Bangalore District Court
H.T.Govindaraju S/O. Late vs Smt. V.Padmavathy on 31 August, 2020
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Crl.A.No.152/2013
IN THE COURT OF LXI ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE (CCH-62)
:Present :
Sri S.R.Manikya, B.Sc., LL.B.,
LXI Addl. City Civil & Sessions Judge,
Bangalore
Crl. A. No.152/2013
DATED: This the 31st day of August 2020.
APPELLANTS :: 1. H.T.Govindaraju S/o. Late.
Thimmaiah, Aged about 46
years,
2. H.T.Ranganatha, S/o. Late.
Thimmaiah, Aged about 44
years,
3. H.T.Girish Kumar, S/o. Late.
Thimmaiah, Aged about 33
years,
All are residing at No.656, 6th
Main Road, 4th Cross,
Vijayanagar, Bengaluru-40
(Rep. By Sri. H.C.R., Advocate)
-V/s-
RESPONDENT :: Smt. V.Padmavathy, W/o. Late.
Vishwanath, Aged about 37
years, Residing at No.656, 6th
Main Road, 4th Cross,
Vijayanagar, Bengaluru-560
(Rep. By Sri N.S., Advocate)
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Crl.A.No.152/2013
JUDGMENT
This is an appeal preferred against the order passed by the learned MMTC-V in Crl.Misc. No.205/2012 dated:
16-02-2012, wherein the learned MMTC-V has allowed the petition filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 and granted maintenance of Rs.6,000/- per month and also awarded cost of petition to the extent of Rs.10,000/- and directed the appellants/respondents not to disturb the possession of the petitioner/respondent over the shared household property in any manner. Against this order, the present appeal is preferred.
2. Brief facts of the appellants/respondents case is that, the respondent/petitioner was the wife of late H.T.Vishwanath. It is specifically contended that the husband of respondent/petitioner is none other than the brother of the respondents, they were suppressed the fact that the husband of petitioner/respondent was suffering from HIV Positive case. From the date of marriage the respondents along with their mother trying 3 Crl.A.No.152/2013 the throw out of the petitioner from shared household. Though the petitioner has performed her duty as a dutiful wife and inspite of taking care of the health of the husband of the petitioner/respondent, he was succumbed to death. After the death of the petitioner's husband the respondents and their mother colluded together and tried to dispossess the petitioner from the shared household. Even during the life time of the petitioner's husband the respondents have not made any arrangement for providing treatment or taking care of the health of the petitioner's husband. After the death of husband of the petitioner, the petitioner was subjected to domestic violence and threatened the petitioner and directed the petitioner to vacate the shared household. The said property was the ancestral property of the respondents father and after the death of father, the property is standing in the name of mother. Under such circumstances, as the husband of the petitioner has been succumbed to death and she is not having any source of income, she has claimed an amount of Rs.4,00,000/- 4
Crl.A.No.152/2013 towards marriage expenses and Rs.50,00,000/- by way of compensation and also towards legal expenses of Rs.25,000/- and not to dispossess the petitioner from shared household property and also claimed residence. Hence, she prayed for allowing the petition.
3. The respondents/appellants have filed objection and contended that, the application is not maintainable either in law or on facts, which is mischievous, misleading and vexatious. The reliefs sought for in the petition is not at all maintainable. It is admitted that the petitioner is residing in the shared household property and also admitted the relationship of the petitioner/respondent with the respondents and also about the death of petitioners' husband. But regarding the allegation made with respect to dispossess the petitioner from the shared household property specifically denied. Also it is denied that the aggrieved persons are having share in the household property. The respondents are residing separately from the date of marriage of the petitioner and there was no domestic relationship between the parties. 5
Crl.A.No.152/2013 The respondents are also residing in the 2 nd floor of the shared house hold property either the question of dispossessing the petitioner or alienation of the property does not arise at all. The petition is not maintainable against the relation of her husband. If the petitioner is intended to claim any relief over the property, she is at liberty to file a civil suit and claim as prayed with respect to the possession and other monitory benefits cannot be granted on the facts and circumstances of the case. Hence, they prayed for dismissal of the petition.
4. After recording the evidence of both parties and hearing the arguments of both counsel, learned MMTC-V Judge has passed an order by partly allowing the petition.
