Bangalore District Court
Smt.Bharathi vs Smt.Rajeshwari on 1 July, 2019
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IN THE COURT OF METROPOLITAN MAGISTRATE TRAFFIC
COURT - V, BENGALURU
PRESENT : SMT.POOJA SHETTI
BA., LL.B. (Hon's).
M.M.T.C - V, BENGALURU
DATED THIS 1st DAY OF JULY 2019
Crl. Misc.No.153 - 2013
PETITIONER: Smt.Bharathi,
W/o.Sri.Sai Kumar,
Aged about 36 years,
R/at.No.460, BEML Layout,
III Stage, Rajarajeshwari Nagar,
Bengaluru - 560 098.
// VS //
RESPONDENTS : 1. Smt.Rajeshwari,
W/o.Sri.M.Palaniswamy,
Aged about 65 years.
2. Sri Sai Kumar,
S/o.Sri.M.Palaniswamy,
Aged about 42 years.
Both are R/at.No.A-3/35,
TVH Ekantha Apartments, GV
Residency, Uppli Palyam,
Coimbatore - 641015.
ORDER
This is the petition filed by the petitioner against the respondents under section 12 of the Protection of Women from 2 Crl. Misc.No.153 - 2013 Domestic Violence At., 2005 (herein after referred as P.W.D.V. Act, 2005) seeking various relief's.
2. The brief facts of the petitioners case is as follows;
That the marriage of the petitioner and 2nd respondent was solemnized on 12.06.2011 at Tirupati, Andhra Pradesh in accordance with Hindu Rites and Customs. Out of their wedlock, they have a child. It is the submission of the petitioner that, she used to visit 2nd respondent's computer shop to get her project work done. Due to the regular visit, they became friends and gradually they developed intimate friendship. After marriage, they started to reside at Coimbatore. According to petitioner, during her stay, the 1st respondent i.e, her mother-in-law used to harass her for not bringing gold ornaments, furniture and dowry. Further, she was not provided place to keep her cloths, she was prevented from using washing machine or from having a cup of tea, coffee etc. On 22.06.2011, her parents arranged wedding reception at Bengaluru in a hotel wherein the 1st respondent by demanding dowry created an embarrassing situated before the relatives. The 1st respondent also ill-treated and insulted the petitioner's parents. During her 3 Crl. Misc.No.153 - 2013 stay in the matrimonial house, the 1st respondent's conduct towards the petitioner aggravated and became verse. Meanwhile, the petitioner conceived and one day by chance, she discovered paper relating to marriage and divorce of 2nd respondent with another woman by name Lakshmi, which shocked the petitioner and the same was willfully concealed by the respondents. When the petitioner questioned the respondents, they gave evasive answer. Thereafter, the 2nd respondent was irritated at the arrival of petitioner's parents and shouted, insulted and humiliated them, thereafter he had thrown petitioner and her parents out of matrimonial house, hence she went to her parent's house. Thereafter, the 2nd respondent knowingly that, petitioner cannot travel to Coimbatore along with her one year old baby, filed a petition for divorce in HMOP.No.253/2012 before Hon'ble Family Court, Coimbatore. According to petitioner, the 2nd respondent is a hypocrite and he is abusing her and her parents in most filthy language and threatening them, he has also threaten to take away the custody of the child. All medical expenses of delivery of the child has been borne by parents of the petitioner and the petitioner has no means and property to support herself and her child. On 4 Crl. Misc.No.153 - 2013 the other hand, respondents are well off, they have valuable movables and immovable and they are capable of paying petitioner's claim. Hence, the petition.
3. After the registration of the petition, the notice was sent to the respondents through RPAD and P.O. Respondents appeared through their counsel and 1st respondent filed objections to the main petition.
