IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.803 OF 2019 BETWEEN:
Smt. Manjula w/o K.H. Venkatsh aged about 46 years, residing at No.344/3477 near Ambamaheshwari Temple 9th Cross, Kamakshipalya, Bengaluru-560 079.
(By Sri. Jagadish Shastri, Advocate) AND:
Sri. K.H. Venkatesh S/o Hanumanthaiah Aged about 58 years, Driver of Assistant Executive engineer BBMP, 1st Main Road, 1st B Cross, Near Post Office, Domlur, Bengaluru-560 038.
(By Sri. Nagaraju, Advocate) ...Petitioner ...Respondent This Criminal Revision Petition is filed under Section 397 read with 401 of Criminal Procedure Code, praying to set aside the dismissal order dated 13.11.2017 passed by the V- M.M.T.C., Bengaluru in Crl.Misc.127/2012 as Annexure-A and etc., This Criminal Revision Petition coming on for Dictating Orders, this day, the Court made the following:
ORDER This petition has been filed by the petitioner wife challenging the judgment passed by 56th Additional City Civil and Sessions Judge, Bengaluru in Crl.A.No.1803/2017 dated 28.05.2019, wherein the judgment and order passed by the Metropolitan Magistrate Traffic Court-V, Bengaluru in Crl.Misc.No.127/2012 dated 13.11.2017, was confirmed by dismissing the appeal.
2. I have heard the learned counsel for the petitioner. Learned counsel for respondent remained absent.
3. Though this case is listed for admission, with the consent of learned counsel for the petitioner, same is taken up for final disposal.
4. The facts of the case as averred in the petition are that, the marriage of the petitioner and respondent was solemnized on 21.11.1996 at Sri Lakshmi Venkateshwara Swamy Temple, as per Hindu rites and customs and petitioner has paid dowry. Out of their wedlock, they have two children. It is her further contention that the respondent is working in BBMP Department and had an illicit relationship with another woman and started to live with that woman. Gradually he stopped to come to the house of the petitioner and neglected her and her children. It is further stated that the panchayath was also held by the officer of the BBMP, where the respondent agreed to join with the petitioner. But he did not keep his promise. It is her further submission that she is not having any other source of income and she is facing difficult to pay the educational expenses of her children. It is her further contention that the respondent is also doing real estate business and is a driver in BBMP. On these grounds, she prayed to allow the petition filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘the Act’), monetary relief under Sections 18, 19 and 20 of the said Act.
5. After the appearance of the respondent - husband, he filed his objections contending that the petitioner -wife is taking undue advantage of the helpless position of the respondent and has filed a false petition and there is no relationship of husband and wife. As such, petition is not maintainable. It is his further contention that suppressing the real facts the Crl.Misc.No.127/2012 has been filed and other averments of the petition have been denied. The respondent used to assist the petitioner by paying Rs.100 or Rs.200/- by taking into consideration her pathetic condition that she has left her husband. It is further contention that she has already a married lady and out of the said wedlock, she has two children but she has not obtained divorce from her first husband. He used to help only on the consideration that she has come out of the house of her husband. It is his further case that he is getting income of Rs.15,000/- p.m. and out of the said income, he has to take care of the family consisting of himself, wife and three children. On these grounds, he prayed to dismiss the petition.
6. In order to prove the case of the petitioner, she got examined herself as PW.1 and also got examined her brother and sister as PWs.2 and 3 and got marked 16 documents as Exs.P.1 to P.16. Respondent got examined himself as RW.1 and also examined RW.2, his wife, whose examination in-chief only done but she was not subjected herself for cross-examination and got marked 10 documents as Exs.R1 to R10.
7. After hearing the learned counsel appearing for the parties, the trial Court dismissed the petition filed under Section 12 of the Act. Against the said order, petitioner preferred an appeal and the same came to be dismissed.
