Bangalore District Court
Sri. M. Umashankar vs Smt. Sudha Rani on 17 February, 2022
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 17th day of February, 2022.
Crl. Appeal. No.25200/2021
Appellant:- Sri. M. Umashankar,
S/o late Dodda Muniyappa,
Aged about 44 years,
R/at No.79/2, 7th Cross,
'B' Nagasandra,
Yemalur Post,
Bengaluru- 560 03766.
[By Sri. A. Segaran -Advocate]
V/s
Respondents: 1. Smt. Sudha Rani,
W/o M. Umashankar,
Aged about 38 years.
2. Master Hemchandra Kumar. U
S/o Umashankar M,
Aged about 14 years,
3. Kum. Nayana. U,
D/o Umashankar M,
Aged about 14 years,
All the above Respondents/
2 Crl.Appeal.No.25200/2021
Petitioners are R/ at
C/o Chikka Thimmayya,
R/o Dr. Ambedkar Colony,
Hoskote,
Bengaluru Rural District- 562114.
(By Sri. ARR -Advocate)
JUDGMENT
This Appeal is preferred by the Appellant U/Sec. 29 of Protection of Women from Domestic Violence Act, 2005, being aggrieved by the Exparte Order dtd.12.10.2021, passed by the Metropolitan Magistrate Traffic Court-I, Mayohall Unit, Bengaluru, in Crl. Misc No.207/2021, directing the Respondent No.1 to provide alternative residence to the Petitioners.
2. The Brief facts leading to filing of the present appeal are:
The present Respondents have filed a Petition before the Trial Court U/Sec.12 of the Protection of Women from Domestic Violence Act, (henceforth referred to as DV Act, for sake of brevity) seeking reliefs U/Secs.18, 19, 20 and 22 of the said Act. Alongwith the said Complaint Petition, the Respondents have filed an application U/Sec.17 and 3 Crl.Appeal.No.25200/2021 18 R/W Sec.23(1) of the said Act praying to pass an Exparte interim order directing the Respondent Nos.1 to 3, therein, or their agents, or their family member, or any one acting on their behalf, not to evict or exclude the Petitioners from the shared house or any part of it; and to restrain the Respondent Nos.1 to 3 from alienating or creating 3rd party rights over the Scheduled property. In the said application the Petitioners contend that, the Respondents have ill-
treated harassed and insulted the Petitioner No.1 continuously. The Respondent No.1 is having illegal affair with one Nethra and has therefore cheated the Petitioner No.1 and has breached her trust and faith reposed on him. The Respondent No.1 has abandoned his matrimonial obligations towards the Petitioner No.1 and also has not taken care of the Petitioner Nos.2 and 3. Scheduled property consist of three floors. The Petitioners alongwith the Respondent No.1 were residing and leading a matrimonial life in the said premises. The Respondent No.1 was the owner of the Scheduled property, until July -2021 and he tactfully transferred the said property infavour of his brother- Respondent No.2 byway of gift dtd.05.08.2021. And the Respondent No.2 is threatening the Petitioners to 4 Crl.Appeal.No.25200/2021 throw them out of the Scheduled property, which is the matrimonial house of the Petitioner No.1. Since the date of marriage, the Petitioner No.1 was residing with the Respondent No.1 in the said house. It is a shared house hold. If the Respondent Nos.1 and 2 succeed in evicting the Petitioners from the shared house, the Petitioners will be put to heavy and irreparable loss.
3. The Trial Court on hearing the Learned Counsel for the Petitioners had posted the matter for orders on 12.10.2021.
4. The Petitioners have filed the affidavit of Petitioner No.1 on 12.10.2021, contending that, Lakshmamma and Chaithanya have entered the matrimonial house forcibly on 11.10.2021 in the morning, and forcibly thrown all their things and belongings from the said house and have also assaulted physically with rods, due to which her left hand has sustained fracture. All her belongings i.e., her clothes, jewelry have been confiscated by the Respondents and they were thrown out from the matrimonial house forcibly.
