IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE K.N.PHANEENDRA WRIT PETITION NO.5840/2017 (GM-RES) BETWEEN:
Sri Shashindra Rao S/o Shubhakara Rao Aged about 45 years R/a. No.602, B-Wing, Sai Radha Residency, Behind Hotel Kediyoor, Udupi Taluk and District-576 101. (By Sri Aruna Shyam M., Advocate) AND:
Mrs. Sharmilee S. Rao D/o K. Niranjan Rao Aged about 37 years R/a. Flat No.302, Rajmahal Apartments, Ballalbagh, Mangalore-575 001.
…Petitioner …Respondent (By Sri P.P. Hegde, Advocate) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India r/w Section 482 of Cr.P.C praying to quash the order dated 26.10.2016 in Criminal Appeal No.223/2014 passed by Hon’ble IV Additional District and Sessions Judge, Mangalore, Dakshina Kannada, vide Annexure-A and the order dated 1.10.2014 passed by JMFC, Mangalore vide Annexure-B and consequently allow the application filed by the petitioner under Section 25(2) of Protection of Women from Domestic Violence Act, 2005 in M.C.No.62/2009 and revoke the order dated 25.1.2010 passed in M.C.No.62/2009.
This Writ Petition coming on for Preliminary Hearing in ‘B’ Group this day, the Court made the following:
O R D E R The petitioner has filed an application under Section 25(2) of the Protection of Women from Domestic Violence Act, 2005 before the trial Court in MC No.62/2009 for revocation or cancellation of the order dated 25.01.2010. The trial Court has dismissed the said application summarily after hearing the other side and providing opportunity to the opposite party to file objections.
2. The learned counsel for the petitioner submits that he has relied upon certain changed circumstances in the said case, but without providing opportunity to the petitioner to prove the said aspect, the trial Court summarily rejected the application. Being aggrieved by the said order, the petitioner approached the IV Additional District and Sessions Judge, D.K. Mangalore, in Criminal Appeal No.223/2014 and the appellate Court also after hearing both the parties has dismissed the said application. Being aggrieved by the above said two orders the present writ petition is filed.
3. Without going to the merits and demerits of the petition it would suffice to say that, the trial Court ought to have given opportunity to the petitioner to produce any document in his custody and to establish the changed circumstances and also provide an opportunity to the other side in this regard. However, the trial Court can adopt its own mode of procedure for the purpose of considering the said application, however, adhere to the principles of natural justice.
4. Under the above said circumstances, specifically when the petitioner has claimed changed circumstances it is the duty of the trial Court to inquire into the matter and find out whether there exists any changed circumstances subsequent to the proceedings already taken place between the parties and to pass appropriate orders in accordance with law.
5. Under the above said circumstances it is just and necessary to remit the matter to the trial Court for reconsideration of the application filed by the petitioner under Section 25(2) of the Protection of Women from Domestic Violence Act, 2005. In view of the same, I proceed to pass the following ORDER 6. The order passed by the learned Magistrate, JMFC-II Court, Mangalore, on application filed by the petitioner under Section 25(2) of Protection of Women from Domestic Violence Act dated 1.10.2014 and also the order passed by the First Appellate Court in Criminal Appeal No.223/2014 on the file of IV Additional District and Sessions Judge, Mangalore are hereby set aside.
The application filed under Section 25(2) of Protection of Women from Domestic Violence Act is restored on the file of JMFC-II Court, Mangalore with a direction to provide opportunity to both the parties adhere to the principles of natural justice and dispose of the said application in accordance with law, considering after inquiry whether there exists any changed circumstances subsequent to the cases which are already disposed of by the Family Court and as well as the learned Magistrate.
The said application shall be disposed of as expeditiously as possible within three months from the date of receipt of copy of this order.
Both the parties are hereby directed to co-operate with the Court for such disposal.
The petitioner is also permitted to file appropriate application for any interim orders before the trial Court. If such application is filed, the trial Court shall dispose of the said application as expeditiously as possible.
Sd/- JUDGE ap*