, he again started consuming alcohol more and more, he subjected the petitioner to cruelty by beating her and by abusing her in foul and filthy language and made her life unbearable. The respondent continued to commit domestic violence by misbehaving rudely and torturing the petitioner. The petitioner has suffered these ill-treatments till 19-11-2008. At last she felt it impossible to continue with respondent and she left the home due to apprehension of danger to her life and limb. Thereafter several panchayaths were held at the instance of petitioner and her brothers and sisters. But the respondent refused to allow the interference of relatives and his own parents. Thereafter the petitioner filed a police complaint against respondent and she has also filed a divorce petition in the family court at Bangalore.
-4- Crl.A.No. 726/2012 3(c) The petitioner, after leaving the matrimonial home, came to Bangalore along with her daughter and was residing in their old house at Bangalore. The said house was not suitable for living. Therefore, she has shifted to her present address mentioned in the cause title of the petition. She is finding it very difficult to bear all the expenses of her livelihood and also the education expenses of her daughter. The respondent is leading a luxurious life with good source of income. It is incumbent upon him statutorily to maintain the petitioner and her daughter. The petitioner is under reasonable apprehension in her mind that it would be extremely harmful and injurious for her to live with respondent any more. There has been imminent and serious life threat to petitioner and to her daughter from respondent. Because of these reasons the petitioner has filed the present petition seeking several reliefs mentioned in the petition under the D.V Act.
4. The respondent has appeared in the Criminal Miscellaneous case before the trial court and has filed his statement of objections denying the petition averments. He has contended that:
4(a) The case of petitioner invoking the provisions of sections 12, 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 and the Rules thereunder, is not maintainable. The alleged domestic violence acts are not taken
-5- Crl.A.No. 726/2012 place within the jurisdiction of this court as contemplated u/sec. 27 of the said Act.
4(b) It is submitted that the respondent is a man of having too much love and affection on the petitioner. The respondent had provided all the luxuries including dress materials, cosmetics, independent vehicle, house hold articles, etc., to petitioner at Dubai. The petitioner has spent lavish and luxurious life during the interregnum of March 1998 till 2014. The family of petitioner's parents is a middle class family. Her father was a person running a small canteen and he was looking after 3 sons and 3 daughters including the petitioner. The petitioner's father did perform the marriage of petitioner and respondent out of his small earnings. He died about 20 years back. The petitioner's mother also passed away just after 8 months after performing the marriage of petitioner. The marriage was performed by the petitioner's brother Subramanya Bhat out of his small earnings. Absolutely there is no truth in the version of petitioner that the petitioner has given Rs.21 lakhs as per her statement in paragraph 10 and out of which the respondent has repaid an amount of Rs.6,50,000/- and that there is a balance of Rs.14,50,000/- due from the respondent.
4(c) The petitioner was leading luxurious, comfortable family life at Edanadu of Kerala state. There was no occasion for her to take quarrel with the respondent. Inspite of it for the first time in November 2008, the petitioner has developed such
-6- Crl.A.No. 726/2012 strange attitude in the marital home so as to run away from Edanadu and to stay at Bangalore. She ran away with the car along with the belongings in the form of cash, gold and silver without intimating the respondent and also her relatives. The petitioner is intending to have freedom of life to live according to her desire discarding the moral obligation attached on a Hindu wife as she is married to a Hindu according to the rites and rituals of Hindu.
4(d) Looking from any angle, absolutely there are no reasons for this court to consider the request of petitioner for passing orders u/secs. 12 to 20 of the Protection of Women from Domestic Violence Act. The respondent has therefore, prayed for dismissal of the case of petitioner with exemplary costs.
5. At the stage of recording of petitioner's side evidence on 31-10-2012 the petitioner remained absent. Because of this reason the trial court by its impugned order dated. 31-10-2012 dismissed the case of petitioner for non-prosecution.
6. The petitioner, being aggrieved by the impugned order, has preferred this appeal on the following amongst other grounds:
1. The petitioner who examined herself as PW1 is cross-examined by the respondent's Advocate. On 31-10-2012 the trial court ought to have posted the case of petitioner for respondent's evidence instead
-7- Crl.A.No. 726/2012 of dismissing the case for non-prosecution. The trial court has erred in dismissing the case of petitioner.
2. The respondent himself is mainly responsible in causing delay in disposal of the main case. He has failed and neglected to pay interim maintenance as ordered by the trial court on 6-4-2009. The petitioner and her child are put to great hardship and inconvenience. Under these circumstances, the trial court is not justified in law in dismissing the Crl. Misc. No. 335/2011 for non-prosecution.
3. The petitioner has to procure many vital documents pertaining to respondent's properties which are situated in Kasargodu, Kerala and Dubai.
It is a time consuming process at considerable expense. These aspects of the matter are not taken into account by the trial court while passing he impugned order.
4. The trial court is carried away by the order passed in Cri. R. P. No. 917/2010 by the Hon'ble High Court of Karnataka directing the trial court to dispose of the Main petition preferably within a period of 3 months, very seriously, but the said order does not direct the trial court to dispose the case hurriedly without following the due process of law.
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5. The petitioner had prayed time to produce the translated copies of FIRs which were in Malayalam language. The previous translator was not vailable. The other translators/notary were also not available in Bangalore. Apart from this the daughter of petitioner was ill due to bad weather and petitioner was engaged in getting treatment to her daughter. This is the reason for non-appearance of petitioner before the trial court on 31-10-2012. The non- appearance of petitioner before the trial court was due to bonafide reasons but not deliberate one.
