Bangalore District Court
Smt. Mohan Kumari @ Rashmi W/O Kumara @ vs Kumara @ Keshava @ Channakeshava S/O on 25 October, 2021
IN THE COURT OF THE METROPOLITAN MAGISTRATE
TRAFFIC COURT- II BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER 2021
Present: Smt. Rekha. H.C.
B.A.LLB
Metropolitan Magistrate,
Traffic Court-II, Bengaluru.
C.Misc. No. 61/2015
PETITIONER: 1. Smt. Mohan Kumari @ Rashmi W/o Kumara @
Keshava, 25 Yrs.
2. Master Vihas S/o Kumara @ Keshava, 2 Yrs
Both are R/at No.54, Sanjeevini Nagara,
Hegganahalli Cross, Bengaluru.
Represented by: Sri. NMM. Adv.,
V/s
Respondent:- Kumara @ Keshava @ Channakeshava S/o
Ramashetty, 32 Yrs, r/at HLC 67/C, Hutha Colony,
Bhadravathi, Shimoga District.
Also working at:
Bus Driver KSRTC, Chikkamagaluru Division,
Mudigere Depot, Mudiger.
Represented by Sri. NGP, Adv.
2 Crl.Misc.No.61/2015
JUDGEMENT
This is a petition filed by the petitioner U/s.12 of Protection of Women from Domestic Violence Act, 2005 seeking relief's U/s.18, 20 and 22 of the said Act.
2. The case of the petitioner in brief is as under:
It is the case of the petitioner that she married to respondent on 19.11.2011at Jayashree Kalyana Mantapa, JC road, Badravathi in accordance with the Hindu tradition, rites and customs in the presence of elders, well wishers and relatives. The marriage was celebrated by the parents of petitioner no.1 by spending huge amount. At the time of marriage, the parents of petitioner no.1 paid dowry of Rs.75,000/- towards dowry to the respondent by way of dowry, besides giving him gold chain, gold rings, bracelet and other gold articles about 100 grms. That apart, as per the demand made by the respondent and his family members 40 sovereign of gold ornaments and silver articles were given to the petitioner no.1. After their marriage they were started to living in the matrimonial house at Badravathi where respondent house is situated.
3. The petitioner further submits that the petitioner came to know that the respondent had other bad vices. After the marriage for two or three months they lived happily. But thereafter, the respondent started to demanding the petitioner no.1 to bring more money and used to send her to her parental house.
3 Crl.Misc.No.61/20154. The petitioner stated that the parents of the petitioner by availing huge amount of loan, performed a marriage of both parties, but in spite of the same, the respondent demanded the petitioner to bring dowry, which the petitioner could not obliged. Thereafter the respondent and his parents used to abuse the petitioner no.1 with all sorts of filthy language and the respondent and his family members was not even obliged to provide food and cloths to the petitioner no.1. As a result of the same, the petitioner no.1 was not being given proper food and cloths.
5. The petitioner further submits that during the month of August 2012, the respondent and his family members directed the petitioner no.1 to bring a sum of Rs.1,00,000/- as dowry and when she pleaded her liability she was thrown out of the matrimonial home and with great difficulty she could come to her parents house on 10.9.2012 the respondent came near the petitioner's parents house at Bengaluru in late night and again demanded a dowry of Rs.1,00,000/- the parents of the petitioner no.1 requested him to take matrimonial home at Badravathi and situated that they are poor and not having enough money to pay at a time, but the respondent never cared to take back the petitioner no.1 nor maintain her. In fact, several panchayaths were held, but the respondent refused to take back the petitioner to the matrimonial home unless and until his demands are met. Now the petitioner no.1 is carrying a child and she is in mercy 4 Crl.Misc.No.61/2015 of aged parents. The parents of the petitioner no.1 were borne all the expenses of hospital and served her.
6. The petitioner no.1 further submits that when she stayed with the respondent, she has been subjected to physical and mental torture at her matrimonial home. The petitioner no.1 is not educated to procure the job. The petitioner no.1 cannot continue to live under the mercy of her parents and others. The respondent is duty to bound to maintain the petitioner no.1.
7. The petitioner no.1 further submits that the respondent was carrying on his avocation as a KSRTC driver at Chikkamagalur division and he is earning a sum of Rs.30,000/- per month from his job and the respondent having a residential and non-residential houses at Badravathi and he has getting more than Rs.50,000/- rental per month and his family also having wet and garden land around the Badravathi town and get more than Rs.2,00,000/- of annual income from agricultural. The respondent spends the same for his lavishness considering the status of the family and considering the fact that the petitioner is legally wedded wife of the respondent and need to be maintain by the respondent, the respondent is duty bound to pay to the petitioner atleast sum of Rs.25,000/- per month. Hence, this petition.
