Bangalore District Court
Smt.R.Indumathi vs W/O.K.M.Kiran on 7 February, 2020
IN THE COURT OF THE LXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-62)
Dated this the 7th day of February, 2020
PRESENT :- SRI S.R.MANIKYA., B.Sc., LL.B.,
LXI Addl. City Civil & Sessions Judge,
Bangalore, (CCH-62)
Criminal Appeal No. 1044/2015 C/w. 952/2015
Appellant/ : 1. Smt.R.Indumathi
Respondent W/o.K.M.Kiran
In Crl.A. D/o.Rudramurthy
No.1044/2015 Aged about 27 years
R/a.No.200/1
Lingayath Street, Kengeri
Bangalore-560 060.
2. Master Mayanka
S/o.K.M.Kiran
Aged about 4 years
Since Minor Represented by his natural
guardian and mother
The first petitioner
Both R/a.No.200/1, Lingayath Street,
Kengeri, Bangalore-60.
V/s.
Respondent / : 1. Sri. K.M.Kiran
Complainant S/o.S.Mahadevaiah
In Crl.A. Aged about 33 years
No.1044/2015 R/a.No.210
Lingayath Street,
Kengeri
Bangalore-560 060.
2. Sri Mahadevaiah
2 Crl.A. No.1044/2015 C/w. 952/2015
S/o.Late Savandappa
Aged about 70 years
3. Smt.Pramila
W/o.Mahadevaiah
Aged about 61 years
All are R/a.No.200/1
Lingayath Street
Kengeri
Bangalore-60.
Appellant/ : 1. Sri. K.M.Kiran
Respondent S/o.S.Mahadevaiah
In Crl.A. Aged about 33 years
No.952/2015 R/a.No.210
Lingayath Street,
Kengeri
Bangalore-560 060.
V/s.
Respondent / : 1. Smt.R.Indumathi
Complainant W/o.K.M.Kiran
In Crl.A. D/o.Rudramurthy
No.952/2015 Aged about 27 years
R/a.No.200/1
Lingayath Street, Kengeri
Bangalore-560 060.
2. Master Mayanka
S/o.K.M.Kiran
Aged about 4 years
Since Minor Represented by his natural
guardian and mother
The first petitioner
Both R/a.No.200/1, Lingayath Street,
Kengeri, Bangalore-60.
3 Crl.A. No.1044/2015 C/w. 952/2015
JUDGMENT
These two appeals have been filed against the order passed by the learned II MMTC, Bengaluru in Crl. Misc. No.81/2015 dated 03.07.2015 wherein the learned trial judge has granted the interim maintenance of Rs.15,000/- to the petitioner from the date of petition till the disposal of the case.
2. Against this order, the petitioner who has filed the petition before the learned trial court has filed Crl.A. No.1044/2015 and claimed to enhance the maintenance amount from Rs.15,000/- to Rs.50,000/- per month and also to grant litigation expenses of Rs.10,000/-.
3. The Respondent before the trial court has filed Crl.A. No.952/2015 to set aside the order passed by the learned II MMTC, Bengaluru by allowing the appeal and direct the court to reconsider the application filed by the Respondent by applying the procedure prescribed for the trail in summons cases in Cr.P.C., after giving due opportunity to the appellant and to lead evidence and dispose of afresh.
