Bangalore District Court
K.G. Kavitha vs K.T Ganapathy on 4 January, 2025
KABC010054452024
IN THE COURT OF THE LXI ADDL. CITY CIVIL AND
SESSIONS JUDGE: BENGALURU CITY.
Dated this the 04th day of January, 2025
-: PRESENT :-
Sri Anand T. Chavan, B.com., LL.B (Spl),
LXI Addl. City Civil and Sessions Judge,
Bangalore, (CCH-62)
Crl.A. No.348/2024
Appellant : Smt. K.G. Kavitha,
W/o. K.T.Ganapathy,
Aged about 47 years,
Residing at No.27,
Near Hi-Tech Care Wash,
2nd Cross, Singapura Layout,
Bengaluru - 560 097.
(By Sri.Mohan Kumar H., Advocate)
V/s
Respondent : K.T.Ganapathy,
S/o. Late K.M.Thimmaiah,
Aged about 64 years,
Residing at No.144,
Varadaraja Swamy Layout,
Kaveri Nilaya, 2nd Stage,
Singapura, Vidyaranyapura Post,
Bengaluru - 560 097.
(By Sri.N.B.N., Advocate)
2
Crl.A.No.348/2024
JUDGMENT
This appeal is filed under Section 29 of Protection of Women from Domestic Violence Act, 2005 by present appellant (petitioner in Crl. Misc. No.169/2022) seeking to set aside order of rejecting interim application under Section 20(1)(D) of Protection of Women from Domestic Violence Act, 2005 R/w Section 125 of Cr.P.C. dated 10.01.2024, passed by learned MMTC - III Court, Bengaluru (hereinafter referred as trial court) in Crl.Misc.No.169/2022 and to award maintenance of Rs.25,000/- per month to the petitioner/appellant.
2. The appellant is petitioner/wife and respondent is respondent/ husband before trial court and said parties are referred with their rankings before trial court for the sake of convenience.
3. The gist of main petition and aforesaid application filed by petitioner before trial court seeking interim maintenance are as under ;
The marriage between petitioner and respondent was solemnized on 21.10.2012 at Ayyappa Temple, Ponnampet, South Coorg as per Hindu Rites and Customs and same is registered before Marriage Registrar Byatarayanapura Bengaluru on 15.11.2012. It was their second marriage and at the time of said 3 Crl.A.No.348/2024 marriage respondent was already retired from Indian Army. He was serving as Havildar and after his retirement from Army, he joined LNT and later he retired from said job. Hence respondent is getting pension of Rs.27,000/- per month from Army and he is also getting Rs.3,000/- from LNT. Further he has own house and coffee and pepper estate lands measuring 7 acres and 2 acres in Birnani, Gonikoppa, South Coorg and getting income of Rs.5,00,000/- per annum from said lands. Further out of his first marriage, respondent has three children i.e., daughter by name Mouna Ganapathi aged 27 years, working in EY Company, a son by name K.G.Nikhil, aged 24 years, working in company and another daughter by name K.G.Nilma, aged 24 years, working in Wipro Company and studying further. The said Nikhil and Nilma are twins. Further petitioner out of her first marriage has two daughters by name M.M.Thangamma, aged 17 years, studying in 10th Standard and M.M.Dechamma, aged 13 years, studying in 8th Standard at Kendriya Vidyalaya, Jalahalli, West Bengaluru. At the time of marriage respondent assured to take care of petitioner and her children and believing the same, petitioner married to him. When petitioner started residing with respondent along with her children, their relationship was cordial for two years and thereafter respondent 4 Crl.A.No.348/2024 started to harass petitioner and her children without valid reasons. He never respected petitioner nor bothered about her welfare, though she took care of his children. Respondent used to consume alcohol all the time and sometimes in early morning. Thereafter he used to fight with petitioner by loosing his control to alcohol and he used to abuse petitioner and her children in filthy language. Many times he assaulted the petitioner badly by throwing things at her and he used to damage household things. Being scared of respondent's acts, petitioner and her children faced humiliation, but respondent never bothered about his attitude. He even neglected petitioner and her children by not providing proper food to them and on the other hand his children were leading lavish lifestyles. Thus respondent did not provide basic necessities to them and he tortured them mentally and physically. The petitioner could not tolerate his harassment and the situation made her to come out of matrimonial house with her children on 14.11.2021. Since then petitioner is residing with her daughters in rented premises and respondent has completely neglected them. The efforts of petitioner to adjust and continue with respondent ended in vain and respondent changed his attitude though he had assured to take care of petitioner and her children after marriage. Now petitioner and her 5 Crl.A.No.348/2024 children are leading their life with great difficulty and petitioner is working in a pharmacy for small salary of Rs.10,000/- for their livelihood. She is paying Rs.6,000/- per month for rent and Rs.3,000/- for education and medical expenses. The respondent has completely neglected to provide amount towards their maintenance and now petitioner cannot live peacefully with respondent for aforesaid constant physical, mental and life threats. Hence petitioner requires interim maintenance of Rs.25,000/- per month for herself and her children to meet out expenses of food, rent, medical and education and she also required litigation expenses of Rs.50,000/- and hence she was constrained to file aforesaid interim application before trial court.