8. The main ground urged by the learned counsel for the petitioner is that the records produced by the petitioner clearly goes to show that she got married with the respondent and out of the said wedlock, two children were born. Though enough materials have been produced before the Court below, the Court below has erroneously come to the conclusion that the relationship has not been established as contemplated under Section 12 of the Act and dismissed the petition. It is his further submission that the petitioner has produced Exs.P.4 and P.5, the birth certificate extracts of her children. It clearly goes to show that the name of the respondent is shown as the father of the children and the said documents are the public documents which have been maintained in the ordinary course of business. Even subsequently, when these children were got admitted in Panchajanya Vidyapeeta High School, therein also, the name of the respondent is shown as the father of the children. If Exs.P.6 and P.7 are looked into, it establishes the fact that they are born out of the said wed lock of the petitioner and the respondent. It is his further submission that the trial Court as well as the first Appellate Court without looking into the said documentary evidence have come to a wrong conclusion. It is his further submission that the respondent has been examined as RW.1 and in his cross-examination, he has clearly admitted that his wife - Manjula is residing separately and he is further admitted that he has not paid any maintenance to her.
It is his further contention that respondent has also contended that he has already got married with one lady by name, Venkata Lakshmi in the year 1985. Though she has been examined as RW.2, she has not been subjected herself to the cross-examination. That itself clearly goes to show that she is not his wife and she has kept away from the cross-examination only to avoid an adverse inference to be drawn in this behalf. It is his further submission that proof as to the factum of the marriage by examining the priest and other witnesses is not necessary. If other documents are shown that a man and woman lived as wife and husband for a long period that itself establishes that there is presumption of marriage.
9. In order to substantiate his arguments, he relied upon the decision of the Hon’ble Supreme Court in the case of Badri Prasad Vs. Dy. Director of Consolidation and others reported in AIR 1978 SC 1557. It is his further submission that earlier his marriage has been took place in the year 1985 and marriage of the respondent with petitioner is a second marriage, he has not revealed the said fact of earlier marriage to the petitioner. Then under such circumstances, it amounts nothing but to deceive or dupe the petitioner, he got married petitioner. Under such circumstances, he cannot deny the maintenance to her and he cannot take advantage of his own wrong by contending that he has already married with Venkata Lakshmi and he is not bound to pay the maintenance. In this context, he relied upon the decision of the Hon’ble Supreme Court in the case of Badshah Vs. Urmila Badshah Godse and Another reported in (2014) I SCC 188.
10. It is his further contention that the documentary evidence clearly establishes the fact of relationship between the respondent and the petitioner and under such circumstances, the Courts below ought to have granted monetary benefit of maintenance. He submits that the Courts below without considering all these materials have come to a wrong conclusion. He has also relied upon the decision in the case of Challamma Vs. Tilaga and Others reported in 2010 AIR SCW 121. It is his further submission that strict proof of evidence to substantiate the fact of marriage is not necessary. The claim has to be decided on objective assessment of all the materials produced before the Court and thereafter, suitable order has to be passed in this behalf. In that light, he relied upon the judgment Co-ordinate Bench of this Court in the case of the Laxmi Kom Venkanna Nayak Vs. Government of India reported in AIR 2003 Karnataka 54. On these grounds, he prayed to allow the petition and to set aside the impugned order and the benefit provided under the Act may be extended to the petitioner - wife.
11. I have carefully and cautiously heard the arguments of the learned counsel for the petitioner – wife and perused the records.
12. It is well established proposition of law that in order to give any relief under the Act, there must be domestic relationship between the litigant parties. Sub- clause (f) of Section 2 of the Act, defines the term ‘domestic relationship’, which reads as under:
“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.”
On close reading of the said Section, it makes clear that the 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. Keeping in view the definition and the materials placed on record.
13. It is the specific contention of the petitioner that the respondent got married her and they were living together and out of the said wedlock, she has given birth to male and female children. Though the said fact has been denied by the respondent by contending that he has not married with the petitioner but the documents produced at Ex.P.2 – the Aadhar card issued by the Government of India and the ration card - Ex.P.3 and the birth certificates of the children at Exs.P.4 and P.5, wherein the name of the respondent is shown as the husband and father. When those children were admitted to the school, as per Exs.P.6 and P.7, even there also, the name of the father has been shown as ‘Venkatesh’ i.e., the respondent. All these materials substantiate the fact that the respondent and the petitioner were living together and out of the said relationship, the petitioner has begotten two children. In that light, if the definition of ‘domestic relationship’ is taken into consideration, it clearly goes to show that there exists a domestic relationship between the petitioner and the respondent.
14. Though the respondent has contended that he has got married with one Venkata Lakshmi, and she has also been examined as RW.1, her examination-in- chief has been done but not subjected herself to cross- examination. Then under such circumstances, adverse inference has to be drawn that she is not the first wife. If she has not been cross-examined her statement cannot be considered to be evidence on record. It has got no legal sanctity.
