Allowed

Smt G K Bhagyavathi v. Sri K Thipperudrappa

Karnataka HC1 Sept 2021CRL.RP/571/2012

Case brief

AI extract

What is this about?

This High Court allowed a criminal revision petition challenging the First Appellate Court's order reducing maintenance from Rs.5,000/ to Rs.2,000/ per month to the petitioner in a matrimonial dispute involving the wife, the husband and their children. The Court held that the First Appellate Court failed to appreciate relevant admissions regarding the children's support needs.

What did the court decide?

The impugned order reducing maintenance from Rs. 5,000/- to Rs. 2,000/- is set aside and the order of the Trial Court restoring the maintenance at Rs. 5,000/- p.m. is restored in all aspects.

Smt G K Bhagyavathi Vs Sri K Thipperudrappa — Domestic Violence | Karnataka HC (2021)

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Crl.R.P.No.571/2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF SEPTEMBER 2021

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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.571/2012

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BETWEEN :

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SMT G.K.BHAGYAVATHI W/O. K.THIPPE RUDRAPPA AGED ABOUT 58 YEARS HOUSE WIFE R/O. GOPANAHALLI VILLAGE CHALLAKERE TALUK CHITRADURGA DISTRICT – 577 522 … PETITIONER

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(BY SRI M.S.SHANKARAGULLI, ADVOCATE)

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AND :

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SRI K.THIPPE RUDRAPPA S/O. KADARAPPA AGED ABOUT 58 YEARS LECTURER R/O. NEAR R.T.O. OFFICE CHITRADURGA DISTRICT – 577 501 … RESPONDENT (BY SRI. R.SHASHIDHARA, ADV.)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 11.11.2011 IN CRIMINAL APPEAL NO.61/2011 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE AT CHITRADURGA.

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

Crl.R.P.No.571/2012

O R D E R

"Whether the First Appellate Court was justified in

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reducing the monetary relief awarded by the Trial Court to the petitioner from Rs.5,000/- to Rs.2,000/- per month?" is the question involved in this case.

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The marriage of the petitioner and the respondent was solemnized on 25.05.1989. Out of the said marriage, they have one son and two daughters who are all major now.

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The petitioner filed Crl.Misc.No.165/2009 before the Principal Civil Judge and J.M.F.C., Challakere against the respondent under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short 'D.V. Act') seeking protection order, monetary relief, right of residence etc.

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The petitioner claimed that the respondent

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was a womanizer, when that was questioned, he subjected her to physical and mental cruelty. She further alleged that ultimately he drove her out of the matrimonial house, separating from her three children.

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Crl.R.P.No.571/2012

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She also claimed that despite having sufficient means,

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he has refused to maintain her.

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5. The respondent appeared before the Trial Court and contested the petition.

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In support of her case, the petitioner got herself examined as PW.1 and her father as PW.2 and got marked Exs.P1 to P15. The respondent got himself examined that as RW.1 and got his three children examined RWs.2 to 4. The examination in chief of RWs.2 to 4 was filed by way of affidavit. The records show that the counsel for the petitioner sought to examine RWs.2 to 4 at one stretch. That was declined by the Trial Court and the witnesses were discharged. In support of his case, the respondent got marked Exs.R1 to R37.

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The Trial Court on hearing the parties by the judgment and order dated 13.06.2011 held that the allegations of infliction of domestic violence on the petitioner are proved. The Trial Court held that the respondent made uncharitable allegations of theft and

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Crl.R.P.No.571/2012

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infidelity against the petitioner, filed police complaint against her, such allegations were not proved, that itself amounts to domestic violence.

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The Trial Court further held that though RWs.2 to 4 were not cross-examined by the petitioner, in the cross-examination of RW.1, it is demonstrated that the children i.e., RWs2 to 4 are under the influence of RW.1 and therefore, their testimony cannot be given any credence. Further, the Trial Court on considering all the material on record, passed the following orders:

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(i) Restraining the respondent from committing any act of accusation, ridicule or name calling harassing of the petitioner;

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(ii) Restraining him from alienating the property standing in the name of the petitioner; and

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(iii) Awarding monetary relief at the rate of Rs.5,000/- p.m., to the petitioner and granting liberty to the petitioner to meet her children.

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The respondent challenged the said order before the Principal District and Sessions Judge,

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Crl.R.P.No.571/2012

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Chitradurga in Crl.A.No.61/2011. In that appeal, the petitioner despite service of notice did not appear. Therefore, the Sessions Court proceeded against the petitioner ex-parte.

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The first appellate Court on hearing the respondent by the impugned order upheld the finding with regard to the domestic violence, protection order, injunction order etc. However, the Sessions Court by the impugned order reduced the monetary relief from Rs.5,000/- to Rs.2,000/- on the ground that the respondent is bringing up his three children and the petitioner has income from the agricultural lands and she has no other responsibility.

