Bangalore District Court
Nagabhushan G R @ Nagabhushana vs Jyothi on 13 February, 2025
KABC0A0026732024
IN THE COURT OF LXXIII ADDL.CITY CIVIL &
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU.
(CCH.74)
PRESENT:
Smt. Anitha N.P., B.A.L., L.L.M.,
LXXIII Addl.City Civil & Sessions Judge,
Mayohall Unit, Bengaluru.
Dated this the 13th day of February 2025.
Crl. Appeal No.25295/2024
Appellant/
Respondent: Nagabhushan G R @ Nagabhushana
S/o: Gandikote Ramanna,
Aged about 60 years,
R/at: 181/302, Survey No. 302,
Kanchugaranahalli,
Gram Panchayat, Ramanagara 562019.
(By Padma Kumari P., - Adv.)
V/S
Respondent/
Aggrieved person: Smt. Jyothi
Age about 52 years,
W/o: G.R. Nagabhushan,
R/at No. 17, P and T Layout,
2nd Cross, Horamavu Main Road,
Bengaluru 560043.
(By Sri.A.D.Ramananda - Adv.)
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Crl.A. No.25295/2024
JUDGMENT
Appellant herein is challenging the exparte order dated 04.06.2024 passed by MMTC-I, Mayohall Unit, Bengaluru in Crl.Misc. Petn. No.113/2024 on IA No.1 and IA No.2 filed u/sec.23(2) and u/sec.23(2) r/w sec.20 & 22 of Protection of Women from Domestic Violence Act (In short PWDV Act for brevity) in partly allowing the interim relief by awarding an amount of Rs.1,25,000/- per month towards maintenance.
2. The parties are referred to their original ranking as referred in trial court for convenience sake. The Appellant is the Respondent-husband and the respondent is the petitioner- wife before the trial court.
3. Brief facts of the memorandum of appeal is as under:-
The petitioner -wife filed a petition against the respondent/Appellant-husband herein u/sec.12, 15, 16, 17, 18, 19, 20, 22, and 23 of Protection of Women 3 Crl.A. No.25295/2024 from Domestic Violence Act 2005, seeking the relief of prohibiting the respondent from committing any act of Domestic Violence against the Petioner and for monthly maintainance of Rs.1 lakh, additional sum of Rs.25,000/- towards the eductional loan of her daughter and litigation expenses and for compensation of Rs.10 crores.
4. According to petitioner she married respondent on 20.02.1992 and out of the marriage they got 3 children they are Samarth and two twin daughters Niriksha and Niharika. The petitioner had studied 10 th standard and she is home maker, her parents had supported to purchase the property where she is residing. Due to problem between the petitioner and respondent which started in the year 2005 the petitioner objected the respondent's behaviour of coming home late. Thereafter the respondent started living seprately from 2006 and on 20.01.2019 for 4 Crl.A. No.25295/2024 formality he participated in the marriage of his son wedding and the son Samarth also started to live with the respondent-husband. The respondent started to deteriorate from the year 2005 and was paying Rs.5,000 per month and it was increased to Rs.40,000 per month from the year 2013. He was also paying Rs.25,000/- towards his daughter's education loan and from January 2024 the appellant is irregular in paying Rs.40,000/- and when it was questioned by the petitioner the same was also stopped. The respondent is having business in the name of Impact Academy of Human Excellence, it is worth several crores. He owns BMW Car and many properties in his name. He deserted the petitioner and the children from 2006 and leading his life with another wife.
5. The learned trial court on the basis of IA NO.1 filed u/sec.23(2) of PWDV Act allowed the same and 5 Crl.A. No.25295/2024 the petitioner also filed IA No.2 u/sec.23(2) r/w sec.20 and 22 of PWDV Act and the same was allowed in part.
6. Aggrieved by the said exparte order the appellant has preferred this criminal Appeal on the following grounds:
1. The learned Magistrate erred in passing the order without giving opportunity to respondent/ appellant. The learned Magistrate not given time to the respondent to file his objections and also documents in respect of application and to submit his assets and liabilities and passed the impugned order.
2. The trial court believed the case of the petitioner and not verified whether the same is true or false. The petitioner is having sufficient income and she is having crores of amount in her name which are came to her from selling the property of the respondent.
3. The trial court has not assigned proper reasons. The income of the respondent from all source is Rs.95,000/- per month and he is staying alone in the address shown in the cause 6 Crl.A. No.25295/2024 title and he himself has to bear medical and daily expenses and he has no business as stated by the petitioner. Accordingly, the impugned order is liable to be set aside. Hence, prays to allow the Appeal.
7. Along with appeal memo the appellant/respondent also filed IA No.1 u/sec.5 of The Limitation Act seeking to condone the delay of 42 days in preferring the appeal.
8. In the annexed affidavit respondent has stated that the impugned order was passed by the trial court on 04.06.2024 he came to know about the order after service of the notice to him. He applied for the copy of the order on 25.06.2024 and he obtained the certified copy of order on 03.07.2024. Due to his old age ailment he was not able to approach the counsel and hence the delay is caused. The same is not intentional. If the application is allowed no injustice will going to cause to petitioner/wife. Accordingly, prays to allow the application.
