Bangalore District Court
Sri. H. Gangadharappa vs Smt. Shanthamma on 5 February, 2016
IN THE COURT OF THE LII ADDL.CITY CIVIL & SESSIONS
JUDGE: AT BANGALORE CITY (CCH-53)
Dated this the 5th day of February, 2016
PRESENT: Smt.Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge,
Bengaluru City.
Crl.Appeal.No.154/2014
Appellant : Sri. H. Gangadharappa,
S/o Late. Honnaiah,
Aged about 60 years,
R/at No. 1585, II Cross,
Pipe Line Road,
Prashanthnagar, T.Dasarahalli,
Bangalore. 560 057.
(Represented by Sri T. N. Arakeshwar.,
Advocate)
.Vs-
Respondent : Smt. Shanthamma,
W/o. H.Gangadharappa,
Aged about 52 years,
R/at No. 1585, II Cross,
Pipe Line Road,
Prashanthnagar, T.Dasarahalli,
Bangalore. 560 057.
(Represented by Sri R.R.S. Advocate)
JUDGMENT
This Appeal is preferred by the appellant under Section 29 of the Protection of Women from Domestic Violence Act, 2005 for setting aside the order passed in 2 Crl.Appeal.154/2014 Crl.M.C. No. 161/2012, dt: 03/02/2014, passed by the Metropolitan Magistrate, III Traffic Court, Bangalore city.
2. The brief facts of the case before the trial court filed by the petitioner respondent filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (Herein after referred as D.V. Act 2005) against the appellant respondent alleging that he has committed Domestic violence against her stating her marital status with the appellant that their marriage was taken place on 23/6/1978 at Kaidala village, Tumkur Dist as per Hindu customs and rites and her parents incurred expenses and gave cash and golden ornaments and household articles and they begotten 2 female children out of their wedlock and the appellant was earning Rs. 26,000/- P.M. and retired in the month of December 2011. Since from the date of marriage, the appellant subjected her to Domestic violence Act on the ground that she did not bring further dowry and she did not gave birth to a male child. He has given mental and physical torture to respondent. In the year 1995, he deserted the petitioner and children and he is now residing with one Nagarathna. The petitioner performed the marriage of her 2 female daughters , 3 Crl.Appeal.154/2014 but the appellant did not provide any maintenance and neglected her though he is physically fit and had sufficient income to give maintenance to respondent as he is earning Rs. 25,000/- P.M. and hence she constrained to file the petition sought the remedy available under Sec. 18 and 22 of the Protection of Women from Domestic Violence Act, 2005 .
3. After registering the case and service of notice through protection officer, the respondent appeared before the trial court and filed the objections denying the material allegations of the petition as they are false and in order to give trouble to the appellant , she has filed a false case, he has not committed any Domestic violence against her. The first daughter is a B.E. M.Tech graduate and he performed her marriage by spending Rs. 7 lakhs and 2nd daughter is a B.C.A. degree holder and he has spend money for their education and also performed marriage of his 2nd daughter by spending Rs. 10 lakhs. He has arranged loan for the marriage of his 2 daughters. Though he is earning Rs. 23,000/- gross salary, but he is receiving only Rs. 11,500/- and remaining amount was spending towards repayment of loans. He has to maintain his 2 sons and apart from this he 4 Crl.Appeal.154/2014 is looking after the petitioner with all love and affection and providing maintenance and paying Rs. 7,000/- P.M. even he is paying charges of electricity and water. There is no cause of action to file the petition under Domestic violence Act against him and hence the petition is liable to be dismissed, as the respondent appellant is unable to provide the maintenance amount as claimed for and prayed to dismiss the application.
4. The petitioner before the trial court is deposed as P.W.- 1 and got marked documents at Ex.P-1 to P35. But the respondent though provided ample opportunities, but he failed to adduce oral or documentary evidence. Thereafter the trial court proceeded for hearing the arguments rejecting the prayer of respondent/ Appellant and by considering the points with reference to committing offence under Domestic violence Act and entitlement of relief based on the available materials on record, the trial court has allowed the petition in part and directed the appellant not to commit Domestic violence . The petitioner/respondent is awarded a sum of Rs. 10,000/- per month as monthly maintenance and compensation of Rs. 1 lakh and costs. Thereby aggrieved by 5 Crl.Appeal.154/2014 the order passed by the trial court, the appellant respondent has preferred this appeal urging grounds that the impugned order is prejudicial and opposed to law. The trial court has not considered an application for advancement of the case for reporting settlement or in the alternative for further cross- examination of the petitioner and respondent and the application has not been duly considered and without giving opportunity to the appellant of being heard the matter. The trial court has proceeded to pass an order violating the principles of natural justice. It has not considered the defence taken by the appellant with reference to the source of income and employment in a private factory in Peenya and his retirement from service Without considering the financial capacity of the appellant impugned order is passed. He is an heart patient and unable to do physically hard work and to earn atleast for his livelihood and hence fixing the amount by the trial court is unreasonable and it is without giving any chances for cross-examination and to put-forth is defence. Hence the order passed by the trial court is illegal and unsustainable and liable to be set aside, accordingly, prayed to allow the appeal.
