IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.1189/2018 Between:
Smt. Pooja G W/o. Sri Krishnanda D/o. Sri N. Ganesh Kumar Aged about 27 years R/at No.52, 5th Cross Tunganagar Magadi Main Road Bengaluru – 560 091. ...Petitioner (By Sri M. Ravinson., Advocate) And:
Sri Krishnanda S/o. Sri Basavaiah Aged about 33 years R/at No.268, 12th Cross 4th Main, Kaveripura Kamakshipalya Bengaluru – 560 079. ... Respondent (By Sri K.J. Jagadeesh., Advocate) This Criminal Revision Petition is filed under Section 397 r/w. Section 401 of Cr.P.C., praying to set aside the order passed in Criminal Miscellaneous No.340/2017 by the Court of the Chief Judicial Magistrate of Bengaluru Rural on 30.05.2018 and the judgment and order dated 18.09.2018 passed by the Court of the IX Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru in Crl.A.No.54/2018 and award interim maintenance of Rs.30,000/- (Rupees thirty thousand only) per month to the petitioner and the child as prayed before the Hon’ble Chief Judicial Magistrate at Bengaluru Rural.
This Criminal Revision Petition coming on for Dictation, this day, the Court made the following:
ORDER The present revision petition has been filed by the petitioner/wife challenging the judgment passed by the IX Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru in Crl.A.No.54/2018 dated 18.09.2018 whereunder the appeal preferred by the respondent/husband was partly allowed and interim maintenance of Rs.6,000/- has been granted to her child and the petition as against the petitioner was dismissed.
2. I have heard the learned counsel for the petitioner-wife and the respondent-husband.
3. The facts leading to the case are that the petitioner-wife got married with the respondent- husband on 20.05.2015 and out of their wedlock she gave birth to a female child. Thereafter, there was ill- treatment and harassment by the members of family of the respondent for demand of dowry. Because of extreme physical and mental cruelty, she started residing in her parents’ house. Subsequently, she filed a criminal miscellaneous petition under the provision of Protection of Women from Domestic Violence Act, 2005 (for short hereinafter referred to as “the Act”). The trial Court issued notice to the respondent and thereafter an application came to be filed for grant of interim maintenance. The trial Court considering the factual matrix allowed the said application and granted an amount of Rs.8,000/- per month as a interim maintenance including the rent, accommodation and other expenses. The respondent-husband challenged it by filing appeal and the same was modified as indicated above. Being aggrieved, the petitioner-wife is before this Court.
4. The main grounds urged by the learned counsel for the petitioner-wife is that the judgment of the first appellate Court is arbitrary and illegal and it is not kept into view that the petitioner has to get a good accommodation and she is not having any sufficient income. He further submitted that the petitioner-wife is also having a female child and she has to maintain the child with all expenses. It is his further submission that earlier she was working as Junior Accountant in M.S.Ramaiah University, she was unable to attend the office regularly and it caused inconvenience as such on 31.05.2019, she gave her resignation to her duty and the same has been accepted. Now, she is not having any income from the said post. He further submitted that the Court below has rightly awarded the maintenance of Rs.8,000/- but the first appellate Court without assigning any reason has come to a wrong conclusion and has reduced the maintenance. On these grounds, he prays to allow the petition and to enhance the interim maintenance granted by the appellate Court.
5. Per contra, the learned counsel appearing on behalf of respondent-husband has vehemently argued and submitted that the order of the trial Court is not sustainable in the eye of law as such the first appellate Court modified the order. It is his contention that as per Section 23(2) of the Act an enquiry has to be made before passing the order but without considering the financial capacity and other materials, the Court below has passed the impugned order. In order to substantiate his contention, he relied upon the decision in the case of Krishna Murthy Nookula v. Y. Savitha reported in 2011 (3) KCCR 2221. It is further submitted that the petitioner-wife is highly qualified and she is a post graduate in M.Com and when the petitioner-wife is capable of earning and have required qualification then there cannot be any difficulty for her to continue the same job and as such she is not entitled for any maintenance. In order to substantiate his contention, he relied upon the decision in the case of Dr. E.Shanthi v. Dr.H.K. Vasudev reported in ILR 2005 KAR 4981. It is submitted that when the wife is an earning member then she is not entitled for maintenance and she can maintain herself but the only question of maintenance is to her child and he can give maintenance only to his child which has born to him. In order to substantiate his contention he has relied upon the decision in the case of Ambuja Sushil Kulkarni v. Sushil Suresh Kulkarni reported in LAWS (KAR) Page 2016 6 122. It is further submitted that the Court below without verifying the records and qualification of the petitioner- wife has granted an amount of Rs.8,000/-. When the said fact has been brought to the notice of the first appellate Court, the first appellate Court has rightly reduced the maintenance. The working woman is not entitled for any maintenance. In that regard he has relied upon the decision in the case of Dr. Shrishail Ramakrishna Bijapure vs. Smt. Vidya reported in ILR 2015 KAR 2124 and it is further submitted that now the respondent/husband is getting salary of Rs.37,896/- and after deduction he is getting net income of Rs.31,794/- in that amount he has to maintain his old age parents and other dependents. Under the said facts and circumstances, the amount granted is reasonable. He further submitted that while calculating the maintenance, 25% of the income of the husband has to be considered. If it is taken into consideration, the maximum amount which the petitioner is entitled is Rs.8,000/- but nothing more than that. It is further submitted that the appellate Court has rightly come to a right conclusion and has granted the maintenance at the rate of Rs.6,000/- per month. On these grounds, he prays to dismiss the petition by confirming the order of the first appellate Court.