3. The brief facts of the petitioners case who is the appellant in Crl.A. No.1044/2015 is that the petitioner and Respondent are the husband and wife and their marriage was solemnized on 31.07.2009 at Krishnapriya Kalayan Mantapa, Kengeri, Bengaluru according to Hindu rites and customs. It is alleged that in the marriage, the petitioners' parents had given enormous ornaments of gold and silver items and also spent huge money for performing 4 Crl.A. No.1044/2015 C/w. 952/2015 the marriage of the petitioner and Respondent. Also contended that even prior to the marriage, engagement was also conducted in a grant manner and spend huge amount of Rs.5,00,000/-. On account of wedlock of petitioner and Respondent, a male child by name Mayanka was born on 07.09.10 at Shreya Hospital, Kengeri and as it was pre mature baby, huge amount was spent by the petitioners parents. Now he is studying in school and for naming ceremony of this Mayanka, the petitioners parents had spent about Rs.1,00,000/-. Further, it is contended that after the solemnization of marriage, petitioner was residing in the Respondent house along with his parents and there was ill-treatment by the Respondent and it is alleged that the Respondent was having affair with Deepa Hiremath and he used to come late night hours and used to send message in mobile phone and also by using social medial such as WhatsApp, facebook and upon questioning the conduct of the Respondent, the Respondent stated that she will face dire consequences. It is also specifically alleged that the Respondents have demanded additional dowry of Rs.25,00,000/- and as the mental torture and physical torture had become unbearable, a police complaint was also lodged, for the illegal act of the Respondents and approached the State Women Commission also. Now, for the maintenance of petitioners' son, no amount is provided and for the maintenance of the petitioner also, the Respondent have not made any arrangement. The Respondent is having an a complex and he is getting rent of Rs.8,00,000/- per annum, and also having a medical shop and four to five house sites in prime localities. As the Respondent has not made any attempt to provide maintenance either for the petitioner or for her son, there was no 5 Crl.A. No.1044/2015 C/w. 952/2015 other alternative for the petitioner to file this petition before the Trial Court for granting maintenance and as well as litigation expenses and other relief under Domestic Violence Act.
4. On the very same grounds, the interim application was also filed to grant interim maintenance. So, considering the facts and circumstances of the case, the learned trial judge has granted interim maintenance to the extent of Rs.15,000/- per month from the date of petition till the amount is realized.
5. Against this judgment, the petitioner has filed this appeal and contended that the maintenance granted by the trial court is not sufficient for education and other expenses of petitioner's son. The maintenance granted by the trial court will cover the major portion of the loan borrowed for payment of school fees of the 2nd petitioner. The school fees approximately works to the tune of Rs.80,500/- and that has been not considered by the trial court and though the Respondent is having a sufficient resource and multiple resource that is not considered by the trial court and when the Respondent is making investment to the extent of Rs.50,000/-. He has got every capacity to pay more amount. Hence, she prayed for allowing the appeal requesting the court to modify the order of interim maintenance and enhance the maintenance to the extent of Rs.50,000/- per month.
6. For the petition filed by the petitioner before the trial court, the Respondent who is an appellant in Crl.A. No.952/2015 has filed objection and contended that the allegation made by the 6 Crl.A. No.1044/2015 C/w. 952/2015 petitioner with regard to the ill-treatment and neglecting of petitioner has been specifically denied. About the income of the 1st Respondent also, the Respondent has denied and contended that the allegation made in the petition that for the marriage of petitioner and Respondent the parents of petitioner have spent Rs.50,00,000/- and given gold ornaments as stated in the petition and also spent huge amount for the engagement and naming ceremony of his son is also specifically denied. About spending of amount at the time of delivery of child is also specifically denied. He has took up a specific contention that inspite of his best efforts to leave with the petitioner, the petitioner has not responded to the zeal of the Respondent to lead a good marital relationship between the parties and the allegation made with regard to the incident specifically stated in the petition with regard to the Respondents mother is also specifically denied. He has also specifically denied about the allegation made with regard to the acquaintance of Deepa Hiremath and sending of messages through WhatsApp, facebook and mobile.
The demand of additional dowry of Rs.25,00,000/- is also specifically denied. He has contended that a false case has been registered against the father, mother and brother of the petitioner against the offences punishable under Section 143, 149, 448, 454 of IPC. Only with a view to harass the Respondent, this petition has been filed. Further, the contention of the petitioner that ATM, Bank passbook, voter ID Card, passport, Driving License, Aadhar Card has been snatched away by the Respondent is also specifically denied. He has contended that as the petitioner is a MBA Graduate 7 Crl.A. No.1044/2015 C/w. 952/2015 working in 'EduMotiv' company and getting salary of Rupees more than Rs.50,000/-, the question of granting maintenance does not arise at all. There are no properties standing in the name of the Respondent as contended and under such circumstances, the question of granting interim maintenance as ordered by the Magistrate does not arise at all. He has also contended that the Decision reported in Hon'ble High Court of Karnataka in 2011(2) KCCR 2221has not been properly applied in this case and without considering the dictum laid down by the Hon'ble High Court of Karnataka, the order is passed. Hence, he prayed that the petition filed by the petitioner is liable to be dismissed.