On the other hand, respondent No.2 in his objections to main petition denied all the allegations made by the petitioner. It is the submission of the respondent No.2 that, it was a love cum arrange marriage and all the marriage expenses has been borne by his parents. It is the petitioner who expressed her feelings towards him. As it is a love cum arrange marriage, there was no demand for dowry and petitioner's family members are very poor and they are dependant on the earnings of the petitioner. Under such circumstances, question of giving dowry does not arises. According to respondent, petitioner herself has left matrimonial house for delivery, thereafter she never return back to matrimonial house. The respondent has issued legal notice to petitioner. In spite of 5 Crl. Misc.No.153 - 2013 that, the petitioner failed to rejoin the matrimonial house. Now, she has filed present petition by creating false story. According to respondent, petitioner is demanding him to settle at her parents house, as her parents have no male issue. When the respondent refused to do so, the petitioner left the matrimonial house. According to respondent No.2, he has revealed petitioner about dissolution of his 1st marriage, after that only petitioner agreed to marry him. Now, she is trying to take advantage of the same. Further, she is living with her parents and she has good source of income to maintain herself. When in spite of several request, petitioner failed to join the matrimonial house, the respondent has filed a petition seeking divorce. However, if the petitioner is willing to join the respondent No.2, he is ready to withdraw the same and to lead happy marital life with the petitioner. Further, as alleged incident took place at TamilNadu, the present petition needs to be dismissed for want of jurisdiction. Further, the 1st respondent is 67 year old, under such circumstances, question of her harassing petitioner, does not arises. The petitioner used to beat respondents in front of neighbors, she never gave respect to respondent and his parents. Till, today she did not allow the respondent to see the 6 Crl. Misc.No.153 - 2013 child. Further, he has no source of income. Hence, respondent prays to dismiss the petition.
4. In order to prove her case, petitioner got herself examined as PW.1 and got 14 documents marked as Ex.P.1 to Ex.P.14. On the other hand, respondent did not choosen to cross- examine the petitioner and despite of several opportunity he has not adduced any defence evidence. Hence, the respondent evidence was taken as nil.
5. Perused both documentary and oral evidence available on record. Heard argument.
6. The points that arise for my consideration are;
1. Whether the petitioner proves that the respondent have subjected her to domestic violence ?
2. Whether the petitioner is entitled for the relief's sought in the petition ?
3. What order?
7. My findings on the above said points are as follows:
Point No.1: In the NEGATIVE;
Point No.2: In the NEGATIVE;
7 Crl. Misc.No.153 - 2013
Point No.3: As per the final order
for the following :
REASONS
8. POINT No.1 and 2: As Point No.1 and 2 interlinked
in order to avoid repetition these points are taken up for together for consideration.
9. In order to prove her case, petitioner got herself examined as PW.1 and filed affidavit in lieu of her examination-in- chief. According to petitioner, in the year 2000, she was studying BBM and the 2nd respondent was running a computer shop at Rajajinagar near her house, hence she used to visit his shop to get print out of her project work, gradually they developed intimate friendship which resulted in sentiment of love. However, the 2nd respondent postponed his marriage with her for 11 long years saying his sister's marriage has to be performed. Though, his sister got married in the year 2001, he gave excuse saying his sister has come back due to matrimonial dispute and he wanted to sought out those problems first. Later, he told that, his sister has given birth to a mentally challenged baby, so he is busy in 8 Crl. Misc.No.153 - 2013 treatment, later the baby expired in the month of August 2013. Likewise, the respondent gave one after another excuse till 2016, thereafter 2nd respondent sent his mother and elder sister to the petitioner's house to negotiate her marriage with the 2nd respondent. In the year 2007, when her younger sister's marriage was fixed, her parents proposed to celebrate both the