Karnataka High Court
Smt K M Leelavathi vs Smt K M Sonia Madaiah on 23 June, 2020
Equivalent citations: AIRONLINE 2020 KAR 1223, 2020 (4) AKR 470
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION NO.2488 OF 2020(GM-RES)
BETWEEN
SMT K M LEELAVATHI
W/O. LATE. K G MONAPPA,
AGED ABOUT 57 YEARS
R/O. MATHUR VILLAGE,
VIRAJPET TALUK,
KODAGU DISTRICT
...PETITIONER
(BY SRI: C.M.POONACHA, ADVOCATE)
AND
1. SMT K M SONIA MADAIAH
W/O. LATE K M MADAIAH,
AGED ABOUT 32 YEARS
R/AT MATHUR VILLAGE,
VIRAJPET TALUK,
KODAGU DISTRICT 571218.
PRESENTLY R/AT PRAKRUTHI APARTMENT,
NEAR AISHWARYA PETROL BUNK,
DOOR NO 401-A,
VIJAYANAGAR 3RD STAGE,
MYSORE DIST - KARNATAKA 570017
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2. NISHEEN K M
W/O. NAVEEN,
AGED ABOUT 36 YEARS
R/O. MATHUR VILLAGE,
VIRAJPET TALUK-571218,
KODAGU DIST
3. KANDERA PRAKASH
AGED ABOUT 51 YEARS
R/O. SULUGODU VILLAGE,
BALELE POST, VIRAJPET TALUK,
KODAGU DIST 571218
...RESPONDENTS
(VIDE ORDER DATED 10.02.2020 NOTICE TO
R2 AND R3 IS DISPENSED WITH;
VIDE ORDER DATED 03.02.2020 COPY IS SERVED ON
SRI.S.V. SURESH, COUNSEL FOR R1 IN TRIAL COURT)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 READ
WITH SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDER
DATED 11.12.2019 PASSED ON I.A. NO.1 IN CRL. APPEAL
NO.5009/2019 BY THE COURT OF THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE KODAGU, MADIKERI SITTING AT
VIRAJPET ANNEXURE-F.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 09.06.2020 AND COMING ON FOR
PRONOUNCMENT OF ORDER, THROUGH VIDEO CONFERENCE
THIS DAY, THE COURT MADE THE FOLLOWING:-
3
ORDER
By making an application under Article 226 of the Constitution of India and section 482 Cr.P.C., petitioner has sought to stay the operation of the order dated 11.12.2019 passed on I.A.No.1 in Criminal Appeal No.5009/2019 by the II Additional District and Sessions Judge, Kodagu, Madikeri, sitting at Virajpet (Annexure-F). By the said order, learned Sessions Judge while entertaining the appeal filed by the first respondent herein suspended the order dated 25.03.2019 passed by the Trial Court in Crl.M.C.No.157/2018 regarding custody of the child till disposal of the appeal or till further orders.
2. The facts necessary for consideration of the prayer sought for by the petitioner are as follows:-
The first respondent is the mother of the minor by name Dillan Devaiah. She married one Sri.K.M.Madaiah on 06.01.2008.
In the wedlock, she gave birth to a son by name Dillan Devaiah and a daughter by name Keerti. Her husband met with an untimely death on 12.05.2013. According to the first respondent, after the death of her husband, she was ill-treated 4 by her mother-in-law namely the petitioner herein and her sister-in-law and brother of her mother-in-law namely respondent Nos.2 and 3 herein. She was thrown out of the matrimonial home with her small daughter and was not allowed to take her son. Since then, first respondent along with her daughter took shelter in her parental house. As she was unable to maintain herself and as there were threats of alienation of the properties fallen to the share of her late husband, she presented an application under section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "PWDV Act") seeking protection order, residence order, compensation as well as custody order in respect of her minor son.
3. On considering the averments made in the application and the supporting affidavit, learned Magistrate passed an ex-parte interim order dated 06.08.2018 under section 21 of the PWDV Act, 2005 granting temporary custody of the child named Dillan Devaiah to the first respondent namely his mother. The mother-in-law/petitioner herein was directed to pay maintenance to the mother of the child. Against the said 5 ex-parte interim order, petitioner herein - mother-in-law filed an application under section 25(2) of PWDV Act for modification of the ex-parte interim order. Learned Magistrate, by order dated 25.03.2019, set-aside the ex-parte interim order granting temporary custody of the child named Dillan Devaiah to the first respondent namely his mother and the contesting respondents were prohibited from alienating or mortgaging or creating any kind of charge on the share of the minors in the ancestral properties. The ex-parte order regarding interim maintenance was directed to be in force till disposal of the main petition.