5 Crl.Appeal.No.25200/20215. Considering the same, the Trial Court has passed an interim orders on the application filed by the Petitioners U/Secs.17 and 8 R/W Sec.23(2) of Protection from Women from Domestic Violence Act, on 12.10.2021, directing the Respondent No.1 to provide alternative residence to the Petitioners therein within a period of 7 days from the date of receipt of the said order.
6. Being aggrieved by the said orders, the Respondent No.1 has preferred this appeal, on the following grounds:
Grounds of Appeal:
a) The Trial Court has failed to afford and opportunity to the Appellant, prior to passing of the interim orders;
b) The interim orders passed by the Trial Court is arbitrary, congest and against the procedure by the Code of Criminal Procedure;
c) The Trial Court has passed the said intermi order, without conducting any equiry, as required U/Sec.23 or Sec.28 of the Act;
d) Grating of interim order by the Trial Court, is in violation of Principles of Natural Justice. The Trial Court has failed to observe the guiding principles laid down by the Hon'ble High Court of Bombay, in the 6 Crl.Appeal.No.25200/2021 case of Abijit Bhikaesth V/s State of Maharashtra, reported in 2009 (1) AIR (Bom) 212;
e) The Trial Court has failed to consider infringement of the rights of the Appellant, while passing the interim orders;
f) The Trial Court has failed to follow the Principles of law laid down by the Hon'ble High Court of Karnataka in the case of Krishnamurty Nookula V/s Y Shavitha (Crl. Rev. Pt. 815/2009);
g) The Trial Court has failed to consider that, the Respondent No.1/ Petitioner No.1 before the Trial Court has left the matrimonial house long back and she is residing a Hosakote; and she has received the notice from the Family Court in MC No.4144/2021, at Hosakote;
h) The Trial Court has failed to consider that, the Schedule property is the self acquired property of Mr. Nagaraj, the brother of the Appellant and the same was transferred byway of gift according to their family circumstances.
Hence, prayed to allow the said appeal and setaside the interim orders passed by the Trial Court.
7. Heard the Arguments putforth by the representing the Appellant and the Respondents.
The Learned Counsel for the Appellant has placed his reliance on two decisions viz., 7 Crl.Appeal.No.25200/2021
a) of the Hon'ble High Court of Bombay, in the case of Abhijit Bhikaesth V/s State of Maharashtra, reported in 2009 (1) AIR (Bom) 212;
b) of the Hon'ble High Court of Karnataka in the case of Krishnamurty Nookula V/s Y Shavitha (Crl. Rev. Pt. 815/2009).
8. Following points arise for my consideration;
1. Whether the Appellant/ Respondent No.1 before the Trial Court shows that the interim Order issuing directions to him to provide alternative residence by the Learned MMTC-I in Crl. Misc. No.207/2021, dtd.12.10.2021, is perverse and deserves to be setaside, thereby calling for the interference of this Court?