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The petitioner challenges the said order in the above petition on the ground that the First Appellate Court has failed to appreciate the evidence in proper prospective. She further contends that due to her constraints she could not appear before the Appellate Court and though she had engaged a counsel, he did not appear before the First Appellate Court.

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Crl.R.P.No.571/2012

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Reiterating the grounds of the revision petition, Sri. M.S.Shankaragulli, learned counsel for the petitioner seeks restoration of the order of the Trial Court with regard to the quantum of monetary relief.

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Sri.R.Shashidhara, learned counsel for the respondent contends that wife herself was guilty of desertion. He further submits that the appellate Court taking into consideration over all evidence and situations more particularly the respondent taking care of his three children and the petitioner owning the lands, has reduced the maintenance, that order does not call for interference.

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The Trial Court by the reasoned order held that the respondent is guilty of infliction of domestic violence against the petitioner. The First Appellate Court upheld the said finding. The First Appellate Court has upheld the order of the Trial Court with regard to protection order, restraint order against alienation of the property. The respondent has not challenged those findings and orders. Therefore, the said findings have attained finality. Therefore, now in this Court it is not

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Crl.R.P.No.571/2012

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open to the respondent to contend that the wife herself was guilty of desertion or infliction of violence against him. Therefore the only question for consideration is whether the First Appellate Court was justified in reducing the monetary relief.

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Admittedly, the respondent was working as Assistant Professor in the Government College. As per Ex.P10, the salary certificate of the respondent, his monthly gross salary as on 02.11.2010 was Rs.80,830/-. The contention of the respondent was that his net salary was only Rs.38,467/-. His deductions from salary was Rs.42,363/-. Out of that, Rs.26,000/- was towards GPF contribution and Rs.11,983/- was towards LIC contribution. They were the substantial deductions. But they were not the statutory deduction. The statutory deduction from the salary was only to the extent of Rs.4,380/- i.e., towards Professional Tax and Group Insurance Scheme.

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16. Though it was contended that the petitioner

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owned the lands as shown in Exs.R1 to R3, the record of rights, the contention of the wife was that the

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Crl.R.P.No.571/2012

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respondent himself was cultivating the lands and reaping the yield. Even accepting that, the petitioner owned the lands shown in Exs.R1 to R3, no cultivation of crops is shown in Exs.R1 to R3. The very fact of the Trial Court passing order against the respondent restraining him from alienating those lands or entering into any agreement with respect to those lands shows that he held domain over those properties.

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The First Appellate Court reduced the maintenance on the ground that the respondent has taken up the responsibility of bringing up his children and looking after their studies. The respondent in para 11 of cross-examination, admitted that he belongs to Scheduled Caste and they get free education and hostel facilities under the scheme available to the said community.

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The another reasoning of the First Appellate Court for reducing the maintenance is that the petitioner is residing in her parent's house, therefore, she has no other responsibility. When it was suggested to the respondent in para 15 of his cross-examination

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Crl.R.P.No.571/2012

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that the father of the petitioner is physically challenged person, he stated that may be so. To the suggestion that her brother is mentally unsound, he expressed his ignorance.

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In para 17 of the cross-examination, the respondent admitted that he was drawing salary of Rs.80,830/- and the GPF and LIC deductions were the savings. In para 25 of his cross-examination, the respondent deposed that he requires Rs.10,000/- to Rs.15,000/- per month for his food, clothes etc., and his children need Rs.5,000/- to Rs.6,000/- per month for the same. That was sufficient to show that the minimum monetary requirement of the petitioner for her maintenance was Rs.5,000/- per month.

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The First Appellate Court overlooking such admissions of RW.1, reduced the monetary relief from Rs.5,000/- to Rs.2,000/- only on the ground that the lands are standing in her name and the respondent has responsibility of maintaining his children and the children were not cross-examined. The implication of non cross-examination of RWs.2 to 4 the children was

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Crl.R.P.No.571/2012

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wiped out by the admission of RW.1 himself that the children are under his influence and control. Therefore, the First Appellate Court should not have attached any importance to that. In the considered opinion of this Court, the First Appellate Court has failed to appreciate the evidence in a holistic manner while reversing the order of the Trial Court with regard to monetary relief. The said order is unsustainable. Therefore, the petition is allowed.

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The impugned order of the First Appellate Court reducing the maintenance from Rs.5,000/to Rs.2,000/- is hereby set aside. The order of the Trial Court is hereby restored in all aspects.

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Sd/-

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JUDGE

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Smt G K Bhagyavathi v. Sri K Thipperudrappa

Case brief

What is this about?

What did the court decide?

Smt G K Bhagyavathi v. Sri K Thipperudrappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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