4. Feeling aggrieved by the said order, respondent No.1 preferred an appeal before the learned District and Sessions Judge of Kodagu-Madikeri, sitting at Virajpet and the learned Sessions Judge while entertaining the appeal Crl.A.No.5009/2019, passed an order dated 11.12.2019 on I.A.No.1, suspending the order passed by the learned Magistrate dated 25.03.2019 in Crl.M.C.No.157/2018, which is impugned in the present petition.
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5. Learned counsel appearing for the petitioner placing reliance on the decision of this Court in the case of Smt.YASHASWINI vs. Mr.M.ANEGUDDE GANESH, ILR 2016 KAR 2155, would submit that the impugned order passed by the Appellate Court is wholly without jurisdiction in the absence of any express or implied provision under the PWDV Act and also in the absence of anything conferring the benefits of section 389 Cr.P.C. on the Appellate Court in respect of an order passed by the learned Magistrate under section 12 of the PWDV Act, the Appellate Court has no power to stay the operation of the order passed by learned Magistrate. Further, referring to the observations made by learned Magistrate while setting aside the interim custody granted to the mother/first respondent herein, learned counsel highlighted that the first respondent herein obtained the aforesaid ex-parte order for custody of the minor by suppressing material facts and by suggesting falsehood before the Trial Court as noted in its order dated 25.03.2019. Dilating on this point, learned counsel referred to the order dated 25.03.2019 wherein specific observation has been made by the learned Magistrate that the child was residing with the 7 grand-mother for the past 2-3 years and she has been spending more than one lakh rupees per annum towards annual school fee of child and admitted him in one of the most reputed schools in Gonikoppa. The first respondent namely the mother kept quiet for more than two years and all of a sudden, she approached the Court seeking custody of the child making allegations that there was a life threat to the child. But when the learned Magistrate interacted with the child, the child expressed its unwillingness to go with the mother and chose to stay with the petitioner herein namely with his grand-mother. Further, learned Magistrate has observed that when negotiations for settlement were underway between the parties, all of a sudden on 18.03.2019 i.e., on Monday, the first respondent namely the mother of the child went behind the court and implemented the order by misleading the CDPO and Police in a malafide way. Hence, the court issued a notice to CDPO and SHO to file a report explaining what made them to implement the order so sudden which they did not implement it for nearly six months. The CDPO appeared before the Court and submitted a report stating that the Advocate for first respondent herein/mother of the child insisted on her sub- 8 staff to implement the old order and misled them by giving false information about the case status and yielding to the pressure of counsel, custody of the child was handed over to the mother. In view of these facts, learned Magistrate found it proper to modify its own order dated 06.08.2018 granting temporary custody of the child to the mother namely the first respondent.
6. In the light of the above contentions, the question that falls for consideration is, Whether in an appeal under section 29 of the PWDV Act, the Appellate Court has no jurisdiction to suspend the order passed by learned Magistrate under section 12 of the PWDV Act?
7. The facts exposited would show that the appeal was preferred by the first respondent herein before the District and Sessions Judge, Kodagu-Madkeri sitting at Virajpet challenging the order passed by the learned Magistrate under section 12 of the PWDV Act and the impugned order came to be passed in this appeal. This Court in the case of in Smt.YASHASWINI vs. Mr.M.ANEGUDDE GANESH, referred above, considered the 9 question as to whether the appellate court has jurisdiction to pass interim order of stay in an appeal arising out of the proceedings under Section 12 of the PWDV Act and held as under;
"17. In the absence of any express or implied provision under the Act and also in the absence of anything conferring the benefits of Section 389 automatically in respect of any or every order in a proceeding under section 12 of the Act until the Legislature addresses this issue, the Appellate Court has no power to stay the operation of the order passed by the Magistrate with the exception of two situations noticed supra, (1) an order of sentence of imprisonment in a recovery proceeding under section 125(3) of the Code.
(2) In a proceedings under section 31 and 33 of the Act."
In laying down the above ratio, this Court followed the decision of the Hon'ble Supreme Court in the case of SHALU OJHA vs. PRASHANT OJHA, (2015)2 SCC 99, wherein the following observations were made by the Hon'ble Supreme Court namely, "..... We only note that there is no express grant of power granted on the sessions court while 10 such power is expressly conferred on the Magistrate under Section 23. Apart from that, the power to grant interim orders is not always inherent in every court. Such powers are either expressly conferred or implied in certain circumstances. This Court is Super Cassettes Industries Limited v. Music Broadcast Private Limited - (2012) 5 SCC 488, examined this question in detail. At any rate, we do not propose to decide whether the Sessions Court has the power to grant interim order such as the one sought by the respondent herein during the pendency of the appeal, for that issue has not been argued before us.
