Bangalore District Court
Sri. Raj Kiran Dani vs Smt. R.D. Sumitha Dani on 25 September, 2020
1
Crl.Apl.No.2533/2019
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH 70)
Present: Sri. Gururaj Somakkalavar, M.A.,LL.B.,
LXIX Addl. City Civil and
Sessions Judge, Bengaluru.
Dated this the 25 th day of September, 2020
Crl.A.No.2533/2019
Appellant : Sri. Raj Kiran Dani
S/o Tulaja Ramsa Dani,
Aged about 31 years,
R/at Ward No.5, Hospet Galli,
Guledagudda,
Bagalkote District.
(By Sri.T.H. Avin, Advocate)
Vs.
Respondent : 1. Smt. R.D. Sumitha Dani
W/o Raj Kiran Dani,
Aged about 27 years,
2. Kum. Shreya R.D
D/o Raj Kiran Dani,
Aged about 7 years,
Since Minor Rep by her
Mother as natural guardian
i.e. respondent No.1
Both are R/st No.108, 1st floor,
Krishnappa Garden, 1st Cross,
Tavarekere, BTM 1st Stage,
Bengaluru - 560 029.
****
2 Crl.Apl.No.2533/2019 : JU DG M E NT :
This appeal is preferred against the order passed on 08.11..2019 in Crl.Misc.No.143/2019 by MMTC-VI, Bengaluru City, whereby the trial court ordered directing respondent/appellant herein to pay maintenance of Rs.8,000/- to the petitioner/respondent herein as per the order of Hon'ble LXIX Addl. City Civil and Session Court in Crl.Apl No.1546/2016 from the date of presentation of Crl.Misc No.86/2016 till disposal of this petition.
2. Essential material facts leading to this appeal are as follow:-
That the marriage of appellant and respondent no.1 on 26.12.2010, at Guledagudda, Bagalkote District and respondent no.2 is their daughter born from the said wedlock. That the respondents herein had filed the application under sec 12 of PWDV Act 2005 in Crl.Misc No.86/2016, in MMTC-VI seeking the reliefs; directing the appellant to pay Rs.30,000/- PM from October, 2014 till her life time, by way of compensation and increase of 10% p.a and to pay compensation of Rs.5,00,000/- towards mental and physical violence and illegal abuse and ruining the respondent's life etc., and litigation expenses of Rs.5,000/-. The respondents had also filed an Interlocutory Application No.1 U/sec 23(2) of the Act, for passing ad-interim order for granting interim maintenance of Rs.30,000/- p.m and also litigation expenses of Rs.5,000/-. The Learned Trial Court 3 Crl.Apl.No.2533/2019 Judge had refused to pass an ad-interim order of interim maintenance and issued notice on the main application as well as the interlocutory application to the appellant herein. In pursuance of the said notice, the appellant appeared before the trial court and filed his statement of objection to main application as well as interlocutory application. That without conducting any inquiry and without giving opportunity of being heard, the Learned Trial Court Judge passed the order on 05.11.2016, partly allowing I.A. NO.1 and directed the appellant to pay Rs.5,000/- each p.m to respondent no.1 and 2, from the date of petition till disposal of the main case. The appellant being aggrieved by the said interim order filed Crl.Apl No.1546/2016, on the file of Learned LXIX Addl.C.C and Session Judge (CCH-70). The Learned Sessions Judge after hearing both side, modified the Trial Court Order, as per order dated 27.01. 2017, by directing the appellant herein to pay Rs.8,000/- p.m to both respondents from the date of petition till disposal of the same. Being aggrieved by the said order the appellant herein has filed Crl. Revision Petition No.223/2017, before the Hon'ble High Court of Karnataka, Bengaluru and the same is pending consideration. In the mean while the learned trial court judge recorded the evidence of both parties and passed the final order, dismissing the main petition, the respondents had filed Crl.Misc N.59/2017 and Crl.Misc No.49/2018 on the file of learned trial court judge, seeking execution of interim order of maintenance, in Crl.Apl No.1546/2016 and for recovery of Rs.96,000/- from 4 Crl.Apl.No.2533/2019 the appellant herein, for the period from 01.04.2017 to 31.03.2018, at the rate of Rs.8,000/- p.m. the appellant appeared before the trial court in Crl.Misc No.59/2017 and Crl.Misc 49/2018 and filed his statement of objections.
