IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE Mr.JUSTICE K.N.PHANEENDRA CRIMINAL REVISION PETITION No.1250 OF 2017 BETWEEN:
Sri Rajesh.S., Aged about 36 years, Son of Shanmugam, Care of G.Sounder Rajan, No.531, Pillair Kovil Street, Periya Agamedu Village, Seduperi Post, Vellore – PIN – 632 002. ...PETITIONER (By Sri.Manohar.N., Advocate) AND:
Smt.Komala, Aged about 28 years, D/o Tanikachalam, Resident at No.11, 3rd Floor, 2nd ‘A’ Main Road, Byraveshwara Nagar, Nagarabhavi Main Road, Bengaluru – 560 072. RESPONDENT (By Sri G.M.Gadilingappa, Advocate) This Crl.RP is filed under Section 397 read with 401 of Cr.P.C. praying to quash the order dated 11.10.2017 in Crl.Misc.No.89/2017 pending before the MMTC-II, Bengaluru as not maintainable in law and to set aside the order dated 28.11.2017 passed in Crl.A.No.1494/2017 on the file of the XLV Additional City Civil and Sessions Judge, Bengaluru (CCH-46).
This Criminal Revision Petition coming on for orders, this day, the Court made the following:
O R D E R Learned counsel Sri.G.M.Gadilingappa, submits that he has already filed vakalath for the respondent. Office to show the name of Sri.G.M.Gadilingappa for the respondent. Both the counsels are present. Though this case is posted for orders with regard to office objections, in view of the urgency pleaded by the learned counsel for the petitioner and with the consent of the respondent’s counsel, the matter is heard on merits. In view of the same, office objections are over- ruled.
2. Learned counsel for the petitioner/husband strenuously contends that though the matter has been concluded upto this Court under the Domestic Violence Act, it is the specific contention that though the Trial Court has ordered for a residential accommodation in the petitioner’s house, the respondent/wife is enforcing the said order on the house of the brother of the petitioner. Therefore, that should not be allowed to continue. In this manner, he submits that the order of the Trial Court deserves to be quashed and further the order passed in Crl.A.No.1494/2017 also deserves to be quashed.
3. He also further contends before this Court that presently the petitioner is not residing in the said house and he has shifted himself to Vellore and if at all the respondent has got any right, she can go and live with her husband and ask for a separate accommodation, instead of doing so, she is at the brother’s house of the petitioner to execute the order of the Trial Court for residential accommodation as ordered by the Trial Court earlier in Crl.Misc.No.202/2011.
4. Per contra, learned counsel for the respondent submits before this Court that the respondent has already taken possession of the property by virtue of the mahazar at the spot and the same house which was allocated to her husband by her father-in-law has been taken possession off, and she has been residing there. He further submitted that, the respondent has never taken possession of the brother’s house of the petitioner at any point of time. Further added to that, the learned counsel submits that the entire proceedings have already been concluded upto this Court and the petitioner has not called in question the order passed by this Court before the Hon’ble Apex Court. Therefore, the said order is conclusive between the parties. There is no room for challenging the said order of this Court indirectly by way of this petition. Therefore, he submits that the petition filed by the petitioner before this Court is nothing but abuse of process of law. In such circumstances, he prays for dismissal of the petition.
5. As could be seen from the records, it is clear that the wife, that is, the respondent herein has filed Crl.Misc.No.202/2011 before the Metropolitan Magistrate, Traffic Court – II, Bengaluru. Vide orders dated 22nd day of May 2012, the said Court has allowed the said petition and granted several reliefs. Further, the relief granted, which is particularly in dispute before this Court in this petition reads as follows:
“The petitioner along with her minor son is at liberty to go and stay in her matrimonial home along with the Respondent No.1 in the independent accommodation provided to him by his father and in the event of stay in the said house, the respondents are hereby prohibited from committing any act of domestic violence upon the petitioner, as well prohibited from aiding or abetting any act of domestic violence upon the petitioner whatsoever.”
6. The rest of the order with regard to granting of maintenance and possession, etc., are not much in dispute before this Court. The petitioner, being aggrieved by the above said judgment has preferred an appeal before the Sessions Court under Section 29 of the Domestic Violence Act in Crl.A.No.349/2012 wherein the wife has also filed an appeal in Crl.A.No.352/2012. Clubbing both the matters, 52nd Additional City Civil and Sessions Judge, Bengaluru City (CCH-53) vide orders dated 17th day of September, 2013 has dismissed both the appeals. The order passed by the Trial Court, as noted above, with regard to the residential accommodation is not disturbed by the Appellate Court and infact that has been confirmed. The said order of the Sessions Court was also called in question before this Court by the husband in Crl.R.P.No.936/2013. Vide orders dated 20th day of February, 2017 this Court has dismissed the said revision petition confirming the judgment of the Trial Court in toto.
