Bangalore District Court
Manjunatha A vs Aged About 35 Years on 6 January, 2022
KABC010240362019
IN THE COURT OF THE LXII ADDL.CITY CIVIL
& SESSIONS JUDGE, BENGALURU
Dated this the 6th day of January, 2022
PRESENT
SRI. R. ONKARAPPA, B.Sc. L.L.B.
LXII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU (CCH-63)
Crl. Appeal No. 1640/2019
APPELLANT:/ Manjunatha A,
RESPONDENT Aged about 35 years,
S/o Aswathnarayana,
R/at No. 120, 2nd Main,
2nd F Cross, Ramaiah layout,
Kacharakanahalli,
Bengaluru
(By Shalini P, Advocate)
-Vs-
RESPONDENTS:/ 1. Smt. M. Shruthi,
ACCUSED Aged about 25 years,
W/o A. Manjunath,
2. Harshel
S/o Shruthi,
Aged about one year
3. Harshin. A
D/o Shruthi,
Aged about one year
2 Crl.A. 1640/2019
All R/at No. 18/10, C48,
22 Cross, 3rd Main road,
Bhuvaneshwarinagara,
Kempapura Agraharam
Bengaluru-560 023.
(By. Y.S., advocate)
JUDGMENT
The present criminal appeal filed under Section 29 of D.V. Act, has been preferred by the appellant against an impugned order passed by learned MMTC-V at Bengaluru, in Crl. Misc 150/2018, dated 2.7.2019.
2 Factual matrix of this appeal are that, the respondent had filed an application u/s 12 r/w section 18(a), (b), (e), (f), 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005, alleging commission of Domestic violence against the respondent by the appellant and praying for protection against Domestic Violence and to order for compensation and maintenance. The respondent got issued notice from the Court below and was served on the appellant. The appellant have filed his objection to the main petition and also to the IA. The matter has been heard and the Trial Court passed orders directing the appellant to pay the 2 nd 3 Crl.A. 1640/2019 and 3rd respondent a sum of Rs. 4,000/- each per month. The Court below has passed the impugned order dated 02.07.2019 thereby ordering that the appellant shall pay the 2nd and 3rd respondent a sum of Rs. 4,000/- each per month towards interim maintenance until further orders.
3 Being aggrieved by the said order dated 7.7.2019 passed by the learned MMTC-V, Bengaluru in Crl. Misc No. 150/2018, the appellant herein have filed the above Criminal appeal urging many more grounds, they are; the impugned order is totally opposed to law, facts, probabilities and evidence available on record. The material available on document is totally contrary and inconsistence with the allegations made in the petition, the same material contradictions failed to appreciated by the learned Magistrate. Nothing a proof on side of the respondent to prove the ingredients of domestic violence. The appellant have no income, alternatively the respondent is well off to maintaining herself and her children. The appellant deny the paternity of respondent Nos. 2 and 3. when such being the case the respondent Nos. 2 and 3 have not entitled any interim maintenance. The respondent 4 Crl.A. 1640/2019 voluntarily left the matrimonial company of the appellant and she stayed with her parents. The trial Court failed to consider whether the ingredients of domestic violence have been complied by the respondent. On all other grounds, the appellants filed this appeal and prays for allowing the appeal.
4 The respondents appeared through their counsel after service of notice. Trial Court records secured.
5 Heard arguments on both sides. Perused the records.
6 Having regard to the contention taken by the appellant in the appeal memo and on material on record the following points arise for my consideration;
1. Whether the trial court has committed any error, illegal, or perverse in passing the order of Interim Maintenance to the respondent No 2 and 3?
7. My finding to the above points are as under;
Point No. 1 : In the Negative for the
following
REASONS
5 Crl.A. 1640/2019
8. Point No. 1: Main ground to preferred this appeal that, as the appellant not bare to the interim order of Trial Court that they preferred this appeal, as such it necessary me to read the order dated 2.7.2019. As per the order dated 2.7.2019, the Trial Court directed to the appellant, to pay interim monthly maintenance of Rs. 4,000/- per month each to the petitioner/respondent No. 2 and 3 from the date of order.
