IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26th DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.238/2015 BETWEEN:
Smt. Shama Shariff W/o Mohammed Siddiq Aged about 31 years Residing at No.22, Pillanna Garden, 3rd Stage, Railway Layout, Bengaluru-560 045.
(By Sri Shahnawaz Mamadapur, Advocate for Sreevasta Associates, Advocate) AND:
1. Sri Mohammed Siddiq S/o Sri Shabir Hussain Aged about 44 years 2. Sri Ghulam Ali S/o Sri Shabir Hussain Aged about 52 years 3. Smt. Zeenat Ali W/o late Sri Ghulam Ali Aged about 47 years …Petitioner 4. Smt. Saravath Hussain W/o Sri Shabir Hussain Aged about 81 years All respondents residing at Amir Mahal No.257, Pycroft’s Road, Poyapettah, Chennai-600 014.
(By Sri Subramanya B.N., Advocate for Sri Prabhugoud B. Tambigi, Advocate) …Respondents This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to modify the impugned order dated 31.12.2014 partly allowing Criminal Appeal No.25073/2014 on the file of Fast Track Court-III, Mayo Hall at Bengaluru and to pass an order of granting Rs.14,40,000/- towards monetary relief under Section 20 of Protection of Women from Domestic Violence Act, 2005 in Crl. A. No.25073/2014 and etc., This Criminal Revision Petition coming on for Admission, this day the Court made the following:-
O R D E R The present Criminal Revision Petition has been filed by the petitioner/wife being aggrieved by the judgment passed by Fast Track Court-III, Mayo Hall, Bengaluru, in Criminal Appeal Nos.25073/2014 and 25071/2014 dated 31.12.2014 where under the appeal filed by husband came to be dismissed and the appeal filed by wife was partly allowed by modifying the order of the trial Court by enhancing the quantum of compensation.
2. I have heard the learned counsel appearing for the petitioner/wife and the learned counsel for the respondent No.1/husband and others.
3. For the sake of convenience both the parties are referred to as they have been referred before the Court below.
4. Brief facts of the case of the petitioner are that; petitioner/wife got married with respondent/No.1 on 2.6.2005. Respondent No.2 is the brother of 1st respondent, respondent No.3 is the wife of 2nd respondent and respondent No.4 is the mother of 1st respondent. Prior to the marriage some negotiations took place based on representations made by respondents Nos.2 to 4. At that time 1st respondent was an accountant at Eurasia Seafoods Limited, London and earning Rs.80,000/- per month.
Some gold ornaments and other utensils have also been given during the marriage ceremony and an amount of Rs.50,000/- was also given. As per the request of the respondent, the marriage was performed very grandly and an amount of Rs.6,00,000/- has been sent for performance of the marriage and other expenses. It is further stated that petitioner/wife was working as a Tele caller Executive in U.K. Car Insurance with ICICI Bank and was earning Rs.20,000/- per month. As per the request of respondent No.1 she resigned the job before marriage. After the marriage they left to Chennai and there the reception was organized and they stayed together as husband and wife in a shared household. After a month of the marriage respondent No.1 went to London leaving the petitioner in their shared household to live with other respondents. There the petitioner had noticed that first respondent used to go out of their bedroom and spent time with 3rd respondent and at that time 2nd respondent used to sit outside within the compound. Later the petitioner came to know that her husband was having an affair with his sister-in-law. After 1st respondent left for London, the father-in-law started demanding the money from the petitioner saying that she had to pay for all the food, refreshment and other expenses. They also forced her to take birth control pills. When the petitioner refused to take the pills, they used to abuse and humiliate her. Because of taking of the birth control pills, she developed uterus infection, even the 1st and 4th respondent refused to take her to the hospital and used to tell why they waste money for treatment. It is her further contention that she has spent Rs.40,000/- towards medical expenses. It is further stated that the said harassment was continued and respondent No.2 used to abuse the petitioner. As such in the month of May she went to her parents’ house and started living there. There also they used to call over the phone and used to harass mentally. It is further stated that they have incurred the debt for the purpose of marriage and though she wanted to go to Chennai, respondents No.2 and 3 did not allow her to come back and respondent No.1 was there in London, he did not make any efforts to take the petitioner back or to take her to London. He deliberately avoided the petitioner/wife. It is further stated that on 8.5.2006 respondent No.1 came to the house of petitioner’s parents and apologized for ill-treating her and assured that he will treat her well and would lead a happy life and took the petitioner to Chennai with an assurance that they would not harass her, but the said attitude continued by the respondents. Even the respondents used to threaters the petitioner by saying that they will divorce her and easily they can find another girl for respondent No.1. Subsequently, the petitioner discovered that she was pregnant and she called respondent No.1, but he did not responded and the other respondents threatened her saying that they would ask the 1st respondent to divorce her and it was easy for them to find another girl for the 1st respondent. Because of the mental shock, there was miscarriage. She also filed a complaint to Halasur Gate Women Police Station and the same was registered in C.C.No.17369/2008. It is her further contention that she is not having any source of income, she is finding difficulty and hence she filed an application under Section 12 of the Protection of Women from Domestic Violence Act (hereinafter called as “Act” for short).
