Karnataka High Court
Smt. Vanitha W/O. Vadiraj D/O. Siddappa vs Sri. Vadiraj S/O. Belagoda Thimmappa on 12 March, 2020
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NOs.102278/2018
C/W 100754/2018, 100383/2019
AND CRL. RP NO.100206/2019
IN CRL.P NO. 102278/2018:
BETWEEN
SMT. VANITHA W/O VADIRAJ, D/O SIDDAPPA,
AGED ABOUT 30 YEARS, OCC: HOUSE WIFE,
R/O SRI BEERESHWARA KRUPA,
H.N.F-39, TILAK NAGAR, BALLARI.
...PETITIONER
(BY SRI V.S. KALASURMATH, ADVOCATE)
AND
SRI VADIRAJ S/O BELAGODA THIMMAPPA
AGED ABOUT 34 YEARS,
OCC: RESEARCH SCHOLAR
R/O L.N.TEMPLE STREET,
BRUCEPET, BALLARI.
... RESPONDENT
(BY SRI S.N. BANAKAR, ADVOCATE)
THIS PETITION IS FILED UNDER SECTION 482 of Cr.P.C.
SEEKING TO QUASH THE IMPUGNED ORDER PASSED ON I.A.
NO.3 FILED UNDER SECTION 91 OF Cr.P.C. VIDE ANNEXURE-E
BY ORDER DATED 27.09.2018 ON THE FILE OF PRINCIPAL
JUDGE, FAMILY COURT, BALLARI IN CRL. MISC. NO.67/2018,
BY ALLOWING THE ABOVE PETITION.
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IN CRL.P100754/2018:
BETWEEN
1. VADIRAJA S/O TIMMAPPA
AGED ABOUT: 35 YEARS,
RESEARCH STUDENT,
2. SRI.B. TIMMAPPA S/O LATE HANUMANTAPPA
AGED ABOUT: 61 YEARS,
BUSINESS PERSON,.
3. SMT.MARIYAMMA W/O B. TIMMAPPA
AGED ABOUT: 56 YEARS,
4. SRI.POMPAPATHI S/O B. TIMMAPPA
AGED ABOUT: 38 YEARS,
ALL ARE PERMANENTLY
R/O: L.N. TEMPLE STREET,
BRUCEPETI, BALLARI.
5. SMT.SRIDEVI D/O B. TIMMAPPA
AGED ABOUT: 37 YEARS,
R/O: GUNTUR,
ANDRA PRADESH STATE.
6. SMT.POORNIMA D/O B. TIMMAPPA
AGED ABOUT: 36 YEARS,
R/O: NEAR V.I.M.S. COLLEGE,
BALLARI.
... PETITIONERS
(By SRI S. N. BANAKAR, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
R/BY HIGH COURT GOVERNMENT PLEADER,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH AT DHARWAD.
2. SMT.VANITHA W/O B. VADIRAJA
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AGED ABOUT: 31 YEARS,
R/O: HOUSE NO.F-39,
TILAKA NAGAR, BALLARI,
PIN: 583101.
... RESPONDENTS
(BY SRI PRAVEEN K. UPPAR, HCGP FOR R1.SRI V.S.
KALASURMATH, ADVOCATE FOR R2.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING THAT THE PROCEEDINGS INITIATED
AGAINST PETITIONERS UNDER D.V.ACT AND AN ORDER DATED
06.01.2018 AS PER ANNEXURE-E AWARDING INTERIM
MAINTENANCE OF RS.6000=00 PER MONTH BY THE II ADDL.
CIVIL JUDGE (JR.DN.) AND JMFC, BALLARI IN
CRL.MISC.NO.444/2017 U/S.12, 18, 19, 20 R/W 22 & 23 OF
PROTECTION OF WOMEN VIOLENCE ACT BE QUASHED, BY
ALLOWING THIS PETITION.
IN CRL. P. NO.100383/2019
BETWEEN
SRI.VADIRAJ S/O BELAGODA THIMMAPPA,
AGED ABOUT: 35 YEARS,
OCC: NIL, R/O: L.N. TEMPLE STREET,
BRUCEPET, BALLARI, PIN: 583101.
