IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.183/2017 Between:
Vijaya Ramesh Varnekar S/o Ramesh Varnekar Aged about 37 years R/o No.13, Hindavadi Society Marg, Near Union Bank Belgaum-591307. ...Petitioner (By Sri S.B.Halli, Advocate) And:
Smt. Urvashi W/o Vijaya Ramesh Varnekar Aged about 30 years R/o Flat No.306 1st Phase, O-Block Platinum City Apartment HMT Road, Yashwanthapur Bengaluru-560022. ... Respondent (By Sri K.N.Jayaprakash, Advocate for Sri M.Vishwajith Rai) This Criminal Revision Petition is filed under Section 397 r/w. Section 401 of Cr.P.C., praying to set aside the judgment dated 30.12.2016 passed by the LXVII Additional City Civil and Sessions Judge, Bengaluru in Crl.A.No.1062/2015 and also judgment dated 01.07.2015 passed by the III Metropolitan Magistrate, Traffic Court, Bengaluru in Crl.Misc.No.259/2014 and etc., This Criminal Revision Petition coming on for Orders, this day, the Court made the following:
ORDER The present petition has been filed by the petitioner-husband challenging the legality and correctness of the judgment passed by LXVII Additional City Civil and Sessions Judge, Bengaluru in Criminal Appeal No.1062/2015 dated 30.12.2016 whereunder the order passed by the III Additional Metropolitan Magistrate, Traffic Court, Bengaluru in Criminal Miscellaneous No.259/2014 dated 01.07.2015 has been confirmed by dismissing the appeal.
2. I have heard the learned counsel for the petitioner-husband and the learned counsel for the respondent-wife.
3. Though this case is listed for admission, with the consent of learned counsel appearing for the parties, the same is taken up for final disposal.
4. For the purpose of convenience the parties are referred to as per the ranking before the Court below.
5. The factual matrix of the case before the Court below are that the petitioner-wife and the respondent-husband are legally wedded wife and husband and their marriage took place on 16.04.2012. Thereafter, she has started residing in the matrimonial house of the respondent-husband and she lead marital life for few months. Thereafter, the parents of respondent started ill-treating and harassing the petitioner for not bringing sufficient dowry and has totally neglected the petitioner and he never used to spend time with her. It is further contended that the respondent used to assault her in intoxication condition and used to abuse her in a filthy language and used to give both physical and mental torture to the petitioner as she has not fulfilled his demands and he was suspecting the character of the petitioner and not provided any basic necessities and she has availed the treatment in the hospital as she was unable to bare the harassment given by the respondent and his parents. It is her further contention that the respondent was having illicit relationship with another women. The said ill-treatment and harassment has been informed to her parents and brother and they came and took her to her parental house and the respondent-husband has not even made any effort to take her back. She has further contended that a criminal case has also been registered for the offence punishable under Sections 498A, 504, 323 r/w 34 of IPC. She is not having any sources of income and unable to maintain herself. It is further contended that the respondent is working as a goldsmith and earning the income more than Rs.3,50,000/- per month. Hence, she prays to allow the petition.
6. The respondent has appeared and filed his objections. He admitted the matrimonial relation and contended that she herself left the company of the respondent since 14.09.2013 and residing in her parents house. The marriage expenses have been meet out by him and his parents and all the gold ornaments are in her possession. He is earning Rs.20,000/- per month from all the sources and the marriage has never been consummated. On these grounds, he prays to dismiss the petition.
7. In order to prove the case of the petitioner, she got examined herself as PW.1 and documents were marked as Exs.P1 to P5. Thereafter, the respondent got examined himself as RW.1 and got marked Ex.R1. After considering the evidence and material placed on record, the Court below awarded the maintenance of Rs.10,000/- per month to the petitioner-wife and awarded compensation of Rs.5,00,000/- towards mental agony. Being aggrieved by the said order an appeal was preferred and the same was confirmed by dismissing the appeal.
8. The main grounds urged by the learned counsel for the petitioner is that the learned trial judge as well as the First Appellate Court have not considered the fact that the procedure as contemplated under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (herein after referred to as ‘the Act’ for short) has not been followed and the learned Magistrate has not obtained the report from the Protection Officer or the Service Provider. He further contended that the trial Court has not given any finding with regard to the act of Domestic Violence said to have been committed by the respondent. In the absence of such Domestic Violence Evidence no maintenance can be granted. But, the trial Court without taking into consideration the said aspect has wrongly granted the maintenance.
9. It is his further contention that she has admitted in her evidence that she was working in HDFC Bank and the said fact has been ignored and the Court below without looking into consideration the income of the respondent-husband has erroneously granted the maintenance on the higher side. It is his further submission that he has got the parents and the sisters to be maintained by him and that aspect has not been kept in the mind by the Court below. It is his further submission that the petitioner-wife had left the house voluntarily on 14.09.2013. Thereafter, she has started residing in her parents house and the respondent- husband has filed the petition for restitution of conjugal rights and subsequently, the same has been challenged and got transferred to Bengaluru.
