Bangalore District Court
Sri. Dr.Raghavendra H.V vs Dr.Prathibha Raghavendra on 7 April, 2021
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Crl.A.No.467/2020
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-65) AT BENGALURU.
Dated this 7th day of April 2021
-: P R E S E N T :-
Sri. RAJESHWARA
B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
CRIMINAL APPEAL No.467/2020
APPELLANT/: : Sri. Dr.Raghavendra H.V.
S/o. S.H.Vijaya,
(RESPONDENT -
Aged about 47 years,
IN TRIAL COURT)
R/at. No.22/23,
Situated at 18th Main,
Narayanagowda Layout,
Tavarekere, BTM 1st Stage,
Bengaluru-560 029.
(By Sri.Shrikanth B., Advocate)
/Vs/
RESPONDENT/ : Dr.Prathibha Raghavendra,
W/o. Dr.Raghavendra H.V.
(PETITIONER- IN Aged about 40 years,
TRIAL COURT) :
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Crl.A.No.467/2020
R/at.No.4/4, Type AB Doctors
Quarters, Kidwai Memorail
Institute of Oncology,
Dr.M.H. Marigowda Road,
Bengaluru.-560 029.
(By Sri.Prakasha Hegde,
Advocate)
JUDG MENT
This criminal appeal is filed U/s.29 of The Protection
Of Women From Domestic Violence Act (herein after referred
as PWDV., Act) to set aside the order passed by II-MMTC,
Court, Bengaluru in Crl.Mis.No.185/2018 dated 29.11.2018
(herein after referred as impugned order).
2. Parties to this appeal shall be referred to as per
their ranking before the trial court for the purpose of
convenience and for better appreciation of their
contentions.
3. In the memorandum of appeal, appellant has
submitted that impugned order passed by the trial court is
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Crl.A.No.467/2020
against to the object and spirit of PWDV Act. Procedure
adopted by the trial court is not just & proper. Trial court has
not properly appreciated material, documents produced by
this appellant. For the said reasons, advocate for appellant
has prayed to interfere in the impugned order passed by the
trial court and set aside the same.
4. Along with memorandum of appeal, appellant
has produced certified copy of the order sheet with
impugned order passed by the trial court.
5. This appeal is not filed within time prescribed.
Hence, application U/s.5 of Limitation Act is also filed for
condonation of delay in preferring this appeal.
6. Respondent appeared through counsel.
7. Heard arguments.
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8. Now, following are the points arising for
determination:
1. Whether appellant had sufficient
cause for not preferring this appeal
within the period of limitation?
2. Whether impugned order is
sustainable in law?
3. Whether interference of this court is
necessitated?
4. What Order?
9. It is answered for the aforesaid points as
under:-
Point No.1: In the Affirmative
Point No.2: In the Affirmative
Point No.3: In the Negative
Point No.4: As per final order below, for
the following:-
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Crl.A.No.467/2020
REASONS
10. POINT NO. 1:- Perused the application filed
U/s.5 of Limitation Act, contents of affidavit filed in support
of said I.A. In the application, appellant has submitted that
only after issuance of warrant, he came to know about
interim order passed by trial court directing him to pay
Rs.50,000/-(fifty thousand) each per annum towards
educational expenses of minor daughters. He enquired with
his counsel. His counsel advised him to prefer appeal.
Hence, to prefer this appeal there is delay. Delay is not
intentional, but for bonafide reason. In the event delay is
not condoned, irreparable loss and injury would caused to
him.
11. Section 29 of PWDV Act is provision to prefer
appeal. According to the said section there shall lie an
appeal to the court of session within thirty days from the
date on which the order made by the magistrate is served
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Crl.A.No.467/2020
on the aggrieved person or the respondent, as the case may
be whichever is later. It is the case of the appellant that
no copy of the impugned order was served upon him.
12. There is no material forth coming in the records
produced by both side to show that impugned order was
served on appellant. Reasons assigned by the appellant for
delay in preferring this appeal is that he came to know
about passing exparte order against him only when FLW
was issued by the trial court. Further to consult his counsel
to prefer appeal, there is delay. To provide an opportunity to
the petitioner/ appellant to prosecute his appeal, this court
is of the opinion that, delay may be condoned. Hence, point
No.1 is answered in the affirmative.