... PETITIONER
(BY SRI S. N. BANAKAR, ADVOCATE)
AND
SMT.VANITHA W/O VADIRAJ D/O SIDDAPPA
AGED ABOUT: 31 YEARS, OCC: LECTURER AT
NALANDA P.U.COLLEGE, BALLARI,
R/O SRI.BEERESHWARA KRUPA,
H.NO.F-39, TILAK NAGAR,
BALLARI, PIN: 583101.
... RESPONDENT
(BY SRI V.S. KALASURMATH ADVOCATE.)
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THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
SEEKING THAT THE IMPUGNED ORDER PASSED BY THE PRL.
JUDGE, FAMILY COURT, BALLARI, IN CRL.MISC.NO.67/2018 ON
I.A.IV DATED 27.09.2018 REJECTING I.A.IV AS PER ANNEXURE-
E BE QUASHED AND I.A.IV FILED AS PER ANNEXURE-C BE
ALLOWED BY ALLOWING THIS CRIMINAL PETITION U/S 125 OF
CR.P.C.
IN CRL.RP NO.100206/2019
BETWEEN
SMT.VANITHA W/O B. VADIRAJ
D/O SIDDAPPA K.N.,
AGE: 31 YEARS, OCC: HOUSEHOLD WORK,
R/O: H.NO.F.39, TILAK NAGAR,
CANTONMENT, BALLARI.
... PETITIONER
(BY SRI M. V. HIREMATH & V. S. KALASURMATH, ADVOCATES)
AND
B. VADIRAJ S/O B. THIMMAPPA
AGE: 34 YEARS, OCC: NIL,
R/O: D.NO.8/9, WARD NO.11,
RODDAMA STREET, BALLARI.
... RESPONDENT
(BY SRI S. N. BANAKAR, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER
DATED 30.06.2018 PASSED BY THE II-ADDL. DIST. & SESSIONS
JUDGE, BALLARI, IN CRL.A.NO.8/2018 AND ENHANCE THE
INTERIM MAINTENANCE HAS SOUGHT TILL THE PETITION.
THESE CRIMINAL PETITIONS AND CRIMINAL REVISION
PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT
MADE THE FOLLOWING:
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COMMON ORDER
Criminal Petition No.102278/2018 is filed by the wife under Section 482 of Cr.P.C. to quash the order of the trial Court passed on I.A.No.3 filed under Section 91 of Cr.P.C. rejecting the same and Criminal Petition No.100383/2019 is filed by the husband challenging the order passed on I.A.No.4 filed under Section 91 of Cr.P.C. rejecting the same by the common order.
2. Criminal Petition No.100754/2018 is filed under Section 482 of Cr.P.C. to quash the proceedings initiated by the wife under the Domestic Violence Act ('D.V. Act', for short) and though the petitioners have sought for the relief to set aside the order of granting maintenance of Rs.6,000/- p.m., the learned counsel for the petitioners restricts the prayer for quashing of the D.V. Act proceedings with liberty to initiate separate proceedings with regard to challenging the order of granting maintenance and hence, this petition is 6 restricted in respect of only quashing of proceedings. Criminal Revision Petition No.100206/2019 is filed questioning the maintenance of Rs.6,000/- awarded by the trial Court as the same is very meager and seeking for enhancement of maintenance.
3. All these petitions are taken up together, since the parties involved in all these litigations are one and the same.
4. Criminal Petition No.102278/2018 and Criminal Petition No.100383/2019 are taken up together since the order impugned in these petitions is common order passed on I.A.Nos.3 and 4 filed by the respective parties invoking Section 91 of Cr.P.C. In both these petitions both the husband and wife have contended that the trial Court has committed an error in rejecting their applications filed under Section 91 of Cr.P.C. and the documents which have been sought in I.A.No.3 are PAN card, IT returns for the past three 7 years of the father of the respondent, Bank account passbook and in I.A.No.4 filed by the husband also he sought for original passbook, income tax assessment, PAN card, registration certificate of the vehicle and copies of income tax assessment returns of the father of the petitioner and also the name of the bank and account of all the bank accounts held by the petitioner including FD account and joint account. The trial Court considering the grounds urged in both the applications comes to the conclusion that the proceedings under Section 125 of Cr.P.C. is a summary proceeding and no purpose will be served in summoning those documents and they must prove their own case by producing cogent evidence and the documents are the public documents and the same can be secured and produced before the Court.