9. The petitioner filed objection contending that the appeal is not maintainable, when her relationship with the 7 Crl.A. No.25295/2024 Appellant went weird she was paid with maintenance of Rs.5,000/- per month only by the respondent. She has submitted assets and liabilities statement of both the properties owned by her which are Stridhana Property. The respondent has only disclosed his Income Tax returns for the year 2020-2021, 2021-2022 and 2022-2023 and not disclosed his personal income. From Ashwini Electronics he is having turnover of 2.5 crores. He is owning resort at Bidadi and also owning Imapct Academy. At Hyderabad. He has not disputed his illegal marriage with one Tulsi and not disputed about owning BMW Car. The respondent not disputed he was paying Rs.40,000/- every month and Rs.25,000/- for his daughter's education who is studying at UK. Accordingly, she prays to dismiss the application.
10. Heard both sides. Perused the entire Trial Court records, including the impugned order and also the written arguments filed by the petitioner- wife.
11. The points that arise for the consideration; 8
Crl.A. No.25295/2024
1. Does the order of the learned Magistrate call for any interference?
2. What order?
12. In consideration of the materials on record, above points are answered as follows:-
Point No.1: In the Affirmative Point No.2: As per the final order, for the following:-
REASONS
13. POINT No.1: The material on record shows that there is no dispute regarding the fact that petitioner is the wife of respondent. It is also not in dispute that out of the said wedlock the petitioner has given birth to 3 children by name Samarth and two twin daughters namely Niharika and Niriksha. It is not in dispute that the son Samarth is married and he is living separately. It is also not in dispute that both the daughters of the petitioner and respondent are major and unmarried.
14. The petitioner- wife filed petition u/sec.12, 15,16, 17, 18, 19, 20, 22 and 23 of PWDV Act before the 9 Crl.A. No.25295/2024 trial court, seeking to restrain the respondent for committing any act of Domestic Violence, for residence order, to restrain respondent from alienating the assets, for monetary relief and for compensation.
15. Under IA No.1 filed u/sec.23(2) of PWDV Act, the petitioner sought temporary injunction to restrain the respondent from alienating the immovable properties shown in the schedule.
16. Under IA No.2 filed by the petitioner u/sec.23(2) the petitioner sought for monthly maintenance of Rs.1,25,000/- and other expenses. The petition was filed on 22.04.2022. The impugned exparte order was passed on 04.06.2024.
17. During the course of arguments it was vehemently argued by the respondent that he was not provided with opportunity to file his objection to the maintenance application and he was not given with opportunity to file his assets and liabilities statement. On 10 Crl.A. No.25295/2024 the other hand the trial court passed the impugned order only by hearing the petitioner.
18. The respondent husband has relied on his income tax return for assessment year 2020-21, 2021-22, 2022-23. On perusal of the said income tax return for the year 2021. The total income of this respondent is Rs.13,48,980/- for the year 2021-22 his total income was Rs.11,61,770/-, for the year 2022-23 is total income was Rs.11,27,450/-.
19. Though the petitioner wife disputed the said Income tax returns and contended that the respondent is having turnover of Rs 2.5 crores no such document to establish the same is produced by the petitioner. Though this petitioner contended that the respondent is owning a Impact Academy of Human Excellence no document as such is produced to show that said establishment is standing in the name of respondent and respondent is getting income out of the same.
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Crl.A. No.25295/2024
20. The bank account extract of the petitioner-wife is produced and it shows that on 08.4.2023 there is credit of Rs.20,000/-. Similarly on 29.04.2023, 11.05.2023, 28.05.2023, 08.06.2023, 29.06.2023 credit of amount of Rs.20,000/- each is made by the respondent-husband. In the affidavit of the petitioner disclosing the assets and liabilities she has stated that the respondent husband was paying Rs.5,000/- in the year 2005 and it was increased gradually and the respondent-husband was paying Rs.40,000/- per month and was separately paying educational loan amount to Rs.25,000/- per month.
21. The petitioner-wife also disclosed that she is also receiving sum of Rs.25,000/- per month from her maternal side parents and brother.
22. The petitioner has stated that the respondent owned BMW car bearing registration No.KA-05 7381. He is having apartment worth Rs.5 lakhs at Kengeri another apartment at Richmond Town Bengaluru, he is having landed property in Sy.No.302 at kanchugaranahalli, 12 Crl.A. No.25295/2024 Bidadi. He is having Own building in the name Ashwini electronics, site 214/2A at old Kengeri.
23. In the case on hand on perusal of the case of the petitioner herself the son of the petitioner and respondent by name Samarth is 31 years old and he is married. The 2 daughters of this petitioner and respondent are 25 years old and they are unmarried at present. The son of the petitioner and respondent is living separately. The son of the petitioner is a earning person and he is having his separate family consisting of his wife.
