Dismissed

Satheesha @ D.G.Nataraj v. Smt M R Kamala

Karnataka HC14 Dec 2020CRL.RP/1161/2016

Case brief

AI extract

What is this about?

High Court Criminal Revision Petition filed to challenge maintenance orders of Rs.3000/month and Rs.1500/month awarded under the Domestic Violence Act. The court upheld maintenance pending appeal discretion and dismissed the Article 125-like petition based on insufficient proof for limitation bar.

What did the court decide?

The revision petition was dismissed refusing to interfere with the impugned orders awarding maintenance.

Satheesha @ D.G.Nataraj Vs Smt M R Kamala — Domestic Violence | Karnataka HC (2020)

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Crl.R.P.No.1161/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF DECEMBER 2020

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL REVISION PETITION No.1161/2016

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BETWEEN :

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SATHEESHA @ D.G.NATARAJ S/O GANGADARAPPA AGED ABOUT 40 YEARS OCC: AGRICULTURIST R/AT D.M. KURKE KANAKATTE HOBLI ARASIKERE TALUK HASSAN DISTRICT-573 144 … PETITIONER

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(BY SRI.P.B.UMESH, ADVOCATE FOR SRI R.B. DESHPANDE, ADVOCATE)

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AND :

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SMT M.R.KAMALA W/O SATHEESHA @ D.G. NATARAJ AGED ABOUT 34 YEARS R/AT MADALU VILLAGE KANAKATTE HOBLI ARASIKERE TALUK HASSAN DISTRICT-573 144

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MANOJ

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S/O SATHEESHA @ D.G. NATARAJ AGED ABOUT 8 YEARS STUDENT REPRESENTED BY HIS NATURAL

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MOTHER SMT.KAMALA AS NATURAL GUARDIAN RESPONDENT NO.1 … RESPONDENTS

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(BY SMT. VANITHA K.R., ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 28.05.2015 PASSED BY THE ADDITIONAL CIVIL JUDGE AND J.M.F.C. COURT, ARSIKERE IN CRL.MISC.PETITION NO.444/2012 AND ORDER DATED 08.06.2016 IN CRL.A.NO.100/2015 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN.

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THIS CRIMINAL REVISION PETITION COMING ON FOR FURTHER HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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“Whether the Trial Court and the First Appellate Court committed any illegality, impropriety or incorrectness in awarding monetary relief of Rs.3,000/- per month to respondent No.1 and Rs.1,500/- per month to respondent No.2 as maintenance?” is the question involved in this case.

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Petitioner’s elder brother was respondent

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No.2, parents were respondent Nos.3 and 4 and the wife of respondent No.2 was respondent No.5 before

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the Trial Court. Petitioner was respondent No.1, respondent Nos.1 and 2 were petitioner Nos.1 and 2 before the trial Court. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the trial Court.

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The marriage of petitioner No.1 and respondent No.1 was solemnized on 09.09.2007. Out of the said wedlock, petitioner No.2 was born. Petitioner Nos.1 and 2 filed Crl.Misc.Petition No.444/2012 against respondent Nos.1 to 5 before the Additional Civil Judge and J.M.F.C., Arsikere under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘ D.V. Act’) alleging that respondent No.1, his brother, parents and co-sister subjected her to domestic violence in connection with their unlawful demand for dowry.

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Petitioner No.1 alleged that on 07.02.2012 respondent No.1 assaulted her, attempted to strangulate and kill her. That forced her to file a

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police complaint and take shelter in her parental house, along with her child. She alleged that respondent No.1 was having illicit relationship with respondent No.5. Petitioner No.1 contended that respondent No.1 despite having sufficient income has failed and neglected to maintain her and her child and thus sought protection order, monetary relief etc.

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The respondents denied the allegations of the domestic violence or any unlawful demand. They claimed that petitioner No.1 was insisting respondent No.1 to take his share in the family properties and to separate from the family and when that was not heeded she has filed the false case. They denied the allegations of they neglecting the petitioners.

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The Trial Court secured the report of the protection officer as per Ex.P1. The parties adduced evidence. The Trial Court on hearing both side held that the domestic violence by respondent No.1 was proved by the oral evidence of petitioner No.1 and

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Exs.P2, P8 and P9 the FIR in Crime No.22/2012 of Arasikere Rural Police Station, medical records and the Wound Certificate.

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Relying on the oral evidence and Exs.P10 to 20 - the RTC Extracts, the Trial Court held that respondent No.1 despite having sufficient means has neglected to maintain the petitioners and thus by the impugned order awarded maintenance of Rs.3,000/per month to petitioner No.1 and Rs.1,500/- per month to petitioner No.2. Before the Trial Court petitioners did not press their petition against respondents 2 to 5. Therefore, the petition against them was disposed as not pressed.

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Aggrieved by the said order, respondent No.1 preferred Crl.A.No.100/2015 under Section 29 of the D.V. Act before the V Additional District and Sessions Court, Hassan. The First Appellate Court by the impugned order confirming the order of the Trial Court dismissed the appeal. Therefore,

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respondent No.1 has preferred the above revision petition.

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representing the husband seeks to assail the impugned order on the following grounds:

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(i) In the proceedings initiated on the basis of the FIR – Ex.P2 alleging cruelty and dowry harassment respondent No.1 was acquitted;

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(ii) Petitioner No.1 herself was guilty of desertion;

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(iii) The maintenance awarded is on higher side; and

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(iv) The petition was barred by limitation by virtue of Section 31 of the D.V. Act.