5. The respondent appeared and filed the objections.
He admitted the marriage, but he denied the allegation of domestic violence made as against him and the other respondents. He also denied the illicit relationship with respondent No.3. It is the contention of the respondent No.1 that the petitioner was not a dutiful wife and she never bothered about the future of the husband. She always used to live with her parents due to the ill-advice made by her parents. She has developed arrogant attitude towards respondent No.1 and hence he has given triple talaq on 30.1.2010 as per Islamic law and he has also paid the mehar amount through demand draft and she herself has left the house on her own wish. Therefore, he is not liable to pay the compensation or any amount.
6. In order to prove the case of the petitioner, petitioner got herself examined as PW1 and got marked 10 documents. Respondent No.1 examined as RW1 and got marked 20 documents. After hearing the learned counsel appearing for the parties, the Court below partly allowed the Criminal Miscellaneous Petition and awarded an amount of Rs.4,000/- towards accommodation, Rs.6,000/- as maintenance and Rs.15,000/- towards compensation. Being aggrieved by the said order, both the petitioner as well the respondent preferred the appeal. The appeal filed by the respondent No.1/husband came to be dismissed and the appeal filed by the petitioner/wife was partly allowed and an amount of Rs.6,000/- was awarded towards accommodation and amount of Rs.30,000/- was awarded towards medical expenses, Rs.50,000/- for legal expenses, Rs.2,00,000/- towards compensation and Rs.1,00,000/- towards the marriage expenses. Being aggrieved by the same, the petitioner/wife is before this Court.
7. It is the contention of the learned counsel for the petitioner/wife that the Court below without considering the fact that the petitioner is residing in a Metropolitan City like Bengaluru and in order to have accommodation, Rs.6,000/- is not sufficient and awarded the amount on the lower side. He further submitted that the amount of maintenance is also very meager and it is not going to meet the day to day food expenses and other expenses. It is his further submission that Exs.P3 to P5 clearly go to show that there was a miscarriage and urinary infection and other medical expenses are there but the Court below has only awarded the amount of Rs.30,000/- towards medical expenses, which is also on the lower side. He further submitted that a very meager amount of compensation has been awarded though the petitioner has spent more than Rs.6,00,000/- towards the marriage expenses. He further submitted that though the Court below has passed the order, till today he has not paid a single pie to the petitioner/wife. As on date he has to pay Rs.14,72,000/-. He further submitted that the respondent has not made any efforts either to take her back or to maintain her. He further submitted that though the respondent has produced the Talaknama, the Court below has rightly come to the conclusion that the said Talaknama Ex.R20 is a fabricated and even the signature has not been tallied, even the Court below has by exercising the power under Section 45 has clearly made observation. In such circumstances the contention of the respondent that she has been divorced is not acceptable. He further submitted that the respondent was working in London as a Chartered Accountant and he has also produced the Visiting Card of the respondent Ex.P6 which clearly goes to show that he is working as a Chartered Accountant. He further submitted that the Court below has awarded the compensation on the lower side. On these grounds he prayed to allow the petition.
