Bangalore District Court
Srinidhi.C.K vs Smt. Rajani.P.R on 30 July, 2022
KABC010010902022
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
(CCH-61)
DATED THIS THE 30 th DAY OF JULY, 2022
:PRESENT:
Sri. Narashimsa.M.V., B.Com., LL.B.,
LX Addl. City Civil & Sessions Judge,
Bengaluru.
CRIMINAL APPEAL NO. 53/2022
APPELLANT :- Srinidhi.C.K.
S/o Karunanidhi C.H.
Aged about 33 years
Working at Vasavi Hospital
No.15, 1st Stage, 70th cross
Kumaraswamy Layout,
Bengaluru-560 078.
Also available at
No.75, 14th Main Road,
Muneshwara Block,
Girinagar,
Bengaluru-560 085.
(Sri. C.V.Srinivasa, Adv)
V/s
RESPONDENT :- Smt. Rajani.P.R.
W/o Srinidhi.C.K.
Aged about 31 years
2 Crl.A.No. 53/2022
D/o Raghavendra P.S.
R/at No. 18/A, 2nd Floor
3rd Main Road,
Muneshwara Nagar
Bengaluru-560 070.
(Sri. T. Chandrappa, Adv)
JUDGMENT
Appellant in this appeal is respondent in Crl. Misc. 39/2020 on the file of Hon'ble MMTC-III, Bengaluru. Respondent herein is petitioner in said case. Parties are hereinafter referred to as per their rankings before the learned MMTC-III.
2. Petitioner (wife) filed petition under Sec. 12 of Protection of Women from Domestic Violence Act, 2005 for the relief of taking cognizance of domestic violence committed by respondent, issuing direction to respondent not to commit any sort of violence, protection order under Sec. 18 of the Act, direction to respondent to pay maintenance of Rs 25,000/- under Sec. 20 of the Act, for compensation of Rs 50 lakhs towards suffering under Sec. 22 of the Act.
3. Brief facts of the case are as under :
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Marriage of petitioner and respondent was a love cum arranged marriage performed on 9.3.2015. It is registered in the office of Registrar of Marriages, Chikkamagaluru on 25.1.2016. After marriage petitioner and respondent stayed in a rented house at Nagarabhavi, thereafter moved to a leased house in Muneshwaranagar, Bangalore. A son was born to petitioner and respondent on 9.1.2019, difference arose between petitioner and respondent, petitioner alleged that respondent is having illicit relationship with another women, attempt to take away the child was made by respondent and other women, police complaint was lodged in this behalf. Respondent No.1 abandoned petitioner and her son in June 2020 itself, has neglected to take care of the child, has not paid rent or any amount towards maintenance, there has been continuous domestic violence as well. Hence petition under Sec. 12 of PWDV Act was filed on 3.8.2020.
4. After service of notice respondent filed objections denying all the allegations made against him. During pendency of Crl. Misc. 39/2020, respondent filed application under Sec. 21 of PWDV Act with the following prayer :
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" to confer visitation rights to the respondent to enable him to visit his son Master Gagan C.S. who is under the custody of the petitioner, on all Saturdays and Sundays between 9.00 a.m. till 5.00 p.m. at the petitioner's address as mentioned in the cause title and further to direct the petitioner and her family members not to intimidate and disturb the respondent while he is exercising his visitation rights, in the interest of justice".
5. In the accompanying affidavit it is averred that respondent was deprived of company of son, respondent was driven out of the house, attempts made to meet the child have remained futile, for bringing up of child company of both parents is required, no prejudice or hardship would be caused to the petitioner.
6. Objections came to be filed by petitioner to the application. In objection it is stated that application is not maintainable, substantial portion of the averments made in application filed under Sec. 12 of PWDV Act were reiterated. It is stated that respondent is having illicit affair, application is devoid of merits cannot be considered. After hearing both sides, learned MMTC-III vide order dated 13.12.2021 rejected the application filed by respondent as not 5 Crl.A.No. 53/2022 maintainable. Liberty was reserved to respondent to approach the proper forum to get visitation right in respect of his minor child.
