Karnataka High Court
Nagshetty S/O Late Gurusiddappa Patil vs Aruna W/O Nagshetty Patil on 12 July, 2018
1 Crl.R.P.No.200070/2015
C/w Crl.R.Nos.200079/2015
& 200062/2016
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL REVISION PETITION NO.200070/2015
C/W
CRIMINAL REVISION PETITION NOS.200079/2015
& 200062/2016
IN CRIMINAL REVISION PETITION NO.200070/2015:
BETWEEN:
1. Nagshetty S/o Late Gurusiddappa Patil,
Age About : 58 Years,
Occ : Lecturer (HOD),
R/o Siddapur, Taluka Bidar,
C/o C.B. College, Bhalki.
2. Chandramma W/o Late Gurusiddappa Patil,
Age About 75 Years,
Occ : Household,
R/o Siddapur, Taluka Bidar.
3. Shivaraj S/o Late Gurusiddappa Patil,
Age About 52 Years,
Occ : Agriculture,
R/o Siddapur, Taluka Bidar.
2 Crl.R.P.No.200070/2015
C/w Crl.R.Nos.200079/2015
& 200062/2016
4. Vaijinath S/o Late Gurusiddappa Patil,
Age About 45 Years,
Occ : Agriculture,
R/o Siddapur, Taluka Bidar.
... Petitioners
(By Sri K.M.Ghate, Advocate)
AND:
Aruna W/o Nagshetty Patil,
Age About : 45 Years,
Occ : Household,
R/o Nandi Colony,
H.No.9-1-686, Bidar.
... Respondent
(By Sri Avinash A. Uplaonkar, Advocate)
This Criminal Revision Petition is filed under
Sections 397 and 401 of Cr.P.C., praying to pass an
order setting aside the orders under challenge passed
by Prl. Sessions Judge Bidar in Crl. Appeal No.12/2015
dated 16th September 2015 vide Annexure 'A' and
consequently the orders in Crl.Misc.No.1053/2012 on
the file of II Addl. Civil Judge & JMFC Bidar dated 19th
January 2015 by calling the lower Court records.
IN CRIMINAL REVISION PETITION NO.200079/2015:
BETWEEN:
1. Nagshetty S/o Late Gurusiddappa Patil,
Age About : 58 Years,
3 Crl.R.P.No.200070/2015
C/w Crl.R.Nos.200079/2015
& 200062/2016
Occ : Lecturer (HOD),
R/o Siddapur, Taluka Bidar,
C/o C.B. College, Bhalki.
2. Chandramma W/o Late Gurusiddappa Patil,
Age About 75 Years,
Occ : Household,
R/o Siddapur, Taluka Bidar.
3. Shivaraj S/o Late Gurusiddappa Patil,
Age About 52 Years,
Occ : Agriculture,
R/o Siddapur, Taluka Bidar.
4. Vaijinath S/o Late Gurusiddappa Patil,
Age About 45 Years,
Occ : Agriculture,
R/o Siddapur, Taluka Bidar.
... Petitioners
(By Sri K.M.Ghate, Advocate)
AND:
Aruna W/o Nagshetty,
Age About : 45 Years,
Occ : Household,
R/o Nandi Colony,
H.No.9-1-686, Bidar.
... Respondent
(By Sri Avinash A. Uplaonkar, Advocate)
This Criminal Revision Petition is filed under
Sections 397 and 401 of Cr.P.C., praying to pass an
order setting aside the orders under challenge passed
by Prl. Sessions Judge Bidar in Crl. Appeal No.6/2015
dated 16th September 2015 vide Annexure 'A' and
consequently the orders in Crl.Misc.No.1053/2012 on
4 Crl.R.P.No.200070/2015
C/w Crl.R.Nos.200079/2015
& 200062/2016
the file of II Addl. Civil Judge & JMFC Bidar dated 19th
January 2015 by calling the lower Court records.
IN CRIMINAL REVISION PETITION NO.200062/2016:
BETWEEN:
Aruna W/o Nagshetty Patil,
Age : 45 Years,
Occ : Household,
R/o Nandi Colony,
H.No.9-1-686, Bidar.
... Petitioner
(By Sri Avinash A. Uplaonkar, Advocate)
AND:
Nagshetty S/o Late Gurusiddappa Patil,
Age : 65 Years,
Occ : Lecturer (HOD),
Working in Commerce Department
in C.B. College Bhalki,
R/o Siddapur, Tq. Bhalki,
C/o C.B. College, Bhalki,
Dist.Bidar.