8. Per contra, the learned counsel for the respondent vehemently argued and contended that the present petition is not maintainable as the said petition has been filed only after seven years of the alleged incident. He relied upon the decision in the case of HT Media Limited and Others Vs. State (Government of NCT of Delhi) reported in (2014) 2 SCC 62. He further submitted that the complaint filed under Section 498A of IPC is still pending and there are no good grounds to come to the conclusion that there was ill- treatment and harassment by the respondent/accused. He further submitted that the petitioner is fighting over matrimonial cases by going from one Court to the another. He further submitted that she cannot be permitted to sit idle and put her burden on husband for demanding pendente lite maintenance or any other expenses. He further submitted that she is a B.com graduate and she can work and earn and she cannot be dependent upon entire amount of her husband respondent No.1. In order to substantiate his contention he relied upon the decision in the case of Smt.Mamta Jaiswal Vs. Rajesh Jaiswal reported in II (2000) DMC 170. He further submitted that immediately after he came to know the fact that the petitioner/wife is not a dutiful wife, he has given talk and he has also produced Talaknama as per Ex.R20.
He further submitted that even the mehar amount and the amount during iddat period have also been paid. He further submitted that the wife has not made out a ground to enhance the amount already awarded by the Court below. On these grounds, he prayed to dismiss the petition.
9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
10. It is not in dispute that against the order passed by the Presiding Officer and Additional Sessions Judge, Fast Track Court-III, Mayo Hall Unit, Bengaluru in Crl.A.No.25071/2014, husband-respondent No.1 herein filed Crl.R.P No.673/2016 before this Court. By the order dated 27.07.2017, this Court dismissed the said petition on the ground that the condition imposed on the husband vide order dated 24.01.2017 to deposit the amount, but the amount has not been deposited by him, that itself indicates that the petition challenged by respondent No.1 before this Court has been dismissed and the order passed in Crl.A.No.25071/2014 stood confirmed.
11. It is the contention of the wife-petitioner herein that whatever the amount which has been awarded by the First Appellate Court is on the lower side and the same is liable to be enhanced. In order to entertain the petition under Section 12 of the Act, the wife-petitioner herein has to prove the cruelty and there is domestic violence. Though, it is contended by the learned counsel for the husband-respondent No.1 that there is no domestic violence, the object behind its enactment would indicate, is to provide a civil remedy to victims of domestic violence as against the remedy in criminal law which is what is provided under Section 498-A of IPC.
12. Under the Act, the domestic violence contemplates harm or injuries that endanger the health, safety, life, limb or well-being, whether mental or physical, as well as emotional abuse. The said definition would certainly, for reasons stated above, have a close connection with Explanations (a) & (b) to Section 498-A of the Penal Code which define “cruelty”. The provisions contained in Section 498-A of the Penal Code, undoubtedly, encompass both mental as well as the physical well-being of the wife. Even the silence of the wife may have an underlying element of an emotional distress and mental agony. Her sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offences committed at the parental home where she has taken shelter. The adverse effects on the mental health in the parental home though on account of the acts committed in the matrimonial home would, in my considered view, amount to commission of cruelty within the meaning of Section 498-A at the parental home and consequently, the delay also amounts to cruelty committed in the matrimonial home under Section 12 of the Domestic Violence Act. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Rupali Devi v. State of Uttar Pradesh and others reported in (2019) 5 SCC 384 at para 5 that it has been observed as under:
“5. The above two views which the learned referring Bench had considered while making the present reference, as already noticed, were founded on the peculiar facts of the two sets of cases before the Court. It may be possible to sustain both the views in the light of the facts of the cases in which such view was rendered by this Court. What confronts the court in the present case is however different. Whether in a case where cruelty had been committed in a matrimonial home by the husband or the relatives of the husband and the wife leaves the matrimonial home and takes shelter in the parental home located at a different place, would the courts situated at the place of the parental home of the wife have jurisdiction to entertain the complaint under Section 498-A. This is in a situation where no overt act of cruelty or harassment is alleged to have been committed by the husband at the parental home where the wife had taken shelter.”