4. The records of trial court reveal that the respondent has appeared before trial court and filed his objections to main petition as well as to above interim application, wherein he has not denied and disputed the averments of petition with regard to his marriage with petitioner, status of said marriage as 2nd marriage, registration of said marriage and joining of his house by petitioner. He has also not denied and disputed details of children born to both of them out of their first marriages. However he has denied the other material averments of petition with regard to alleged 6 Crl.A.No.348/2024 harassment by him to petitioner and to her daughters under influence of alcohol and his negligence to maintain them. Most importantly respondent has admitted that he is driving pension of Rs.27,000/- and additional sum of Rs.3,000/- from L&T, but denies his income of Rs.5,00,000/- from coffee and pepper land of 9 acres. It is further denied that petitioner stayed with respondent with her children for period of 8 years and it is specifically stated that after discharge from services of L & T in April 2019, respondent decided to cultivate and look after his ancestral lands of Coorg with effect from June 2019 and he shifted his residence from Bengaluru to Coorg. Thereafter petitioner declined to accompany him as she did not wish to leave posh atmosphere of city life. Hence respondent is leaving in his village as a bachelor and further petitioner could not stay with his three children and to look-after them under same roof. Hence she vacated his house of Singapur Layout on her own volition. The averments of application and petition that she incurring towards various expenses are denied in toto and it is further averred that the present time by petition is filed without any cause of action. Further it is specifically averred in objections to above application that the said application was taken up for consideration by trial court on 29.03.2023 and 7 Crl.A.No.348/2024 it was held that same is vague. Hence said application is disposed off by order dated 29.03.2023, same has become final and petitioner has not challenged. Hence it is prayed to reject the application.
5. The trial court by considering the aforesaid pleadings and arguments of both sides, proceeded to reject the aforesaid interim application of maintenance filed by petitioner by order dated 10.01.2024. Now the appellant has come up with present appeal challenging the impugned order of trial court on following grounds:-
1. The impugned order of trial court is without application of mind and without considering materials on record. The trial court has passed the said order without perusing the documents in right perspective.
2. The trial court erred in not considering meager earning of Rs.10,000/- by appellant for survival and said income is insufficient. Further trial court considered the statement of respondent that appellant is earning Rs.15,000/- without any documents and it also failed to consider that appellant has to look-after expenses of rent, glossary, electricity, gas, travel expenses, education and miscellaneous expenses.8
Crl.A.No.348/2024
3. Further trial court did not consider the multiple source of income of respondent and earnings of his children, who are capable of maintaining themselves without depending upon respondent.
4. Trial Court failed to consider that petitioner is unable to maintain herself and her children out of meager income and hence order passed by trial court is perverse, capricious and arbitrary. On these amongst other grounds, it is prayed to set aside impugned order of trial court on above interim application and to award an amount of Rs.25,000/- per month to petitioner as maintenance.
6. Heard arguments of both sides. Perused the trial court record, impugned order. The following points arise for consideration.
1. Whether the appellant has made out grounds to allow the appeal under Section 29 of Domestic Violence Act ?
2. What Order?
7. My findings on the above points are as under:
Point No.1 : Partly in the Affirmative Point No.2 : As per final order for the following;9
Crl.A.No.348/2024 REASONS
8. Point No.1:- The averments of petition, interim application filed by petitioner/ appellant and objections filed by respondent before trial court are elaborately reproduced in foregoing paras and same need not be repeated. On perusal of trial court records it shows that both parties do not dispute their relationship and second marriage status. It is also pertinent to note that both parties have submitted their declaration by trial court by way of affidavit with regard to their assets and liabilities as per land mark decision of Hon'ble Supreme Court in Rajanish V/s. Neha. The respondent has fairly admitted his army pension of Rs.30,000/- per month, L and T pension of Rs.2,000/- per month and agriculture income of Rs.3,00,000/- per annum. Further he has also not denied and disputed the age of his children, who are more than about 25 years old. Further job of children of respondent as averred in petition is also not specifically denied and as such it prima facie shows that said children are no more dependent upon respondent.