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5. After registering the case as Criminal appeal and issuance of notice to respondent, respondent appeared through her counsel. The trial court records being called for, Thereafter the case is taken up for hearing the arguments on merits. Meanwhile the appellant court is also made an effort for settling the matter, however it was failed as the appellant and respondent have failed to avail the opportunity of settlement. Hence, heard the arguments of learned counsel for appellant and respondent. Perused the appeal memo, LCR and record on hand.
6. The following points are formulated for consideration of this court:-
1. Whether the trial court has committed an error with reference to Domestic violence alleged to be committed by petitioner by providing reasonable opportunity to the appellant and passing of order dt: 3/2/2014 directing the appellant to pay maintenance and compensation under Domestic violence Act?
2. Whether the order passed by the trial court in Crl. M.C.. No. 161/2012 is liable to be set aside and remand the matter with direction to the trial court to provide an opportunity to the appellant of being heard, from the stage of cross examination of P.W1 and to dispose off the case afresh ?
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3. What order?
7. My findings on the above points are as under:
(1) Point No.1 .. In the Affirmative
(2) Point No.2 .. In the Affirmative
(3) Point No.3 .. As per final order for the
following:
REASONS
8. Point Nos.1 and 2:- These points are interlinked with each other. Hence, they are taken up for common consideration.
9. It is a case registered under Sec. 12 of Domestic violence Act , since there is no serious dispute about the matrimonial relationship between the appellant and respondent as husband and wife, the only dispute raised by the appellant is that the trial court has not given an opportunity to him to cross examine P.W.-1 further and even an opportunity has not been given to him to put-forth his defence and to meet out the case of respondent. Aggrieved by the relief granted in favour of the respondent, in Crl.M.C. No. 161/2012 passed by the M.M.Tr.C.-III Bangalore on 3/2/2014, this appeal is preferred. On perusal of the trial court records and appeal memo, it is revealed that the petitioner deposed before the 8 Crl.Appeal.154/2014 trial court as P.W.1, stating about her matrimonial life spent with appellant, as her marriage was solemnized with appellant on 23/6/1978 at Kaidala village, Tumkur Dist as per Hindu customs and rites and her parents incurred expenses and gave cash and golden ornaments and household articles and they begotten 2 female children out of their wedlock and the appellant was earning Rs. 26,000/- P.M. and retired in the month of December 2011. Since from the date of marriage, the appellant was subjected her to Domestic violence, on the ground that, she did not bring further dowry and she did not gave birth to a male child. He has given mental and physical torture to respondent. In the year 1995, he deserted the petitioner and children and he is now residing with one Nagarathna. The petitioner performed the marriage of her 2 female daughters, but the appellant did not provide any maintenance and neglected her though he is physically fit and had sufficient means to pay maintenance to respondent as he is earning Rs. 25,000/- P.M. and hence she constrained to file the petition and availed the remedy by invoking Sec. 18 and 22 of the Protection of Women from Domestic Violence Act, 2005.
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10. Accordingly, she has reiterated these facts pleaded in the petition as P.W.-1 and relied upon the documents in support of her case i.e., Ex.P-1 is the Marriage invitation card. Ex.P-2 and P3 are the photos. Ex.P-4 is the copy of Ration Card. Ex.P-5 and 6 are the identity cards. Ex.P-7 is the sale deed. Ex.P-8 and P9 are the Encumbrance certificates. Ex.P-10 is the copy of MLC. Ex.P-11 is the Wedding Card. Ex.s.P-12 and P-13 are the photos. Ex.P-14 is the ration card. Ex.P-15, 16 are identity cards. Ex.P-17, P- 18,19 and 20 are the Encumbrance certificates. Ex.P-21 is the sale deed. Ex.P-22 and 23 are the photographs. Ex.P-24 is the MLC. Ex.P-2 5 and P31 are the receipts. Ex.P-32 is the Medical record. The copy of FIR, Complaint and endorsement of police are at Ex.P-33 to P-35. Perused these documents and oral evidence of P.W.1, which was stopped as further cross-examination of P.W.1.