2. What Order?
9. My finding on the above points are as under:
Point No.1 : Partly in the Affirmative; Point No 2 : As per final order for the following :
REASONS The rank of the parties will be referred to, as they were before the Trial Court.8 Crl.Appeal.No.25200/2021
10. Point No.1:-
The first contention taken up by the Learned Counsel for the Appellant is that, the Trial Court has passed the orders under appeal, behind the back and without intimating the Respondent No.1. He would further contend that, though power is granted U/Sec.23 of the DV Act to grant interim and exparte orders, but such orders are to be passed in accordance with the procedure laid down U/Sec.28 of the DV Act. The said procedure has not been followed by the Trial Court. He has placed his reliance on two decisions viz.,
a) of the Hon'ble High Court of Bombay, in the case of Abhijit Bhikaesth V/s State of Maharashtra, reported in 2009 (1) AIR (Bom) 212, wherein it is observed that, "Magistrate in terms of sections 18, 19, 20, 21 or 22 of the said Act against the respondent. Sub section 1 provides for passing an interim order which is to operate till the final disposal of the main application under sub section 1 of section 12 or till the same is modified earlier. Though a separate application is not necessary to be made for grant of interim relief, principles of natural justice require that before granting interim relief in terms of sub section 1 of section 23, the respondent in the main application will have to be heard. Therefore, before granting interim relief under sub section 1 of section 9 Crl.Appeal.No.25200/2021 23, a notice will have to be served to the respondent. It is well settled position of law that an interim relief can be granted only in the aid of final relief which can be granted in the main proceedings. In the case of proceedings under sub section 1 of section 12 of the said Act, the learned Magistrate can pass final orders covered by sections 18, 19, 20, 21 or 22 of the said Act and therefore it is obvious that interim order which can be granted under sub section 1 of section 23 can be only in terms of reliefs provided for in sections 18 to 22 of the said Act. Under sub section 1 of section 23 a relief which is not covered by any of the sections 18 to 22 of the said Act cannot be granted. Thus in short, the power under sub-section 2 of section 23 is of grant of an ex-parte ad-interim relief in terms of sections 18 to 22 of the said Act and the power under sub-section (1) is of grant of interim relief pending final disposal of the main application under section 12(1) of the said Act.
b) of the Hon'ble High Court of Karnataka in the case of Krishnamurty Nookula V/s Y Shavitha (Crl. Rev. Pt. 815/2009), wherein it is held at Para Nos.16 to 18, as under:-
"16. From the above, it is clear that despite the mandate of sub-section (1) of Section 28 that in all proceedings under the provisions referred to above including Section 23(1) of the Act, shall be governed by the provisions of Code of Criminal Procedure, the proceeding under sub-section (2) of Section 23 need not be so. For disposal of an application 10 Crl.Appeal.No.25200/2021 by an ex-parte order under sub-section (2) of Section 23, the provision envisages that sub- section (1) of Section 28 shall not prevent the Court from laying down its own procedure for disposal of such application. La other words, though the procedure prescribed by Code of Criminal Procedure is made applicable for enquiry in a proceeding under Section 23 and the other provisions of the Act, proceedings referred to under sub-section (2) of Section 23 for granting ex-parte interim relief is excepted.
17. sub-section (2) of Section 23 relates only to grant ex-parte orders. For clarity, the same is once again extracted;
"(2) If the Magistrate is satisfied that an application prima facie disclose that the respondent is committing, or has committed an act of domestic violence or that there is likelihood that the respondent may commit an act of domestic violence, he may grant an exparte order on the basis of the affidavit in such form, as may be prescribed".
18. From this, it is clear that the proceeding under sub-section (1) of Section 23 which permits to pass interim order has to be governed by the provisions of Code of Criminal Procedure by virtue of Section 28(1) of the Act, but all actions in a proceeding for grant of ex-parte order would be by the procedure framed by the Court itself if any or on the basis of the affidavit in such form as may be prescribed. The ultimate conclusion 11 Crl.Appeal.No.25200/2021 would be for grant of ex parte order, the Magistrate need not necessarily apply provisions of Code of Criminal Procedure, but he could pass such orders on the basis of material in the form of affidavit in such form as may be prescribed or following the procedure it has prescribed (if any). But when the magistrate declines to grant ex parte relief and notifies the respondent (prior notice), he has to be heard and in such cases, Section 28(1) applies and the procedure prescribed by the Code of Criminal Procedure becomes applicable."
11. Sec.23(1) of the DV Act empowers the Magistrate to pass such interim orders, as he deems just and proper. Sec.23(2) of the DV Act deals with as to when such interim orders are to be passed by the Magistrate. It says that, when the Magistrate is satisfies that,
a) an application prima facie discloses that, the Respondent is committing, or has committed an act of Domestic Violence; or
b) there is every likelihood, that the Respondent may commit an act of Domestic Violence, if such an order is not passed i.e., inotherwords to avoid future act of Domestic Violence.
