Bangalore District Court
Smt. Shobha Rani R vs Ashok R. S/O P.A. Ramu on 5 August, 2022
1
Crl.A.No.640/2020
KABC010271742020
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-56)
:Present :
SRI SHRIRAM NARAYAN HEGDE,
B.A., LL.M.,
LV Addl. City Civil & Sessions Judge,
Bengaluru.
Crl.A.No.640/2020
DATE: THE 5th DAY OF AUGUST, 2022
APPELLANT SMT. SHOBHA RANI R.
W/O ASHOK R.
D/O RAMAKRISHNA
AGED ABOUT 42 YEARS,
RESIDING AT NO.42/4,
1ST MAIN ROAD, VIJAYANAGAR
2ND STAGE, NEXT TO RAGHAVENDRA
FLOOR MILL, ATTIGUPPE,
BENGALURU - 560 040.
(Rep.by Sri.Manohar A., Adv)
Versus
RESPONDENT 1. ASHOK R. S/O P.A. RAMU, AGED
ABOUT 44 YEARS,
2. SMT.RATHNA S/O P.A. RAMU, AGED
2
Crl.A.No.640/2020
ABOUT 71 YEARS,
3. SRI. P.A. RAMU S/O LAKSHMAIAH,
AGED ABOUT 81 YEARS,
ALL ARE RESIDING AT NO.36,
SRIRAMARATHNA NILAYTA, PATTANDUR
AGRAHARA, BENGLAURU - 560 066.
(Rep. By Sri.T.H., Adv)
JUDGMENT
This appeal is preferred by the appellant /petitioner under Section 29 of Prevention of Women from Domestic Violence Act, 2005, in short 'D.V. Act., aggrieved by the order passed by7 the trial court dated 07.03.2020 passed on IA No.2 in Crl.Misc.No.99/2019.
2. Before the trial court this appellant / petitioner has filed petition under Section 12, of D.V. Act seeking for the protection order under section 18, residence under Section 19, monetary relief under section 20, compensation order under Section 22 of D.V. Act.
3. The brief facts of the case which are necessary for the appreciation of present appeal are that, the petitioner / 3 Crl.A.No.640/2020 appellant is the legally wedded wife of the respondent No.1 and their marriage was solemnized in the month of May 1999 and due to their wedlock they are having two sons and after their marriage respondents ill-treated her both physically and mentally. They demanded huge dowry from her parents. In her matrimonial home she was treated like slave. The respondent No.1 addicted to all bad vices. He was drinking alcohol, smoking and habit of going to horse race and playing cards. He was also having habit of going to Caberey, Discotheque and live bands. He was forced this petitioner to wear modern dresses exposing her body and to accompany him to discotheque. When she refused he was beating her. The respondent was insulting this petitioner in front of relatives and he forced her to give divorce. He was not looking after the children properly. He used to keep the CD of porn videos at home and also stored those videos on in his mobile. Hence, this petitioner left him and now residing with her parents and now her parents are looking after he and her children. He was not providing any money for the maintenance of the petitioner. This petitioner is not 4 Crl.A.No.640/2020 doing any job. The respondent No.1 being her husband is liable to maintain her and her children. The respondent No.1 is doing business and earning Rs.2 lakhs per month. With these allegations petitioner filed main petition and sought for aforesaid reliefs.
4. Along with main petition the petitioner has filed IA No.2 under Section 25 of D.V. Act seeking for interim maintenance amount of Rs.50,000/- per month.
5. After his appearance the respondent filed his objection to main petition by denying all the allegations made against him and further contended that this petitioner herself deserted him and hence, she is not entitle for any relief in this case.
6. The trial court heard arguments on IA No. 2 and by appreciating the materials on record rejected this petition, as per order dated 07.03.2020. Now this petitioner has filed this appeal on the following grounds.
(a) The trial court has erred in giving finding that act of the domestic violence is not proved by this appellant. The trial court has wrongly interpreted the 5 Crl.A.No.640/2020 provisions of D.V. Act. The provisions of D.V. act are comprehensive and it is a special legislation and Section 23 of the Act provides for awarding interim maintenance and protecting strained wife.
(b) This appellant lodged complaint against the respondent for commission of offence under Section 498A, 506, 511 r/w Section 34 of IPC. The jurisdictional police conducted investigation and file charge sheet against the respondent. The trial court ought to have taken note of the charge sheet field against the respondents.
(c) The trial court failed to take note of FIR and complaint filed by the appellant and the events specifically mentioned in reference to sexual offences committed against this petitioner.
(d) The trial court ought to have taken note of atleast one of the various allegations mentioned in the main petition.