10. It is his further submission that the matter is still pending. It is the further submission that a false case has been registered under Section 498A, 504, 323 r/w 34 of IPC and other arrayed Sections. It is his further contention that the Magistrate has no jurisdiction to pass such order, as the petitioner-wife is residing at Belgaum with her parents. It is his further submission that without proving the sources of income of the respondent by the petitioner, the Court below has awarded the maintenance on the higher side. He further submitted that the Court below as well as the First Appellate Court without framing the issues and giving specific findings, have passed the impugned order. On these grounds, he prays to set aside the impugned order.
11. Per contra, the learned counsel appearing on behalf of the respondent-husband vehemently argued and contended that the petitioner-wife has specifically pleaded and proved that there was ill-treatment and harassment caused to the petitioner-wife and there was a domestic violence. The Court below by considering the evidence has come to a right conclusion and the maintenance has been awarded. It is his further contention that the respondent-husband is a Jewelery shop owner and he is also getting income out of the rent and after considering the said facts Court below has awarded the maintenance. It is his further submission that till date no maintenance has been given by the respondent-husband. It is his further submission that Section 12 of the Act is not mandatory that the report of the Protection Officer or Service Provider has to be obtained. The petitioner herself can directly approach the Court of Magistrate and prove the domestic violence and after considering the said fact the Court below has awarded the maintenance. It is his further submission that prior to the marriage she has resided in Bengaluru and at the time of filing the petition she was residing in the house of her brother and as such, the petition has been filed before the learned Magistrate at Bengaluru. After considering the said fact and jurisdiction, the Court below has rightly awarded the maintenance. It is his further submission that the petitioner-wife residing in Bengaluru has not been denied by the respondent- husband. Under such circumstances, he cannot contend that the Court is not having any jurisdiction to pass such order. On these grounds, he prays to dismiss the petition by confirming the judgment of the trial Court.
12. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
13. The first and foremost contention which has been taken up by the learned counsel for the respondent-husband is that the learned Magistrate is not having any jurisdiction to pass the impugned order as she is residing permanently in Belgaum. As could be seen from Section 27 of the Act which says about the jurisdiction of the Court within the local limits of which;
(a) the person aggrieved permanently on temporarily resides or carries on business or is employed; or (b) the respondent resides or carries on business or is employed; or (c) the cause of action has arisen, 14. Then under such circumstances, both the Courts get the jurisdiction to file the said case. Admittedly, the petitioner-wife has specifically contended that she was residing along with her brother in Bengaluru and even in the petition and the appeal, the respondent has also given the address of Bengaluru and even in the present petition also she has shown the address of the respondent-wife at Bengaluru. Then under such circumstances, the learned Magistrate, Bengaluru is having a jurisdiction to entertain the said petition. In that light, the contention taken up by the learned counsel for the petitioner that the learned Magistrate has no jurisdiction to entertain the petition is not sustainable in law.
15. The second contention is that the learned Magistrate has not followed the procedure as contemplated under Section 12 of the Act. For the purpose of bravity, I quote Section 12 which reads as under:
12. Application to Magistrate.—(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or damages has been passed by any Court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.
(3) Every application under sub-section(1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
(4) the Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court.
(5) The Magistrate shall endeavour to dispose of every application made under sub- section(1) within a period of sixty days from the date of its first hearing.
16. On close reading of the said Section though it enumerates that the learned Magistrate has taken into consideration the domestic incident report received by him from the Protection Officer or Service Provider, but by going through the object of the law, there is no illegality in directly approaching the learned Magistrate for taking the cognizance of the offences in the matter and proved the domestic violence by the petitioner-wife. If the parties concerned or learned Magistrate takes the help of the Protection Officer he will submit the domestic incident report to the learned Magistrate concerned. Though the words used in the said Section ‘shall’ the choice has been left to the aggrieved person and the learned Magistrate, she can directly approach the learned Magistrate and also can approach the Protection Officer or Service Provider in case of emergency. With their help the learned Magistrate concerned can take into consideration the said aspect. If Section 12 of the Act if it is looked into, the words used in Section 12 of the Act are very material which provides a choice to the aggrieved person to approach in the above said manner either to the learned Magistrate or to the Protection Officer or the Service Provider. If the petitioner-wife approaches the Protection Officer or the Service Provider, then under such circumstances, the report has to be received from him. If the petitioner directly files the application before the learned Magistrate, then under such circumstances, the said provision will not mandate the report of the Protection Officer or the Service Provider has to be obtained.
17. Be that as it may. Even though if the said report has not been obtained it is contended by the learned counsel for the respondent-husband that it is an irregularity not a illegality. Under such circumstances the said contention is not having any force and the same is liable to be rejected.
18. The third contention which is taken by the learned counsel for the petitioner is that no specific findings have been given towards the Act of the domestic violence.