7. Being aggrieved by the order dated 13.12.2021 this appeal has been filed under Sec. 29 of PWDV Act.
8. Grounds urged in this appeal are :
Trial Court has passed the impugned order without application of mind, has deprived right of respondent in respect of visiting the child under PWDV Act, Trial Court has misread the Judgment of the Hon'ble Supreme Court and other High Courts cited before it, Trial Court has committed an error in exercising the jurisdiction vested with it, interpretation of provisions as made by the Trial Court is wrong. Petitioner cannot control the reliefs to be granted to respondent (husband), custody was not sought for by respondent, only visitation right was sought for and it has been unreasonably denied by the Trial Court, totally a lopsided view has been taken by the Trial Court. Hence prayed for setting aside of the impugned order.6 Crl.A.No. 53/2022
9. Interim application under Sec. 29 of PWDV Act with similar prayer as made before Trial Court came to be filed along with this appeal.
10. Notice was issued on I.A.No.1 and appeal memo, respondent was served, engaged an Advocate. Respondent filed objections to main petition wherein it is contended that the order passed by Trial Court is perfect in all respects cannot be interfered with, respondent is leading an adulterous life, substantial portion of the objections filed to application under Sec. 21 of PWDV Act is reiterated. It is stated that present appeal has been filed with a view to harass the petitioner, there are no grounds to set aside the impugned order. Prayed for confirmation of the impugned order.
11. Learned Advocate for appellant filed memo with two citations :
(1) Hon'ble Supreme Court - Mr. Inaobi Singh Maibam Vs Huidrom Ningol Maibam Ongbi Omila.
(2) Hon'ble High Court of Judicature at Bombay - Mrs. Payal Sudeep Laad @ Payal Sharma v/s Sudeep Govind Laad and another.
12. Learned Advocate for petitioner filed written arguments with one citation:
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(1) Hon'ble High Court of Karnataka - Smt. Jyoti Priya v/s Shri Paul Goodwin.
13. Heard both sides.
14 The points that arise for my consideration are :-
(1) Whether there are any grounds to set aside the impugned order dated 13.12.2021 ?
(2) What Order?
15. My findings to the above points are as follows:
Point No. 1 : In the Affirmative
Point No. 2 : As per final Order for the following:
REASONS
16.Point No. 1:- In a nutshell the disputed point in this appeal is with regard to applicability of Sec. 21 of PWDV Act. It is as under :
21. Custody orders.--Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent: 10 Provided that if the Magistrate is of the opinion that any visit of the respondent may be 8 Crl.A.No. 53/2022 harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.
17. At this stage it is also relevant to extract Sec. 26 of PWDV Act, it is as under :
26. Relief in other suits and legal proceedings.-- (1) Any relief available under sections 18, 19,20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.
18. Sec. 21 consists of two parts, first part deals with the remedy available to the aggrieved person or the persons making an application on or behalf of aggreived person, second part deals with the arrangements which the Court can make for visit of such child or children by the respondent. In this case aggrieved person is the petitioner, respondent is the husband. The child Master Gagan is in 9 Crl.A.No. 53/2022 the custody of petitioner, respondent has not sought for custody of the child but has only sought for visitation rights.
19. Visitation rights of father of the child is encompassed in the second part of Sec. 21 of PWDV Act. When reference is made to Sec. 26 of PWDV Act, it is clear that remedy in any legal proceedings in addition to Sec. 26 (1) of PWDV Act can be sought by the aggrieved person alone. At the cost of repetition aggrieved person in this case is petitioner (wife).
20. In the case of Mr. Inaobi Singh Maibam v/s Smt. Hindrom Ningol Maibam Ongbi Omila Devi, Hon'ble Supreme Court of India has confirmed the order passed by learned Sessions Judge, Imphal, granting visitation rights to the father on 2 nd and 4th Saturday of every month. In this context relying upon this Judgment Advocate for respondent (husband) contended that the application filed by respondent (husband) ought to have been allowed. Learned counsel for respondent/husband relied upon the decision of the High Court of Judicature at Bombay, wherein order passed by the learned Magistrate allowing application filed by father under Sec. 21 of PWDV Act and subsequent confirmation of order of the learned 10 Crl.A.No. 53/2022 Magistrate granting visitation rights to father by the Sessions Judge came to be confirmed.
21. Advocate for petitioner (wife) has referred to the decision of the High Court of Karnataka in a petition which arise out of G & WC Case. Hon'ble High Court has in para-23 and 24 of the said Judgment has held as under :
22. It is well-known and a well-settled principle that character building is an essential part of a child's growth and in this process, parents are the facilitators and in the absence of any one of the parent interacting with the child, the child would become that much unfortunate and deficient.