12 Crl.Appeal.No.25200/2021Such interim orders can be passed on the basis of the affidavit,submitted by the aggrieved person in the format prescribed by the Act.
So while passing the interim orders prima facie the Magistrate has to get himself satisfied about commission of the Domestic Violence, either in past or in presents, or in future, on the basis of the contents of the affidavit to be furnished by the aggrieved person, as prescribed by the Act.
12. Adverting to the instant case at hand, wherein the Respondents who were Petitioners before the Trial Court have filed an application praying to pass an interim order directing the Respondents therein or their agents, or family members or any other persons acting on their behalf, not to evict or exclude the Petitioners from the Scheduled property; and restrain them from alienating or creating third party rights over the Scheduled property.
13. I have gone through the orders passed by the Trial Court, wherein the Trial Court has opined in Para No.4 of its order that, 13 Crl.Appeal.No.25200/2021
a) the Respondent No.1/ the present Appellant appears to have transferred the house to the Respondent No.2 therein, by virtue of the Gift Deed dtd.05.08.2021;
b) the Petitioner No.1 contends that, she is residing in the house which is gifted by the Respondent No.1 to the Respondent No.2, from the date of her marriage;
c) so the act of the Respondent No.1 in transferring the ownership of the Schedule property infavour of the Respondent No.2 will prima facie show to have deprived the right of residence to the Petitioner in the said house;
d) Respondent No.1 being the husband of the Petitioner No.1 is having bounden duty to maintain his wife and children, by providing basic necessity such as, food, shelter and clothing; and
e) there is every chance of Respondents throwing out of the house, by applying force on the basis of the Registered Gift Deed executed by the Respondent No.1 infavour of the Respondent No.2.
14. The Learned Counsel for the Appellant would contend that, the Schedule property is not a shared house, but it was belonging to the brother of 14 Crl.Appeal.No.25200/2021 the Appellant- Nagaraj; and the said Nagaraj under the family circumstances had transferred the said property to the Appellant.
14.01. Percontra, the Learned Counsel for the Respondents would contend that, the Respondent No.1 got married to the Appellant on 24.09.2006; and the Scheduled property was gifted by Nagaraj the brother of the Appellant, to the Appellant on 03.01.2009, so after 03.01.2009 the Petitioners and the Appellant have resided in the Scheduled property. So the Scheduled property has become the shared house hold property of the Petitioners, within the meaning of Sec.2(s) of DV Act.
14.02. We have to get ourselves reminded that, we are in the Preliminary stage of the proceedings; yet evidence has to be led by the Petitioners and the Respondents, before the Trial Court.
Whether the Scheduled property is a shared house hold within the meaning of Sec.2(s) of the DV Act is required to be answered by the Learned Trial Court, at the touch stone of the evidence.
15 Crl.Appeal.No.25200/202115. Further the Learned Counsel for the Appellant would contend that, the Trial Court ought to have passed an interim orders on the said application, on hearing the Appellant.
16. Considering the relief claimed by the Petitioners before the Trial Court, under the interim application; and the relief byway of interim order, granted by the Trial Court, it can be seen that, the relief claimed by the Petitioners under the interim application, have not been granted by the Trail Court, but the Trial Court has issued directions to the present Appellant to provide alternative residence.
16.01. If the Trial Court would have passed an order restraining the present Appellant or the other Respondents before it, from evicting the Petitioners from the Scheduled property; or from alienating or creating the third party rights, over the Scheduled property, then the matter would have been different. But the same is not done by the Trial Court.
16 Crl.Appeal.No.25200/202116.02. If such restraint order was to be passed by the Trail Court as observed in Para No.16.01 supra, then definitely the Trial Court was under duty to hear the Respondents, before it and to pass, such interim orders.