7. After hearing both the parties, the learned trial judge has passed the order against which the Crl.A. No.952/2015 is filed and contended that the order passed by the trial court is highly illegal perverse and oppose to law. Without recording evidence of the Respondent and by not giving opportunity for the Respondent, order has been passed. The order passed on imaginary grounds. The order passed is arbitrary, unjust and against the procedure and to principles laid down in the decision, the enquiry is mandatory and that is not followed by the learned trial judge. The learned trial judge has erred in not considering the document produced by the appellant to show that he is not having any sufficient income. All the LIC policies have been expired and the premium were paid before, Partitioning of all the properties. Without considering the partition deed, the trial court has held that property has come into possession of this appellant. The trial court erred in not noticing pendency of the Civil suit between the parties.
8 Crl.A. No.1044/2015 C/w. 952/2015The court below failed to notice that the Respondent deliberately joined her son in a luxurious school, though the Respondent is not able to pay the school fees. The trail court has wrongly come to the conclusion that merely on production of LIC receipts the source of petitioner has been established and also failed to notice the suppression of real facts. Under these circumstances, he prayed for allowing the appeal.
8. Though, sufficient opportunity was given for the petition, the parties in both the appeals neither the Respondent nor the appellant have argued the matter since this is a matter preferred on the order passed by the interim maintenance application and the proceedings of main case has been stand still by virtue of this appeal. Hence, I have taken the arguments as heard and posted the case for judgment.
9. Now, in view of rival contention of both the parties in both the appeals, the only point that arise for consideration before this court is as follows;
1. Whether the appellants in both the appeals i.e., in Crl. A. No.1044/2015 and 952/2015 have made out a ground for interference of this appellate court with regard to the order of learned II MMTC, Bengaluru by allowing the appeal?
2. What Order?
10. My findings on the above points are as under:
Point No.i : In the negative, 9 Crl.A. No.1044/2015 C/w. 952/2015 Point No.ii : As per the final order for the following:
REASONS
11. Point No.i:- Now, it is the specific case of the petitioner who is an appellant in Crl.A. No.1044/2015 that she has been subjected to domestic violence and there was a demand of additional dowry and there was harassment by the Respondent who is an appellant in Crl.A. No.952/2015 and on that basis the petition under Section 29 of Domestic Violence Act was filed and in that petition, the application for interim maintenance was filed under Section 23 of the Domestic Violence Act and along with that, application under Section 19A to D claiming other relief's also filed.. Now, in the petition, it has been specifically alleged that the Respondent was having a relationship with one Deepa Hiremath and on account of that she was subjected to Domestic Violence and also there was a complete neglect of the Respondent to provide maintenance for herself and as well as her son who is studying in the school.
12. It is the case of the Respondent that this petition which has been filed under Section 29 of the Domestic Violence Act has been filed only to harass the Respondent and all the allegations made in the petition is false, concocted, based on imaginary situation and notional aspects. It is also the case of the Respondent that the petitioner is a working lady having hand sum salary. Now, she cannot claim any maintenance and it is also the case of the Respondent that the Respondent is not having sufficient income to pay the maintenance to the petitioner as claimed and all the 10 Crl.A. No.1044/2015 C/w. 952/2015 documents produced by the petitioner is not a proof before the court. In such an event the interim maintenance could not have been granted unless and until a specific enquiry has to be conducted and an opportunity has to be given for the appellant to cross-examine the petitioner to prove his case. But no such procedure has been contemplated before passing the order on interim application. Hence, the order passed by the learned trial judge is erroneous according to the contention of appellant argument in Crl.A. No.952/2015.