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Per contra, Smt. Vanitha, learned counsel representing the aggrieved persons seeks to justify the impugned orders of the Courts below on the following grounds:

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(i) Section 31of the Act is not applicable to the

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petition under Section 12 of the Act;

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(ii) The infliction of domestic violence was proved by cogent evidence;

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The relationship between the parties was not disputed. It was also not disputed that the petitioners were living separately from respondent No.1 since filing of compliant in Crime No.22/2012. The only question was whether respondent No.1 subjected the petitioners to domestic violence.

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The Trial Court and the First Appellate Court relied on the oral evidence of petitioner-PW.1 and her father PW.2 and other two witnesses PWs.3 and 4 and held that PW.2 being the father, PW.3 being the worker in the house of PW.2 and PW.4 being the elderly person who mediated in the marriage negotiation their evidence was natural.

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13. The Wound Certificate, complaint and

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First Information Report showed that at the earliest point of time petitioner No.1 was taken to the hospital with the history of the assault by respondent No.1 and there were injuries on the left wrist, head, chest, back and based on her complaint, the police has registered the FIR as per Ex.P2. Therefore, courts below rightly held that the evidence shows that petitioner No.1 was subjected to domestic violence.

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Though respondent No.1 examined seven witnesses referring to the evidence of RWs.2 to 7, the Trial Court held that they were not the inmates of the shared household of respondent No.1, therefore, they had no occasion to know what was going on in the house of the parties. The trial Court further refers to their admission that they had no personal knowledge whether there was any

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ill-treatment by respondent No.1 and his family members to petitioner No.1.

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Though it was argued before this Court that respondent No.1 was acquitted in the criminal proceedings initiated under Section 498-A IPC etc., the copy of the said judgment was not produced before this Court or the First Appellate Court. Therefore, this Court has no opportunity to find out whether the alleged acquittal was an honorable acquittal or they were acquitted giving the benefit of doubt. Apart from that, the degree of proof required in a criminal trial and in the domestic violence case is not one and the same.

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As rightly pointed out by the Trial Court and the First Appellate Court regarding the incident dated 07.02.2012, at the earliest point of time petitioner No.1 was taken to the hospital with the history of the assault by respondent No.1 and injuries were found on her body. The said injuries

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occurred when she was living in the house of the respondents. Respondent No.1 has no explanation for those injuries.

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The conduct of respondent No.1 is also note worthy. He did not initiate any proceedings against the wife seeking restitution of conjugal rights or for the custody of the child.

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Further, the Trial Court relied upon the domestic violence report - Ex.P1 submitted by the protection officer where a finding was given that the wife was subjected to domestic violence. That corroborated the other evidence on record.

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Having regard to the aforesaid facts and circumstances, this Court does not find any perversity, illegality or impropriety in the findings of the Trial Court and the First Appellate Court that respondent No.1 subjected petitioner No.1 to domestic violence.

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Then the next question is whether the maintenance awarded by the Trial Court and the First Appellate Court is on the higher side.

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To substantiate their case, the petitioners relied on Ex.P10 to 20 - the RTC Extracts. Those records show that around 10 acres of land was standing in the name of the father of respondent No.1.

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Respondent No.1 himself contended before the Trial Court that himself, his father and brother were living in the joint family. It was also admitted that respondent No.1 and his brother were the only children of their father. Therefore, the trial Court held that respondent No.1 has 1/3^rd share in those lands and they were cultivating coconuts and have income from that.

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Respondent No.1 admitted that since the time of filing of FIR, the petitioners were residing in

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the parental house of petitioner No.1. He also admitted that there was a partition between him and his other family members and he had not looked after his wife and son since they started residing in her parental house. Considering that the Trial Court held that he had sufficient means to maintain his wife and child.

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The child was two years old. Having regard to the prevailent cost of living, by no stretch of imagination it could be said that the maintenance at the rate of Rs.3,000/- per month and Rs.1,500/- per month was exorbitant.

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As per the counsel for the husband, Section 468(2)(b) of the Criminal Procedure Code bars the Court from taking cognizance if the offence alleged is punishable with imprisonment not exceeding one year. Referring to Section 31 of the D.V. Act, he submits that the breach of protection order carries imprisonment upto one year and

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Section 28 of the D.V. Act makes Criminal Procedure

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Code applicable, therefore, the petition was time barred.

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In support of his contentions he relied

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upon the following unreported judgments of this Court:

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(i) J. Srinivas v/s G.Dhanalakshmi¹

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(ii) Gurudev and another v/s Jayashree² .

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Per contra Smt.Vanitha K.R. relied upon the judgment of the Allahabad High Court in

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Akhilesh Kumar Singh and Others v/s State of U.P.

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and Others D.D. dated 20.12.2017.

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Section 31 of the D.V.Act reads as follows:

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“31. Penalty for breach of protection order by respondent.-(1) A breach of protection order , or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year , or with fine which may extend to twenty thousand rupees, or with both.

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1 Crl.P.No.2419/2009 D.D. 05.04.2013

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2 Crl.P.No.11476/2013 D.D. 08.01.2014

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(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who has passed the order, the breach of which has been alleged to have been caused by the accused.

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(3) While framing charges under subsection (1), the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.”

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(Emphasis supplied)

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Section 31 refers to only to a breach of

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protection order passed by the protection officer or an order passed on an application under Section 12 of the Act. Therefore, Section 31 applies only to the enforcement proceedings and not to the proceedings under Section 12 of the Act. Therefore, this Court is not persuaded to hold that Section 31 applies to the proceedings under Section 12 of the D.V. Act also.

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30. Even otherwise in this case the petition

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was filed on the very next day of the domestic violence incident. Therefore, absolutely there is no

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merit in the contention that the petition was barred

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by time.

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