Partly allowed

K. H. Umashankar v. Smt. R. Chandrakala

Karnataka HC12 Dec 2023CRL.P/6348/2017

Case brief

AI extract

What is this about?

In a criminal petition under Section 482 CrPC, the Bench held that domestic violence proceedings cannot be quashed. It directed the domestic violence court to reconsider interim maintenance in light of a higher monthly order from the Family Court.

What did the court decide?

The challenge to the DV proceedings was rejected. The interim maintenance order in the DV case was set aside to allow reconsideration in light of the Family Court's higher maintenance order.

K. H. Umashankar Vs Smt. R. Chandrakala — Domestic Violence | Karnataka HC (2023)

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NC: 2023:KHC:45225 CRL.P No. 6348 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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CRIMINAL PETITION NO. 6348 OF 2017

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BETWEEN:

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K.H.UMASHANKAR S/O. LATE VADALUR HUCHANNA, AGED ABOUT 45 YEARS, R/O. NO.1319/A, III CROSS, T. DASARAHALLI, BANGALORE-560 057.

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SMT. CHOWDAMMA W/O. LATE VADALUR HUCHANNA, AGED ABOUT 70 YEARS

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SMT. K.H. SAVITHRAMMA, D/O. LATE VADALUR HUCHANNA, AGED ABOUT 48 YEARS,

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PRESENTLY BOTH PETITIONERS 2 AND 3 ARE RESIDENTS OF KALLUR VILLAGE, GUBBI TALUK, TUMKUR DISTRICT.

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PETITIONERS

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Digitally signed by SUMA Location: High Court of Karnataka

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(BY SRI. MONESH KUMAR K.B., ADVOCATE FOR SMT. VIJETHA R NAIK, ADVOCATE FOR PETITIONER NO.1; VIDE ORDER DATED 26.08.2022 PETITION AGAINST PETITIONER NO.2 STANDS ABATED)

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AND:

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SMT. R. CHANDRAKALA W/O. K.H. UMASHANKAR, AGED ABOUT 34 YEARS, R/O. NO.50, 1^ST MAIN, REVANA SIDDESHWARA NILAYA, BALAJI ENCLAVE, KAIROBANAHALLI, NAGASANDRA POST, YESHWANTHPURA HOBLI, BANGALORE-560 073.

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RESPONDENT

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(BY SMT. P.V. KALPANA, ADVOCATE FOR SMT. NIRMALA KRISHNA, ADVOCATE)

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THIS CRL.P IS FILED U/S 482 OF THE CR.P.C, 1973 PRAYING TO QUASH THE PROCEEDINGS INITIATED BY THE RESPONDENT U/S 12 OF PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, ON THE FILE OF THE LEARNED MMTC-III, BANGALORE IN CRL.MISC.NO.81/2017 BY ALLOWING THIS PETITION & ETC.

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NC: 2023:KHC:45225 CRL.P No. 6348 of 2017

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner has challenged the proceedings initiated by the respondent in C.Misc.No.81/2017 on the file of Metropolitan Magistrate, Traffic Court III, Bengaluru, (henceforth referred to as ‘domestic violence court’) under Section 12 of the Protection of Women from the Domestic Violence Act, 2005.

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The respondent initiated the aforesaid

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proceedings for the following reliefs:

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a) Pass an order of Protection as per Sec.2 and 3 of the Domestic Violence Act directing the Respondents from any act, omission or commission or conduct of the Respondents shall constitute domestic violence on the petitioner.

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b) Sec. 17 of the right to reside in a shared household property: To direct the first Respondent not to evict or exclude from the shared household property or any part of it except in accordance with the procedure established by law.

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c) Sec. 18 of the Protection of women Domestic Violence Act directing the Respondents

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from committing or abetting any act of domestic violence on the petitioner.

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d) For Residence Order U/S 19 of the Protection of Women from Domestic Violence Act directing the first Respondent to facilitate residence of petitioner-wife in respect of said house schedule property which has been purchased from the dowry. She has a legitimate/rightful, legal and equitable interest in joint/shared household OR to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared house property or to pay 50% of the market value of joint house property for the petitioners.

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e) For Monetary Reliefs U/S 20: Direction the first Respondent to pay the petitioner a monthly maintenance of Rs.1,00,000/- (Rupees One Lakhs Only) per month OR in the alternative, to pay the petitioner the one time lump-sum amount of Rs.1,00,00,000/- (Rupees One Crores Only) AND damages of the loss caused due to the removal of schedule property from the control of the petitioner AND to direct the first Respondent to pay the medical expenses during the abortion which has been paid by her father.