5. In Criminal Petition No.100754/2018, the main contention of the petitioners before this Court is 8 that all the family members have been roped in the D.V. Act proceedings and there is no any specific allegation in the D.V. Act proceedings against all the petitioners and the very initiation of proceedings against the petitioners, particularly, the married daughters, who are residing separately is nothing but an abuse of Court process and hence, it requires interference of this Court.
6. In criminal Revision Petition No.100206/2019 filed by the wife contends that the maintenance awarded by the trial Court i.e. Rs.6,000/- is very meager and the same has to be enhanced and she contends that the husband was working in the software company and now though he contend that he left the job, he is also pursuing higher education and the maintenance awarded is not sufficient to maintain herself and hence, the same has to be enhanced.
7. The counsel appearing for the respondent- wife in Criminal Petition No.100754/2018 would 9 contend that all the petitioners have indulged in troubling the wife from the date of marriage and continued the harassment and she was forced to leave the matrimonial home in the year 2017 itself and hence, there are averments in the petition filed under the D.V. Act about the overt acts of each of the petitioners and hence, the same cannot be entertained.
8. The learned counsel appearing for the respondent in Criminal Revision Petition No.100206/2019 would contend that the respondent is not having any income at present and he is pursuing his higher education and the wife had lodged the complaint and even though he was getting an amount of Rs.25,000/- as scholarship due to the complaint given by her, the same is also stopped and he is not having any source of income and hence, the question of enhancing the maintenance does not arise. 10
9. Having heard both the petitioners' counsel and the respondents' counsel, the points that arise for consideration before this Court are as follows:
1) Whether the petitioners in Criminal Petition No.102278/2018 and Criminal Petition No.100383/2019 have made out the grounds to set aside the order passed by the trial Court on I.A.Nos.3 and 4?
2) Whether the petitioners in Criminal Petition No.100754/2018 has made out the ground to quash the initiation of proceedings against the petitioners under D.V. Act proceedings?
3) Whether the revision petitioner in
Criminal Revision Petition
No.100206/2019 has made out the
ground to enhance the interim
maintenance granted under the D.V. Act proceedings?
4) What order?11
10. Point No.1: The main contention of the petitioners in Criminal Petition Nos.102278/2018 and 100383/2019 is that the trial Court has committed an error in dismissing the applications filed under Section 91 of Cr.P.C. It has to be noted that the wife invoking Section 91 of Cr.P.C. sought an order to direct the husband to produce PAN card, income tax returns, bank passbook of respondent for the past three years. The husband filed the application invoking the very same provision seeking direction to the petitioner to produce passbook, income tax assessment, PAN card, registration certificate and copies of the income tax returns of the father of the petitioner and name of the bank details.
11. No doubt, the proceedings initiated under Section 125 of Cr.P.C. is a summary proceeding. It has to be noted that while awarding the maintenance, the Court has to take note of the status of the parties and 12 capability of the parties and whether they are employed or not and whether they are having source of income. All these aspects have to be considered while considering the matter even though it is a summary proceeding. When such being the case, the trial Court ought not to have dismissed the applications under Section 91 of Cr.P.C. in toto. However, it is made clear that the I.A.No.3 filed under Section 91 of Cr.P.C. by the wife seeking to produce PAN card, bank pass book of the husband for a period of three years is essential for determining the quantum of maintenance, but the document-income tax returns of the father of the respondent cannot be permitted to produce the same and hence, this Court is of the opinion that the directions sought in respect of the PAN card as well as bank passbook of the respondent for a period of three years directions can be issued to the husband to produce the same and not the income tax returns of his father.
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12. So also in respect of the I.A.No.4 filed under Section 91 of Cr.P.C. by the husband seeking the original passbook of the petitioner and so also income tax returns of the petitioner and PAN card of the petitioner, a direction can be issued to the wife to produce those documents and those documents are necessary to decide the issue involved between the parties. Other details sought by the husband i.e. registration certificate in respect of the vehicle and also the income tax assessment in respect of the father of the petitioner and also the furnishing details of the bank account and FD account cannot be considered and no such direction can be issued in respect of other three items.
