Bangalore District Court
Sri Sadasiva Reddy vs Smt. T. Manjula on 10 December, 2018
IN THE COURT OF THE LIX ADDL.CITY CIVIL
& SESSIONS JUDGE, BANGALORE CITY (CCH-60)
Dated this the 10th day of December 2018
PRESENT
Sri B. B.Jakati, B.A., LL.B., (Spl.)
LIX ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY
Crl. Appeal No.742/2017
APPELLANT/S: Sri Sadasiva Reddy
S/o Anki Reddy
Aged about 61 years,
Door No.140,
Mylasandra Village,
Begur Post,
Bengaluru - 68.
(By Sri P. Nehru, Advocate)
-Vs-
RESPONDENT/S: Smt. T. Manjula,
W/o Sadasiva Reddy,
Aged about 47 years,
Door No.140,
Mylasandra Village,
Begur Post,
Bengaluru - 68.
(Rep.by Sri N.K.N., Advocate)
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Crl.Appeal No.742/2017
JUDGMENT
This Criminal Appeal is filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (in short D.V. Act) wherein the Order dated 27.04.2017 passed by Learned Metropolitan Magistrate, Traffic Court-II, Bengaluru in Crl.Misc.No.86/2014 has been challenged.
2. The essential facts required for disposal of this appeal are that the respondent/wife filed petition under Section 12 of D.V. Act against the appellant/husband for the reliefs under Section 18, 19, 20 and 22 of D.V. Act. It has been alleged that the appellant was a widower and the respondent married the appellant on 27.05.2001. She resided with the appellant in domestic relationship and common household. The appellant subjected her into harassment both mentally and physically and thereby committed domestic violence. She has also pleaded her inability to maintain herself and various 3 Crl.Appeal No.742/2017 properties owned and possessed by the appellant. On such grounds, she prayed to grant the reliefs.
3. The appellant contested the matter by filing objections. He has admitted his relationship with the respondent but denied the domestic violence. He has also denied his source of income and inability of the respondent to maintain on her own. Accordingly, he prayed to reject the petition.
4. In the trial court the respondent examined herself as P.W.1 to substantiate her allegations. The appellant cross-examined the respondent. The appellant examined himself as RW.1. The respondent not cross-examined the appellant. Then the trial court after perusing the material on record has held that the appellant committed domestic violence on the respondent. Therefore, the respondent is entitled for order of maintenance and protection order. Accordingly, the trial court has granted monthly maintenance of Rs.10,000/- to the respondent and even granted protection order 4 Crl.Appeal No.742/2017 through impugned judgment. Such judgment of the court below has been challenged by the appellant on various grounds.
5. The Appeal was admitted. The respondent appeared through her counsel after service of summons. The lower court recovers have been secured. The respondent filed application under Section 391 of Cr.P.C. to adduce additional evidence on the ground that she produced many documents which are in the file and marking of those records is very essential. It has been stated that she applied for certified copies of certain documents which are secured and those documents are relevant. On these grounds she prayed to permit her to produce the documents by way of additional evidence. The appellant filed objection to this application contending that after advancing the argument in the Appeal, the respondent filed application, which is not maintainable. He has contended that the respondent has not filed any cross Appeal and therefore, application under Section 391 of Cr.P.C. is not at all maintainable. This 5 Crl.Appeal No.742/2017 application is also taken up for consideration along with the Main Appeal.
6. The learned counsel for the appellant has argued that the appellant has denied all the averments made by the respondent by way of cross-examination and also by filing objection statement. Even the appellant examined himself as RW.1 by denying the allegations made against him and such statement of RW.1 is not at all challenged by the respondent by way of cross-examination and it has become unchallenged. Such unchallenged evidence of appellant has not been taken into consideration by the trial court while passing the judgment and hence, the judgment is erroneous. He has further argued that the respondent not produced any documentary evidence to show the properties owned and possessed by the appellant including the source of income. In the absence of such evidence the trial court has granted maintenance of 6 Crl.Appeal No.742/2017 Rs.10,000/-, which is against the principles of law. On these grounds he prayed to set aside the judgment by dismissing the petition.
7. The learned counsel for the respondent justified the finding recorded by the trial court. The appellant has not advanced argument on the application filed under Section 391 of Cr.P.C. The counsel for the respondent who filed the application partly advanced his argument stating that his application is maintainable even though no cross Appeal is filed.
8. In the light of the contentions raised by the parties and the material on record, the following points arise for my determination:
(1) Whether the additional evidence sought to be produced by the respondent is necessary for decision of the matter in controversy?
(2) Whether the trial court has committed error in granting the reliefs to the respondent even 7 Crl.Appeal No.742/2017 though the respondent not challenged the evidence of RW.1?
9. My findings to the above points are as under:
Point Nos.1 & 2 : In the Affirmative for the following:-
REASONS
10. POINT Nos.1 & 2 :- The parties have admitted that the respondent is the wife of appellant and their marriage was solemnized on 27.05.2001. It is also admitted that now they are residing separately. The appellant has filed the petition for divorce against the respondent and such petition is still pending.