24. At this stage whether the above said properties stated by the petitioner are earning income and whether respondent is getting income from the said properties cannot be decided. RTC in respect of Sy.No.302 for the year 2019-20 is placed on record and the same shows that 2 acres out of 3.35 acres is mortgaged. The sale deed dated 22.05.2014 in between K.G.Pramila W/o D.C.Thammanna represented by GPA holder Manish Ranka and M/s. DRA projects represented by Nishanth Ranka and 13 Crl.A. No.25295/2024 G.R.Nagbhooshan as a purchaser is relied on by the petitioner. As discussed above whether it is a property yielding any income is a matter of trial.
25. The document produced by the petitioner shows as Ashwini electronics and it shows that it is one Samarth G.N. is the owner and the respondent husband is shown as CEO. However, no such registration form of said business is placed by the petitioner at this stage.
26. Before this court as well as before the trial court the petitioner-wife herself admitted that till December 2020 the respondent-husband has paid monthly maintenance of Rs.40,000/- and towards educational loan he was paying Rs.25,000/- every month.
27. On the contrary the respondent husband has produced some documents which are print-outs obtained online and contended that the petitioner is doing dog day care center and she is earning more than Rs.45,000/- every month. However, the earning of petitioner is not a ground to reject the claim of petitioner for maintenance of 14 Crl.A. No.25295/2024 herself and her 2 unmarried daughters who are still studying. A copy of sale deed executed by the respondent- husband in favour of one Chowdamma on 22.07.2022 is produced by the petitioner wife and contended that the property worth more than Rs.1 crore was sold for a meager sum of Rs.49,20,000/-. It is not the stage to decide whether respondent has sold the said land for meager price and it can be considered after trial only. This petitioner wife also owned property in Sy.No.6/1A measuring 10 guntas. Though the counsel for the petitioner-wife vehemently argued that the respondent-husband is earning more than Rs.25 lakhs per month from all his business at this stage except the document stated above relied on by the petitioner and by the respondent no other document is produced.
28. The Income Tax returns relied on by the husband shows that his annual income in the year 22-23 and 21-22 and 20-21 was Rs.11,27,450 11,61,770 and 13,48,980/- 15
Crl.A. No.25295/2024 only. Why the income decreased every year has to be considered after the full pledged trial.
29. That apart on perusal of the impugned order it clearly goes to show that it was exparte interim order. The respondent husband has not appeared before the trial court and not filed objections or his assets and liabilities statement which is a mandatory requirement was filed while passing the impugned order. The respondent husband was not given with opportunity to submit his affidavit disclosing his assets and liabilities as per the decision of the Hon'ble Apex court in Rajnesh Vs. Neha and another reported in (2021) 2 SCC 324.
30. Accordingly, by considering undisputed fact that the petitioner and respondent are husband and wife and the respondent husband is also aged about 60 years it can be definitely held that the respondent cannot deny the maintenance to the petitioner-wife and his 2 unmarried daughters who are still pursuing their education on the contention that his income is very less. Considering that 16 Crl.A. No.25295/2024 the petitioner is having 3 children the impugned exparte order and reasons assigned by the trial court appears to be just and proper. However, having considering the 3 children of the petitioner are being major now and the son presently married and staying away from his mother and one of the daughter is continuing her education in foreign country and another daughter is staying with the petitioner and so also the age of the appellant- husband and also the income tax returns and so also the other property details and also the admission of this petitioner in respect of payment maintenance till December 2023 at the rate of Rs.40,000/- p.m it is just and proper to reduce the quantum of maintenance amount to the tune of Rs.60,000/-. Accordingly, point No.1 is answered in Affirmative.
31. Point No.2:- In view of the discussion made above I proceed to pass the following:-
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Crl.A. No.25295/2024 ORDER Application u/sec.5 of Limitation Act, filed by Appellant is hereby allowed on payment of cost of Rs.3,000/-
Consequently, the delay of 42 days in preferring the present appeal is hereby condoned.
Criminal Appeal filed u/sec.29 of PWDV Act is partly allowed.
Consequently, the exparte impugned order passed by the trial court u/sec.23(2) r/w sec.20 & 22 of PWDV Act is modified in respect of maintenance as follows:
The appellant is hereby directed to pay monthly maintenance of Rs.60,000/- per month to the Respondent/Petitioner towards maintenance from the date of presentation of the Criminal Misc petition No.113/2024 till disposal of the main petition.
The exparte interim order on IA No.1 in respect of not to alienate the 18 Crl.A. No.25295/2024 petition schedule properties passed by the Trial Court remains intact.
Issue intimation to the Trial Court.
Return the trial court records along with copy of this Judgment to the Trial Court.
(Dictated to the Stenographer, after computerization, corrected and pronounced by me in the Open Court, this the 13th day of February, 2025) Digitally signed by ANITHA ANITHA NANJANAGUDU NANJANAGUDU PARASHIVAMURTHY PARASHIVAMURTHY Date: 2025.02.15 15:18:19 +0530 (Anitha N.P.) rd 73 Addl. CC & SJ, M.H.Unit, Bengaluru. (CCH-74)