30. We presume (we emphasize that we only presume for the purpose of this appeal) that the Sessions Court does have such power. If such a power exists then it can certainly be exercised by the Sessions Court on such terms and conditions which in the opinion of the Sessions Court are justified in the facts and circumstances of a given case. In the alternative, if the Sessions Court does not have the power to grant interim orders during the Pendency of the appeal, the Sessions Court ought not to have stayed the execution of the maintenance order passed by the Magistrate....." 11
8. As could be seen from the above extract, the Hon'ble Supreme Court did not delve into the question as to the powers of the Sessions Court to grant interim order during the pendency of the appeal nor did it lay down any law on the point yet, this court chose to draw an inference from the observations made by the Hon'ble Supreme Court in the above decision and proceeded to hold that, "In the absence of any express or implied provision under the Act and also in the absence of anything conferring the benefits of Section 389 automatically in respect of any or every order in a proceeding under section 12 of the Act until the Legislature addresses this issue, the Appellate Court has no power to stay the operation of the order passed by the Magistrate with the exception of two situations noticed supra, (1) an order of sentence of imprisonment in a recovery proceeding under section 125(3) of the Code. (2) In a proceedings under section 31 and 33 of the Act." This view is contrary to the decision of the Hon'ble Supreme Court in MUNILAKSHMAMMA vs. DEPUTY COMMISSIONER, KOLAR DISTRICT, 1988(2) KLJ 209, wherein it is held as under:- 12
"3. The point for consideration is whether the order passed by the 1st respondent vide Annexure-A is sustainable. When a statute provides a remedy by way of appeal to the appellate Authority against the impugned order, such a legal remedy should not be frustrated by an order of refusal to grant a stay of the operation of the impugned order because the implementation of the impugned order wold not only disturb the status of the appellant but also defeat the very purpose for which the remedy is sought before the Appellate Authority. Once the impugned order is implemented the appeal could not serve any useful purpose."
9. The principle laid down in MUNILAKSHMAMMA's case in my view squarely applies to the facts of this case. As already noted above, learned Magistrate at the first instance directed the petitioner herein to handover the custody of the minor child to the first respondent namely mother. However, subsequently the Trial Court modified its own order at the instance of the petitioner herein namely the grand-mother and granted temporary custody of the child to the grand-mother. This order has been stayed by the First Appellate Court mainly on the 13 ground that the records reveal that the ex-parte order of granting interim custody of the child on 06.09.2018 was duly executed on 18.03.2019. In view of this development, the First Appellate Court appears to have exercised jurisdiction to suspend the subsequent order passed by learned Magistrate on 25.03.2019 directing to restore the custody to the grand- mother. This order, in my considered opinion, is in consonance with the law expounded in MUNILAKSHMAMMA's case, referred above. Even otherwise, in the matter of custody of a minor child, welfare of the child is a paramount consideration that should guide the court and not the technicalities of law and procedure. Having regard to the circumstances of the case, I find that the learned Magistrate was not justified in reversing its own order on the ground that the ex-parte interim order was secured by the first respondent/mother by suppressing material facts and that the execution of the said order was obtained behind the back of the court. These reasonings being contrary to the facts of the case, do not deserve to be sustained. 14
10. It is not the case of either of the parties that as on the date of taking custody of the child, the ex-parte interim order passed by learned Magistrate was either kept on hold or stayed by any appellate or revisional court. Under the said circumstances, first respondent/mother was well within her right to execute the said order, as such, the execution of the interim order, even belatedly, does not furnish a cause of action for the petitioner herein to seek reversal of the ex-parte interim order passed by learned Magistrate. That apart, the subsequent order passed by learned Magistrate does not disclose any reason as to why the grand-mother was preferred against the mother of the child. Nothing is on record to show that the mother is disentitled to the custody of the child. Merely because the child was brought up by the grand-mother and that he was admitted to school by her, does not confer a right on the petitioner/grand- mother for custody of the child. In that view of the matter, the Appellate Court was well within its powers to suspend the order dated 25.03.2019, lest it would disturb the status of the minor over again and defeat the very purpose of the appeal filed before the Appellate Court. In this context, it is also pertinent to note 15 that the right of the petitioner/grand-mother to the custody of the minor child is yet to be decided by the Appellate court. In the said circumstances, until the issue is resolved or determined by the Appellate Court, change of custody of the minor would be detrimental to the welfare of the child. In the absence of any specific allegation that the interest of the minor is in jeopardy in the hands of the first respondent/mother, I am of the view that the petitioner herein namely the grand-mother of the minor cannot seek custody of the child during the pendency of the appeal. Thus viewed from any angle, I do not find any reason to interfere with the impugned order. As a result, the application filed by the petitioner in I.A.No.1/2020 for stay of the impugned order is liable to be rejected.
Accordingly, I.A.No.1/2020 is dismissed. Consequently, petition is also dismissed.
Sd/-
JUDGE Bss.