11. The respondent in her petition and in her evidence has categorically stated that when she was residing with the appellant, the appellant has harassed her and thereby committed domestic violence. These allegations have been denied by the appellant by filing objection statement and by way of cross-examination of P.W.1. 8
Crl.Appeal No.742/2017 The appellant who has been examined himself as RW.1 before the court below has also denied the allegations made by the respondent about domestic violence. The statement made by appellant/RW.1 is not denied by the respondent by way of cross-examination. Therefore, such statement of appellant is unchallenged testimony. In view of these facts in order to give a finding of domestic violence by the appellant, the court below was required to give explanation as to why he has rejected uncontroverted testimony of RW.1. On perusal of the judgment and the reasons recorded by the trial court, I do not find any whisper about rejecting the evidence of RW.1. So, it is very clear that without looking into statement of RW.1, the trial court has blindly held that the respondent has proved the fact of domestic violence. This finding of trial court is erroneous. Therefore, such finding is not maintainable under law. On this ground alone the judgment passed by the trial court is to be set aside.
12. In order to grant relief of maintenance under D.V. Act the court is required to look into social status of both parties and 9 Crl.Appeal No.742/2017 economic condition of the husband. The respondent who claimed maintenance not got marked any documentary evidence to prove the source of income of her husband. In the absence of such records, the trial court has granted maintenance @ Rs.10,000/- per month. To grant maintenance the trial court has given the reasoning that since appellant is her husband, he is duty bound to maintain his wife. This reasoning of the trial court is not sustainable to grant maintenance @ Rs.10,000/- per month. Therefore, I hold that even order of maintenance granted by the trial court is not sustainable under law.
13. The respondent has pleaded and also deposed that appellant is having many lands and house properties and from such properties he is getting income. In order to substantiate such fact, the respondent produced Record of Rights of the lands said to be held by the appellant and various photographs of the house properties. But during the evidence the respondent not tendered 10 Crl.Appeal No.742/2017 these documents in evidence. It appears that respondent who is represented through Legal Practitioner lost sight in tendering the material documents in evidence at the time of examining the respondent. Now it is found that the records relating to immovable properties of appellant are necessary for just decision of the case. If the respondent is not permitted to produce these records, she would be put to hardship and she would not get order of maintenance claimed in the petition.
14. Now the question arises whether the respondent could be permitted to produce the documentary evidence or to get mark the records already on the file in the absence of cross Appeal filed under the provisions of D.V. Act. Section 391 of Cr.P.C. provides that the Appellate Court if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself or direct it to be taken by a Magistrate etc., Section 28(1) of D.V. Act provides that all the provisions under Section 12, 18, 19, 20, 21, 22 and 23 11 Crl.Appeal No.742/2017 and also the offence under Section 31 shall be governed by the provisions of Code of Criminal Procedure. Section 36 of D.V. Act further provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
15. Combined reading of these provisions of law clearly show that Section 391 of Cr.P.C. could be invoked even in the Appeal filed under Section 29 of D.V. Act. In order to invoke Section 391 of Cr.P.C. independent Appeal or Cross Appeal by the party who file application is not necessary. Any of the parties to the Appeal can invoke Section 391 of Cr.P.C. before the Appellate Court. Therefore, I hold that the application filed by the respondent under Section 391 of Cr.P.C. is maintainable before this court even though she has not filed Cross Appeal or independent Appeal under Section 29 of D.V. Act. Accordingly, I answer these points.
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Crl.Appeal No.742/2017
16. It is found that the respondent shall be permitted to lead additional evidence and the reasonings recorded by the court below are erroneous. Therefore, I hold that matter requires to be remanded to the trial court for disposal in accordance with law afresh by giving liberty to the respondent to lead evidence, which will meet the ends of justice to both parties. Accordingly, I proceed to pass the following:
ORDER The Criminal Appeal filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 is hereby allowed.
The Order dated 27.04.2017 passed by the Learned Metropolitan Magistrate, Traffic Court- II, Bengaluru in Crl.Misc.No.86/2014 is hereby set aside.
Application filed under Section 391 of Cr.P.C. is allowed.13
Crl.Appeal No.742/2017 Consequently the matter is remanded to the trial court to decide afresh in accordance with law after giving opportunity to both parties to lead additional evidence.
Both parties directed to appear before the trial court on 10.01.2019 without waiting for notice. The trial court shall take up the matter on 10.01.2019.
Furnish copy of the judgment to both parties free of cost.
Send the copy of the Judgment along with the records to the lower court.
(Dictated to the Judgment-writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 10th day of December, 2018).
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.14
Crl.Appeal No.742/2017 10.12.2018: (Judgment pronounced in open court (vide detailed separate judgment) ORDER The Criminal Appeal filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 is hereby allowed.
The Order dated 27.04.2017 passed by the Learned Metropolitan Magistrate, Traffic Court-II, Bengaluru in Crl.Misc.No.86/2014 is hereby set aside.
15 Crl.Appeal No.742/2017 Application filed under Section 391 of Cr.P.C. is allowed.
Consequently the matter is remanded to the trial court to decide afresh in accordance with law after giving opportunity to both parties to lead additional evidence.
Both parties directed to appear before the trial court on 10.01.2019 without waiting for notice. The trial court shall take up the matter on 10.01.2019.
Furnish copy of the judgment to both parties free of cost.
Send the copy of the Judgment along with the records to the lower court.
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
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