13. POINTS NO.2 & 3:- These points are taken
together to avoid repeated discussions.
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14. Brief facts of the case is that petitioner is the
legally wedded wife of respondent. Petitioner is BDS
graduate and respondent is MBBS M.D. post graduate.
Marriage of the petitioner and respondent was solemnized
on 13.3.2005 at Gayathri Hall, Dharmasthala, Dakshina
Kannada district in the presence of relatives, friends and
well wishers. Marriage of the petitioner and respondent was
an arranged marriage.
15. After the marriage, petitioner and respondent
started to live at their matrimonial home at Suddagunte
Palya, Bengaluru. In the initial days of the marriage,
respondent was look after the petitioner well. Respondent
was appointed as government doctor at Kidwai Hospital.
Petitioner and respondent are started to live in the quarters.
After the birth of second daughter, respondent started
harassing, torturing the petitioner mentally and physically
without any lawful reason. Respondent forced the petitioner
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Crl.A.No.467/2020
to do all the household work and treated the petitioner like
a servant. Respondent always used to find fault with the
petitioner. Respondent abused the petitioner and children
in filthy language. Respondent inflicted immense pain and
sorrow and the petitioner was subjected to mental and
physical harassment, severe acts of domestic violence. V.R.
Dishitha is studying 7th standard and Dimithra V.R. is
studying at 4th standard in Christ school. The yearly
educational expenses of minor children is more than 2 lakhs
per year. Hence, petitioner has filed petition for interim
maintenance.
16. Advocate for appellant has submitted that
impugned order is an exparte order passed by the trial
court. Marriage between appellant and respondent is under
dispute. Advocate for appellant has produced certified copy
of the impugned order also relied upon citation of judgment
reported in AIR 2009 (NOC) 808 (Bombay) in which it is held
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Crl.A.No.467/2020
that exparte order for interim relief U/s.18 to 22 of PWDV
Act can be granted by the Magistrate in exercise all powers
U/s.23 of PWDV Act. However, before granting interim relief
opportunity of hearing is to be granted to respondent. In
another judgment passed in Crl.R.P. 815/2009 Hon'ble High
Court of Karnataka has directed Learned trial court to
consider application filed by the respondent for grant of
relief applying by following procedure prescribed for trial of
summons case under the Code of Criminal Procedure, after
giving due opportunity to the petitioner and the respondent
to lead such evidence as they may choose.
17. In another judgment of Rajnesh V/s. Neha and
another in Crl.A.No.730/2020, Hon'ble Supreme Court of
India has held as under;
(b) Payment of Interim Maintenance: The affidavit
of Disclosure of Assets and Liabilities annexed as
Enclosures I, II and III of this judgment, as may be
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applicable, shall be filed by both parties in all
maintenance proceedings, including pending
proceedings before the concerned Family
Court/District/Magistrate Court, as the case may
be, throughout the country.
18. Perused the order sheet maintained by trial
court in Crl.Mis.No.212/2019. No such entry is forthcoming
in the trial court order sheet to show that petitioner and
respondent has filed their affidavits in the enclosures I, II
and III provided in the judgment reported in Rajnesh V/s.
Neha and another case.
19. Advocate for the respondent has submitted that
appellant is the husband of respondent. In the impugned
order trial court has directed to pay Rs.50,000/-(fifty
thousand) each for two children per annum to meet their
educational expenses. Appellant is a MBBS holder, medical
officer, serving at Kidwai Hospital. Respondent is BDS
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graduate. This petition is filed U/s.12 of PWDV Act.
Contentions raised by appellant/ husband that there was no
marriage between appellant and respondent. There was no
relationship as husband and wife between appellant and
respondent. Appellant has not paid any amount towards
maintenance of wife and children. To take statement of
objection filed by the appellant herein, trial court imposed
condition to deposit interim maintenance ordered. Even
then, appellant failed, neglected and refused to pay the
amount as ordered by the trial court. Fine levy warrant and
NBW is issued against the appellant.
20. Advocate for respondent filed written arguments
and following documents;
1. Invitation Card.
2. Birth certificate of V.R.Dishitha.
3. Birth Certificate of Dimithra V.R.
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4. Certificate issued by Christ School of
Dishitha V.R.
5. Certifiate issued by Christ School of
Dimithra V.R.