5. Against this Judgment this appeal is preferred and contended that, the order passed by the learned MMTC-V is highly illegal and it is not passed on the correct approach of law and findings given by the learned Trial Judge that there is domestic violence even though petitioner has specifically admitted that she is residing in 6 Crl.A.No.152/2013 the rented accommodation. It is also specifically stated that she has filed a Suit for Partition. Learned Trial Judge has failed to observe the aspect of the income of the petitioner, where she is working as a Nurse and getting a handsome salary. Inspite of that, order is passed by granting maintenance which is highly illegal. Further it has contended that the respondents in no way concerned to the harassment as stated in the petition. Under such circumstances, question of granting compensation or cost of the petition does not arise at all. Learned Trial Judge has not properly considered the arguments canvassed by the appellants counsel and passed an erroneous order. Hence, they claimed to allow the appeal and prays to set aside the order passed by the Trial Court.
6. The appeal was dismissed by my learned predecessor. Against which Criminal Revision Petition No.652/2019 has filed before the Hon'ble High Court and the Hon'ble High Court has allowed the petition and restored the appeal and directed the court to dispose of the appeal within a stipulated period. Due to Covid-19 7 Crl.A.No.152/2013 the appeal cannot be disposed off within stipulated period. However, after opening of Court both counsel have submitted written argument. Hence, I have posted the case for Judgment.
7. In view of the written argument canvassed by both parties, now the following points are arise for consideration;
1. Whether the petitioner/respondent has proved the domestic violence as contended in the petition ?
2. Whether the MMTC-V Court has rightly passed the order in Crl.Misc.No.205/2012 ?
3. Whether the appellants have made out grounds to allow the appeal and to set-aside the order passed by the learned MMTC-V Court ?
4. What order ?
8. My answers to the above points are as under:
Point No.1 :: In the Affirmative Point No.2 :: In the Affirmative Point No.3 :: In the negative 8 Crl.A.No.152/2013 Point No.4 :: As per final order for the following.......
REASONS
9. POINTS NO.1 & 2 :: As these points are inter linked with each other and these points are to be answered on the same facts and circumstances and reasoning and the decision of Point No.2 is depending upon answering of Point No.1, I am discussing both these points together.
Now in this case, the petitioner, who is the respondent in this appeal has filed a petition before the MMTC-V under Section 12 of the Protection of Women from Domestic Violence Act, 2005 claiming reliefs as stated in the petition. Now it is to be specifically noted in accordance with Section 12 of the Domestic Violence Act
-An aggrieved person can file an application before the Magistrate for maintenance, cost of the petition, monitory benefits and also medical expenses and she can also claim compensation or damages for the injuries caused by the act of domestic violence committed by the respondent. 9
Crl.A.No.152/2013
10. Now in this case, the petitioner has contended in the petition even though the respondents were aware the petitioner's husband was suffering from HIV Positive, that was not intimated to the petitioner. Further she has also contended that even after marriage the respondents have not made any arrangements either for treatment of the petitioner's husband nor made any financial assistance for getting treatment. In order to corroborate the petitioner's husband was suffering from HIV Positive though the report has been submitted. In order to establish the fact the petitioner was not feeling well she has produced documents such as Ex.P-4 to P-7, which clearly corroborates the unhealthy situation of the petitioner. Ex.P-5 is a document, wherein the Doctor has specifically stated the petitioner is suffering from HIV Positive and she require Ante Rebioviral treatment and expenditure will be around Rs.5000/- per month. Ex.P-7 also establishes that she is suffering from HIV Positive.