marriage on the same occasion. However, respondents did not agreed and suggested that, as 2nd respondents sister is getting divorced, they would get her married first. Likewise, the 2nd respondent prolonged marriage for 11 years. According to petitioner, she was not aware about earlier marriage of the 2nd respondent and on one occasion, she came across papers relating to marriage and divorce of 2nd respondent with one Lakshmi. When she questioned the same, the respondents gave evasive answer and petitioner realized that, respondents conspired to prolong her marriage for 11 years by concealing earlier marriage and divorce of 2nd respondent. On the other hand, it is the contention of the respondent that, petitioner was well aware about his marital status, hence they postponed marriage till 2011, so that, he could get divorce from his 1st wife. During the cross-examination of PW.1, petitioner deposes that, 9 Crl. Misc.No.153 - 2013 from October 2000, she and 2nd respondent are in love. However, she denies the suggestion that, she was well aware about 2nd respondent's marriage with the said Lakshmi, which took place in the year 2003 and she has also attended their marriage. The petitioner further denies the suggestion that, in spite of knowing about his marriage with said Lakshmi, she continued to have relationship with 2nd respondent and she waited to get marry till 2011, so that respondent could get divorce from his 1st wife, that is why, the marriage talk has not been reduced in writing. In support of her contention, the petitioner has produced certified copy of petition filed by respondent in M.C.No.2431/2006 before the Hon'ble Family Judge, Bengaluru, certified copy of Judgment and Decree in the said M.C. Petition and got those documents marked as Ex.P.2 to Ex.P.4 respectively. On perusal of Ex.P.2, it has been noticed that, the respondent has filed petition seeking divorce against said Lakshmi on 10.11.2006. On perusal of Ex.P.3, the 2nd respondent has obtained divorce on 17.02.2011 and marriage between petitioner and 2nd respondent was solemnized on 12.06.2011 i.e., 4 months after the divorce of 2nd respondent. According to petitioner, they were in love from 2000. According to 10 Crl. Misc.No.153 - 2013 her own submission, the respondent was running a computer shop nearby her house and they were knowing each other from 2000. Under such circumstances, contention of the petitioner that, she was not aware about marriage and divorce of the respondent cannot be believed. On perusal of Ex.P.2, it is very clear that, the respondent marries said Lakshmi in the year 2003 and he filed application for divorce in the year 2006. According to Ex.P.3, divorce was granted during February - 2011, thereafter petitioner and respondent No.2 married each other, based upon the circumstantial evidence, petitioner fails to prove that, the respondent married her by concealing his previous marriage.
10. The petitioner further contended that, during her stay with the respondents, the 1st respondent used to harass her for dowry. Further, the respondents tried to know the gender of the fetus, so that if it is a female fetus, child could be aborted. According to petitioner, the 2nd respondent has divorced his 1st wife, as she had given birth to a female child. During her cross- examination dated 27.06.2015, petitioner admits the suggestion that, prior to her marriage in the year 2011, 2nd respondent was 11 Crl. Misc.No.153 - 2013 working at Coimbatore, at that time, his parents were staying at Puttabarti. She further admits the suggestion that, prior to her marriage itself, it has been decided that, after marriage she and 2nd respondent will reside at Coimbatore and after marriage they resided in a rented house. During the said period, the 2nd respondent's parents were living at Puttabarti in their own house. The petitioner further deposes that, she has not filed any complaint with respect to alleged dowry harassment. She further admits the suggestion that, after her pregnancy, she and 2nd respondent lived together for 5 months at Coimbatore. In view of above observation, it is very clear that, the 1st respondent was residing at Puttabarti, when the petitioner and 2nd respondent were residing at Coimbatore. In view of above observation, in the absence of shared household between petitioner and 1st respondent, petitioner is not entitled to claim any relief under the provisions of P.W.D.V. Act, 2005.