11. It is apparent on record that the appellant prayed for further cross examination of P.W.1, by filing application. However, the learned trial court has considered the various dates i.e., dt: 12/4/2012, 22/11/2012, 23/2/2013, 12/6/2013, 4/9/2013, 21/11/2013 and 7/11/2013 and 10 Crl.Appeal.154/2014 stated that ample opportunities have been given to appellant for cross examination and even interim application allowed in that regard. But the appellant failed to cross examine the P.W.-1. It is also considered that the appellant has failed to put forth his evidence and hence it is proceeded to consider that the appellant has no further cross-examination of P.W.-1 and he has no evidence on his behalf and therefore the trial court has proceeded to hear the arguments during which the appellant and his counsel have failed to put-forth arguments. Thus without hearing of arguments of counsel for respondent and appellant, the trial court has proceeded to consider the materials on record, placed by the petitioner side only and passed an order allowing the petition in part and awarded maintenance and compensation for having committed Domestic violence and also awarded the costs.
12. The respondent was examined as P.W-1 and was partly cross examined by the appellant. The case was thereafter posted for further cross examination of the respondent. When the case was posted for the said purpose on 07/12/2013, the advocate for the appellant was not well. However the appellant was present and had prayed time on the said 11 Crl.Appeal.154/2014 ground. But the court below had rejected the prayer and posted the case for orders on 28/12/2013 even without posting the case for the evidence of the appellant. In the meantime the appellant and the respondent through intervention of their counsel came to a settlement for compromising the matter. The final settlement could not be arrived at by 28/12/2013. On 28/12/2013 the lower court did not pass orders. On the said date the matter relating to the settlement was mentioned before the court. But the court below did not heed for the same and posted the case for orders on 03/02/2014. On consultation and discussion between the counsels for the appellant and the respondent, an application for advancement of the case was filed on 24/01/2014 requesting the court for advancing the case as the case was about to be settled. The court below refused to advance the same and rejected the application and informed that she had already given dictation of the judgment.
13. No doubt the trial court has considered the non- appearance of the appellant on different dates and the appellant has failed to cross examine the respondent and also it has recorded that the appellant has no evidence. But 12 Crl.Appeal.154/2014 the appellant has stated in the appeal memorandum regarding his ailment and the application filed U/Sec.309 and U/Sec.311 of Cr.P.C before the Trial Court stating the reasons that his Counsel was not well on 07/12/2013 and instructed the appellant to take adjournment in the afternoon Session, though he was present in the morning Session, but the Trial Court has rejected the prayer of the Appellant and posted the case for Orders to 28/12/2013. So at that time (second Session) his counsel was unable to attend the court. In this connection he has referred the copy of the application dated 24/01/2014 filed before the Trial Court. Perused the LCR specifically and the said application and the order sheet. It is revealed that the matter was tried to get it settled and it was not settled. The appellant prayed time on the ground of settlement. But as because of absence of respondent and her counsel it was posted on 03.02.2014 for orders. Hence it was tried by filing advancement application by the appellant on 24/01/2014. On the application of the appellant, prayer to advance the case was rejected.
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14. But what is revealed from the Order sheet is that cross examination of P.W.1 was taken as Nil on 07/12/2013, and posted it directly for arguments on 28/12/2013, without giving an opportunity to lead his evidence and on 28/12/2013 taken it as heard and posted for judgment on 03.02.2014 and pronounced the final order on 03/02/2014. Thus it is apparent error committed and due opportunity has not been given to the appellant. Hence passing of final order is against the Law and therefore the appellant has preferred this appeal and urged the grounds which are acceptable to setaside the impugned order dated 03/02/2014.
15. In the present appeal the appellant filed the medical records i.e., discharge summary of Sri Jayadeva Institute of Cardiovascular Science and Research (Hospital), wherein it is disclosed that he was inpatient from 02/10/2009 to 20/10/2009 and was clinically diagnosed with IHD, CAD, Triple Vessel disease, Old IWMI, Hypertension and he has undergone surgery on beating heart on presenting of complaints of chest pain since 4 months back, no h/o syncope, PND, palpitation, breathlessness, dyspnoea; He has 14 Crl.Appeal.154/2014 hyper tension and was on regular medication. These medical records have not been seriously disputed. They are of his medical records disclosing that he has undergone operation. He has stated further that he is not so fit to earn any income. It is also specifically stated that he was employed in a private factory, at Peenya and retired from service and he did not get any retirement benefit and this has not been considered by the trial court. The appellant has materials to put forth his case and he is unable to pay the maintenance amount as directed in the order and as such he prays to allow the appeal and prayed to provide him an opportunity to put forth his case. He has also stated about the different dates and how diligent he was in proceeding with the case 'that the appellant has contested the case on merits.