11. Now it is the specific case of the petitioner that, after the death of her husband respondents are making 10 Crl.A.No.152/2013 hectic efforts to dispossess the petitioner from petition schedule property. Now it has to be specifically noticed by the cross-examination of RW-1 by the PW-1 it can be safely held that there is domestic relationship. The RW-1 during cross-examination has stated as follows;
"ಅರರದದರರ ಮದದವವಯದ ನನತರ ಅರರದದರರದ ಮತದತ ನದವದ ಒನದದ ವದರ ಒಟಟ ಗವಗ ಒನದವಗ ಮನವಯಲಲ ವದಸವದಗದವದ ಮ . ನದನದ ವದಣಜಜ ತವರಗವ ಇಲದಖವಯಲಲ ಜವದನನದಗ ಕವಲಸ ಮಡದತತ ದವದಗನವ . ನನನ ಸಹವಹಗದರ ರನಗನದಥ ಕವಹ ಳಚವ ನಮಹಲರನ ಮನಡಳಯಲಲ ಜವದನನದಗ ಕವಲಸ ಮಡದತತ ದದದ ರವ . ನನನ ಮತವಹತಬಬ ತಮಮ ಗರಗಶ ಕದಮರ ಖದಸಗ ನನಕರ ಮಡದತತ ದದದ ರವ . ಆರ.ಪ.ಸ. ಲವಗಔಟನ ಲಲ ರದವ ನಮಮ ಕಟಟ ಡದಲಲ ಒನದದ ಮನವ ಮಹರದ ಅನಗಡಗಳದ ಇರದತತ ದವ . ಅರರದದರರಗವ ಹವಚಐವ ಇದವ ಎನದನವದದದ ನನಗವ ಗವಹ ತತ ಲಲ . ಅರರದದರರ ಗನಡ ಹವಚಐವ ಇನದ ಮಮ ತಪಟಟ ದದದ ರವ ಎನದರವ ನನಗವ ಗವಹ ತತ ರದಮದಲಲ ."
12. In Domestic Violence Act the definition 2(f) Domestic Relationship states that, "the relationship"
means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are the family members living together as a joint family. 11
Crl.A.No.152/2013 By looking into this expression used in the definition and by looking into the admission given in the course of cross- examination of RW-1 it clearly establishes the existence of domestic relationship. RW-1 has specifically admitted during the course of cross-examination that he does not know who provide financial assistance for the treatment of the petitioner's husband and also he is not aware about the death of petitioner's husband. This attitude of the respondent will certainly establishes the fact of negligent towards petitioner's husband though they are brothers of husband of petitioner. Though the learned counsel appearing for the respondents has cross- examined the PW-1 in length, nothing has been elicited from the mouth of PW-1 that she was not subjected to domestic violence.
13. It is specifically stated the domestic violence includes mental or physical torture or harassment or harms, injuries with a view to meet any unlawful demand. Though in this case there is no direct involvement of respondents in causing physical injuries to petitioner, but 12 Crl.A.No.152/2013 after the death of petitioner's husband forced the petitioner to vacate the property, though she is entitle for share in the property that has been denied by the respondents certainly amounts to mental torture and mental harassment to the petitioner. It is also to be considered that act as a domestic violence under Section 3 of the D.V.Act. The respondents do not have stated about the domestic violence, but denial of petitioner's husband death in the evidence corroborated the said facts. In the absence of any specific evidence to corroborate the defence and in the absence of any answer elicited in the court of cross- examination of PW-1, it is proved her case. I am of the opinion that the case of the petitioner stating that she has been subjected to domestic violence and she is having domestic relationship has been convincingly established before the Trial Court. As rightly learned Magistrate has held that there exists a domestic relationship and also there is domestic violence to the petitioner.
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Crl.A.No.152/2013
14. Learned counsel appearing for the appellants has submitted written arguments and contended that, the respondents were residing separately from the date of marriage and the petitioner is having income from nursing profession and there is a suit pending for partition of property. Hence, the appeal may be allowed. But the denial of share in the property by the Respondents will certainly amounts to domestic violence. With regard to the right of the petitioner in getting share in the property Civil Court will be decide. As rightly contended by the learned respondents counsel as per the decision reported in 2012 Cr.LJ 4106 and AIR 2009 SC 1377, 2012 Cr.LJ 1187, wherein the Hon'ble Apex Court has held that, till allotment of partition and share of petitioner in the joint family, male members are liable to pay maintenance to the petitioner. Under such circumstances the order passed by the learned MMTC-V is correct as per the documents produced by the respondents counsel.
15. By considering the argument canvassed by both the counsel I am of the opinion that, the stand taken by 14 Crl.A.No.152/2013 the petitioner that she was subjected to domestic violence is proved. It is established that, the learned Magistrate has passed the order after considering the arguments submitted by both counsel and documents produced before the court. The trial court has rightly passed the impugned order. Hence, I have answered Points No.1 & 2 in the affirmative.