(e) The trial court has failed to consider the fact that the respondent No.1 has filed petition seeking divorce in M.C.No.6208/2018.
(f) The trial court ought not to have arbitrarily considered the allegations made in the petition.
(g) The children are in the custody of this petitioner and she has to look-after the children.
(h) The respondent No.1 being the biological father 6 Crl.A.No.640/2020 of two children is legally bound to maintain them.
(j) Without appreciating any materials available on record, the trial court has straight away rejected IA No.2.
(k) The trial court has failed to appreciate the documents produced by the petitioner.
With these, the appellant / accused prays for allowing the appeal, set aside the order of conviction and to acquit him for the alleged offences.
7. After filing of this appeal, notice was issued to the respondents and among them the respondents No.1 and 2 have appeared before this court through their counsel and it is reported that the respondent No.3 is dead.
8. The trial court records have been secured and case was posted for arguments.
9. Heard the arguments of learned counsel for the petitioner / appellant. Even after sufficient opportunity the learned counsel for the respondents has not appeared before the court for arguments. Hence, respondent side arguments taken as heard.
7
Crl.A.No.640/2020
10. Now the points that arise for my consideration are as follows.
1. Whether the trial court has committed an error by rejecting the IA No. 2 filed by this appellant / petitioner seeking interim maintenance under section 23 of D.V. Act?
2. Whether the appellant has made out sufficient grounds to interfere in the order of the trial court?
3. Whether ia No. 2 filed by the appellant / petitioner before the trial court is fit to be allowed?
4. What order?
11. On the basis of the materials available on record, my findings on the aforesaid points are as under.
Point No.1 : In the Affirmative
Point No.2 : In the Affirmative
Point No.3 ; Partly in the Affirmative.
Point No.4: As per final order, for the following.
REASONS
12. POINT NO.1 to 3: To avoid repetition in the discussion, I will consider the above three points, at a time. 8
Crl.A.No.640/2020
13. I have gone through the materials available on record. In the main petition, the petitioner has narrated several instances of ill-treatment and harassment meted out by her form the respondent. In his objection, the respondent simply denied all the allegations made against him. His further contention is that after his marriage with the petitioner he was looking after her with love and affection for about 6 months. Thereafter this petitioner started to give all sorts of mental and physical torturer. From last 2 years, the petitioner has deserted him. Hence, this petitioner is not entitle for any relief including the interim maintenance.
14. He has further contended that he is not earning Rs.2 lakhs per month and he is not doing any business as alleged in the petition. Due to mental harassment and torture of this petitioner, he is not doing any business and went to depression. Hence, he prayed to dismiss the petition.
15. Along with main petition, the petitioner has produced marriage photos and also FIR in Cr.No.77/2019 of 9 Crl.A.No.640/2020 Basavangudi PS. On going through the complaint and FIR it reveals that before the police also this petitioner has made same allegations. She has narrated several instances of harassment and ill-treatment. Now this petitioner is contending that already charge sheet is submitted against the respondent for the offences punishable under Section 498A and other offences. By narrating the ill-treatment and harassment the petitioner has filed her detailed affidavit. In his objection the respondent has not denied FIR or the charge sheet filed against him. The affidavit, charge sheet, prima facie reveals that this petitioner has ill-treated her and harassed by the respondent as stated in the petition. Such being the case, this petitioner is entitle for interim maintenance under Section 23 of D.V. Act.
16. At the time of her arguments, the learned counsel for the appellant has vehemently contended that without following the provisions of D.V. Act straight away rejected the application by stating that this petitioner has deserted her husband. Many years this petitioner tolerated all the ill- 10
Crl.A.No.640/2020 treatment and harassment given by the respondent No.1. Finally she went back to her parents house. That does nt mean that there was no domestic violence. Only due to the domestic violence the petitioner went back to her parents house. That is not understood by the trial court. Further she has relied upon the following reported judgments.
1. (2008) 4 SUPREME COURT CAES 649
2. 2017 SCC ONLINE BOM 1678
3. JUDGMENT OF PUNJAB AND HARYANA HIGH COURT IN CRR (F) 123-2015 (O&M) DATED 05.09.2018
17. In the judgment (2008) 4 SUPREME COURT CASES 649 (VIMALABEN AJITBHAI PATEL VS. VATSLABEN ASHOKBHAI PATEL AND OTHERS), the Hon'ble Supreme Court held as under.