13. Having taken note of the material on record and also looking into the order of the trial Court, the trial Court has committed an error in rejecting the applications filed by both the husband and wife on the 14 ground that the said documents are public documents and the same can be secured by the parties. When these documents are within the custody of the respective parties, the trial Court ought to have directed the parties to produce those documents to decide the issue involved between them instead of making such an observation and hence, this Court is of opinion that both the applications are liable to be allowed in part. Hence, the point No.1 is answered in the Affirmative in both the petitions and directions are issued to produce the documents as observed in the order.
14. Point No.2: It is the contention of the petitioners in Criminal Petition No.100754/2018 that initiation of D.V. Act proceedings against all the petitioners is nothing but an abuse of process. This Court has perused the petition filed under D.V. Act and on perusal of the records, it reveals that the petition is filed against the husband and also his parents and also 15 one of the brother and others are the married sisters. Having taken note of the averments made in the proceedings initiated under the D.V. Act, there is no any specific averment with regard to subjecting the petitioner for harassment by the married sisters. When such being the case, initiation of proceedings against the petitioners No.5 and 6 i.e. married sisters, there are no any averments with regard to harassment. Hence, this Court is of the opinion that it is nothing but an abuse of process of court against petitioner Nos. 5 and
6.
15. The leaned counsel for the petitioner would contend that even the father and mother are not residing in the said house. The learned counsel relied upon the judgment reported in 2010 (5) KLJ 305 contending that the relief sought under the D.V. Act cannot be continued against the father and the mother. The said contention cannot be accepted. The counsel 16 would contend that at present the wife is not residing along with them, but did not dispute the fact that after the marriage she has jointed the matrimonial home and the father and mother were staying along with them. The learned counsel also relied upon the judgment reported in 2020 (1) KCCR 48 and in this judgment this Court taking into note of the criminal proceedings have been invoked by the petitioners only to unleash vendetta to harass the petitioner and hence, allowed the petition.
16. Having taken note of the principles laid down in the judgments referred supra and also taking into note of the averments made in the petition filed under the D.V. Act, the very contention of the petitioners' counsel that there is no any averment with regard to the petitioners No.2 to 4 also cannot be accepted. On looking into the averments made in the petition, allegation has been made against the 17 petitioners No.1 to 4. When such being the case, this Court is of the opinion that this petition can be allowed partly to quash the proceedings initiated against the married daughters, who have been arrayed as respondents No.5 and 6 in the D.V. Act petition. Hence, the point No.2 is answered partly in the affirmative.
17. Point No.3: The wife in Criminal Revision Petition No.100206/2019 claimed enhancement of maintenance awarded by the trial Court on the ground that the maintenance awarded by the trial Court is very meager and the same is not sufficient to lead the life taking into account the present cost of living. It is an undisputed fact that under the D.V. Act proceedings, an amount of Rs.6,000/- p.m. is awarded and in the proceedings initiated for the restitution of conjugal rights also an amount of Rs.6,000/- is awarded and against that order writ petition was filed and this Court reduced the same from Rs.6,000/- to Rs.3,000/- and in 18 all the maintenance awarded is Rs.9,000/- as interim maintenance.
18. Having taken note of the fact that there is dispute between the parties in respect of income, this Court has allowed the applications filed under Sections 91 of Cr.P.C. of the respective parties and the matter has to be considered considering the documents allowed by this Court and also it has to be considered on merits and only on merits the same can be ascertained and hence, this Court is of the opinion that at this juncture, this Court cannot enhance the maintenance as sought in the petition. Hence, the point No.3 is answered in the Negative.
19. Point No.4: In view of the discussions made above, this Court proceed to pass the following:
ORDER Criminal Petition No.102278/2018 and Criminal Petition No.100383/2019 are partly allowed setting 19 aside the order passed on I.A.Nos.3 and 4 and direction is given to produce the documents as observed in the order.
Criminal Petition No.100754/2018 is partly allowed and the proceedings initiated against the petitioners No.5 and 6 is hereby quashed.
In criminal Petition No.100754/2018, liberty is also granted to the petitioners to question the order of awarding of maintenance of Rs.6,000/- p.m. since the learned counsel restricted his prayer in the petition only for quashing.
The respondent No.2-wife is permitted to withdraw the amount in deposit, if any, in Criminal Petition No.100754/2018, on proper identification.
Criminal Revision Petition No.100206/2019 is hereby dismissed.
Sd/-
JUDGE sh