16. POINT NO.3 :: Learned Magistrate has passed an order granting maintenance of Rs.6,000/- per month and also awarded an amount of Rs.10,000/- to the expenses and while coming to that conclusion learned Magistrate has rightly held that, the respondents No.1 to 3 are duty bound both morally and legally to support the petitioner to lead her life happily and it is also rightly held that, the respondents have not extended sympathy or support to the petitioner after the death of her husband. While considering the aspect of awarding maintenance learned Magistrate has considered the situation of the petitioner in the perspective manner. It is also well established principles of law that, whenever Domestic 15 Crl.A.No.152/2013 Violence Petition U/s. 19 of D.V. Act is filed before the Magistrate, he has to consider the act of the respondents and their family members.
17. Now in this case, petitioner is suffering from HIV aids and she requires mental support to get treatment and she is entitle for residential accommodation and her life will become miserable and she will be subjected to lot of mental agony, in such circumstances, it is the duty of the respondents to come forward to grant a share in the property and also help the petitioner, but they have denied the case of petitioner. Admittedly the respondents are having sufficient income to provide financial assistance to the petitioner. Though the petitioner is drawing salary, it is not sufficient for her livelihood as contended by her. Under such circumstances I am of the opinion that the order passed by the learned MMTC-5 by awarding maintenance of Rs.6000/- per month jointly and severally and also awarded cost of Rs.10,000/- is very reasonable amount according to the circumstances of the case. At no stretch 16 Crl.A.No.152/2013 of imagination it can be consider as exorbitant in the facts and circumstances of the case.
18. By considering the evidence of parties and also other circumstances narrated in the petition, I have also on concurred opinion that the order passed by the learned Magistrate is correct in the facts and circumstances of the case.
19. Now the appellants have contended in the appeal that, the learned Magistrate while passing the order has not at all considered the facts and circumstances and the evidence produced by the parties in this case. The documents produced by the parties are not properly appreciated. Hence, challenged the same in this appeal.. Though there is no establishment of domestic violence by the respondents Court awarded compensation and though the petitioner is having income the maintenance is awarded, which is highly illegal. The order passed is erroneous approach hence, the appeal has to be allowed.
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20. But it is specifically noted that, whenever the appellant has preferred an appeal on various grounds, it is the bounden duty of the appellant to establish the fact that the order passed by the trial court is on an erroneous approach and without considering the relevant facts by which prejudice has been caused to the appellant. Thereby the mistake will have to be rectified by the appellate court by allowing the appeal. But whereas in this case, as already discussed in Point No.1 & 2 I have specifically come to the conclusion that there is a specific and clear existence of domestic relationship between the petitioner and respondents and by the act and conduct of the parties, the petitioner has been subjected to domestic violence and I have also come to the concurred opinion that the order passed by the learned Magistrate is absolutely acceptable and considerable in the facts and circumstances of the case. Though the appellants have urged various grounds in appeal, they have miserably failed to establish any error committed by learned Magistrate while passing such an order. 18
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21. In the absence of establishment of grounds urged by the appellants through appeal and in the absence of establishing the fact that, the order was passed on erroneous aspect and not properly considering the respective facts of the case, question of allowing the appeal as contended by the appellants is incorrect. More particularly the appellate court shall interfere with the trial court Judgment or Order if the appellant establishes necessitates on facts while passing such order by the trial court, the appellate court has to interfere with the Judgment or order of the trial court. Whereas in this case, no such necessitates has been established by the appellants on the grounds urged in the appeal. Under such circumstances, I have no hesitation to answer the Point No.3 in the negative.
22. In view of the above findings, I proceed to pass the following......
ORDER Appeal filed by the appellants U/s. 29 of the Protection of Women from Domestic 19 Crl.A.No.152/2013 Violence Act, 2005 is dismissed with costs.
Consequently, the order passed by the trial court i.e., 5th MMTC, Bengaluru vide order dated: 16-02-2012 is confirmed.
Office to transmit the copy of this order to the trial court for reference. And send back the Trial Court record forthwith. [Dictated to the Stenographer, transcribed by her, transcription corrected and then pronounced by me in open court, dated this the 31st day of August 2020.] (S.R.MANIKYA), LXI Addl. City Civil & Sessions Judge, Bengaluru. (CCH-62)