9. After go through the case records and submission made by both counsels, it is the case of the appellant that, the appellant is the husband of the 1 st respondent. But the appellant seriously disputed the paternity relation ship of the respondent No2 and 3. The present appeal have filed by the appellants challenging the interim order passed by the learned Trial Court dated 2.7.2019. The contention of the appellants that, the interim order passed by the learned Trial Court too exorbitant, unbearable, illegal and perverse, as the appellants have no income. Further contention of the appellants that, the appellants are suffering from financial difficulties to meet their expenses and basic necessities. Also the ground of 6 Crl.A. 1640/2019 the appellant that, interim order itself not maintainable. On the contrary, the respondent urged that, the appellant being father of the respondent No. 2 and 3 and husband of respondent No. 1, the appellants have failed to discharge their parental obligations. To ascertain the rival submission on both sides, it is necessary me to record the admitted facts. As per the appellant, the 1 st respondent is his wife but the appellant disputed the paternal relationship with the respondent Nos. 2 and 3. It is not much disputed fact that the Trial Court have passed an interim maintenance of Rs. 4000/- per month each to the 2nd and 3rd respondent from the date of order to till further order. The same order of the Trail Court assumed to be passed by the Trial Court based on the facts and circumstances and prima facie of the case against to the appellants and not based upon full dress of trial. The Trial Court passed an interim maintenance by its discretion after fully understanding the facts and circumstances and grievance of the parties. The same order has been passed based on discretion. That such discretion can not be dissect and formalize whether such discretion one with legal or arbitrary at this early 7 Crl.A. 1640/2019 stage. If once that the interim order is more exorbitant and unbearable, the appellants could have option to make an application for modification at before the Trial Court itself. The same such exhaustive remedy that the appellant have not done on record. Section 23 of Protection of Women from Domestic Violence Act, is clearly emphasis, in any proceedings under this act, the Magistrate may pass such interim order as he deems just and proper. Further the same section also emphasis to an power of Magistrate, the Magistrate may have grant an interim order on the basis of affidavit in such form as may be prescribed of the aggrieved person under section 18, Section 19, Section 20 and Section 21 or as the case may be Section 22 against the respondent. When law has emphasized such an power to the jurisdictional court, the jurisdictional Court after chalk out the reality available on record upon the affidavit, the Trial Court passed an interim order. It is pertinent to note here that, the relief sought by the respondent at before the Trial Court that, one for direct the appellant provide and secure alternate accommodation to the respondent, monetary relief under section 20, direct the 8 Crl.A. 1640/2019 appellants to pay an amount of Rs. 40,000/- towards monthly maintenance of the petitioner No.1 and her two children, petitioner/respondent No.2 and 3. Directing the appellants/ respondents to pay a sum of Rs. 10,000/- as monthly rent and a sum of Rs. 80,000/- as advance deposit to get a house on rent. Directing the respondents/ appellants to pay a sum of Rs. 5,00,000/- towards compensation for causing mental stress. Directing the respondents/appellants to pay a sum of Rs. 13,00,000/- already incurred by the family of the petitioners/ respondents in lieu of medical expenses for IVF, laproscopy, incubation and other medical expenditure. Out of all those prayer the learned Magistrate passed an interim maintenance only to the respondents. No doubt, the present appeal before me to challenging an order of interim maintenance only and not for challenging or contended the other relief have been granted by the trial Court. No doubt the appellant disputed the paternal relationship with the respondent Nos. 2 and 3. Case on record the appellant have not much disputed relationship with the 1st respondent. The appellant have not disputed 9 Crl.A. 1640/2019 that the 1st respondent is not a wife of appallent. The appellant further not disputed that, the marriage between the appellant and the 1st respondent is one legal. Also not disputed by the appellant that there is an continuity in the legal marriage bond between the 1st appellant and the 1st respondent and during that time of valid marriage the respondent Nos. 2 and 3 take birth. As such mere deny the relationship by the appellant with the respondent Nos. 2 and 3 would not holds any water. If the appellant have a defence that the appellant and the 1 st respondent marriage had no assess to each other at any time, that such fact has to be established only by full pledged of trial and not at this early stage. Admittedly the respondent Nos. 2 and 3 are under the shelter of 1st respondent and they are also minor and they being minor that it need the money to incurred for the food, shelter and medicine. That the facts involved behind to order an interim order, the same order is herein challenged without any material remains to appreciated and warranted to interfere upon the interim order of the Trial Court.
10 Crl.A. 1640/2019
10. When such being the case that I am of the view that the Trial Court after fully understand the facts and circumstances available on the record exercise an discretion while passing the interim order on the main petition, without committing any illegality or error. Accordingly, I answer the point No. 2 in the Negative and proceed to pass the following;
ORDER The criminal appeal filed by the appellant under Sec.29 of D.V. Act is hereby dismissed and order in Crl.
Misc No. 150/2018 dated 2.7.2019 passed by the MMTC-V, Bengaluru city is hereby confirmed.
Send the copy of the Judgment to the trial court along with records forthwith.
(Dictated to the Stenographer, transcribed and typed by her, and then corrected and pronounced by me in the open court on this the 6th day of January, 2022).
sd/-
(R. ONKARAPPA) LXII Addl. C.C. & Sessions Judge, BANGALORE CITY.