8. After filing of petition the notice of petition was issued to the respondent. The notice was duly served. The respondents have filed vakalath through his advocate, filed 5 Crl.Misc.No.61/2015 objection and denied all the allegation made by the petitioner and also further contended that the petitioner don't want to lead a marital life with the respondent in the full family and after her stay in her marital home at Bhadravathi she started pestering the respondent to shift his family to Bengaluru and that she is not willing to stay with her in law's house and she was telling the respondent that she knew the tailoring work and she would earn handsome income from the tailoring. Hence, the petitioner no.1 has voluntarily deserted the marital home of the respondent. Hence the petitioners are not entitle for any maintenance.
9. The respondent further submits that he has filed the petition for restitution of conjugal rights in the court of civil judge Sr.Dn and JMFC, at Bhadravathi in MOTOR CYCLE no. 32/2012 on 25.5.2012 upon service of notice to counter the statement made in MC petition the petitioner has filed C.Misc. no. 446/2012 before the Family Court, Bengaluru on 28.9.2012 seeking maintenance. The learned judge has granted interim maintenance at the rate of Rs.5,000/- per month on 24.11.2014. The respondent is paying the maintenance regularly. Hence, prays to dismiss the petition filed by the petitioner.
10. The petitioner in order to prove her case she has been examined herself as P.W.1. In support of her oral evidence, she has produced 5 documents as per Ex.P.1 to Ex.P.5 and 6 Crl.Misc.No.61/2015 closed her side. In order to disprove the case of petitioner the respondent examined himself as R.W.1 and Exs.R.1 to 8 are marked on his behalf.
11. Heard the learned advocate for the both sides and perused the material available on record produced by both the parties.
12. On perusal of the facts and circumstances of the case, the following points would arise for my consideration.
1. Whether the petitioner is entitled for the relief's as sought in the petition?
2. What order?
13. On perusal of materials before this court, My findings on the above said points are as under:
1. Point No.1: IN THE NEGATIVE
2. Point No.2: As per final order for the following;
REASONS
14. Point No.1: I have considered the application along with along with the evidence placed before the court. At the outset it is pertinent for me to note that the relationship between the parties is not in dispute.
15. It is the case of the petitioner that she has been subjected to physical, mental, emotional and financial abuse 7 Crl.Misc.No.61/2015 by the respondent and his family members on demand of dowry and also he was not taking care of the petitioner and her child. Hence she has filed the present petition.
16. On the other hand the respondent has appeared before the court through his advocate and filed vakalath and objection and he had denied all the allegations made by the petition and prays to dismiss the petition.
17. The petitioner in support of her case has got herself examined as P.W.1. In her affidavit filed in lieu of examination in chief she has reiterated the facts stated in the petition. The petitioner has produced some documents which are marked as per Exs.P.1 to 5 on her behalf.
Out of the exhibits marked for petitioner, Ex.P.1 is marriage invitation, Ex.P.2 is marriage photo, Ex.P.3 is medical document, Ex.P.4 is birth certificate and Ex.P.5 is domestic incident report.
18. The petitioner has alleged that she has been subjected to domestic violence and physical and mental torture by the respondent and his family. In order to prove the case of petitioner, the P.W.1 stated that the marriage of the both parties solemnized on 19.11.2011 at Jayashree Kalyana Mantap, Bhadravathi. The marriage has been solemnized by the parents of the petitioner no.1 by spending huge amount and at the time of marriage the parents of the petitioner no.1 have been paid amount of Rs.75,000/- to the 8 Crl.Misc.No.61/2015 respondent towards dowry and also gave gold and silver articles to the respondent.
19. The PW-1 further submitted that after their marriage the PW-1 came to her matrimonial house to start her marital life. After the marriage for 2-3 months they were lived happily. Thereafter the respondent started to demanding the petitioner no.1 to bring more money from her parents and the respondent and his parents abused the petitioner no.1 in filthy language without any reason and also they were not gave food, cloth to the petitioner no.1.
20. The petitioner further submitted that in the month of August 2012 the respondent and his family members directed the petitioner no.1 to bring amount of Rs.1,00,000/- towards dowry and when she not agreed to the same, the petitioner no.1 was thrown out from the matrimonial house. PW-1 further submitted on 5.10.2012 the petitioner no.1 gave birth to petitioner no.2 at Nursing home. But, the respondent not paid any medical expenses of the petitioners and he never look after the petitioner no.1 and her child. Hence, this petition.
21. On the other hand to disprove the case of petitioner, the respondent examined himself as RW-1 and denied all allegations made by the petitioner and he further contended that he had not demanded for any amount for gold towards dowry at the time of marriage or any occasion and after their marriage the petitioner no.1 did not interested to lead the 9 Crl.Misc.No.61/2015 matrimonial life with respondent and his family members. After the marriage of two months, the petitioner no.1 started demand the respondent to shift their home from Bhadravathi to Bengaluru. Because, the petitioner no.1 was not willing to stay with her in-laws.