... Respondent
(By Sri K.M.Ghate, Advocate)
This Criminal Revision Petition is filed under
Sections 397 R/w 401 of Cr.P.C., praying to modify the
Judgment and Order dated 16.09.2015 passed in
Crl.Appeal No.6/2015 by the Principal District and
Sessions Judge at Bidar and to pass an order of
enhancement to the extent of quantum of marriage
expenses of two daughters by ordering for creation of
lien on the retirement benefits of the respondent.
5 Crl.R.P.No.200070/2015
C/w Crl.R.Nos.200079/2015
& 200062/2016
These petitions are coming on for Admission this
day, the Court made the following:
ORDER
Heard.
2. These petitions arise out of the common judgment and order dated 16.02.2015 passed by the Principal District and Sessions Judge, Bidar, in Criminal Appeal Nos.6/2015 and 12/2015. Those appeals in turn arose out of the judgment and order dated 19.01.2015 passed by the Second Additional Civil Judge and JMFC, Bidar, in Criminal Miscellaneous No.1053/2012.
3. Petitioner in Crl.R.P.No.200062/2016 filed Crl.Misc.No.1053/2012 against the petitioners in Crl.R.P.No.200070/2015, and his mother and brothers. For the purpose of convenience, the parties will be referred to hereafter with their ranks before the trial Court.
6 Crl.R.P.No.200070/2015C/w Crl.R.Nos.200079/2015
& 200062/2016
4. Petitioner filed Crl.Misc.No.1053/2012 alleging that respondents being her husband and in-laws subjected her and her children to physical and mental violence and thus claimed order of protection, maintenance of Rs.30,000/- for herself and Rs.10,000/- each for her children per month and compensation of Rs.1,00,000/- towards damages suffered by her due to such violence.
5. Some of undisputed facts of the case are as under:
a) The marriage of the petitioner and first respondent was performed on 05.05.1981. The parties are Hindus and governed by law relating to Hindu. Couple has three children by name Shilpa, Priyanka and Cheeranjeev. First respondent was working as lecturer in C.B. College, Bhalki and earning salary of Rs.1.15 lakhs monthly as on the date of the petition. As 7 Crl.R.P.No.200070/2015 C/w Crl.R.Nos.200079/2015 & 200062/2016 per his own admission, he left the petitioner and her children in 2007. The first daughter is Law Graduate, second daughter is an Engineering Graduate and son was studying in II PUC at the time of filing of the petition. The house where the petitioner and her children were residing initially stood in the name of first respondent, but later it was transferred in the name of the petitioner and her son under a gift deed. That was prior to filing of the petition.
b) Before filing the petition, the petitioner got issued notice Ex.P1 on 28.09.2012 imputing the first respondent's act of domestic violence, abandonment of wife and children due to his addiction to gambling and alcohol. In the notice, she also claimed monthly maintenance of Rs.15,000/- for herself and her children. First respondent did not reply that notice. In the year 2007, first respondent filed a criminal case against 8 Crl.R.P.No.200070/2015 C/w Crl.R.Nos.200079/2015 & 200062/2016 the petitioner and her two daughters for the offence punishable under Section 307 IPC which led to the judicial custody of the petitioner and her two daughters for three days.
6. In the petition filed before the Magistrate, the first respondent filed objection statement denying the allegations of desertion, cruelty and claiming that he is ready to maintain his wife and children. He claimed that monetary relief claimed by the petitioner is exorbitant. He contended that the petitioner and her daughters themselves have driven him out of the family house, therefore, he is living in rented house and he himself is entitled to an order of residence.
7. The petitioner got examined herself as PW.1, her daughter Shilpa as PW.2 and got marked Exs.P1 to P13. The respondent No.1 got himself examined as RW.1 and did not produce any document. The Magistrate after hearing both sides held that the first 9 Crl.R.P.No.200070/2015 C/w Crl.R.Nos.200079/2015 & 200062/2016 respondent filing criminal case and subjecting the petitioner and her daughters to judicial custody and then settling the matter itself amounts to cruelty. The Magistrate further held that sale of the site of the petitioners by first respondent amounts to economic abuse. The Magistrate further held that the very fact of first respondent admitting in the evidence that he does not know in which class his children are studying shows his clear negligence and shirking of responsibility that amounts to violence. Thus, the Trial Court gave a finding that there is domestic violence to the petitioner and her children.