6. Fee receipt issued by Christ School of
Dishitha V.R.
7. Fee Receipt issued by Christ School of
Dimithra V.R.
8. Plaint in O.S.No.5343/2018.
9. Salary Certificate.
10. Aadhar card of Smt. Prathibha
Raghavendra.
21. Undisputed facts in this case is that trial court
passed an ad-interim exparte order of maintenance in
favour of children of appellant and respondent to meet their
education expenses. It is not in dispute that appellant is
working as medical officer at Kidwai hospital, Bengaluru.
Considering the present cost of education, Rs.50,000/- per
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Crl.A.No.467/2020
annum per child is reasonable educational expenses
awarded by the trial court.
22. Advocate for appellant has submitted that
appellant is ready to deposit arrears of maintenance
ordered by the trial court under protest. It is just and proper
to permit the appellant to deposit amount of interim
maintenance ordered by the trial court before the trial court
subject to final decision in the application filed U/s.12 of
PWDV Act because there is dispute with respect to very
marriage between petitioner and respondent. Further,
amount deposited by the appellant/ Raghavendra has to be
utilized by the respondent herein. Only for educational
expenses of the children. A suitable direction in this regard
is necessary. Therefore, impugned order is sustainable in
law. Hence, interference of this court into the impugned
order is not necessary. Hence, point No.2 is answered in
the affirmative and point No.3 is answered in the negative.
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23. POINT NO.4 :- In view of findings on the above
points No.1 to 3, this appeal liable to be dismissed. Hence,
following order is made:
ORDER
I.A. filed U/s.5 of Limitation Act is hereby allowed.
Delay in preferring this appeal is condoned. Criminal Appeal filed U/Sec.29 of PWDV Act is hereby dismissed.
Consequently, impugned order dated 29.11.2018 passed in Crl.Misc.No.185/2018 on the file of II- MMTC., Court, Bengaluru, is hereby confirmed.
Appellant/Raghavendra H.V. who is respondent in the trial court is hereby permitted 15 Crl.A.No.467/2020 to deposit arrears of the interim order amount passed by the trial court in the trial court. Amount so deposited shall be considered at the time of disposal of petition filed U/s.12 of PWDV Act 2005.
Respondent/Prathibha Raghavendra who is petitioner in trial court is permitted to withdraw the maintenance amount deposited by Raghavendra H.V. only by production of receipts of fee paid to the school on behalf of children. It is made clear that respondent is not permitted to withdraw the amount deposited apart from amount paid to school and expenses incurred for the purpose of education of children because marriage itself is in dispute.
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Crl.A.No.467/2020 Non-bailable warrant, Fine Levy Warrant issued against Raghavendra for recovery of arrears of maintenance as per interim order is hereby recalled.
Office is directed to send back T.C.R., if received along with certified copy of this judgment to the trial court, forthwith. (Dictated to the Judgment Writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 7th day of April, 2021) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
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Crl.A.No.467/2020 7.4.2021 Judgment pronounced in the open court Vide separate judgment ORDER I.A. filed U/s.5 of Limitation Act is hereby allowed.
Delay in preferring this appeal is condoned. Criminal Appeal filed U/Sec.29 of PWDV Act is hereby dismissed.
Consequently, impugned order dated 29.11.2018 passed in Crl.Misc.No.185/2018 on the file of II- MMTC., Court, Bengaluru, is hereby confirmed.
Appellant/Raghavendra H.V. who is respondent in the trial court is hereby permitted to deposit arrears of the interim order amount passed by the trial court in the trial court. Amount so deposited shall be considered at the time of disposal of petition filed U/s.12 of PWDV Act 2005.
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Crl.A.No.467/2020 Respondent/Prathibha Raghavendra who is petitioner in trial court is permitted to withdraw the maintenance amount deposited by Raghavendra H.V. only by production of receipts of fee paid to the school on behalf of children. It is made clear that respondent is not permitted to withdraw the amount deposited apart from amount paid to school and expenses incurred for the purpose of education of children because marriage itself is in dispute.
Non-bailable warrant, Fine Levy Warrant issued against Raghavendra for recovery of arrears of maintenance as per interim order is hereby recalled.
Office is directed to send back T.C.R., if received along with certified copy of this judgment to the trial court, forthwith.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.