IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.481/2018 BETWEEN:
Mr. Gangaraju S/o late Veeranna Aged about 50 years R/at Nagannanapalya Sira Gate Tumakuru City-572 106.
(By Smt. Vidya Selvamony, Advocate for Sri Rakshit K.N., Advocate) AND:
1. Lakshmidevamma @ Lakshmamma W/o late Veeranna Aged about 71 years R/at Devanoor Church House of Tailor Narasimhamurthy 4th Cross, Vijayanagara Tumakuru City-572 102.
2. Veerabhadraswamy S/o late Veeranna Aged about 44 years R/at C/o Suggaiah Siddeswara Bakery …Petitioner Gokula Medicals Melekote Road Tumakuru City-572 102 (By Sri Shekar L.S., Advocate) … Respondents This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the judgment passed by the VI Additional District and Sessions Judge at Tumakuru, in Criminal Appeal No.37/2016 dated 08.03.2018 and consequently the judgment passed by the II Additional Civil Judge and JMFC-3 at Tumakuru, in Crl.Mis.DV.No.16/2014, dated 28.11.2016 and dismiss the petition filed by the petitioner/1st respondent.
This Criminal Revision Petition coming on for Admission, this day the Court made the following:-
O R D E R Though this matter is listed for admission, with the consent of the learned counsels appearing for the parties, the same is taken up for final disposal.
2. The present petition has been filed by the petitioner son of respondent No.1 being aggrieved by the judgment passed by VI Additional District and Sessions Judge, Tumakuru, in Criminal Appeal No.37/2016 confirming the judgment passed by the II Additional Civil Judge and JMFC-3, Tumakuru, in Crl.Misc.DV.No.16/2014 dated 28.11.2016.
3. I have heard the learned counsels appearing for the parties.
4. It is the submission of the learned counsel for the petitioner that the Courts below without appreciation of the provisions of Section 2(f), 3, 12 and 19 of the Domestic Violence Act (herein after in short called as ‘DV act’) have passed the impugned orders and the said orders are not sustainable in law. She further submitted that the findings given that there is ‘domestic violence’ itself is not sustainable in law. She further submitted that immediately prior to passing of the order, the respondent No.1 was not staying along with the petitioner and as such there is no domestic violence as contended by her. She further submitted that there are so many contradictions in the pleadings and the evidence. The said aspect has not been properly considered and appreciated by the trial Court as well as the first appellate Court. She further submitted that the findings given by both the Courts below are only on probabilities and imagination. On these grounds she prayed to allow the petition and to set aside the impugned orders.
5. Per contra, the learned counsel appearing on behalf of the respondents vehemently argued and submitted by justifying the judgment of the trial Court. He submitted that there is a domestic violence and the trial Court after considering all the material facts has come to a right conclusion and there are no good grounds made out for interference. On these grounds he prayed to dismiss the petition.
6. Before going to consider the submissions of the learned counsels, the facts leading to the case are that respondent No.1 filed a petition under Section 12 of the ‘DV Act’, alleging that the petitioner being her son is causing physical and mental agony on her by way of abusing her in filthy language and assaulting her. She further contended that he threw her out from her house. He has not provided any maintenance as well as accommodation to her. Therefore, she has sought for grant of order prohibiting the respondents No.1 and 2 from committing domestic violence. She also sought for house accommodation in a house bearing Municipal Khatha No.4020/250 PID No.62810 situated at Nagannanapalya, Sira Gate, Tumakuru. On the basis of the said petition, notices were issued to the respondents. Respondents appeared and filed their objections by denying the contents of the said petition and thereafter petitioner herself came to be examined as PW1. She also examined one more witness as PW2 and relied upon two documents Exs.P1 and P2. Thereafter, respondent No.1 came to be examined as RW1 and he has not got marked any documents. After considering the said facts and circumstances the Court below allowed the petition and directed the respondents to return the possession of the house property and they were also restrained from alienating the said property and movable properties which belongs to the petitioner. Being aggrieved by the said order, the present petitioner preferred appeal in Criminal Appeal No.37/2016 and after hearing the parties the same was confirmed.
7. The first and foremost contention which has been taken up by the learned counsel for the petitioner is that there is no domestic violence and immediately prior to the alleged incident, respondent No.1 was not residing with petitioner and as such the provisions of Section 12 of the DV Act are not attracted.
8. Before going to consider the said submission, I feel it just and proper to quote Section 2(f), (g), Section 3(iv)(b) and 12 of the DV Act which reads as under:
2.Definitins: xxxx xxxx xxxx xxxx xxxx xxxx 2(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
(g) “domestic violence” has the same meaning as assigned to it in section 3.
Section 3(iv)(b): Disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person.
Section 12. Application to Magistrate.-
(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
(2) The relief sought for under sub- section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or damages ha been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.
(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.
(5) The Magistrate shall endeavour to dispose of every application made under sub-section(1) within a period of sixty days from the date of its first hearing.
On close reading of the said definition of “domestic relationship” if at any point of time, lived together in a shared household, when they are related by consanguinity, then under such circumstances, there exists the domestic relationship and as per Section 3 (iv)(b) if the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person, then under such circumstances, it is going to satisfy the definition of the Domestic Violence. On close reading of these two Sections together, it is an admitted fact that respondent No.1 is the mother of the petitioner and even it is also an admitted fact that the said household property is standing in the name of respondent No.1-mother. When that being the case, the contention of the petitioner that there is no domestic relationship and there is no domestic violence does not arise at all, that too when admittedly he is the son and the said property is belonging to respondent No.1.
In the light of the discussions held by me above, the first contention does not sustainable in law.
9. The second aspect which has been contended by the learned counsel for the petitioner is that, as per Section 12 proviso of the DV Act that before passing an order, the application has to be forwarded to the Protection Officer or the service provider, thereafter an order should have been passed.
10. On close reading of the said proviso, it indicates that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from such Officer. That itself clarifies that if such reports are there before the Court, then a duty casts upon the Magistrate that he shall take into consideration the reports and thereafter the order is to be passed.
11. It is the contention of the learned counsel for the petitioner that such report which ought to have been obtained is not in accordance with law and the same is not acceptable.
12. Taking into consideration the above said facts and circumstances and on re-assessing the documents and the other submissions, I am of the considered opinion that, the petitioner has not made out any good grounds so as to interfere with the orders of the Courts below.
The petition is devoid of merits, it is liable to be dismissed and accordingly it is dismissed.
In view of dismissal of the revision petition, IA No.1/2018 does not survive for consideration and accordingly the same is disposed of.
Sd/- JUDGE *AP/-