Bangalore District Court
A. Maignanam vs Smt. G. Indira on 3 July, 2015
IN THE COURT OF LVI ADDITIONAL CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY
Dated this the 3rd day July, 2015
Present;- Sri. K.R. Nagaraja, B.A., L.L.B.
LVI Additional City Civil & Sessions
Judge, Bengaluru City.
Crl.A.No.1170/2014
Appellant : A. Maignanam,
Aged about 46 years,
S/o Sri. K. Arjun Gounder,
Force No.881163712 HC/RO,
130 BN CRPF, Awanthipura,
Srinagar, J & K State.
Also at:
A. Maignam,
Force No.881163712 HC/RO,
C/o The Commandant,
5th Signal B.N.
Central Reserve Police Force,
Hallomajra,
CHANDIGARH.
[By Sri. Sukumaran. Advocate]
--V/s--
Respondents : : 1. Smt. G. Indira,
Aged about 41 years,
W/o Sri A. Maignanam,
2. Kum. Arpita. M,
Aged about 16 years,
D/o A. Maignanam,
And Smt. G. Indira.
3. Master Akash. M,
Aged about 7 years,
2 Crl.A.No.1170/2014
S/o A. Maignanam,
and Smt. G. Indira,
Respondent No.2 and 3 are
Rep. by Mother and Natural
Guardian, the respondent herein,
All are residing at No.123, 3rd A Main,
Yelahanka New Town, A-Sector,
BANGALORE-64.
: JUDGMENT:
Appellant/husband/respondent before court below, who will be herein after referred as husband has challenged the legality and correctness of order dated 19/9/2014, passed in Crl.Misc.No.98/2013 on the file of MMTC-IV, Bengaluru City partially allowing application filed U/Sec.12 of Protection of Woman from Domestic Violence Act filed by respondent/wife/aggrieved person, who will be herein after referred a wife and awarding monthly maintenance of Rs.5,000/- and compensation of Rs.50,000/- in favour of wife/aggrieved person and prohibiting him from committing any act of domestic violence against wife.
Wife Smt. G. Indira along with her two children namely Kum.Arpitha and Master Akash laid complaint/pt U/Sec.12 of Protection of Woman from Domestic Violence Act, 2005 praying prohibotory/preventive order, maintenance order, compensation and other reliefs attributing domestic violence against her 3 Crl.A.No.1170/2014 husband. Details of domestic violence alleged to have been caused by husband need not be stated in the judgment. Wife has claimed that her marriage with her husband was solemnized on 2/11/98 at Dr. Prakasam Kalyana Mantapa, Gudiyatham Town, Vellore District and herself and her husband gave birth to two children out of their wed lock. She also narrated so many incidents, details of which need not be stated for the present context. She also referred litigation of her husband for restitution of conjugal rights at Gudiyatham Court in HMOP NO.68/2009 and her petition No.491/09 on the file of Family Court, Bengaluru. She has further alleged that the compromise was not succeeded with positive result. The Hon'ble court below placed respondent exparte as he remained absent despite of service of notice. Wife herself examined as PW.1 and got marked 21 documents exhibited as Ex.P1 to 21. Hon'ble court below through impugned final order found domestic violence of respondent against wife based on the allegation of wife along with report of protection officer and felt to award monthly maintenance of Rs.5,000/- though noticed that wife has not placed any material to show the exact income of husband and also felt to award compensation of Rs.50,000/- as reasonable for the violence caused to her.
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2. Feeling aggrieved by above nature of order of court, husband has come up with present appeal U/Sec.29 of the Act. He has contended in the present appeal memo that impugned order of court below is against to the true fact and wife has filed a fraud case in obtaining impugned order as relationship of wife and husband was seized through a decree of divorce on 4/7/2014 on the file of Hon'ble Sub-Judge, Gudiyatham and domestic relationship of wife and husband has not bee existed and wife suppressing the said fact, obtained impugned order on 19/9/2014. With these main contentions, husband prays to set aside the impugned order by allowing the appeal and submission and amongst other contentions urged in the appeal memo. Husband has produced copy of order dated 5/2/2010 passed by subordinate judge Gudiyatham, Vellore District in MCOP No.68/09, copy of another order of application in the same file and proceedings held in the said file. Husband has filed the order of sub judge dated 4/7/2014 in HMOP NO.44/2011 and copies of the application of wife before court below filed U/Sec.12 and impugned order of court below. Notice on this appeal has been issued to wife. Wife despite of receipt of notice on the memo through registered post remained absent and she has been placed exparte.
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3. Lower court records has been secured.
4. Heard the arguments of counsel for husband.
5. Counsel for husband would contend that impugned order of court below awarding maintenance and passing other orders is liable to be set aside as there is no existence of domestic relationship between wife and husband as same has been seized through a decree of divorce granted by Hon'ble Subordinate Judge, Gudiyatham, Vellore District.
6. Perused the papers.
7. In the light of above materials, following points fall for decision making of this court:-
1. Is the impugned order of court below to be set aside for want of existence of domestic relationship between aggrieved person/wife and respondent/husband to entertain an application of wife/aggrieved person U/Sec.12 of the Protection of Woman from Domestic Violence Act, 2005?
2. What order?6 Crl.A.No.1170/2014
8. This court upon re-appreciation of available materials with reference to prevailing legal aspects, give finding to the above points as follow:-
POINT NO.1 - Affirmative;
POINT NO.2 - As per final order, on the following;
:REASONS:
9. POINT NO.1: As noted supra, respondent/wife remained absent, despite of receipt of notice on the present appeal issued by this court. Husband has produced copy of decree of divorce granted by Sub-Judge, Gudiyatham dated 4/7/2014 in HMOP NO.44/2011. It shows that the marriage solemnized between parties to this appeal on 2/11/98 at Gudiyatham according to Hindu Law is ordered to be cancelled declaring that said marriage seize to exist and divorce has been granted. Indisputably, impugned order was passed on 19/9/2014 i.e., subsequent to above date of decree of divorce. As on the date of impugned order, the domestic relationship between parties to the appeal on hand was not existed. Wife against whom above decree of divorce is binding as she resisted the divorce petition before Hon'ble Sub- Judge, Gudiyatham suppressing the said fact. Therefore, impugned order of court below awarding maintenance and other 7 Crl.A.No.1170/2014 incidental orders to be set aside as there is no existence of domestic relationship between husband and wife. Accordingly, this point is answered in the affirmative.
10. POINT NO.2: In the light of finding on above point, appeal of husband to be allowed. In the result, this court proceed to pass following, : ORDER :
Appeal of husband filed U/Sec.29 of Protection of Woman from Domestic Violence Act is allowed.
Impugned judgment of court below dated 19/9/2014 passed in Crl.Misc.No.92/2013, on the file of Metropolitan Magistrate Traffic Court-IV, Bengaluru City is hereby set aside.
Application of wife/aggrieved person filed U/Sec.12 of the Act is hereby dismissed for want of domestic relationship between husband and wife.
Send back LCR along with copy of this judgment to the trial court.
(Dictated to the Stenographer, transcribed by him, then corrected and pronounced by me in the open court on this the 3rd day of July, 2015) (K.R. Nagaraja,) LVI Addl. C.C. & Sessions Judge, Bengaluru.