9. On the other hand present petitioner has also submitted her declaration with regard to her assets and liabilities before trial court by way of affidavit wherein she has specifically mentioned her 10 Crl.A.No.348/2024 employment as worker in pharmacy as helper and her monthly income as Rs.10,000/-. Though in his assets and liability statement, respondent has contended that the petitioner is having monthly income of Rs.15,000/- by doing job in medical warehouse, he has not produced any documents to show her income, much- less to show any other income.
10. The trial court despite taking judicial notice of aforesaid aspects proceeded to reject the above application on simple ground that petitioner is having income of Rs.10,000/- from her pharmacy job and as per respondent it is Rs.15,000/-. Hence trial Court opined that petitioner is capable of maintaining herself out of said income and as such she is not entitled for any interim maintenance from the hands of respondent. However admittedly the respondent is getting monthly average income of Rs.60,000/- per month and the job and self financial dependence of his children is not denied and disputed by him. As far as petitioner is concerned admittedly she has to maintain herself and her two daughters who are nearing the age of majority by bearing expenses towards rent, glossary and other heads mentioned in petition. Hence though it is assumed that petitioner is having monthly income of Rs.15,000/- by aforesaid pharmacy job, same is insufficient to meet out day to day expenses of her 11 Crl.A.No.348/2024 family consisting of three members. Hence the petitioner being legally wedded wife of respondent is definitely entitled for reasonable amount towards interim maintenance to look-after her basic needs.
11. The counsel for respondent has vehemently argued that petitioner has left the matrimonial house on her own volition without any justifiable cause and she even refused to join the respondent at his native place. Hence in view of her voluntary desertion, she is not entitled to seek interim maintenance. On the other hand counsel for petitioner has argued that whether the petitioner has voluntarily left the company of respondent or the alleged harassment on part of respondent made her to leave matrimonial house is a matter of trial and at this stage the trial court cannot refuse to award reasonable interim maintenance to petitioner on assumption and presumptions. Further on perusal of impugned order, it clearly shows that trial court has not even considered the above aspects and financial requirement of petitioner to maintain her family in city like Bengaluru and it has simply rejected the said application on assumption that the petitioner is able to maintain herself out of her meager earnings of Rs.10,000/- to Rs.15,000/- per month. Hence the order of trial court is purely based upon assumption 12 Crl.A.No.348/2024 and presumption, it is not justifiable and same is liable to be set aside.
12. Further though petitioner has claimed interim maintenance of Rs.25,000/- per month, looking to facts and circumstances of the case, financial status of both parties as per their declarations submitted before trial court, the petitioner is entitled for reasonable amount from the hands of respondent towards her interim maintenance. Considering such status, a monthly interim maintenance of Rs.10,000/- may be awarded to petitioner, which would suffice her needs and basic necessities at present. Further the petitioner may also be awarded an amount of Rs.20,000/- towards litigation expenses. Hence the appeal deserves to be allowed in part aforesaid terms. Hence Point No.1 answered accordingly.
13. Point No.2:- In view of findings given on point No.1, this Court pass the following;
ORDER
The Appeal filed by the
appellant/ petitioner in
Crl.Misc.No.169/2022 under
Section 29 of Protection of Woman
13
Crl.A.No.348/2024
from Domestic Violence Act is
allowed in part.
The impugned order passed by
MMTC-III Court on application filed by appellant/ petitioner under Section 20(I)(D) of Protection of Women from Domestic Violence Act R/w Sec.125 of Cr.P.C. is hereby set aside. Consequently said application is allowed in part. The petitioner is entitled for interim maintenance of Rs.10,000/- per month from the hands of respondent from the date of filing the above application dated 05.11.2022 till disposal of said main case along with litigation expenses of Rs.20,000/-. The respondent shall pay the aforesaid monthly maintenance to petitioner on or before 5th day of every English Calendar month. Further respondent shall deposit the aforesaid litigation expenses and arrears of maintenance before trial 14 Crl.A.No.348/2024 Court within three months from the date of this order.
No order as to costs.
Office is directed to transmit the record to the trial Court with copy of this order.
(Dictated to the Stenographer Gr.III directly on computer and typed by her, corrected by me and then pronounced in the open Court on this the 4th day of January, 2025) (ANAND T. CHAVAN) LXI ADDL. CC & SJ, BENGALURU.