15. Be that as it may, even if the contention of the respondent – husband is taken into consideration to the effect that he has got married earlier with RW-2- Venkatesh, the marriage has to be considered as his first marriage, the same is not brought to the notice of the petitioner and he has kept her in darkness. Under such circumstances, the marriage with the petitioner amounts to second marriage and she will be considered as second wife and the said marriage is nothing but with an intention to dupe the petitioner. In that light, he cannot take advantage of his own wrong by contending that the petitioner is not the wife. Hence, he is liable to pay maintenance or monetary benefit as contemplated under law. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Badshah cited supra wherein at para Nos.13 to 20, it has been observed as under :
“13. On this basis, it was pleaded before us that this matter be also tagged along with the aforesaid case. However, in the facts of the present case, we do not deem it proper to do so as we find that the view taken by the courts below is perfectly justified. We are dealing with a situation where the marriage between the parties has been proved. However, the petitioner was already married. But he duped the respondent by suppressing the factum of alleged first marriage. On these facts, in our opinion, he cannot be permitted to deny the benefit of maintenance to the respondent, taking advantage of his own wrong. Our reasons for this course of action are stated hereinafter.
13.1. Firstly, in Chanmuniya case (2011) 1 SCC 141, the parties had been living together for a long time and on that basis question arose as to whether there would be a presumption of marriage between the two because of the said reason, thus, giving rise to claim of maintenance under Section 125,Cr.P.C. by interpreting the term “wife” widely. The Court has impressed that if man and woman have been living together for a long time even without a valid marriage, as in that case, term of valid marriage entitling such a woman to maintenance should be drawn and a woman in such a case should be entitled to maintain application under Section 125 Cr.P.C. On the other hand, in the present case, respondent No.1 has been able to prove, by cogent and strong evidence, that the petitioner and respondent No.1 had been married each other.
13.2.. Secondly, as already discussed above, when the marriage between respondent No.1 and petitioner was solemnized, the petitioner had kept the respondent No.1 in dark about her first marriage. A false representation was given to respondent No.1 that he was single and was competent to enter into martial tie with respondent No.1. In such circumstances, can the petitioner be allowed to take advantage of his own wrong and turn around to say that respondents are not entitled to maintenance by filing the petition under Section 125 Cr.P.C. as respondent No.1 is not “legally wedded wife” of the petitioner? Our answer is in the negative. We are of the view that at least for the purpose of Section 125 Cr.P.C., respondent No.1 would be treated as the wife of the petitioner, going by the spirit of the two judgments we have reproduced above. For this reason, we are of the opinion that the judgments of this Court in Adhav and Savitaben cases would apply only in those circumstances where a woman married a man with full knowledge of the first subsisting marriage. In such cases, she should know that second marriage with such a person is impermissible and there is an embargo under the Hindu Marriage Act and therefore she has to suffer the consequences thereof. The said judgment would not apply to those cases where a man marriages second time by keeping that lady in dark about the first surviving marriage. That is the only way two sets of judgments can be reconciled and harmonized.
13.3. Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125 Cr.P.C. While dealing with the application of destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalized sections of the society. The purpose is to achieve “social justice” which is the Constitutional vision, enshrined in the Preamble of the Constitution of India. Preamble to the Constitution of India clearly signals that we have chosen the democratic path under rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society.
14. Of late, in this very direction, it is emphasized that the Courts have to adopt different approaches in “social justice adjudication”, which is also known as “social context adjudication” as mere “adversarial approach” may not be very appropriate. There are number of social justice legislations giving special protection and benefits to vulnerable groups in the society. Prof. Madhava Menon describes it eloquently:
“It is, therefore, respectfully submitted that “social context judging” is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the social- economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication.”
15. Provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from “adversarial” litigation to social context adjudication is the need of the hour.
16. The law regulates relationships between people. It prescribes patterns of behavior. It reflects the values of society. The role of the Court is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society’s changing needs. In both Constitutional and statutory interpretation, the Court is supposed to exercise direction in determining the proper relationship between the subjective and objective purpose of the law.