16. Perusal of entire record specifically the trial court records and the judgment passed by the Trial court it is clear that the application filed by the appellant has not been considered and no opportunity was given to him to meet out his defence. The appellant has stated about his ailments, specifically surgical treatment for his cardiac surgery, triple vessel disease, which is revealed from the discharge 15 Crl.Appeal.154/2014 summary. So, whether because of such disease and surgery he is unable to earn and pay the maintenance. Appellant admitted in his evidence in the E.P. of his earning of Rs.50,000/- from rental. This has to be evaluated only after giving him an opportunity to prove about his capacity of earnings, it needs to give him an opportunity to the appellant to put forth his evidence by placing materials in that regard. Apart from this he has stated about the expenses incurred by him to perform marriage of his daughters, and that providing maintenance amount to the respondent. No doubt, the trial court has given reasonable time to the appellant. But it has not given reasonable opportunity to the appellant, which is illegal. But it has not considered the request of the appellant that on particular date of hearing he was prevented because of his counsel's ailment in the second session. However an opportunity has to be given to the appellant to meet out the case, as he has seriously disputed about the domestic violence, as pleaded by the respondent and the claim of maintenance made out by the respondent against him and such relevant factors to be brought on record only on giving him an opportunity. The learned Counsel for the respondent relied upon the Supreme Court Citation Shamima Farooqui Vs 16 Crl.Appeal.154/2014 Shahid Khan 2014 SCC 6380-6381,wherein it is considered the guidelines to be followed by the Court in case of the matters coming within the purview of D.V.Act and law concerning to the maintenance. The relevant observations are hereby considered that :
'" An able bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able- bodies person to show to the Court cogent grounds for holding that he is unable to reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him".
Hence the law enumerated the obligation of the husband is on the higher pedestal, then the question of maintenance of wife and children and the situation of woman leaving matrimonial home to be considered, which is different, as she is deprived of many comfort, sometimes the faith in life reduces her or she feels, she has lost the tenderest friend and there may be feeling that her fearless courage brought
17 Crl.Appeal.154/2014 her the misfortune. Under such circumstances, the Law can impose the liability against the husband to give monetary comfort and that there may be a shelter over her head in the parental house, but the expenses cannot be ignored solely because the husband had retired and thereby it has pressed upon for award of maintenance fixing the liability against the husband to pay the reasonable amount, based on the status and standard of living and family background etc. With due respect to the said decision regarding the dictum laid down therein, it is therefore duty casted upon the Court to discharge it judiciously by providing an opportunity to the parties to the litigation to put forth their respective claims and to pass judicious order.
17. Therefore, it is fit case to allow the appeal and remand back the matter by setting aside the order passed by the trial court with a direction to give an opportunity to the appellant to put forth his materials and to cross-examine P.W.1 and to adduce evidence supporting his defence and dispose off the case afresh. Both the appellant and respondent can take back the relevant documents produced in this case and produce the same before the Trial Court immediately on taking the 18 Crl.Appeal.154/2014 case by the Trial Court on the date specified in the final order. The restricted order to be passed directing the appellant to assist the trial court, in disposing of the matter within limited span of time and to dispose of the matter expeditiously. No prejudice will be caused to the respondent, to direct the compliance, so also it is relevant to pass the order pertaining to the maintenance amount now he is paying as per order dated 01/03/2014 and in compliance with the interim order, is payable to the respondent till disposal of the said case and subject to the order that is going to be passed by the trial court as directed above. Hence these Point no.1 and 2 are answered in the Affirmative.
18. Point No.3:- In view of discussion made above and conclusion arrived at it is proceeded to pass the following;
: ORDER :
The appeal is hereby allowed.
The order passed in Crl.M.C. No. 161/2012, dt: 03/02/2014, passed by the Metropolitan Magistrate, III Traffic Court, Bangalore city, is hereby set aside and the matter is hereby remanded back to the trial court for fresh disposal of the case by giving opportunity to the appellant to cross-examine P.W.1 and also adduce his oral and
19 Crl.Appeal.154/2014 documentary evidence, if any, and to dispose of the case on merits of the case in accordance with law afresh, expeditiously.
It is directed to the appellant to comply the Order dated 01.03.2014 in connection with the payment of maintenance amount to be paid to the respondent every month and it shall be continued upto disposal of the said case, before the Trial Court, which shall be subject to the final order to be passed by the Trial Court.
The appellant and the respondents shall appear before the trial court on 05.03.2016 and assist the court to dispose of the matter expeditiously.
Office is directed to return the trial court records to the concerned court, along with the copy of the judgment, forthwith.
(Dictated to the Judgment Writer, transcribed by her, corrected and then signed and pronounced by me in the open court on this the 5th day of February 2016) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, Bengaluru.
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