19. I have carefully and cautiously gone through the judgment of the trial Court as well as the First Appellate Court. The Court below as well as the First Appellate Court have discussed the evidence in detail and have come to a conclusion that there was ill-
treatment and harassment caused by the respondent- husband and after considering the evidence, the said findings has been given. Even as could be seen from the order of the trial Court at internal page No.6, the findings have been made and the first finding is that the petitioner has proved the domestic violence or not and thereafter, the said finding has been given partly affirmative. Accordingly, it has been answered . On what basis learned counsel for the petitioner has contended that no finding has been given towards the domestic violence has not being specifically proved is best known to him. In the absence of any contention or proof, the said contention is also not acceptable.
20. The fourth contention which has been taken up by the learned counsel for the respondent-husband is that in the absence of the proof of domestic violence wife is not entitled for maintenance. It is further contended that she was earning as such she is not entitled for maintenance. He further contended that she has admitted in her evidence that she is earning and she was working in HDFC. The Court below ought not to have awarded the maintenance.
21. As could be seen from the records and the evidence, which clearly goes to show that when there was ill-treatment and harassment said to have been caused by the respondent-husband, a case was registered in Crime No.13/2014 by Belgavi Women Police for the offence punishable under Section 498A, 504, 323 r/w 34 of IPC and a charge sheet has also been filed in the said case. Still, the said case is pending and the said fact has also been admitted by the respondent.
22. Be that as it may. Even it is evolved by the petitioner-wife that the respondent-husband and her parents used to ill-treat and harass by contending that she has not brought sufficient dowry and the respondent-husband used to suspect the fidelity of the petitioner and he used to consume alcohol and he used to assault her and in that light the Panchayat was also held in this particular behalf. Surprisingly during the course of cross-examination of PW.1 all these facts have been elicited and the case has been proved by the respondent-husband and the said facts have also not been specifically denied by the petitioner-wife. Even though it is contended by the learned counsel for the respondent that since 14.09.2013 she herself went and started to staying in the house of her parents, but she has deposed during the course of cross-examination that as and when the husband used to come and he used to talk that her character is not good and as such, she started residing in the house of her parents and brother. During the course of the evidence of the respondent, he has also clearly stated about the said facts. Under the said facts and circumstances, it cannot be held that there was no domestic violence committed by the respondent-husband. In that light, there is sufficient material to come to the conclusion that there is a domestic violence committed by the respondent- husband.
23. As could be seen from the evidence of PW.1- wife that she has not clearly admitted the fact that she is a B.Com graduate and she is working and she has specifically stated in her evidence that she has completed B.Com and she was working during 2010 as a Co-ordinator in HDFC Private Bank and she has further deposed that she has worked for two years. During the cross-examination nothing has been elicited from her to show that as on date, when she has been cross-examined till date she was working. Though it is contended by the learned counsel for the respondent- husband that he has produced additional documents by filing I.A.No.1/2019 that it shows that she is working in Naveen BKMH, but the said document neither contains any signature nor seal of the concerned Proprietor or the owner of the said Firm. In the absence of any such proof or material, it cannot be held that she is working and getting the income. Under such circumstances, it cannot be held that she is working and as such, she is not entitled to any maintenance.
24. I am conscious of the fact that if she is qualified and capable of having working capacity, then under such circumstances, the Court has to keep in mind that aspect and the said fact is also considered. But in the absence of the material that she is working, then under such circumstances that the maintenance has to be granted. No doubt, subsequently the respondent-husband is having a right to file an appropriate application, that in the event, if she gets job and earning for modification or cancellation of the said maintenance, that right has been kept open to him. But as could be seen from the evidence of RW.1 he has specifically contended in his evidence that he is working as a goldsmith and not a gold merchant and his average income never exceeded Rs.20,000/- per month. But he has also contended in the said paragraph that he has filed the income tax returns and he has produced three years income tax returns, but the said document has not been got marked. For the reasons best known to him, the same have not been produced before the Court. In the absence of the production of that document and when he has filed the income tax returns, then under such circumstances, the contention of the petitioner that he is not having any sufficient income and he is getting only Rs.20,000/- per month is not acceptable. In that light also the said contention of the learned counsel for the petitioner-wife is not sustainable in law.
25. I have carefully and cautiously gone through the order of the trial Court and judgment of the First Appellate Court. The appellate Court and the trial Court after considering the material placed on record and by taking into consideration the price index and other material had awarded an amount of Rs.10,000/- towards maintenance and an amount of Rs.5,00,000/- towards the ill-treatment and the domestic violence, I feel that the same appears to be just and proper and the said judgment does not require any interference.
26. Be that as it may. If there is a concurrent finding of both the Courts, this Court while exercising the revitional powers has got a limited jurisdiction to only entertain the petition in the case of jurisdictional error or there is no illegality in the order. On perusal of the said orders there is no illegality or a jurisdictional error. In that light also, the judgment of the Courts below does not require any interference. Hence, the petition being devoid of merits, is liable to be dismissed.
Accordingly, the criminal revision petition is dismissed.
In view of the disposal of the main criminal revision petition, I.A.No.1/19 is disposed of.
ssb Sd/- JUDGE