16.03. But the Trial Court has passed the order under challenge, inorder to protect the interest of the Petitioners, byway of a protection order, as required U/Sec.19 of the DV Act, for which there is no mandate for the Trial Court to hear the Respondents before it, prior to passing such interim orders.
16.04. On perusal of the facts and circumstances before the Trial Court, the Trial Court has sensed the eminent danger to be caused to the Petitioners for the act of the Respondent No.1 before it in transferring the Scheduled property infavour of the Respondent No.2. So also, the Trial Court has felt that, if protection order of having alternate residence to the Petitioners is not granted, the same may lead to commission of an act of Domestic Violence, on the Petitioners.
17 Crl.Appeal.No.25200/202116.05. The Trial Court having observed the relationship inbetween the Petitioner No.1 and the Respondent No.1 before it has passed the interim order, which is under challenge. The degree of care and caution in the mind of the Trial Court, is to be appreciated, which is necessary for passing an exparte interim order, as required U/Sec.23 R/w Sec.18 to 22 of the DV Act. Alert application of mind is certainly required before passing exparte interim orders. I find force to my above view, as per the decision of Sulochana V/s Kuttappan, reported in 2007 (2) Crimes 460.
16.06. The Trial Court has exhibited its alert application of mind, as required before passing the exparte interim order, which is under challenge, the same cannot be found, fault with. Such orders cannot be attributed as the orders passed in violation of Principles of Natural Justice.
16.07. The Trial Court has passed the interim order in anticipation of an act of Domestic Violence. Always the interim orders are subject to alteration, as provided U/Sec.25 of the DV Act, if the 18 Crl.Appeal.No.25200/2021 Respondents before it, satisfies that, such interim orders is required to be altered, modified, or revoked.
17. No fault can be attributed to the interim orders passed by the Trial Court, as for as issuing the directions to the present Appellant, to secure alternative residence to the Petitioners.
18. The Learned Counsel for the Appellant would contend that, the Appellant is not so financial sound to provide alternative residence to the Petitioners, within 7 days from the date of receipt of the interim orders.
18.01. Looking to the age of the Appellant; the prevailing situation in the city, occurred due to COVID-19 pandemic, it is necessary to relax the said condition imposed by the Trial Court withregard to duration.
18.02. Under such circumstances, it will be just, proper and reasonable to direct the present Appellant to secure alternate residence to the present Respondents, as suggested by the Trial Court, within 19 Crl.Appeal.No.25200/2021 a period of one month from the date of this order i.e., on or before 17.03.2022.
19. Only the condition imposed by the Trial Court withregard to duration, requires to be modified.
20. Consequently, the Appellant has to secure alternate residence to the present Respondents, as suggested by the Trial Court, on or before 17.03.2022.
Hence, I answer POINT NO.1 PARTLY IN THE AFFIRMATIVE.
21. POINT NO.2:
For having answered Point No.1 in the Affirmative, I proceed to pass the following:
ORDER Acting U/Sec.29 of the Protection of Women from Domestic Violence Act, 2005, the Appeal preferred by the Appellant is hereby Allowed, in part.
In the consequences, the interim order passed by the MMTC-1 Bengaluru, in Crl. Misc. No.207/2021, dtd.12.10.2021, withregard to issuance of direction is maintained;20 Crl.Appeal.No.25200/2021
and withregard to duration, the same is hereby modified.
Resultantly, the Appellant shall secure alternative residence to the present Respondents, as directed by the Trial Court, within a period of one month i.e., on or before 17.03.2022.
The Trial Court shall not get itself influenced with any of the observations made in this appeal. Any observations made, is to be restricted only for answering this appeal.
Remit the TCR to the Trial Court, on obtaining necessary acknowledgment, alongwith the copy of this Judgment for necessary reference of the Trial Court.
No order as to costs.
----
(Dictated to the Stenographer directly on the computer, corrected and pronounced in open court this the 17th day of February, 2022.) [Abdul-Rahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)