7. Though the learned counsel submitted that this Court has not discussed with regard to the residential accommodation allocated to the respondent herein, but it goes without saying that the Court has considered all the relevant materials as held by the Trial Court and the Appellate Court and finally found that the Trial Court and the Appellate Court have not committed any error in passing such orders and thereby, dismissed the revision petition. Therefore, it goes without saying that, the orders passed by the Trial Court and as well as the First Appellate Court are confirmed in toto as found by this Court in the above said Criminal Revision Petition. The said orders passed by this Court in Crl.R.P.No.936/2013 stands even today because the said order has not been called in question before the Apex Court. Therefore, the rights of the parties so far as this residential accommodation as ordered is concluded and the order of the Trial Court has become executable in accordance with law, if the petitioner therein wants to execute that order.
8. Under the above said factual and legal aspects, it appears, the wife has filed a petition before the Trial Court for execution of the order in Crl.Misc.No.89/2017. The Trial Court, after hearing both the parties has passed an order on 11.10.2017, directing the jurisdictional police and C.D.P.O. to provide protection to the petitioner and her minor son to stay with the respondent’s matrimonial house situated at No.20, 1st Floor, 10th Cross, Cholurpalya, Pipelane, Bengaluru. It is the said order again has been called in question in Crl.A.No.1494/2017 before the 45th Additional City Civil and Sessions Judge, Bengaluru City (CCH-46) and the learned Sessions Judge after hearing in detail has passed an order on 28th day of November 2017 dismissing the appeal filed by the petitioner/husband. Again, being not satisfied with the said proceedings, the petitioner is before this Court by way of this petition calling in question, the order passed by the Trial Court in Crl.Misc.No.89/2017 and Crl.A.No.1494/2017 on the above said grounds as noted above.
9. The order of the Trial Court granting direction to the jurisdictional police and C.D.P.O. to provide protection appears to have been executed by the police and others, by keeping the respondent herein and her minor son in the residential accommodation belongs to the petitioner, allocated by her father-in-law. Now, the question arises whether the petitioner has taken any care to provide accommodation according to the order of the Trial Court at any point of time except challenging the orders by way of various aspects of petitions by one way or the other in order to defeat the rights of the respondent to enter into matrimonial home. It is not the case of the husband that immediately after the dismissal of the case before this Court in revision petition, he made some accommodation to his wife, allocated the property which was given to him by his father as culled out in the order of the Trial Court and as well as by the Appellate Court. Even before the Trial Court, the father of the petitioner has specifically deposed that, he has given a specific house to his son, that is, the petitioner herein. The judgment of the Trial Court also discloses that separate accommodation has been provided to the petitioner. The Appellate Court also, the same observation of the Trial Court has been reiterated. That shows that, the husband who has left Bengaluru to go and reside at Vellore or any other place, it was his duty and he is bound to give that residential accommodation to his wife even without waiting for execution of such order before the Trial Court. The husband with an intention to defeat the rights of his wife has not followed the directions of the Court even though the entire proceedings has already been concluded upto this Court and the petitioner has not called in question the order passed by this Court before the Hon’ble Apex Court. On the other hand, he left the wife and the minor child in the lurch and went to Vellore, without providing or making any alternate accommodation to the wife and minor child to reside. This attitude of the petitioner is barbaric and it is against humanity and he virtually violated the basic human rights of his wife. In the circumstances, it is the contention of the wife that, she cannot go to Vellore and can stay with her husband along with her minor son. The contention of husband that wife can go to Vellore and live with him are uncalled for, such imagination is created by the husband only for the purpose of protracting the case to defeat the rights of the wife as far as possible in different modes by way of filing various petitions. Such an unscrupulous attitude of the petitioner requires to be curbed by imposing heavy penalty on him.
10. The learned counsel for the petitioner further submitted that, the wife is not willing to occupy the premises, which was given to her husband and she is making attempts to occupy the premises belonging to the brother of the petitioner. Though the learned counsel tried to give some mahazar drawn in 498-A petition but the same has not been brought to the notice of the Court below at any point of time and there was no need to this Court to consider the same. On the other hand, it is the submission of the learned counsel for the respondent that the respondent never went to the house of the brother of the petitioner and she actually occupied the premises, which was given to her husband, by her father-in-law with the help of jurisdictional police and C.D.P.O. This dispute cannot be decided by this Court, if at all, the brother of the petitioner has got any grievance, he can go against the respondent by way of filing any petition or any suit, which is known to law. On the other hand, the husband cannot question the said act of the respondent herein in occupying the premises in the house belonging to his father, which was exclusively given to the petitioner. Therefore, these two grounds, in my opinion, are not at all available to the petitioner.
11. Throughout the entire proceedings, it is clear that, the attitude of the husband is to make the minor child and the wife to run from pillar to post and his intention is to see that the order of the Trial Court, in any manner should not be fructified by the wife. Such attitude, in my opinion, as I have already stated, amounts to violation of human rights of his wife.
Hence, I am of the opinion that this petition is groundless and baseless and the same is liable to be dismissed by imposing heavy costs.
Hence, I pass the following order:
Petition is dismissed with cost of Rs.25,000/- (Rupees Twenty Five Thousand only) to be payable to the wife (Respondent No.1) before the Trial Court.
Sd/- JUDGE dh