IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Mr. JUSTICE B.A. PATIL Crl.R.P. No. 407/2014 BETWEEN :
Sri. Srinivas S/o. Hanumanthappa @ Pillappa Aged about 51 years R/a. No. 24/1, 1st Floor, 1st Cross, Annajappa Block, Benson Town Bangalore – 560 046. … PETITIONER (By Sri. G. Papi Reddy, Adv.) AND :
Smt. Manjulamma W/o. Srinivas Aged about 46 yeas R/a. No. 27, New No. 27/5 Postal No. 35 Anjaneyaswamy Block Munimarappa Garden K.G. Byadarahalli J.C. Nagar, Benson Town Post Bangalore – 560 046. … RESPONDENT (By Sri. N. Vagessh, Adv.,) This Crl.R.P. is filed under Section 397 Cr.P.C. with a prayer to set aside the order dated 22.04.2014 passed by the P.O., FTC-VIII, Bangalore in Crl.A. No. 45/2013 and etc.
This Crl.R.P. coming on for Orders this day, the Court passed the following;
O R D E R The present revision petition has been filed by the petitioner-husband assailing the judgment passed by the Fast Tack Court – VIII, Bengaluru in criminal Appeal No. 45/2013 dated 22.04.2014 confirming the order passed by the Court of Metropolitan Magistrate, Traffic Court V, Bengaluru in Crl. Misc. No. 25/2011 dated 13.12.2012.
2. I have heard the learned counsel for the petitioner – husband and the learned counsel for the respondent – wife.
3. Before going to consider the submissions made by the learned counsel for the parties, for the purpose of brevity, I want to put forth the facts of the case as contended by the parties before the Courts below.
4. It is an admitted fact that the petitioner – husband and respondent – wife are legally wedded and their marriage was solemnized on 16.03.1981. Out of the wed lock the respondent - wife gave birth to a female child and now, that child has also been given in marriage. It is the case of the respondent - wife that the petitioner - husband in lieu of settlement, had given a house property and he also used to pay maintenance of Rs.1,000/- per month and subsequently the same was enhanced up to Rs.5,000/- per month. The respondent – wife has stated that such maintenance was paid upto the year 2009 and thereafter, the petitioner – husband has stopped payment of maintenance. Aggrieved by the same the respondent – wife had filed petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short hereinafter referred to as the D.V. Act). Said application was contested by admitting the relationship. It was contended in the objection statement that the respondent - wife is a adamant lady, is having uncooperative attitude and was not having any respect and regard and she started residing separately. As per the advice of the elders the matter has been settled and a property has been given in favour of the respondent – wife and that includes the maintenance also. It is the further case of the petitioner – husband that earlier petition was filed under Section 125 Cr.P.C. seeking maintenance before the Family Court, Bangalore and subsequently the said petition was withdrawn. Now the respondent- wife has filed the petition under Section 12 of the D.V. Act claiming maintenance and as such the said petition is not maintainable and is liable to be dismissed.
5. In order to substantiate her case the respondent – wife got herself examined as P.W.1 and got marked Ex.P.1 to Ex.P.9. The petitioner – husband got himself examined as R.W.1 and got marked Ex.R1 to Ex.R.4. After hearing both the sides the Court below has awarded a sum of Rs.4,000/- as maintenance. Assailing the same the petitioner – husband preferred an appeal in Crl.A. No. 45/2013 and the same was also dismissed by confirming the order of the trial Court.
6. It is the submission of the learned counsel for the petitioner - husband that in view of the settlement entered into between the petitioner - husband and respondent – wife a property has been given and after some time the property has been demolished by the respondent – wife and she constructed a house and that she has also let out the said house and she is getting rent of Rs.10,000/- per month and she is also doing tailoring business. As such, the respondent - wife is having sufficient means to maintain herself and in that light she is not entitled to any maintenance. It is his further submission that the said application has been filed after 27 years of living separately and a deed of settlement has been entered in this behalf. He further submitted that there is no domestic violence as contended by the respondent - wife. So when once there is no domestic violence, the respondent - wife is not entitled for any maintenance. He further submitted that maintenance which has been awarded is also on the higher side. On these grounds the petitioner prayed to allow the petition and set aside the impugned orders passed by the Court below.
7. Per contra learned counsel appearing on behalf of the respondent - wife vehemently argued that the marriage is not in dispute and even the settlement arrived at as per Ex.P.1 is also not in dispute. Under Ex.P.1 a house property was given and thereafter petitioner – husband used to pay Rs.1,000/- per month as maintenance and thereafter it was enhanced to Rs.5,000/- per month. Further, the maintenance was paid up to the year 2009 and thereafter the petitioner – husband stopped paying maintenance and as such a petition came to be filed claiming maintenance. The trial Court after considering the admissions made by the parties and the material on record, has come to a right conclusion and has awarded maintenance of Rs.4,000/- per month. The petitioner – husband has not made out any good grounds to interfere with the order of the trial Court. On these grounds he preferred to dismiss the petition.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
9. On close consideration of the submissions of the learned counsel for the parties and the records, the first submission of the learned counsel for the petitioner is that there is no domestic violence as contemplated under the D.V. Act and as such the provisions of the said Act are not applicable and hence, the respondent – wife is not entitled for any maintenance.
