IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH 2019 BEFORE THE HON’BLE Mr. JUSTICE ARAVIND KUMAR WRIT PETITION No.42838/2018 (GM-RES) C/W WRIT PETITION No.50237/2018 AND WRIT PETITION No.53608/2018 IN WRIT PETITION NO.42838/2018 Between:
Sri. Thimappa. E S/o Late Ramappa, Aged about 50 years, Executive Engineer Bellary Corporation, Mahanagara Palike, Royal Circle, Bellary – 583 101. ...Petitioner (By Sri.Sharath S.Gowda, Advocate) And:
Smt. K.Roopa W/o Sri. Thimmappa E, Aged about 40 years, R/at D.No.15, 1st Floor, III Cross, Lingappa Block, Thimmappa Garden, R.T.Nagar, Bengaluru – 560 032.
...Respondent (By Sri.Arun Bhat, Advocate) This Writ Petition is filed under Articles 226 and 227 of Constitution of India read with Section 482 of Code of Criminal Procedure praying to quash the proceedings initiated by respondent by filing petition under Section 31 of Protection of Women from Domestic Violence Act, 2005 in Miscellaneous Petition No.98/2017 pending on the file of IV Additional Metropolitan Magistrate Traffic Court, Bengaluru vide Annexure-A and etc., IN WRIT PETITION NO.50237/2018 AND WRIT PETITION NO.53608/2018 Between:
Sri. Thimappa E S/o Late Ramappa, Aged about 50 years, Executive Engineer Bellary Corporation, Mahanagara Palike, Royal Circle, Bellary – 583101. ...Petitioner (By Sri.Sharath S.Gowda, Advocate) And:
Smt. K.Roopa W/o Sri. Thimmappa E, Aged about 40 years, R/at D.No.15, 1st Floor, III Cross, Lingappa Block, Thimmappa Garden, R.T.Nagar, Bengaluru – 560032. ...Respondent (By Sri.Arun Bhat, Advocate) These Writ Petitions are filed under Articles 226 and 227 of Constitution of India read with Section 482 of Code of Criminal Procedure praying to quash the proceedings initiated by respondent by filing petition under Section 31 of Protection of Women from Domestic Violence Act, 2005 in Miscellaneous Petition No.84/2017 pending on the file of IV Additional Metropolitan Magistrate Traffic Court, Bengaluru vide Annexure-A and etc., These petitions coming on for Preliminary Hearing ‘B’ Group, this day, the Court made the following:-
ORDER Petitioner who is the husband has sought for quashing of proceedings initiated by respondent- wife in Criminal Miscellaneous Petition Nos.98/2017 and 33/2018 invoking Section 31 of Protection of Women from Domestic Violence Act, 2005. While granting an adjournment on 08/03/2019, this Court had passed the following order.
“Respondent herein had filed Crl.Misc.No.36/2011 on 29.04.2011 and it came to be allowed after adjudication by order dated 14.06.2013 directing writ petitioner herein to pay the respondent - Smt. K.Roopa Thimmappa a monthly maintenance of Rs.10,000/-. The writ petitioner was also directed to meet the educational expenses of minor son by name Chiranjivi. Being aggrieved by said order, both petitioner and respondent filed Crl.A.Nos.330 and 341 of 2013, which came to be disposed of by a common order dated 15.05.2014, whereunder, appeal filed by wife i.e., Crl.A.No.330/2013 was allowed in part and writ petitioner was directed to pay monthly maintenance of Rs.15,000/- to the respondent, apart from directing the writ petitioner to pay compensation of Rs.1,00,000/- to the respondent herein within six months from the date of the order. Said order came to be confirmed in Crl.RP.Nos.619/2014 and 625/2014 on 09.03.2016 vide Annexure-K.
For enforcing the order passed for maintenance, payment of educational expenses and compensation as ordered by the Appellate Court, respondent/wife herein has filed Crl.Misc.Nos.98/2017 and 33/2018 under Section 31 of the Protection of Women from Domestic Violence Act, 2005. For quashing of the said proceedings, these petitions have been filed.
After having heard the learned Advocates appearing for parties, it is noticed by this Court that maintenance as ordered by the trial Court and modified by the Appellate Court, writ petitioner/ husband would be required to pay maintenance to the respondent/wife. As on 28.02.2019 a sum of Rs.14,10,000/- was to be paid that is for a period of 94 months commencing from 01.07.2011 upto 28.02.2019 @ Rs.15,000/-
per month. That apart, writ petitioner was also required to pay a sum of Rs.1,00,000/- as compensation together with education expenses of minor child to be borne by the writ petitioner.
Learned counsel appearing for writ petitioner submits that maintenance has been paid and memo of calculation is filed.
Learned counsel appearing for respondent/wife admits that a sum of Rs.16,71,500/- is paid by the writ petitioner to the respondent/wife, which is inclusive of school fees and compensation ordered as on 28.02.2019 and still amounts are due.”
2. Thus, probable point for consideration that may arise before the learned trial Judge in the above said petitions relates to alleged maintenance not having been paid as ordered by the Courts. It is a matter of evidence which will had to be looked into by the learned trial Judge to arrive at a conclusion, as to whether orders passed for granting maintenance, which has since been affirmed by this Court has been paid or not? This Court in exercise of jurisdiction under Section 482 of Cr.P.C would not be in a position to evaluate the contentions raised by the learned Advocates appearing for the parties that too in absence of evidence be available on record. Hence, without expressing any opinion on merits of the claim, by directing the trial Court which is adjudicating the petitions filed by the respondent to dispose of the same by recording evidence of the parties, if necessary.
3. For the reasons aforesaid, I proceed to pass the following;
ORDER (a) Writ Petition stands disposed of in terms of observations made hereinabove.
(b) The IV Additional Metropolitan Magistrate Traffic Court, Bengaluru adjudicating Criminal Miscellaneous Petition Nos.98/2017 and 33/2018 shall dispose of the said petitions after recording of evidence of parties to ascertain as to actual amount to be paid by petitioner to respondent including the amounts paid and balance if any.
(c) All issues including the issue regarding maintainability of the petitions are kept open.
(d) It is also made clear that no coercive steps shall be taken by the trial Court till disposal of petitions, subject to petitioner continuing to comply with the order of maintenance which had passed and is in force.
In view of disposal of above writ petitions, I.A No.1/2019 does not survive for consideration, stands rejected.
SD/- JUDGE NBM