13. Keeping in view the said facts and circumstances and the law laid down in the decision cited supra, if I peruse the contents of the petition and the evidence produced in this behalf, it clearly goes to show that there was a cruelty meted out to the petitioner-wife. Be that as it may, even the appeal preferred by the respondent/husband in Crl.A.No.25071/2014 has been dismissed and against the said order, the husband has also filed Crl.R.P.No.673/2016 and the same has also been dismissed. In that light, the said findings as against respondent have reached finality. Under such circumstances, the contention of the husband-respondent No.1 that there was no cruelty and she herself left the house and he has divorced her, cannot be accepted.
14. The next contention of the learned counsel is that the present revision petition is not maintainable as the said petition has been filed after seven years and as per Section 468 of Cr.P.C., it has to be filed within one year. In order to substantiate his contention, he has relied upon the decision in the case of Sarah Mathew v. Institute of Cardio Vascular Diseases reported in (2014) 2 SCC 62 and he has referred to paragraph-50 which reads thus:
“50. Having considered the questions which arise in this reference in the light of legislative intent, authoritative pronouncements of this Court and established legal principles, we are of the opinion that Krishna Pillai will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 CrPC, primarily because in that case, this Court was dealing with Section 9 of the Child Marriage Restraint Act, 1929 which is a special Act. It specifically stated that no court shall take cognizance of any offence under the said Act after the expiry of one year from the date on which offence is alleged to have been committed. There is no reference either to Section 468 or Section 473 CrPC in that judgment. It does not refer to Sections 4 and 5 CrPC which carve out exceptions for the special Acts. This Court has not adverted to diverse aspects including the aspect that inaction on the part of the court in taking cognizance within limitation, though the complaint is filed within time may work great injustice on the complainant. Moreover, reliance place on Antulay ‘1984’ case, in or opinion, was not apt. In Antulay ‘1984’ case this Court was dealing inter alia with the contention that a private complaint is not maintainable in the Court of the Special Judge set up under Section 6 of the Criminal Law (Amendment) Act, 1952 (“the 1952 Act”). It was urged that the object underlying the 1952 Act was to provide for a more speedy trial of offences of corruption by a public servant. It was argued that if it is assumed that a private complaint is maintainable then before taking cognizance, a Special Judge will have to examine the complainant and all the witnesses as per Section 200 CrPC. He will have to postpone issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer and in cases under the Prevention of Corruption Act, 1947 by a police officer and in cases under the Prevention of Corruption Act, 1947 by police officers of designated rank for the purpose of deciding whether or not there is sufficient ground for proceeding. It was submitted that this would thwart the object of the 1952 Act which is to provide for a speedy trial. This contention was rejected by this Court holding that it is not a condition precedent to the issue of process that the court of necessity must hold the inquiry as envisaged by Section 202 CrPC or direct investigation as therein contemplated. That is matter of discretion of the court. Thus, the questions which arise in this reference were not involved in Antulay ‘1984’ case: since there, this Court was not dealing with the question of bar of limitation reflected in Section 468 CrPC at all, in our opinion, the said judgment could not have been usefully referred to in Krishna Pillai while construing provisions of Chapter XXXVI CrPC. For all these reasons, we are unable to endorse the view taken in Krishna Pillai.”