17. Cardozo acknowledges in his classic “….no system of jus scriptum has been able to escape the need of it”, and he elaborates:
“It is true that Codes and Statutes do not render the Judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled. There are hardships and wrongs to be mitigated if not avoided. Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however, obscure and latent, had none the less a real and ascertainable pre- existence in the legislator’s mind. The process is, indeed, that at times, but it is often something more. The ascertainment of intention may be the least of a judge’s troubles in ascribing meaning to a stature.” Says Gray in his lecture[7] “The fact is that the difficulties of so-called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges have to do is, not to determine that the legislature did mean on a point which was present to its mind, but to guess what is would have intended on a point not present to its mind, if the point had been present.”
18. The Court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision—“libre recherché sceintifique” i.e. “free Scientific research”. We are of the opinion that there is a non-rebuttable presumption that the Legislature while making a provision like Section 125 Cr.P.C., to fulfill its Constitutional duty in good faith, had always intended to give relief to the woman becoming “wife” under such circumstances. This approach is particularly needed while deciding the issues relating to gender justice. We already have examples of exemplary efforts in this regard. Journey from Shah Bano[8] to Shabana Bano[9] guaranteeing maintenance rights to Muslim women is a classical example.
19. In Rameshchandra Daga v. Rameshwari Daga (2005) 2 SCC 33, the right of another woman in a similar situation was upheld. Here the Court had accepted that Hindu marriages have continued to be bigamous despite the enactment of the Hindu Marriage Act in 1955. The Court had commented that though such marriages are illegal as per the provisions of the Act, they are not ‘immoral’ and hence a financially dependent woman cannot be denied maintenance on this ground.
20. Thus, while interpreting a statute the court may not only take into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. It is this mischief rule, first propounded in Heydon’s Case (1584) 3 Co. Rep. 7a which became the historical source of purposive interpretation. The court would also invoke the legal maxim construction ut res magis valeat guam pereat, in such cases i.e. where alternative constructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. If this interpretation is not accepted, it would amount to giving a premium to the husband for defrauding the wife. Therefore, at least for the purpose of claiming maintenance under Section 125,Cr.P.C., such a woman is to be treated as the legally wedded wife.”
16. On going through the factual matrix and ratio laid down as extracted above, there exists a domestic relationship between the petitioner and respondent. While considering the said case, it has been observed that strict proof of marriage is not purport of the law. The claim has to be decided by objective assessment of all the material produced before the Court and thereafter, it has to come to a conclusion by taking the judicial notice of all the factual situation and materials produced. In that light, if all the materials are looked into, they clearly establish the fact that the respondent got married with the petitioner and out of the said wedlock, she begot two children. The other evidence which has been produced does not rebut the said presumption. It is the case of respondent that he was not having any physical relationship with the petitioner. There is evidence that he used to visit her house and have a physical relationship and the same is proved from the factual matrix. Though it is contended by the respondent that earlier the petitioner has a husband with that relationship, she had children and she has not obtained divorce from her first husband and as such, she is not entitled for maintenance or any monetary protection. But the said fact has not been clearly established with cogent and acceptable evidence.
17. Taking into consideration the above facts and circumstances of the case, I am of the considered opinion that the Court below has committed an error and the same has been reiterated by the Appellate Court. In that light, this Court has to interfere with the judgments of the Courts below. No doubt, the petitioner has prayed for residence order and monetary relief and also protection order. Petitioner has not produced any documents to show that she is having a residential house but however, the Court can pass the order for the payment of rent and the monetary relief.
18. Taking into consideration the fact that the petitioner is residing in rented house and she is paying the rent as per Ex.P.9, the amount of Rs.3,000/- has been ordered for residence and an amount of Rs.5,000/- has been ordered to be paid as monetary relief under Section 20 of the Act as maintenance.
19. In the light of the discussion held above, the judgment of the first Appellant Court in Criminal Appeal No.1803/2017 and also judgment and order passed by Metropolitan Magistrate Traffic Court-V, Bengaluru in Crl.Misc.No.127/2012 dated 13.11.2017 are set aside. The revision petition filed by petitioner is allowed and an amount of Rs.3,000/- * P.M. has been ordered for residence and an amount of Rs.5,000/- * P.M. has been ordered to be paid as monetary relief under Section 20 of the Act as maintenance payable by the respondent – husband to * inserted vide Court order dated 4.12.2019 the petitioner – wife from the date of petition before the trial Court till realization, failing which, interest at the rate of 9% shall be paid by him from the date of petition before the trial Court till realization.
I.A.No.2/2019 disposed off as it does not survive for consideration.
Ordered accordingly.
Sd/- JUDGE Ag/nvj