23. In this general factual scenario, the Division Bench of our High Court has held in Savitha Seetharam vs. Rajiv Vijayasarathy Rathnam (2020 SCC Online Kar 2747 in M.F.A. 1536/2015 c/w M.F.A. 137/2015 decided on 11.09.2020) regarding recognizing the rights of the child in various nations and laid emphasis on various facets of parenting plan such as preference of the child, visitation and custody of children and upon referring to catena of judgements, indicated the sustainable growth of the child and further recognized the equal parenting rights including visitation rights and came to the 11 Crl.A.No. 53/2022 ultimate conclusion that parenting plan is very much required. In fact, the Division Bench also exclusively interviewed the child and passed necessary orders thereon.
24. Viewed from any angle, respondent/father cannot be denied visitation rights as every child needs company and care of both parents. In the context of Sec. 21 of PWDV Act, duty is cast upon the Learned Magistrate to ascertain as to whether any visit of the respondent may be harmful to the interest of child. Facts of this case reveal that allegations have been made by petitioner that attempt to kidnap the child was made by respondent and women with whom he is having illicit affair. In the objections filed to the application it is stated that police complaint was lodged but only in the written argument before this Court date of complaint is mentioned as 20.10.2020. It is curious to note that in which police station it was lodged is not at all stated. Application filed under Sec. 21 of PWDV Act in Crl. Misc. 39/2020 came to be filed on 1.10.2020, copy of said application has been duly served to petitioner on 6.10.2020, time was sought to file objections, case was adjourned to 24.11.2020. In the interregnum police complaint is shown to have been lodged. It is pertinent to note that petitioner wife has alleged 12 Crl.A.No. 53/2022 that she is living in house No. 18/A, 2 nd Floor, III Main Road, Muneshwaranagar, Bangalore-560 070, respondent (husband) in this appeal memo has given two addresses.
25 . Allegations have been made by petitioner that respondent tried to kidnap the child. Age of the child as on today is 3 years 6 months. It appears that the child is in care and custody of the mother since birth. Prayer made in application filed under Sec. 21 is as under :
" to confer visitation rights to the respondent to enable him to visit his son Master Gagan C.S. who is under the custody of the petitioner, on all Saturdays and Sundays between 9.00 a.m. till 5.00 p.m. at the petitioner's address as mentioned in the cause title and further to direct the petitioner and her family members not to intimidate and disturb the respondent while he is exercising his visitation rights, in the interest of justice".
26. Allegations made in Sec. 12 application are to the effect that domestic violence took place at the address of the petitioner, in the event visitation right is granted, it would amount to permitting respondent/husband to visit the house of the petitioner, which could 13 Crl.A.No. 53/2022 in the circumstances of the case create an atmosphere of insecurity and embarrassments as well.
27. It is noteworthy that the respondent father has presupposed that visitation rights will be granted to him and has ventured to seek an direction that the (petitioner and her family members) not to intimate and destruct the respondent as well. This aspect makes it clear that respondent on all Saturdays and Sundays wants to be in the house of petitioner (wife) from 9.00 a.m. to 5.00 p.m. This aspect in the circumstance of the case, nature of allegations made against respondent is not reasonable. However, respondent father cannot be denied the visitation rights. In order to strike a balance between the rights of respondent/father, interest of the child, interest of the petitioner (wife) an arrangement as indicated in the operative portion of this Judgment can be made. Hence, I answer the above point in the Affirmative.
28. Point No. 2: In view of my findings on point No.1, I proceed to pass the following:-
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ORDER Appeal filed by Appellant under Sec. 29 of the Protection of Women from Domestic Violence Act, 2005 by appellant (husband) is allowed in part.
Impugned order dated 13.12.2021 passed by the learned Magistrate on application filed by appellant/husband under Sec. 21 of PWDV Act is set aside.
Application filed by appellant/husband under Sec. 21 of PWDV Act is allowed in part.
Respondent (husband) is entitled to visit the child on alternate Saturday at a neutral place namely Bangalore Mediation Centre from 11.00 a.m. to 4.00 p.m. only.
Appellant (husband) shall not be entitled to take the child away from the Mediation Centre, through out the visitation period, mother of the child shall be present in the said meeting hall.
(Dictated to Stenographer, transcribed and typed by him, thereafter corrected and then pronounced by me in the open court on this the 30 th day of July, 2022).
(Narashimsa.M.V.) LX Addl.City Civil & Sessions Judge, Bengaluru.
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