10. In order to clarify the fact whether there is domestic violence or not, we have to go through the provisions of the said Act and Section 3 of the Act reads as under:
Sec. 3. Definition of domestic violence.—For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it.— (a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or (d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I.—For the purposes of this section,— I. “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
II. “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
III. “verbal and emotional abuse” includes.— (a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and (b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
IV. “economic abuse” includes— (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court of otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and (c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
Explanation II. — For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this Section, the overall facts and circumstances of the case shall be taken into consideration.
11. On close reading of the said provision it is clear that if there is any omission or commission or conduct of the husband that constitutes domestic violence, then under such circumstances it amounts to domestic violence and he can be held liable under the said Act.
12. In the instant case as could be seen from the records and evidence of P.W.1, the respondent – wife has deposed before the trial Court that a house property was given to her. After living together for some time, the petitioner – husband got married another woman and thereafter she and the second wife lived for some time and thereafter it was not possible for her to live with the second wife – Smt. Sarojamma and as such the elders settled the matter and a separate house has been given to her through settlement deed as per Ex.P.1. The said document is not in dispute. It is the further case of the respondent – wife that the petitioner – husband used to pay Rs.1,000/- per month as maintenance and thereafter it was enhanced to Rs.5,000/- and during 2009 he stopped paying said maintenance. Hence, the respondent – wife had no income and the maintenance amount was also not paid by the petitioner – husband and as such, she filed a petition. In the cross-examination of the respondent – wife it has been elicited that when she was residing separately, the petitioner – husband used to pay maintenance of Rs.1,000/- per month and thereafter he was paying Rs.5,000/- per month till the year 2009 and the said amount used to be paid in cash and there is no document for having paid the said amount. Even it has been elicited in her cross- examination that there is no document pertaining to payment of maintenance. Even though it was suggested during the course of cross-examination that after Ex.P.1 the petitioner – husband was not paying any maintenance, the said suggestion has been denied. It was also suggested that because of the income from house property in the form of rent the respondent - wife was not in need of money and the said suggestion has been denied. It is not in dispute that out of the wedlock they gave birth to a female child and the respondent – wife performed the marriage of the said child and the petitioner – husband had not made any contribution at the time of her marriage also. A close reading of these material clearly goes to show that there is omission on the part of the petitioner, he has not paid the maintenance and he got married for the second time when the first marriage was in subsistence. Under such circumstances the provisions of Section 3 of D.V. Act are attracted and it definitely falls within the definition of domestic violence. The trial Court in detail discussed the said aspect and thereafter has come to a right conclusion that there is domestic violence and as such the petition is maintainable. In my considered view the submission made by the learned counsel for the petitioner – husband that there is no domestic violence and the respondent – wife resided for 27 years without any maintenance and hence the provisions of the D.V. Act are not applicable is not having any force and as such the same is liable to be rejected and accordingly it is rejected.
13. It is the further case of the petitioner – husband that in view of settlement entered into as per Ex.P.1 he is not bound to pay any maintenance. As could be seen from Ex.P.1 a house property was given for the residence of respondent – wife. In the said document there is no whisper of any word with regard to settlement of maintenance. If the said document is silent and evidence produced goes to show that after the deed at Ex.P.1 petitioner – husband was paying maintenance amount of Rs.1,000/- and subsequently it has been enhanced to Rs.5,000/-, then it clearly goes to show the intention of the parties that even after the document executed as per Ex.P.1, maintenance was paid by the petitioner – husband and it clarifies the fact that under the said deed, Ex.P.1 maintenance has not been settled and separate maintenance used to be paid. Under these facts and circumstances the said contention also does not survive for consideration and the same is rejected.
14. The last contention taken up by the learned counsel for the petitioner is that after the settlement deed a property has been given to the respondent – wife and thereafter she demolished the said property and constructed 3 floor building and she is also doing tailoring business and she has got sufficient income including rent of Rs.10,000/- per month to maintain herself. In order to substantiate the said contention no document has been produced or no evidence has been let in. In the absence of such material on record this Court cannot infer that the respondent – wife is getting rent of Rs.10,000/- per month from the said property and she is also getting income from her tailoring work. During the course of cross- examination she has admitted that she is having a sewing machine, for some time she was doing tailoring work and subsequently she has stopped tailoring work and now she is not doing the tailoring work. The respondent – wife has further deposed that the petitioner has not paid the marriage expenses of her daughter also. Thus, looking from any angle the contention taken up by the learned counsel for the petitioner that she was having income is not acceptable. In this behalf I have carefully and cautiously gone through the order of the trial Court and the judgment of the first appellate Court. The trial Court after considering the facts and material on record has awarded a sum of Rs.4,000/- per month as maintenance and the same has been appreciated by the first appellate Court and has confirmed the same. A close reading of both the orders indicates that there is no perversity or illegality in the said orders calling for interference in the hands of this Court and they are liable to be confirmed. Accordingly, the revision petition is dismissed as devoid of merits.
15. In view of the petition having been dismissed on merits, I.A. No. 1/2019 does not survive. Hence, rejected.
Sd/- JUDGE.
LRS.