22. RW-1 further contended that the petitioner no.1 had voluntarily deserted the matrimonial home, so the respondent had filed restitution of conjugal right petition at Bhadravathi in M.C. no. 32/2012. Thereafter, the petitioner was filed C.Mis. Petition before Family Court seeking for maintenance in C.Mis no. 446/2012. then the Hon'ble Court has granted interim maintenance of Rs.5,000/- to the petitioner no.1 towards maintenance. Even though, the respondent is ready to take back the petitioner no.1 and her child to matrimonial home at Bhadravathi, but the petitioner no.1 never shown any interest to lead life with the respondent at Bhadravathi. Even though the respondent is temporary driver in KSRTC and he is earning Rs.10,000/- per month. The petitioner no.1 voluntarily deserted the respondent all though the petitioner no.1 filed this false petition against the respondent to give torture and trouble to him. Hence, prays to dismiss the petition.
23. In this regard, I have perused evidence and material available on record. On perusal of oral and documentary evidence, the marriage of both parties solemnized on 19.11.2011 as per Hindu rites and customs and it's a arrange 10 Crl.Misc.No.61/2015 marriage, so marriage of both parties is not disputed. So far as, I have perused documents available on records. As per evidence of PW-1 the marriage was solemnized by the parents of the petitioner no.1 by way of spending huge amount. In this regard, the PW-1 has not produced any cogent and documentary evidence to prove her contention. Though, on perusal of Exs.R.1 to 8, the RW-1 was spend the marriage expenses of both parties. Hence, the evidence of PW-1 is no value in the eye of law.
24. The PW-1 further stated that in her petition and affidavit that at the time of marriage the parents of the petitioner no.1 also gave gold, silver articles and amount of Rs.75,000/- towards dowry. In this regard, PW-1 has not examined any witnesses before court to prove her contention that her parents have gave the dowry to the respondent even though she has not produced any documentary proof that at the time of marriage the parents of the PW-1 have gave gold and silver articles to the respondent.
25. PW-1 further stated that after the marriage of 2-3 months, the respondent has demanded amount of Rs.1,00,000/- towards dowry and gave mental and physical torture to the PW-1. When the PW-1 has not agreed to fulfill the demand of respondent, she was thrown out from the matrimonial home. In this regard, the PW-1 has not filed any complaint against the respondent.
11 Crl.Misc.No.61/2015Crl.Pet No.3873/18 Puttappa Vs. Chandrabai Pandey. In this case Hon'ble High Court of Karnataka held that on the face of it, having regard to the admitted relationship and the fact that the petitioner and respondent admittedly did not reside together, it is difficult to understand as to how the proceedings were entertained by the competent court. Accordingly, the petition is allowed and the proceedings in so far as the petitioner is concerned are quashed.
26. Further the petitioner has sought for a maintenance of Rs.25,000/- and compensation of Rs.50,000/-. In this regard she has stated that the respondent is working in KSRTC driver at Chikkamagalur division and he is earning a sum of Rs.30,000/- per month from his job and the respondent having a residential and non-residential houses at Badravathi and he has getting more than Rs.50,000/- rental per month and his family also having wet and granden land around the Badravathi town and the get more than Rs.2,00,000/- of annual income from agricultural. The respondent spends the same for his lavishness considering the status of the family and considering the fact that the petitioner is the legally wedded wife of the respondent and need to be maintain by the respondent, the respondent is duty bound to pay to the petitioner atleast a sum of Rs.25,000/- per month. But the PW-1 has not placed any material and documentary evidence before the court to establish the financial capacity and the respondent had getting a salary and that he is capable of paying maintenance 12 Crl.Misc.No.61/2015 of Rs.25,000/- per month and also she has not produced any document to show that respondent having movable and immovable own building at Badravathi and also she is not produced any material document that the respondent has owned agricultural land at Bhadravathi and he is getting sufficient income from the said land. But taking into consideration that it is not the defense of the respondent that he is maintaining the petitioner and her child. Even though the petitioner admitted in her cross-examination that she has filed maintenance petition before Family Court in C.Misc. 446/2012, then Hon'ble court has granted interim maintenance of Rs.5,000/- per month. So, since from the date of said order, the respondent has paying the said maintenance amount to the petitioner. More over, in view of guild lines issued Hon'ble Supreme Court of India, in Crl.A. No.730/2020, Rajaneesh V/s Neha, the petitioner declared that the petitioner no.1 and her son were awarded maintenance amount of Rs.10,000/- (Rs.5,000/- each) per month in C.Misc no. 446/2012. Hence, it is sufficient to maintain the petitioner and her son.
Bhushan Kumar Meen Vs. Mansi Meen @ Harpreet Kaur (MANU/SC/1177/2009) that "we cannot also shut our eyes to the fact that at present the respondent wife is not employed or at least there is nothing on record to indicate she is employed in any gainful work.