8. So far as granting maintenance, relying upon the judgment of the Delhi High Court in Joginder & Anr. vs. State of NCT of Delhi and Anr. - 2010 (119) DRJ 349, the Trial Court held that where there are three dependants, they are entitled to 50% of the salary of the respondent. Thus, the Trial Court awarded monthly maintenance of Rs.15,000/- to the petitioner, 10 Crl.R.P.No.200070/2015 C/w Crl.R.Nos.200079/2015 & 200062/2016 Rs.10,000/- each to the daughters of the petitioner till they get married and Rs.10,000/- to the son of the petitioner till he attains majority which was payable to the petitioner. The Trial Court further awarded Rs.50,000/- as compensation and granted protection order.
9. The petitioner challenged the said order before the Sessions Court in Criminal Appeal No.6/2015 on the ground of inadequacy of maintenance/compensation. First respondent challenged the entire order of the Trial Court before the Sessions Court in Criminal Appeal No.12/2015. The Sessions Judge by the impugned common order dismissed the appeal of husband/first respondent and allowed the appeal of the petitioner/wife in part enhancing monthly maintenance to Rs.30,000/- and granted Rs.10 lakhs to the petitioner towards expenses of marriage of two daughters and rest of the Trial Court order was maintained.
11 Crl.R.P.No.200070/2015C/w Crl.R.Nos.200079/2015
& 200062/2016
10. Sri Avinash Uploankar, learned counsel for the petitioner contends that the marriage expenses of Rs.10 lakhs awarded by the first Appellate Court for performing marriage of two daughters of the petitioner is inadequate and incommensurate to the status of first respondent.
11. Sri K.M.Ghate, learned counsel for first respondent/husband seeks to assail the order of the Courts below on the following grounds.
i. First respondent has never neglected his wife and daughters. He had maintained them till the date of petition. Therefore the finding on domestic violence is illegal.
ii. He is not liable to maintain the major daughters and son on he attaining the majority. Those daughters and son were not parties to the petition. Therefore, the 12 Crl.R.P.No.200070/2015 C/w Crl.R.Nos.200079/2015 & 200062/2016 order granting maintenance to the daughters and son is illegal and iii. Domestic Violence Act does not provide for granting marriage expenses much less in advance. No material was produced in proof of any arrangement of marriage of the daughters.
12. First respondent himself has admitted in his evidence that he has filed criminal case against his wife and daughters alleging that they attempted to commit his murder. In that case, they were subjected to judicial custody for three days. First respondent in his revision petition before this Court himself admits that the said case was registered in Crime No.67/2007 before New Town Police Station, Bidar and that case was compromised later. Further, he himself admits that he left the house in the year 2007.
13. First respondent is a lecturer by profession and he does not dispute that notice Ex.P1 was served 13 Crl.R.P.No.200070/2015 C/w Crl.R.Nos.200079/2015 & 200062/2016 on him wherein the allegations of domestic violence due to his ill-will imputed to him. He does not reply that notice. If there were no such conduct on his part, he could have refuted those allegations. As rightly pointed out by the Trial Court, he even fails to say in which class his children are studying. Having regard to these facts, the Courts below have concurrently held that there was financial abuse, physical abuse and emotional abuse. This Court does not find any illegality in such finding.
14. The next question is whether the maintenance and compensation awarded are exorbitant or untenable. First respondent in his statement of objection did not contend that he has no liability to maintain his children and he has no responsibility of performing marriages of his daughters. For the first time before this Court he is claiming that daughters are not covered under the definition of 'child' as contemplated under Section 2(b) of Protection of Women 14 Crl.R.P.No.200070/2015 C/w Crl.R.Nos.200079/2015 & 200062/2016 from Domestic Violence Act, 2005 (for short 'the D.V. Act').
15. Section 20 of the D.V. Act deals with grant of monetary reliefs, which reads as under:
"20. Monetary Reliefs.--(1) While disposing of an application under Sub- section (1) of Section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person as a result of the domestic violence and such relief may include, but is not limited to, -
(a)xxx
(b)xxx
(c)xxx
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.15 Crl.R.P.No.200070/2015 C/w Crl.R.Nos.200079/2015
& 200062/2016 (2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed."
(emphasis supplied)
16. Thus, it is clear that the compensation awarded should be adequate, fair, reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
17. Further reading of Section 20(1)(d) of the D.V. Act makes it clear that the monetary relief includes the maintenance for the aggrieved persons as well as her children in addition to an order under Section 125 Cr.P.C. or any other law for the time being in force also.
