Bangalore District Court
A. Muniraju S/O Late Annayappa vs M. Shakuntala W/O A. Muniraju on 6 August, 2020
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL
& SESSIONS JUDGE, BENGALURU
(CCH-61)
Dated this the 6th day of August, 2020
:Present:
Sri Vidyadhar Shirahatti, LL.M.
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. Appeal. No.135/2019
Appellant :- A. Muniraju S/o Late Annayappa,
Aged about 39 years, Residing at
Annayyappa Compound, 4th Cross,
Bilekahalli Layout, Bhannergatta Road,
Bangalore-560 076.
(Sri Ramakrishna.N., Adv)
Vs
Respondent:- M. Shakuntala W/o A. Muniraju,
Aged about 35 years, D/o Muniyellappa,
Residing at No. 210, 12th B Main, 10th
cross, Near Indira Gandhi Circle, Sarakki
Village, J.P.Nagar 1st stage, Bangalore-
560 078.
(Sri B. Siddeshwara, Adv.)
2 Crl.A.No.135/2019
JUDGMENT
This appeal is filed under Sec. 29 of Protection of Women against Domestic Violance Act by the appellant/respondent being aggrieved by the order dated 31.12.2018 in Crl. Misc. 227/2017 on the file of MMTC- VI, Bengaluru.
2. The appellant was the respondent and the respondent was the petitioner before the learned Trial Court and they are referred to as per the ranks assigned to them before the Trial court in this Appeal.
3. The brief facts of the case are as follows; The petitioner being the wife of the respondent has filed a petition under Sec. 12 of Domestic Violence Act seeking various reliefs against the respondent under Sec. 17 (2), 20 and 22 of the said Act. The petitioner contended in the petition that during the time of 3 Crl.A.No.135/2019 marriage, the parents of the petitioner had paid Rs 2 lakhs and 35 grams of gold chain and gold finger ring to the respondent and the respondent has failed to consumate the marriage. Therefore, the petitioner was deserted from the house of the respondent by the respondent due to ill-treatment. The petitioner further contended that she has a hope on respondent that he would be cured with the help of treatment now a days there is advanced technology, it will be getting cured. The petitoner is ready to lead life with him since the petitioner has no source of income and she is unable to earn from the single degree. Her parents and her brother are also not taking care of her and not looking at the petitioner and her financial status is very bad to eke out her livelihood. Hence she prayed for protection order under Sec. 18, residence order under Sec. 19 and Sec. 17, monetary reliefs under Sec. 20 and compensation under Sec. 22 of Domestic Violence Act. 4 Crl.A.No.135/2019
4. During the pendency of the case, the petitoner has filed an application under Sec. 12 of P.W.D.V.Act r/w Sec. 45 of Indian Evdience Act for seeking a direction to the respondent No.1 to attend the medical test for his potency and seeking a direction for appointment of the District Medical Officer as Commissioner through the Court. In the affidavit she has alleged in all the points that the respondent is an impotent and the respondent No.1 has filed the objections to the petiton. After hearing both the sides, the learned Magistrate allowed the application on dated 31.12.2018. Being aggrieved by the said order, which is now under challenge by the appellant, who is the respondent by means of this appeal on the following grounds :
(a) The impugned order is unsustainable and opposed to the settled principles of law, facts and prababilities of the case.5 Crl.A.No.135/2019
(b) The learned Magistrate has failed to appreciate the version of the respondent available on record in proper perspective.
(c) The learned Magistrate has not yet recorded the evidence, the trial has not commenced, therefore, without there being any reasons, the learned Magistrate has passed erroneous order. Hence, prayed to allow the petition.
5. After filing of this appeal, the respondent made his appearance through his counsel. The Trial Court records have been secured.
6. Heard arguments on both sides. Perused the records.
7. In the light of the contentions taken up in the memorandum of appeal, the following points arise for my consideration;
6 Crl.A.No.135/2019
1. Whether the impugned order is erroneous, illegal and opposed to the settled principles of law, facts and probabilities of the case ?