After hearing both sides, the learned trial court judge disposed off both petitions by the order dated 25.06.2019. On the ground that the main matter is dismissed and interim order merged with main matter. Thereafter the respondents have filed the petition in Crl.Misc No.143/2019 against this appellant to direct him to pay arrears of Rs.88,000/- to the respondents, towards arrears of maintenance, for the period from 01.04.2018 to 07.03.2019 and in the alternative to order for arrest of the appellant and to detain him in criminal prison until the appellant clears the arrears of maintenance and for other reliefs. The appellant appeared before the Hon'ble MMTC-VI and filed his objections to the said petition. After hearing arguments of both side the learned trial court judge passed the impugned order, on maintainability, directing the appellant to pay maintenance of Rs.8,000/- p.m. to the respondents, as per the order of the CC & SC in Crl.Apl.No.1546/2016 as stated above, on the ground that though Crl.Misc No.86/2016, the main matter was dismissed by the same court and interim maintenance order merged with the main matter, the order of Sessions Court in Crl.Apl No.1546/2016 does not merge with the main order of the trial court, preferred the present appeal on the following amongst other grounds.
5Crl.Apl.No.2533/2019 The Learned Trial Court Judge erred in holding that though the interim order of maintenance passed by the trial court merged in the main order of dismissal of the main petition, the order of Sessions Court modified interim order of trial court would not merge with the main order of the trial court. The Learned Trial Court Judge failed to notice that Crl.Apl No.1546/2016 is nothing but continuation of trial court proceedings before the appellant court and any modification of trial court's order by the appellant court would be modification of order of trial court as if it is passed by the trial court judge. The finding of the learned trial court judge that the Sessions Court order does not merge with the main order of trial court is illegal, erroneous and liable to be set aside. The respondents had not at all taken the contention before the trial court judge that the order of Sessions Court did not merge with the main order passed by the trial court in Crl.Misc No.86/2016. However the learned trial court judge passed the impugned order that the order of the learned Sessions Judge did not merge with the main order of dismissal of the petition. Therefore the order of the learned trial court judge is perverse, illegal and opposed to well established principals of law. The orders of the learned trial court judge in Crl.Misc No.59/2017 and Crl.Misc 49/2018 dated 25.06.2019 disposing off the said petitions on the ground of merger of interim order with the main order is binding on the learned trial court judge and therefore the trial court judge could not have taken different view in same circumstances. The learned trial court judge 6 Crl.Apl.No.2533/2019 failed to notice that Cril.Misc No.143/2019 was filed before the trial court for execution of interim order passed in Crl.Misc No.86/2016 and not with respect to execution of order of the learned Sessions Judge in Crl.Apl NO.1456/2016. The learned trial court judge failed to notice that the order dismissing the main petition passed by the trial court in Crl.Misc No.86/2016 dated 07.03.2019 has been reached finality as no appeal has been preferred by the respondent herein.
3. After inception of the appeal the respondent herein appeared and contested the appeal.
4. Heard the counsel for parties and perused the material available on record.
5. In the light of above materials and contentions of parties, following points fall for decision making of this court:-
1. Whether the appellant has made out grounds to allow the appeal and set aside the impugned order of trial court?
2. What order?
6. This court on re-appreciation of available materials with reference to prevailing legal aspects, give finding to the above points as follow:-
POINT NO.1 - In negative;
POINT NO.2 - As per final order, on the following;7
Crl.Apl.No.2533/2019 : R E A S ON S :
7. POINT NO.1: The appellants/petitioners herein have preferred the appeal challenging the order of the trail court. Wherein the trial court disposed off the recovery petition in view of the disposal of main petition. It is the case of the appellant herein that the marriage of appellant and respondent no.1 on 26.12.2010, at Guledagudda, Bagalkote District and respondent no.2 is their daughter born from the said wedlock. That the respondents herein had filed the application under sec 12 of PWDV Act 2005 in Crl.Misc No.86/2016, in MMTC-VI seeking the reliefs; directing the appellant to pay Rs.30,000/- PM from October, 2014 till her life time, by way of compensation and increase of 10% p.a and to pay compensation of Rs.5,00,000/- towards mental and physical violence and illegal abuse and ruining the respondent's life etc., and litigation expenses of Rs.5,000/-. The respondents had also filed an Interlocutory Application No.1 U/sec 23(2) of the Act, for passing ad-interim order for granting interim maintenance of Rs.30,000/- p.m and also litigation expenses of Rs.5,000/-. The Learned Trial Court Judge had refused to pass an ad-interim order of interim maintenance and issued notice on the main application as well as the interlocutory application to the appellant herein. In pursuance of the said notice, the appellant appeared before the trial court and filed his statement of objection to main application as well as interlocutory application. That 8 Crl.Apl.No.2533/2019 without conducting any inquiry and without giving opportunity of being heard, the Learned Trial Court Judge passed the order on 05.11.2016, partly allowing I.A. No.1 and directed the appellant to pay Rs.5,000/- each p.m to respondent no.1 and 2, from the date of petition till disposal of the main case. The appellant being aggrieved by the said interim order filed Crl.Apl No.1546/2016, on the file of Learned LXIX Addl.C.C and Session Judge (CCH-70). The Learned Sessions Judge after hearing both side, modified the Trial Court Order, as per order dated 27.01. 2017, by directing the appellant herein to pay Rs.8,000/- p.m to both respondents from the date of petition till disposal of the same.