13. On the other hand, the appellant in Crl.A. No.1044/2015 has contended that though the appellant who is a petitioner before the trial court in Crl. Misc. No.81/2015 has produced, sufficient document to establish the specific source of the Respondent who is appellant in Crl.A. No.952/2015. A meager maintenance amount has been awarded to the extent of Rs.15,000/- which is not based on any sound reasoning's and rational principles of law and not base don the circumstances placed by the petitioner before the court. And not based on the income of the Respondent and needs of the petitioner. Hence, the same is required to be enhanced according to the contention taken in the appeal memorandum in Crl.A. No.1044/2015.
14. Now, inview of this rival contention, now this court has to analyze and scrutinize the order passed by the learned trail court as an appellate court. Now, it is admitted fact that the order passed is only on the interim maintenance application and there is no final decision with regard to either granting of maintenance to the 11 Crl.A. No.1044/2015 C/w. 952/2015 petitioner or to her son and also with regard to the monetary benefits to be granted for the petitioner and to her son and also with regard to other relief's claimed in the petition. The learned trial judge has considered the needs of the 2nd petitioner who is the son of the petitioner and Respondent and he has apprized the school fees of the 2nd petitioner and on the basis of the averments made in the petition and the documents produced by the petitioner and the stand taken by the Respondent before the trial court, the trial court has passed this considered order and granted interim maintenance. It is well established principle of law that any interim maintenance granted pending disposal of the main petition is subject to modification, alteration and also for enhancement. When such being the case, the appeal preferred by the petitioner in Crl.A. No.1044/2015 to enhance the in interim maintenance is of no consequences, in my opinion because she has got every authority and she has got an ample opportunity before the trial court, to establish the fact that the enhanced amount of maintenance has to be awarded while disposing of the main petition.
15. On the other hand, the appellant has rushed to this court without any valid reasons and hurriedly come to the conclusion that the order passed by the trial court is erroneous. Now, it is also the case of the appellant in Crl.A. No.952/2015 that since there was no opportunity for the appellant and there was no enquiry as contemplated in the decision the procedure contemplated by the learned trial judge to grant maintenance is highly erroneous and contended that only on the basis of the LIC premium paid receipts, the court has come to the conclusion that this appellant has got 12 Crl.A. No.1044/2015 C/w. 952/2015 sufficient source of income which is a wrong approach according to appellant counsel. Though the document has not been established by way of evidence and no opportunity was provided for the appellant to disprove those documents, such an order will have to be considered as an illegal order and improper order according to the appellants contention in the appeal memorandum. In the appeal memorandum it is contended that in accordance with Section 28(1) of the Act, it is specifically stated that any proceedings under Section 23 will have to be Governed by the provisions of Cr.P.C., Hence, the enquiry is to be contemplated before passing of order according to the tenor of the appeal memorandum. But as rightly held by the learned trial judge an ex- parte order was already passed and now the interim application has been disposed off by partly allowing the application.
16. Now, it is to be specifically noted in the Domestic Violence Act, under Section 28(2), it is specifically stated as follows;
"Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under sub-section (2) of the section 23" and Section 23 says that if the Magistrate is satisfied that an application prima-face discloses that the Respondent is committing or has committed an act of Domestic Violence Act, may grant an order".13 Crl.A. No.1044/2015 C/w. 952/2015
17. Now, it is specifically stated in Sub Section 2 that Section 23(2) of the act, the court can lay down its own procedure for disposal of interim application accordingly disposed off and in Section 23(1) it is specifically stated that the court can pass such interim order as it deems fit and proper. Now as in this case, the exparte order was passed and after filing objection, the learned trial judge has heard both the parties and considered the objection filed by the Respondent No.1 along with the document produced by the petitioner and passed the reasonable order and disposed of the application and granted interim maintenance. Now the main petition is still pending before the learned II MMTC, Bengaluru. It is also well established principle of law that in any interim maintenance claimed by the petitioner, the order can be passed by considering the objections of the Respondent and on the basis of the document produced by the parties, in the same way the learned trial judge has passed the order. Now, the contention of the Respondent that he is not having sufficient income to pay maintenance is also considered by the learned trial judge and by considering all the relevant facts, he has allowed the application in part and granted maintenance to the extent of Rs.15,000/- only that too to meet the expenses of the petitioners son school expenditure and also for the petitioner. Though the Respondent is contending that the petitioner has got a hand sum salary to establish that fact, no document has been produced before the court.