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f) Issue direction U/S 20 to the first Respondent for compensation: of an amount of Rs.20,00,000/- (Rupees Twenty Lakhs Only) as

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damages/compensation for the mental agony, torture, suffering etc., caused by the acts of domestic violence committed by the Respondents against the petitioner.

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g) Direction the first Respondent to pay the Rs.60,000/- for litigation expenses.

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h) Direct the first Respondent and his family to pay back the Dowry of Rs.1,50,000/(Rupees One Lakh Fifty Thousand Only) to the petitioner.

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i) Direct the first Respondent to pay the Marriage expenses of Rs.3,00,000/- (Rupees Three Lakhs Only) to the first petitioner.

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j) Direct the first Respondent to return all her gold valuables and Silver articles worth of Rs.1,34,000/(Rupees One Lakh Thirty Four Thousand Only) which has been snatched from the petitioner.

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k) Direct the Respondent No.1 to pay the abortion expenses of Rs.1,00,000/- (Rupees One Lakhs Only) Medical expenses to the petitioner.

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The respondent claimed that she was the wife

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of the petitioner and that within one year from the date of marriage, the petitioner demanded more dowry and

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started harassing and torturing her physically. Therefore, on her first marriage anniversary, her father paid a sum of Rs.1,00,000/- to the petitioner to purchase a property. She alleged that the petitioner purchased a property bearing House No.1319/A, khatha No:1437 situated at 3^rd Cross, II Main, T. Dasarahalli, Bengaluru, from the dowry and other contributions made by her father. Later during the year 2000-2002, the petitioner constructed a house over the property with the help of her family members. She alleged that the petitioner was concentrating more on the construction of the house than on her health which resulted in she aborting a pregnancy. She alleged that the petitioner constructed a three storied building over the property, which comprised of six houses and two shops. While, the petitioner and respondent lived in a portion, the other portions were leased out to tenants. She claimed that the petitioner was employed at Hindustan Aeronautics Limited and was drawing a salary of Rs.1,00,000/- per month. Apart from this, she alleged that the petitioner owned properties at his native place and was getting a

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rent of sum of Rs.50,000/- per month. She claimed that the petitioner was finding fault in each and every act and was harassing her physically and mentally, which caused hardship, agony and a sense of insecurity. Though she again became pregnant, but due to the harassment caused, she suffered another abortion. She alleged that the petitioner used to beat her up for no reason and whenever, the cooker whistle went off or the almirah door creaked, he used to get irritated and used to beat her up. She alleged that on 14.11.2008, when her mother went to invite them for the Sathyanarayana Pooja, one of their relatives raised the issue of an extra marital affair of the petitioner with a minor girl. When she questioned the petitioner, he threatened her, which resulted in severe mental agony and great mental shock to her. After her mother left the house, the petitioner again caused her physical and mental injury. She claimed that in respect of harassment meted out to her, she filed C.Misc.No.206/2009 before the II Additional Family Court (henceforth referred to as ‘Family Court’) and sought for

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an interim injunction that the petitioner should not again marry.

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She claimed that after the intervention of the well

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wishers and the local police, the petitioner agreed to accept her back and look after her well. Nonetheless, she alleged that, the mental and physical harassment continued and her mother-in-law took away all her jewels and kept it in her custody. She also alleged that the petitioner threw her out of the matrimonial home and threatened to kill her, if she ever tried to come back. Therefore, she was forced to take shelter at her parent's house in the year 2012. She claimed that despite several attempts for reconciliation, the petitioner did not show any interest. However, the petitioner had married another girl by name Sri. Asha Rani. Y. S. She claimed that the petitioner never paid any money for her maintenance, but thereafter, he filed a petition for divorce in M.C. No. 3756/2010, which was dismissed on 11.01.2012. He again filed M.C.No.3312/2012 for restitution of conjugal rights so

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as to avoid payment of maintenance. She claimed that she initiated proceedings in C.Misc.No.206/2009 before the Family Court and sought for interim maintenance and the Court in terms of an order dated 25.07.2012 directed the petitioner to pay a sum of Rs.3,000/- per month. She claimed that the petitioner has not paid the maintenance

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as ordered by the Court and thereafter, she filed a Revision Petition in RPFC. No 82/2013 against the order dated 25.07.2012 and that the Revisional Court had set aside the order and remanded back to the family court for fresh consideration. After remand the family court allowed the C.Misc.No.206/2009 and again enhanced the maintenance to a sum of Rs.15,000/- per month and also awarded a sum of Rs.10,000 towards litigation expenses. She claimed that though the petitioner had substantial source of income, he did not pay the maintenance awarded and therefore, she sought for the aforesaid reliefs.