2. Are there any grounds to interfere with the order in Appeal ?
3. What order?
8. My findings on the above points are as follows.
Points No.1 and 2; In the Affirmative.
Point No.3 ; As per final Order
For the following
R EAS O N S
9. Points No.1 and 2:- As these two points
are interlinked, they are taken up together for discussion for the sake of convenience and to avoid repetition of facts.
10. I have carefully gone through the appeal memorandum, impugned order and the Trial Court records. It is the case of the petitioner that the respondent being impotent subjected her to Domestic 7 Crl.A.No.135/2019 Violance, she is entitled to seek the relief as prayed. During pendency of the case, the petitioner has filed this application under Sec. 12 of Domestic Violence Act r/w Sec. 45 of Indian Evdience Act seeking a direction to appoint the Commissioner. Hence she is justified to file the application.
11. On the other hand it is the case of the respondent that he never subjected the petitioner to Domestic Violance and the petitioner has not lived with him after their marraige and he is able to fulfil the matrimonial life as he is potent and without there being any evidence, this application is not maintainable and the petitioner is having habits of filing the case against the respondent one or the other reasons. Hence he prayed to allow the appeal.
12. In the lights of these rival contentsions, I have carefully gone through the impugned order and the Trial Court records. Obviously, the application is filed by the 8 Crl.A.No.135/2019 petitioner for seeking appointment of Commissioner to testify the potency of the respondent. It is the case of the petitioner that she has filed the petition under Sec. 12 of D.V.Act seeking various relief as per Sec. 17 to 20 and 22 of D.V.Act. The respondent has also not denied her contention that she is residing separately without there being any reasons. However, the scope of the petition is very limited as per Sec. 17 to 20 and 22 of D.V.Act as she has sought for monetory relief, compensation and protection order. However, when staying of the petitioner with the respondent is disputed, in such circumsatnces, this application may be considered. However, there is no such any dispute regarding the separate living. Further that the petitioner has not given any proper reasons for the purpose of filing the interim application in the case, but the learned Magistrate has relied upon the decision of the Hon'ble High Court of Madras in K. Murthy V/s Srijyothi dated 12.8.2014. The facts of the said case is entirely different wherein the Hon'ble High Court of 9 Crl.A.No.135/2019 Madras held that the potency test is required for the purpose of declaring the nullity of marriage. However, the question involved in this petition is different as it is a petition under Sec. 12 of D.V.Act for seeking a relief of protection order, compensation and shelter. Therefore, the Magistrate has not given any proper reason to allow the application and the purpose of allowing the application is also not explained. In such circumstances, there is no such cogent and convincing points produced by the petitioner to believe that the appointment of Commissiner is essential to adjuticate the petition. As such, the learned Magistrate has not discussed all these points and arrived at a just conclusion in the case on hand.
13. Looking to all these facts and circumstances, I am of the view that the respondent has made out a case so as to interfere in the reasoning and findings of the learned Trial Court to allow the application. Hence, the 10 Crl.A.No.135/2019 impugned order is not in accordance with the settled principles of law, facts and probabilities of the case and it deserves to be set aside. Accordingly, I answer points No.1 and 2 in the affirmative.
13. Point No.3: In view of my findings on point No.1 and 2, I proceed to pass the following ORD ER The appeal filed by the respondent under section 29 of Protection of Women from Domestic Violence Act 2005 is hereby allowed.
The order passed by the learned MMTC-VI, Bengaluru dated: 31.12.2018 in Crl.Mis.No.227/2017 is hereby set aside.
Send a copy of this Judgment to
Metropolitan Magistrate Traffic Court-VI,
Bengaluru along with TCR.
***
[Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in open court dated this the 6th day of August, 2020] (Vidyadhar Shirahatti) LX Addl. City Civil & Sessions Judge, Bengaluru 11 Crl.A.No.135/2019 12 Crl.A.No.135/2019