However, having regard to the qualification that she possesses, 13 Crl.Misc.No.61/2015 there is no reason why she ought not to be in a position to also maintain herself in the future".
In another reported judgment of Hon'ble High Court of Karnataka their lordship in the matter of Dr. E. Shanthi Vs. Dr. H.K. Vasudev. It was held that "Admittedly petitioner is residing with her parents at Chennai and whose brother is also a doctor. When the petitioner was practicing prior to marriage, when her name continuous on the board of the clinic, the Trial Court is justified in rejecting the application of the petitioner. There is no difficulty for the petitioner to work as a doctor.
Even if the petitioner is not working as a doctor in the clinic of her brother, since there are no impediments for her to work along with her brother as a doctor and when she is capable of earning, this court is of the opinion that the Trial Court is justified in rejecting the application of the petitioner. When the petitioner is capable of earning and having required qualification and that when she was working as a doctor prior to the marriage, there cannot be any difficult for her to continue the same profession.
Therefore, Section 24 of the Hindu Marriage Act cannot come to the aid of such persons, Accordingly, this petition has to be rejected".
As per section 2 of Protection of Women from Domestic Violence Act, 2005:-
14 Crl.Misc.No.61/20152 (a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;
s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenated either jointly by the aggrieved person and the respondent, or owned or tenanted by either of then in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
27. As per section 3 of Protection of Women from Domestic Violence Act, 2005:-
Sec.3(a): harms or injuries or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or 15 Crl.Misc.No.61/2015
(b) harasses, harms, injuries or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injuries or causes harm, whether physical or mental, to the aggrieved person.
Krishna Bhat Charji Vs. Sarathi Choudary and others (2016) 2 SCC 705, Scheme of 2005 AJ in a beneficial and assertive legislation far more effective protection of constitution rights of women and to ensure that They done become victims of any kind of Domestic violence.
On perusal of these depositions it is clear that relationship between the petitioners and respondent is not in dispute. The petitioners have failed to prove the respondent has harassed her. However no specific allegations are being made against the respondents so as to prove the act of Domestic Violence. Mere allegations which are not specific and which are vague in nature cannot be accepted as proof of Domestic Violence.
Domestic violence is a continuing offence. It is pertinent for me to note that after the marriage they 16 Crl.Misc.No.61/2015 were not living together as a husband and wife and they are not living same shared household and petitioner also admits that she is not having any sexual relationship with the respondent as a wife. Even though the petitioner has not made any reason that why they have not have any physical relationship between them. Hence she does not comes under Sec.2(a) of Protection of Women from Domestic Violence Act, 2005. But she filed this petition. Hence Protection of Women from Domestic Violence Act, 2005 does not attract the petition of the petitioner.
28. When such being the case the infliction of Domestic Violence made against the respondent doubt the PWDV Act is beneficiary legislation and is intended to protect the interest of wife and children. But looking into the deposition of P.W.1, it creates doubt in the mind of this court whether the petitioner really comes within the provisions of the said Act. In order to claim any relief under the said Act the petitioner must satisfy and prove before this court that she is an aggrieved woman U/s.2(a) of the said Act, and she has been subjected to Domestic Violence as defined U/s.3 of the Act. Hence on perusal of the deposition of P.W.1 it establishes that she has intentionally vague allegations made against the respondent. The petitioner has failed to proved her case of Domestic Violence against him. Hence, in this back ground it 17 Crl.Misc.No.61/2015 is seen that the petitioner has produced any documents to show respondent has given any mental and physical harassment to the petitioner. In view of the discussion made supra, I proceed to answer point No.1 IN THE NEGATIVE.
29. POINT No.2: In view of the above discussions and findings I proceed to pass the following ORDER The petitioner filed petition U/s.12 of D.V.Act is dismissed.
Office is directed to furnish copy of this order to Petitioner.
(Dictated to the Stenographer directly on computer, typed by her, corrected and then pronounced by me in the open Court this the 25th day of October 2021).
(REKHA H.C) MMTC - II, BANGALORE.
ANNEXURE LIST OF WITNESSES EXAMINED FOR THE PETITIONER:
PW-1 Mohankumari LIST OF DOCUMENTS MARKED FOR THE PETITIONER:
Ex.P.1 Marriage invitation
Ex.P.2 Marriage Photo
Ex.P.3 Medical document
Ex.P.4 Birth certificate
Ex.P.5 Domestic incident report
18 Crl.Misc.No.61/2015
LIST OF WITNESSES EXAMINED FOR THE RESPONDENT:
RW-1 Channakeshava LIST OF DOCUMENTS MARKED FOR THE RESPONDENT:
Ex.R.1 to 8 Receipts (REKHA H.C) MMTC - II, BANGALORE.