6. I have carefully and cautiously gone through the submission made by the learned counsel appearing for the parties and perused the records.
7. The first and foremost contention which has been taken up by the learned counsel for the respondent-husband is that the Court below has not kept into view the provision of Section 23 of the Act. It is further submitted that Section 23 of the Act speaks about the power of Magistrate to grant interim ex-parte order of maintenance. When once the Magistrate issues notice to respondent and as per Sub-Section (2) of the Section 23, he has to satisfy himself prima-facie that the respondent has committed an act of domestic violence and an enquiry has to be held in this behalf to grant the maintenance.
8. I have carefully and cautiously gone through the decision quoted by the learned counsel for the respondent in the case of Krishna Murthy Nookula (quoted supra) at paragraph Nos. 15, 16, 17 and 18 it has been observed as under:
15. From sub-section (1) of Section 28, it is clear that for all actions in a proceedings under Sections 12, 18, 19, 20, 21, 22, 23 and also under Section 31, the procedure for enquiry as prescribed by the Cr.P.C., 1973 shall be followed. Therefore, it can safely be concluded that even for grant of interim relief as is permissible under Section 23(1) of the Act, procedure prescribed by the Code of Criminal Procedure has to be followed. However, there is one exception which we must note from sub- section (2) of Section 28. It reads thus:
“Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23”.
16. From the above, it is clear that despite the mandate of sub-section (1) of Section 28 that in all proceedings under the provisions referred to above including Section 23(1) of the Act, shall be governed by the provisions of Code of Criminal Procedure; the proceeding under sub- section (2) of Section 23 need not be so. For disposal of an application by an ex-parte order under sub-section (2) of Section 23, the provision envisages that sub-section (1) of Section 28 shall not prevent the Court from laying down its own procedure for disposal of such application. In other words, though the procedure prescribed by Code of Criminal Procedure is made applicable for enquiry in a proceeding under Section 23 and the other provisions of the Act, proceedings referred to under sub-section (2) of Section 23 for granting ex-parte interim relief is excepted.
17. Sub-section (2) of Section 23 relates only to grant ex-parte orders. For clarity, the same is once again extracted;
“(2) If the Magistrate is satisfied that an application prima facie disclose that the respondent is committing, or has committed an act of domestic violence or that there is likelihood that the respondent may commit an act of domestic violence, he may grant an exparte order on the basis of the affidavit in such form, as may be prescribed”.
18. From this, it is clear that the proceeding under sub-section (1) of Section 23 which permits to pass interim order has to be governed by the provisions of Code of Criminal Procedure by virtue of Section 28(1) of the Act, but all actions in a proceeding for grant of ex parte order would be by the procedure framed by the Court itself if any or on the basis of the affidavit in such form as may be prescribed. The ultimate conclusion would be for grant of ex parte order, the Magistrate need not necessarily apply provisions of Code of Criminal Procedure, but he could pass such orders on the basis of material in the form of affidavit in such form as may be prescribed or following the procedure it has prescribed (if any). But when the magistrate declines to grant ex parte relief and notifies the respondent (Prior notice, he has to be heard and in such cases, Section 28(1) applies and the procedure prescribed by the Code of Criminal Procedure becomes applicable.
9. For the purpose of brevity, I quote Section 23 and Section 28 of the Act which reads as under:
23. Power to grant interim and ex parte orders.—(1) In any proceedings before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent if committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.
28. Procedure.— (1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.
10. The learned counsel for the respondent – husband has brought to my notice the decision in the case of Krishnamurthy Nookula (quoted supra) and contended that in the absence of detailed enquiry including recording of evidence, the point of determining maintenance without knowing the income of the husband, the Magistrate ought to have made an order for detailed enquiry.
11. I have carefully and cautiously gone through the Section 23 (2) along with Section 28 (2) of the Act which also states that the Court cannot be prevented from laying down its own procedure for disposal of an application filed under Section 12 or under Sub Section (2) of Section 23 of the Act.
(a) That itself goes to show that detailed enquiry including recording of evidence before granting interim maintenance is not mandatory and when the said provision of law has been made to benefit deserted wife.
(b) Said procedure is to be seen along with the object of law and if the object of law is taken into consideration, in order to avoid oppression to the wife and children who are dependants on the respondent – husband and the procedures laid down in the Act with the Rules are made to provide justice to the dependants and they are benefited under Sections 23 and 28 of the Act.