15. I have carefully and cautiously gone through the said decision. The said ratio has been laid down by the Hon’ble Apex Court while dealing with the case filed under Section 9 of the Child Marriage Restraint Act. The said Act is equivalent to the offences punishable like that of punishable under IPC and in that light, the Hon’ble Apex Court by considering Section 468 of Cr.P.C., has come to the conclusion that if the petition has been filed after the period of limitation, then under such circumstances, the said petition is not maintainable. However, the Hon’ble Apex Court in the case of Vanka Radha Manohari v. Vanka Venkata Reddy and others reported in (1993) 3 SCC 4, wherein it has been held that general rule of limitation cannot be applied in connection with offences relating to cruelty against woman. As held by me above, the present petition has been filed for alleging that there is a cruelty meted out by respondent No.1 and other respondents. Under such facts and circumstances, the contention of the respondents that the present petition is not maintainable does not hold any water. The same is liable to be rejected and accordingly it is rejected.
16. Though it is contended by the respondents that the talaq has taken place but the Court below has clearly observed the said document which has been marked as Ex.R20 as it is not reliable and it is fabricated. The said document and the signature is not tallying with each other. In that light, also the said contention is not acceptable.
17. The next question which arises for consideration is whether the petitioner-wife has made out a case to enhance the amount which has been awarded by the First Appellate Court under various heads. It is the specific contention of the petitioner-wife that now she is residing in Bengaluru. In a metropolitan city like Bengaluru, it is not possible for her to get rented accommodation for Rs.6,000/- per month and she cannot maintain herself with the monthly maintenance of Rs.6,000/- awarded by the trial Court. Nowadays in the escalated prices in order to lead a normal life by a single woman to the stations of the respondent/husband and even though she works as rightly pointed out by the respondents, she cannot enjoy with that small amount to the stations and dignity of her husband. By taking into consideration her educational qualification and other material she may get some pity job in a private firms and at the most she may earn maximum amount of Rs.10,000/- to Rs.15,000/- per month. There is no assurance of she getting a job immediately, if she gets the job, there is no security and continuation of the job permanently. Keeping in view the above said facts and circumstances and considering the cost of living in Bengaluru and the expenses of the person who wants to live a comfortable life, then under such circumstances the amount awarded by the First Appellate Court appears to be on the lower side. Respondent No.1 is working as a Chartered Accountant and earning Rs.80,000/- per month and if at all the wife of respondent No.1 has to stay, she has to stay according to the status of respondent No.1. Because, any how she being the wife and it is also contended that they belong to Nawab family that itself goes to show that the stations of living will be more than that of any other ordinary family. In that light, I feel that if an amount of Rs.10,000/- per month is awarded towards the accommodation and Rs.10,000/- is awarded towards the monthly maintenance, then under such circumstances, it is going to meet the ends of justice.
18. In so far as the medical expenses are concerned, the Court below has awarded an amount of Rs.30,000/-. Though in the petition it has been contended that Rs.40,000/- has been spent towards medical expenses, no documents have been produced to substantiate the said fact. Though it is contended by the learned counsel for the petitioner-wife that an amount of Rs.1,40,000/- has been spent towards medical expenses, without there being any material on record, I feel that it is not just and proper to enhance the amount of Rs.30,000/- towards the medical expenses awarded by the Court below. The First Appellate Court has awarded an amount of Rs.50,000/- towards legal expenses. I feel that the said amount also appears to be just and proper. In so far as the compensation of Rs.2,00,000/- awarded by the Court below is concerned, as per the decision in the case of Rupali Devi cited supra, the petitioner-wife stays in her parents’ house, but even then she will be suffering with mental cruelty and mental health in her parental house which is also going to be affected. She also suffered with urinary problems and she was advised to take pills. Under such circumstances, I feel that if an amount of Rs.6,00,000/- is awarded as a compensation, it is going to meet the ends of justice. In so far as marriage expenses are concerned, the records reveal that both have spent the amount towards marriage expenses. In that light, the amount of Rs.1,00,000/- awarded by the Court below is just and proper and the same may be confirmed.
19. In view of the above, the petition is allowed-in- part and the judgment of the Fast Tract Court III, Mayo Hall Unit, in Criminal Appeal No.25073/2014 is modified to the extent as indicated above.
20. Respondent No.1 is directed to pay the aforesaid amount from the date of petition till realization within a period of six months from today.
Sd/- JUDGE *AP/GBB