11. According to petitioner's own submission, she resided with the respondent from June 2011 till November 2011 and according to her, respondent has subjected her to domestic 12 Crl. Misc.No.153 - 2013 violence during the said period. After pregnancy, when she came to Bengaluru, she never returns to respondent's house. In view of above observation, it is clear that, petitioner and 2nd respondent are living separately from November 2011. However, the present petition was filed by the petitioner on 07.12.2013 i.e., after the lapse of 2 years. Further, during her cross-examination, she admits the suggestion that, she has filed present petition, after the lapse of one year from the receipt of summons from Hon'ble Family Court, Coimbatore in HMOP.No.253/2013. According to petitioner, she has the knowledge that, the Hon'ble Family Court has already allowed the application filed by the respondent for divorce and their marriage has been dissolved by way of divorce. According to petitioner, the respondent was sending unparliamentarily messages to the petitioner and in order to prove the same, she has produced a report given by truth lab detectives along with certificate under section 65(B) of Indian Evidence Act and got them marked as Ex.P.7. However, nothing has been placed on record by the petitioner to prove that alleged SIM Card stands in the name of 2nd respondent and it is the 2nd respondent who has forwarded those messages to her. Further, it is a report given by an expert. He has 13 Crl. Misc.No.153 - 2013 not examined as witness, under such circumstances, Ex.P.7 is of no use to prove the contention of the petitioner. According to respondent, though he has made efforts to bring back the petitioner, petitioner did not return to matrimonial house. During her cross-examination dated 17.02.2016, PW.1 admits the suggestion that, the 2nd respondent used to call her and her parents and used to ask them to send petitioner back to Coimbatore. She further admits the suggestion that, the respondent used to visit Bengaluru again and again to meet her and on all such occasion, he used to invite the petitioner back to matrimonial house and she used to refuse to go to Coimbatore, however she claims that, the respondent used to threaten her, saying if she goes back, they will snatch the child and will sent her back to her parents house. However, with respect to said allegation, according to her own admission, she has not filed any complaint before the court. In view of above admission, it is very clear that, the respondent has made constant efforts to take back the petitioner. With respect to petitioner's allegation of respondent are trying to detect the gender of the fetus, she herself has deposed that, she does not know the name of the hospital, however 14 Crl. Misc.No.153 - 2013 according to her, it is situated at Coimbatore. Further, according to her own admission, 2nd respondent was living at Puttabarti, which is in contradiction with her contention. Hence, having regard to the above decision and facts of this case, the petitioner had failed to prove the alleged domestic violence by the respondents, hence, she is not entitled to any relief claimed by her. Hence, I answered both Point No.1 and Point No.2 in the NEGATIVE.
12. Point No.3: For the foregoing discussion and finding on Point No.1 and 2, following order is passed;
ORDER The petition filed by the petitioner under section 12 of the Protection of Women from Domestic Violence Act., 2005 is hereby dismissed.
Parties have to bear their own cost.
(The order dictated to the Stenographer, transcribed and typed by him and corrected and pronounced and signed by me on this 1st day of July 2019) (POOJA SHETTI) METROPOLITAN MAGISTRATE, TRAFFIC COURT- V, BENGALURU.
15 Crl. Misc.No.153 - 2013ANNEXURE LIST OF WITNESSES EXAMINED FOR PETITIONER:
P.W.1 Smt.Bharathi. LIST OF DOCUMENTS MARKED FOR PETITIONER Ex.P.1 Marriage Invitation Card. Ex.P.2 to 4 Certified copy of memorandum of petition,
Certified copy of Judgment and Certified copy of notice in M.C.No.2431/2006.
Ex.P.5 & 6 Salary Certificate and Pay Slip. Ex.P.7 Message Extracts. Ex.P.8 Report. Ex.P.9 Certificate under section 65-B of Evidence Act. Ex.P.10 Vaccination Charges Letter. Ex.P.11 Two School Fee Receipts. Ex.P.12 D.D. Counterfoil. Ex.P.13 Two Payment Acknowledgment. Ex.P.14 Certified copy of petition under Hindu Marriage Act. LIST OF WITNESSES EXAMINED FOR RESPONDENT NIL LIST OF DOCUMENTS MARKED FOR RESPONDENT: NIL (POOJA SHETTI) METROPOLITAN MAGISTRATE, TRAFFIC COURT- V, BENGALURU. 16 Crl. Misc.No.153 - 2013