6. The impugned order has caused injustice to petitioner even when there is no fault on her side. It is against the real facts of the case and against the object of the D.V Act. It is illegal, perverse, arbitrary, erroneous and without application of mind and is liable to be set-aside.
Based on the above grounds, the petitioner has prayed for setting aside the impugned order and for restoration of the case.
7. In pursuance of the notice issued in this appeal case, the respondent has appeared through his advocate.
8. The lower court records are secured.
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9. I have heard the arguments of learned counsels of both sides and perused the impugned order and the records.
10. Now the following points will arise for my consideration and determination:
:POINTS:
1) Whether the Appellant/petitioner has shown good and sufficient reasons to set-
aside the dismissal order dated 31-10-
2012 passed by learned 5th MMTC,
Bangalore in Cri. Misc. No. 335/2011 as
prayed?
2) What order?
11. My findings on the above points are as under:
Point No.1 : In the Affirmative
Point No.2 : As per final order
For the following:
REASONS
Point No.1 :-
12. As already noticed above the respondent/husband himself has contended in his statement of objections that the family of petitioner's parents is a middle class family, her father was a person running a small canteen and he was looking after 3 sons and 3 daughters including the petitioner and that the petitioner's father did perform the marriage of petitioner and
- 10 - Crl.A.No. 726/2012 respondent out of his small earnings. He has also contended that the marriage was performed by the petitioner's brother Subramanya Bhat out of his small earnings. It means that the family of petitioner's parents is not a rich family and that the petitioner and her daughter cannot get shelter of the said family. It is an undisputed fact that now the father and mother of petitioner are not alive.
13. The petitioner has specifically contended that she is finding it very difficult to bear all the expenses of her livelihood and also the education expenses of her daughter, that she is under reasonable apprehension in her mind that it would be extremely harmful and injurious for her to live with respondent any more and that there has been imminent and serious life threat to her and to her daughter from respondent. The main grievance of petitioner is that the respondent has failed to pay and neglected to pay interim maintenance as ordered by the trial court on 6-4-2009 and that because of this reason herself and her daughter are put to great hardship and inconvenience. On the other hand, the respondent has no where contended in his statement of objections that he has been paying the interim maintenance to petitioner and to his own daughter.
14. Under these circumstances, the early disposal of the main case (Cri. Misc. No. 335/2011) and getting the relief as prayed in the main petition are very much necessary for the
- 11 - Crl.A.No. 726/2012 petitioner and her daughter, but not for the respondent. Because of these reasons the petitioner cannot cause delay in the proceedings of the case unnecessarily and intentionally. Therefore, this court is of the opinion that the dismissal of the case of petitioner for non-prosecution will be beneficial to respondent and it will cause injustice to the petitioner and to her daughter, who have come to the court for enforcing their legitimate right.
15. The trial court should have looked into these aspects of the matter before dismissing the case of petitioner. The trial court has held that the petitioner is not co-operating for early disposal of the case and that she is abusing the process of court. But it has not given importance to the genuine difficulties faced by the petitioner. The learned advocate for appellant/petitioner has rightly contended that the trial court is carried away very seriously by the order passed in Cri. R. P. No. 917/2010 by the Hon'ble High Court of Karnataka directing the trial court to dispose of the main petition preferably within a period of 3 months, but the said order does not direct the trial court to dispose the case hurriedly without following the due process of law.
16. Now the main question is as to whether the Appellant/petitioner has shown good and sufficient reasons to set-aside the dismissal order dated 31-10-2012 passed by learned 5th MMTC, Bangalore in Crl.Misc. No. 335/2011 as
- 12 - Crl.A.No. 726/2012 prayed? In this regard the case of petitioner is that she was required to procure many vital documents pertaining to respondent's properties which are situated in Kasargodu, Kerala and Dubai and that it is a time consuming process at considerable expense. That she had prayed time to produce the translated copies of FIRs which were in Malayalam language, the previous translator was not available and that the other translators/notary were also not available in Bangalore. Apart from this the main reason submitted by petitioner is that her daughter was ill due to bad weather and she was engaged in getting treatment to her daughter at the relevant point of time. According to the petitioner, this is the reason for her non- appearance before the trial court on 31-10-2012. This court is of the opinion that these are the points to be considered by the trial court before passing the impugned order. Looking to all these facts and circumstances of the case in entirety, this court is of the opinion that these reasons are the acceptable reasons. Therefore, this court is of the opinion that the appellant/petitioner has shown good and sufficient reasons in support of her claim in this appeal case. Hence, the point No.1 is answered in the affirmative.
Point No.2:
17. Keeping in view the findings already given on point No.1 above, I proceed to pass the following:
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ORDER
This Crl. Appeal No.726/2012 filed by Appellant/ petitioner u/sec. 29 of the Protection of Women from Domestic Violence Act, 2005 is allowed with cost.
2) The impugned order dated 31-10-2012 passed by the learned 5th MMTC, Bangalore in Cri. Misc. No. 335/2011 is set aside.
3) The Cri.Misc.335/2011, which is dismissed by the trial court on 31-10-2011, is ordered to be restored to its original file with the same number and the appellant/petitioner is permitted to proceed with the case.
4) The next date of hearing of Cri. Misc.
335/2011 before the trial court is fixed on 21-12- 2015. Both the parties shall appear before the trial court on the said date without fail.
Send back the LCR with a copy of this order immediately.
(Dictated to the Judgment writer on computer and after corrections, pronounced by me in the Open Court on this the 26th day of November 2015.) (Kotrayya M. Hiremath) LV Addl.City Civil & Sessions Judge, Bengaluru.
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