"A. Crimes against Women and Children - Protection of Women from Domestic Violence Act, 2005 - Ss. 17 and 20 - Applicability - Held, provides for a higher right in favour of the wife - She not only acquires a right to be maintained but also thereunder acquires a right of residence which is a higher right".11
Crl.A.No.640/2020
18. In the judgment in 2017 SCC ONLINE BOM 1678 (KAVIRAJ DATTATRAY MUSLONKAR VS.RACHANA KAVIRAJ MUSLONKAR AND ANOTHER), the Hon'ble Bombay High Court held as under.
"9 Perusal of provisions of Section 23 as such goes to show that if the trial Magistrate is satisfied that the application prima facie discloses that the respondent is committing or has committed any act of domestic violence, then he may grant an exparte order in the matter, on the basis of affidavit of the parties. It is, thus, clear that commission of an act of domestic violence is necessary for granting relief and even likelihood of such commission entitles the aggrieved person for relief under the said Act. Section 20 of this Act deals with monetary reliefs which includes maintenance to an aggrieved person as well as her children."
19. In the judgment in CRR (F) 123-2015 (RAJESH VS SUNITA AND OTHERS), the Hon'ble Punjab & Haryana High Court held as under.
"Monthly allowance is paid in order to enable the wife and child to live by providing with the essential economic necessities. Neither the neglected wife nor the neglected child can live without funds for purchasing food and the essential articles to enable them to survive. The first and foremost duty of the husband is to maintain the wife and the child. He may beg, borrow or steal."12
Crl.A.No.640/2020
20. In my opining the principle laid down in the aforesaid judgments are aptly applicable to the case in hand. Filing of complaint before the police and filing of charge sheet by the police itself is sufficient to held that there is a prima facie case of harassment. Mere desertion alone cannot be the ground to reject the prayer of interim maintenance. On going through the order of the trial court, it reveals that in view of pendency of divorce petition, the prayer of interim maintenance is rejected. One more reason assigned by the trial co urt is that the present petition is filed after filing of divorce petition. Only for these two reasons, the trial court has come to the conclusion that there is no prima facie case for grant of maintenance. But the trial court has not gone through para No.1 to 58 of the petition.
21. When the wife approaches the court making allegations against her own husband, the court has to believe the same unless contrary is proved. But in this case except denial of the allegations the respondent has not placed any materials before the trial court. Whether the allegations made in the 13 Crl.A.No.640/2020 petition are true or false is to be decided in full fledged trial. Until then this petitioner is entitle for reasonable amount of maintenance. The finding of the trial court is totally wrong.
22. The contention of the petitioner is that this respondent No.1 is doing business and earning Rs.2 lakhs per month. But relating to this aspect, the petitioner has not produced any materials before the court. Under such circumstances, in my opinion, interim maintenance amount claimed by the petitioner is exorbitant. Considering the facts and circumstances of this case, in my opinion, at this stage, the petitioner is entitle for monthly maintenance of Rs.15,000/-. She has to look-after her children. Hence, the aforesaid point No.1 and 2 are answered in the AFFIRMATIVE and point No.3 is answered partly in the AFFIRMATIVE.
23. POINT NO.4: For the reasons stated in the aforesaid paragraphs, the following order is passed:
ORDER Appeal filed by the appellant / petitioner under Section 29 of D.V. Act is hereby allowed, as follows.14
Crl.A.No.640/2020 (1) The order passed by the trial court dated 07.03.2020 on IA No. 2 in Crl.Misc.No.99/2019 is hereby set aside. (2) IA No.2 filed by the petitioner before the trial court under Section 23 of D.V. Act is hereby partly allowed, as follows.
(a) The respondent No.1 is hereby directed to pay monthly maintenance of Rs.15,000/- p.m. to the petitioner from the date of petition till its disposal. Office to send back the entire records along with copy of this judgment to the trial Court forthwith. (Dictated to the Judgment Writer, transcribed by him corrected, singed and then pronounced by me in the open Court on this the 5th day of AUGUST 2022).
(SHRIRAM NARAYAN HEGDE), LV Addl. City Civil & Sessions Judge, (CCH-56) Bangalore City.
15
Crl.A.No.640/2020 Judgment passed and pronounced in the Open Court. The operative portion of the order reads thus.
ORDER Appeal filed by the appellant / petitioner under Section 29 of D.V. Act is hereby allowed, as follows. (1) The order passed by the trial court dated 07.03.2020 on IA No. 2 in Crl.Misc.No.99/2019 is hereby set aside.
(2) IA No.2 filed by the petitioner before the trial court under Section 23 of D.V. Act is hereby partly allowed, as follows.
(a) The respondent No.1 is hereby directed to pay monthly maintenance of Rs.15,000/- p.m. to the petitioner from the date of petition till its disposal.
Office to send back the entire records along with copy of this judgment to the trial Court forthwith.
LV Addl. City Civil & Sessions Judge,