8. In the said Crl.Misc 86/2016 the appellant no.1 filed application for interim maintenance u/sec 23(2) of DV Act. The trial court directed the respondent to pay monthly interim maintenance of Rs.5000/- to each appellant i.e. the wife and child. Aggrieved by the said order the respondent/husband preferred appeal in Crl.Apl No.1546/2016 before City Civil and Session Judge. The Sessions Court was please to reduce monthly maintenance to from Rs.10,000/- to 8,000/- every month. It is alleged that the respondent has not paid any amount as a maintenance to the appellant.
9. That being the fact since the respondent has not paid any amount as maintenance from the beginning the 9 Crl.Apl.No.2533/2019 respondent herein filed Crl.Misc No.143/2019 for recovery of interim maintenance from 01.04.2018 to 07.03.2019 total pending maintenance of Rs.88,000/- from the appellant
10. Simultaneously the main petition i.e. Crl.Misc no.86/2016 continued and appellant led her evidence and examined herself as PW.1 and marked documents on her behalf. The respondent cross examined appellant and even respondent also led his evidence as RW.1. However he is not appeared for cross examination. After hearing both sides the trial court dismissed the petition on 07.03.2019 U/Sec 12 of DV Act filed by the appellant wife.
11. After dismissing the main petition the petition for recovery of pending interim maintenance is continued. The trial court observes that though the main matter is dismissed. The interim maintenance order merges with main matter. The respondent/appellant preferred appeal before the Session Court in Crl.Apl No.1546/2016. After passing of interim maintenance order. The Sessions Court directed the respondent/appellant to pay maintenance of Rs.8,000/-. It is observed by the trail court that when the respondent/appellant herein has preferred an appeal this court's interim order maintenance order does not having any existence and Session Court order prevails over the trial court. The order of the Sessions Court does not merges with the main order of this court. Hence directed to pay maintenance as per the order of the Crl.Apl No.1546/2016.
10Crl.Apl.No.2533/2019
12. On perusal of entire material on record the limited question in this appeal is that on dismissal of main petition i.e. Crl. Misc No.86/2016, the petition for recovery of interim maintenance in Crl.Misc No.143/2019 which is filed for recovery of Rs.88,000/- for a period of 01.04.2018 to 07.03.2019 will not survive and appellant is not entitled for recovery of maintenance amount passed in interim order.
13. The counsel for the appellant herein argued and narrated the facts of the case. Further he argued that since the main petition itself is dismissed the interim order passed in main petition merges with the main order. Hence the respondent is not liable to pay any maintenance. It is argued that the orders are hit by doctrine of merger wherein the interim orders merges with the main order and there is no effect of interim orders. It is argued that the trial court in other recovery petitions has passed order and observes that the interim order merges with the main order and dismissed the recovery petition. But in this only petition it has ordered that the appellant herein has to pay the interim maintenance as per the order of the Sessions Court. This observation of the trial court is not correct and proper. The order of the trial court including the appellate court merges with the main matter. Hence the order of the trail court is not proper and correct. On these grounds seeks to allow the appeal.
11Crl.Apl.No.2533/2019
14. On the contrary the respondent counsel argues that appellant herein has not paid any maintenance to the respondent no.1 and 2, he argued that the appellant neglected the wife and girl child. He further argued the petition filed u/sec 31(2)(1) hence not hit by doctrine of merger since it is a separate offence violence and protection order passed by the magistrate under D.V. Act. Further he relied upon the order of Hon'ble High Court of Bombay in Criminal Write Petition No.1065/2018. Further argues that the respondent herein is entitled for interim maintenance till disposal of the main petition. On these grounds for dismissal of the appeal.