12. I have carefully and cautiously gone through the case of Krishna Murthy Nookula (quoted supra) the observations which has been made by this Court clearly goes to show that the Court can award the maintenance after giving an opportunity to the respondent – husband to file his statement of objections and on hearing both side, the Court awarded an amount of Rs.8,000/- p.m. as maintenance. If strict adherence has taken in that case under such circumstances, it not ought to have directed to pay Rs.8,000/- p.m. Be that as it may, the object of the law has to be kept in view while interpreting Section 23 (2) of the Act and that the beneficiary under the said Sections are benefited at the end. If such inference with reference to the case referred above, it is not going to through any light on the submission made by learned counsel for the respondent – husband who contended that the Magistrate has not followed the prescribed procedure as contemplated under Section 23 of the Act. His contention is not having any force and the same is not liable to be accepted.
13. It is the submission of the learned counsel for the respondent that the petitioner–wife was working earlier in Ramaiah University and was drawing a sum of Rs.18,000/- p.m. and as such, she is not entitled for maintenance itself. He further submits that if the petitioner–wife is an earning member and in such circumstances, she is not entitled for any maintenance. In this regard, he has relied on the decisions of this Court in Dr.E.Shanthi’s case and Dr.Shrishail Ramakrishna Bijapure’s case (quoted supra) 14. I have carefully and cautiously gone through the said decisions. In the former citation, the petitioner therein was practicing as Doctor and the name of the petitioner continued on the Board of Clinic and since there were no impediments for her to work along with her brother as a Doctor and when she is capable of earning herself and under such facts and circumstances, it was held that the petitioner was capable of earning and having required qualification and hence, granting maintenance is not necessary and the said petition was rejected granting maintenance only to the child therein. Even in the case of Dr. Shirshail Ramakrishna Bijapure vs. Smt. Vidya (quoted supra) this Court has observed that the respondent – wife was qualified medical doctor and no records have been produced to demonstrate that she was not having any avocation or she was not capable to maintain herself. In that light, the Court had come to a conclusion that wife is not entitled for any maintenance. Even in the case of Ambuja Sushil Kulkarni vs. Sushil Suresh Kulkarni (quoted supra). This Court has taken the same view as taken in the previous decisions cited supra and held that the petitioner – wife was employed as Assistant Professor and getting handsome salary in that regard. In such circumstances, it has been observed that wife is not entitled to any maintenance.
15. No doubt this Court is also not having any difference of opinion that if the wife is capable of maintaining herself and is having sufficient income and under such circumstances, she is not entitled to get any maintenance from the respondent - husband. However, the Court has to keep in mind that the petitioner – wife is now resigned from her service by sending her resignation letter dated 29.04.2019 and in order to substantiate the said fact, the acceptance of resignation letter dated 31.05.2019 i.e., relieving letter of Ramaiah University has been produced and she has been relieved from the service on 31.05.2019.
16. It is the specific contention of the learned counsel for the petitioner – wife that she is having a female child aged 2½ years, she is neither having any other income nor permanent rented house. It is difficult for her to leave the minor child at any place and go to work. Under said inevitable circumstances, she was compelled to resign from her job and under such circumstances duty caste upon respondent – husband to maintain them. If they are not having any sufficient income though it is contended by the learned counsel for the respondent – husband that the petitioner – wife is earning Rs.19,000/- (gross salary) and is working in Ramaiah University but in pursuance of the relieving letter produced along with the memo, the said contention is not acceptable. It is the duty of the husband to maintain the wife to whom he has got married and also to maintain the child which born out of their wedlock.
17. On going through the order of the trial Court, the trial Court has ordered an amount of Rs.8,000/- p.m. as interim maintenance and the First Appellate Court has modified the same to Rs.6,000/-
p.m. payable only to the child for her maintenance. But now, that the petitioner – wife has resigned from the job and no other documents have been produced by the respondent – husband to show that she is presently earning or she is getting any other income for her maintenance. In the absence of such material, he is liable to pay some maintenance towards petitioner – wife also. I am conscious of the fact that she is M.Com. graduate and she is highly qualified to get a job but has discussed above she is having minor girl baby of 2½ years old and she has contended that it is very difficult for her to leave the child alone and to procure job and nobody is there to look after the child.
18. Under such circumstances, the respondent– husband is liable to pay maintenance to the petitioner– wife also. The petitioner – wife has made out a case to grant the interim maintenance. Keeping in view above said facts and circumstances, petition is allowed and the impugned order of First Appellate Court is set aside and the respondent–husband is directed to pay the interim maintenance amount of Rs.10,000/- to the petitioner–wife inclusive the amount which has been awarded as interim maintenance to the child, from the date of the application till the final adjudication of the case before the Court below, after deducting the amount which has been already deposited. Remaining amount has to be deposited within two months.
Under the changed circumstances, if the respondent – husband needs to file an application, he is given liberty to file an appropriate application either for reduction of interim maintenance or cancellation.
With the above observations, the petition is allowed. The judgment of the first appellate Court is modified as indicated above.
Sd/- JUDGE nms/MH