18. On the other hand, the petitioner has produced sufficient document to establish the income of the Respondent and it is also 14 Crl.A. No.1044/2015 C/w. 952/2015 well established principle of law that it is the duty of the Respondent to maintain his son and to meet the expenses of his education. When he has miserably failed to comply the obligation and failed to carry out the responsibility, there is no other option to the petitioner to approach the court and accordingly she has approached the court and by a considered and reasonable order is passed on the basis of documents available on record ad on the basis of well established principle of law. The Respondent is also having ample opportunity to meet the case of the petitioner during the course of main trial while disposing of the main petition. In such circumstances, the grounds urged by the petitioner/appellants in the appeals does not establishes any grounds to interfere with the judgment passed by the learned trial judge.
19. Further, it is also well established principle of law that when the appellant establishes the grounds and established that a specific grounds to interfere with the judgment of the trial court and upon establishing the fact that the judgment passed by the learned trial judge is perverse, the question of interference by the appellate court arises. But in my opinion, there is no such grounds for interference of this court with regard to the order passed on the interim application by the learned trial judge. Hence, I have no hesitation to answer point No.1 in the negative.
20. Point No.2: Having regard to my above observations and finding on point No.1 in the 'negative', I proceed to pass the following:-
15 Crl.A. No.1044/2015 C/w. 952/2015ORDER The appeal preferred by the appellants in both the appeals i.e., in Crl.A. No.1044/2015 and 952/2015 under Sec.29 of the Protection of Women from Domestic Violence Act, 2005 is hereby dismissed as no merits.
Consequently, the order passed by the learned trial judge in Crl. Misc.81/2015 dated 03.07.2015 granting interim maintenance of Rs.15,000/- per month fro the date of petition till disposal of the case is hereby confirmed.
The claim of appellant in Crl.A. No.1044/2015 to enhance the maintenance amount as claimed in the appeal memorandum is hereby rejected.
Sent the copy of this order along with the LCR to the lower court forth with.
The judgment passed in these two appeals have been taken out in green sheet and both the judgments has been placed in the respective Crl.
Appeal file.
(Dictated to the stenographer, transcribed and typed by her, corrected and then pronounced by me in the open Court on this the 7th day of February, 2020) (Sri.S.R.Manikya) LXI Addl. City Civil & Sessions Judge, Bengaluru City.
16 Crl.A. No.1044/2015 C/w. 952/2015 ORDER The appeal preferred by the appellants in both the appeals i.e., in Crl.A. No.1044/2015 and 952/2015 under Sec.29 of the Protection of Women from Domestic Violence Act, 2005 is hereby dismissed as no merits. Consequently, the order passed by the learned trial judge in Crl. Misc.81/2015 dated 03.07.2015 granting interim maintenance of 17 Crl.A. No.1044/2015 C/w. 952/2015 Rs.15,000/- per month fro the date of petition till disposal of the case is hereby confirmed. The claim of appellant in Crl.A. No.1044/2015 to enhance the maintenance amount as claimed in the appeal memorandum is hereby rejected. Sent the copy of this order along with the LCR to the lower court forth with. The judgment passed in these two appeals have been taken out in green sheet and both the judgments has been placed in the respective Crl. Appeal file. (Sri.S.R.Manikya) LXI Addl. City Civil & Sessions Judge, Bengaluru City. 18 Crl.A. No.1044/2015 C/w. 952/2015