15. On perusal of the entire material the relation between respondent no.1 and 2 and appellant is not disputed. It is admitted fact that the respondent no.1 and appellant are husband and wife and the respondent no.2 born in the wedlock of the appellant and respondent no.1 . Further it is also not in dispute that the respondent no.1 filed Crl.Misc 86/2016 U/Sec 12 of D.V. Act and in the said petition interim order is passed for Rs.5,000/- each appellant and same is modified by the appellate court and reduced to Rs.8,000/-. After that the respondent no.1 filed petition for recovery of interim maintenance. In the mean time the main petition dismissed. As stated above the limited question herein is the whether the order of interim maintenance merges with the main order. First and 12 Crl.Apl.No.2533/2019 foremost the proceedings under D.V. Act are governed by the provisions of Criminal Procedure Code. The respondent no.1 herein has filed recovery petition for specified period. Which is covered under Criminal Procedure Code. At this juncture it is helpful to rely on the observation of the Hon'ble High court of Bombay, Nagpur Bench in Criminal Write Petition No.1065/2018, dated 19.06.2019 Sharad Arjunrao Kosari v/s Surekha Sharad Kosari . The Hon'ble court observes as follow;
"It is clear from the order that what weighed with this court was that the case was fixed for judgment. This court clarified that the amount of interim maintenance will be considered by the learned judge while deciding the final quantum of maintenance. It is more than clear that all that is clarified is that while determining the final quantum of maintenance the quantum of interim maintenance shall be factored in. This order dated 27.06.2017 does not nullify the effect of the order dated 25.02.2015 passed by the Family Court. The said order directed payment of Rs.5,000/- per month towards the medical expenses and the fact that the application under the DV Act ultimately is dismissed, would not preclude the wife from recovering the said 13 Crl.Apl.No.2533/2019 maintenance for the period from the date of the order i.e. 25.02.2015 till the disposal of the proceedings, i.e. 25.07.2017. The submission of the learned counsel Shri. M. Anil Kumar that the doctrine of merger applies is noted only for rejection.
16. In the light of the above observation of the Hon'ble High Court the respondents herein is not precluded from recovery the interim maintenance till the date of disposal of main petition. Further it is also relevant to observe that from which date or stage the interim order merges with main order. The interim order merges on the date of passing of main order till then it will be in force and as per that respondent is entitled to recover maintenance till disposal of the main petition. At this juncture it is worth to rely on the observation of the Hon'ble High Court of Kerala In Sunil Kumar v/s State of Kerala 2013(2) KLT 669.
"The interim order passed by the Magistrate for the maintenance u/sec 23 of the Protection of Women from Domestic Violence Act, 2005 would be merged in the final order and that final order passed by the Magistrate would be merged in the judgment passed by the appellate court.
But the question is when does the merger come into effect? Whether the effect of 14 Crl.Apl.No.2533/2019 merger can be applied retrospectively for a period anterior to the judgment passed in appeal, so as to justify the non-
compliance or disobedience of the interim order or to annul the realisation of arrear amount due under interim order pending enforcement. The theory of merger cannot be applied retrospectively for a period anterior to the appellate court judgment, so as to annul the realisation of arrear amount due under interim order and pending enforcement, in a proceeding under sec 128 of Cr.PC, unless it is otherwise provided in the appellate court judgment."
Though the trial court observes the order of the Sessions Court the trial court prevail over the trial court and continued with the recovery petition directing appellant herein to pay maintenance till the disposal of the main petition. But as discussed above though the main petition dismissed the respondent herein are entitled to recover the balance maintenance till the disposal of the main petition. Apart from this since the respondent admitted the relationship it is bounded duty of the respondent to maintain his wife and children.
17. The trial court is proper in passing order directing 15 Crl.Apl.No.2533/2019 the appellant herein to pay balance amount till the disposal of the main petition. The appellant has not made out grounds to allow the appeal. Accordingly the appeal is dismissed and remanded back with directions. In view of the above discussion the point no.1 in negative.
18. POINT NO.2: In the light of finding on above point, the impugned order of passed by the trial court needs no interference. In the result, this court proceeds to pass the following:
: OR D E R :
Appeal filed by the Appellant is hereby dismissed.
Impugned order of trial court passed in Crl.Misc. No.143/2019, on the file of VI MMTC, Bengaluru dated 8.11.2019 is hereby confirmed.
Send copy of this judgment alongwith TCR to the trial court for needful.
(Dictated to the Stenographer on computer, then corrected, signed and pronounced by me in the open court on this the 25th day of September, 2020) (Gururaj Somakkalavar) LXIX Addl.City Civil & Sessions Judge, Bengaluru.