18. It is no doubt true that in Section 2(b) of D.V.Act, the child is defined as "child means any person below the age of eighteen years". But, Section 20(1)(d) of D.V.Act imposes responsibility of paying maintenance to 16 Crl.R.P.No.200070/2015 C/w Crl.R.Nos.200079/2015 & 200062/2016 the children also which is payable in accordance with Section 125 Cr.P.C. or any other law for the time being in force.
19. As already pointed out, the parties are governed by Hindu law. Therefore, Hindu Adoptions and Maintenance law also applies to them. Section 20 of the Hindu Adoptions and Maintenance Act, 1956 fastens the liability on the parents to maintain his or her unmarried daughter who is unable to maintain herself out of his or her own earnings or other property.
20. Section 3(b) of Hindu Adoptions and Maintenance Act states that maintenance includes in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage. Therefore, Section 20(1)(d) of D.V. Act read with Section 20(3) of the Hindu Adoptions and Maintenance Act fastens the legal duty on first respondent to pay maintenance to his daughters till they get married and to 17 Crl.R.P.No.200070/2015 C/w Crl.R.Nos.200079/2015 & 200062/2016 pay them reasonable marriage expenses befitting his status.
21. In similar circumstances, the Kerala High Court in Ambika vs. K.Aravindakshan - Mat. Appeal No.1234/2015 dated 19.12.2017, held that even under the D.V. Act, the father is liable to pay the marriage expenses of the unmarried daughter and maintenance to them. Therefore, there is no merit in the contention that respondent No.1 is not liable to pay maintenance to the major daughters and the marriage expenses.
22. Respondent No.1 though contended that the daughters are working, did not place anything to prove that they have income of their own. He admitted that he was drawing salary of Rs.1,15,000/- per month. He also admitted that his family owned 60 acres of land. Of-course no material was placed in proof of the income from the lands but the fact remained that he had the monthly salary income of Rs.1,15,000/-. Petitioner 18 Crl.R.P.No.200070/2015 C/w Crl.R.Nos.200079/2015 & 200062/2016 herself was staying in the family house with her children, now respondent No.1 is retired from service.
23. Having regard to these facts, this Court is of the considered opinion that maintenance of Rs.15,000/- per month to the petitioner and Rs.10,000/- per month to the daughters till they get married and Rs.10,000/- per month to the son till he attains majority awarded by the trial Court was reasonable. Even the compensation of Rs.50,000/- awarded to the petitioner was reasonable, having regard to the abuse she suffered in the hands of respondent No.1.
24. The first Appellate Court was not justified in enhancing the maintenance of the wife to Rs.30,000/- per month, having regard to the fact that respondent No.1 was on the verge of his retirement. However, the first Appellate Court was fully justified in awarding marriage expenses of Rs.10,00,000/- (Rupees Ten lakhs) for the unmarried daughters. The first Appellate Court 19 Crl.R.P.No.200070/2015 C/w Crl.R.Nos.200079/2015 & 200062/2016 should have awarded marriage expenses of Rs.10,00,000/- (Rupees Ten lakhs) to each of the daughters. The order of the first Appellate Court requires to be modified to that extent. Therefore, the revision petitions are allowed in part.
25. The orders of the Court below are modified as follows ;-
i) Respondent No.1 in the petition filed before the Trial Court is hereby directed to pay maintenance of Rs.15,000/- per month to the petitioner and Rs.10,000/- per month to each of the daughters of the petitioner till they are married and Rs.10,000/- per month to the son till he attains majority. The said maintenance is payable from the date of the petition till the respective dates of daughters getting married and son attaining majority ;
ii) Respondent No.1 shall pay Rs.50,000/- to the petitioner as compensation for the abuse suffered by her. 20 Crl.R.P.No.200070/2015 C/w Crl.R.Nos.200079/2015
& 200062/2016
iii) He shall further pay Rs.10,00,000/- (lakhs) to each of his daughters towards the marriage expenses;
iv) Respondent Nos.1 to 4 are prohibited from committing any kind of act of domestic violence to the petitioner ;
v) The arrears of the maintenance and the marriage expenses awarded as aforesaid shall be deposited by respondent No.1 within one month from the date of receipt of the copy of this order and
vi) The concerned Treasury Officer shall not disburse the service benefits accrued to respondent No.1 due to his retirement till the arrears of maintenance and marriage expenses payable by him is remitted to the petitioner.
Sd/-
JUDGE RSP/Srt/sn