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During the pendency of the proceeding in

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C.Misc.No.81/2017, the domestic violence court entertained an application for interim maintenance and vide order dated 25.07.2017 awarded a sum of Rs.6,000/per month as maintenance to the respondent.

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Being aggrieved by the initiation of proceedings against the petitioner, this petition is filed, contending that there was no cause of action for the respondent to initiate proceedings under the Domestic Violence Act, 2005. It is also contended that the respondent is instrumental in bringing about several proceedings before various Courts and also claiming maintenance in all those proceedings.

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The learned counsel for the petitioner contended that a sum of Rs.3,000/- per month which was initially ordered by the Family Court in C.Misc. No.206/2009 was subsequently enhanced to a sum of Rs.15,000/- per month. However, without bringing this to the notice of the domestic violence Court, the respondent sought for interim maintenance. The domestic violence

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court without considering the grant of maintenance at a sum of Rs.15,000/- per month, again granted a sum of Rs.6,000/- per month as interim maintenance to the respondent. He therefore, contended that the proceedings against the petitioner deserves to be quashed.

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Per contra, the learned counsel for the

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respondent submits that the question whether the petitioner had committed acts of domestic violence, is a matter of fact that has to be established before the Domestic Violence Court and therefore, this Court cannot exercise jurisdiction under Section 482 of Criminal Procedure Code to quash the proceedings. In so far as the interim maintenance of Rs.6,000/- per month awarded by the domestic violence Court, she contends that the Family Court in C.Misc.No.206/2009 had awarded a sum of Rs.3,000/- per month as maintenance and the same came to be enhanced to a sum of Rs.15,000/- per month in terms of the order dated 10.11.2017. She therefore contended that the order granting interim maintenance of

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Rs.6,000/- per month in the domestic violence case was passed on 23.05.2017 and hence, there was no occasion for the respondent to bring it to the notice of the Domestic Violence Court about the maintenance of Rs.15,000/- per month awarded by the Family Court. She therefore, contends that there was no error apparent on the face of record warranting interference by this Court.

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I have considered the submissions made by the learned counsel for the petitioner as well as the learned counsel for the respondent.

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The fact that the petitioner and the respondent are husband and wife is not much in dispute. It is also not in dispute that the petitioner had filed a petition for dissolution of marriage, which was dismissed and thereafter he followed it up by filing a petition for restitution of conjugal rights. The said petition was withdrawn unconditionally by the petitioner. It is also not in dispute that the respondent is not residing with the petitioner but she is residing with her parents. The

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respondent had initiated proceedings under Section 125 of Criminal procedure Code for grant of maintenance before the Family Court, Bengaluru, where the Court had ordered a sum of Rs.3,000/- per month as interim maintenance. Later, the Family Court granted maintenance of Rs.15,000/- per month .

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Having regard to the nature of the allegations made by the respondent against the petitioner, and the consequent reliefs sought by her before the Domestic Violence Court, this Court cannot exercise jurisdiction under Section 482 of Cr.P.C. to quash the proceedings initiated by the respondent against the petitioner. However in so far as the maintenance of Rs.6,000/- awarded by the Domestic Violence Court, in terms of the order dated 25.07.2017 is concerned, it is necessary to note that by the time this order was passed, there was no order of the Family court in force, directing the petitioner to pay maintenance. The order of the Family Court granting Rs.15,000/- per month was passed on 10.11.2017. Thus

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effectively, the respondent is entitled to Rs.21,000/- per month as maintenance. If only the Domestic Violence Court in C.Misc.No.81/2017 knew about the pending claim for maintenance in C.Misc.No.206/2009, it would have appropriately factored the maintenance. Likewise, the Family Court was oblivious of the maintenance awarded by the Domestic Violence Court in C.Misc.No.81/2017. The respondent cannot be allowed to benefit from this lapse. Therefore, the only relief to which the petitioner is entitled to is reconsideration of the request of the respondent for maintenance before the Domestic Violence Court.

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In that view of the matter the petition is allowed-in-part. The challenge to the proceedings initiated by the respondent in C.Misc.No.81/2017 before the Metropolitan Magistrate Traffic Court III, Bengaluru is rejected.

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However, the Domestic Violence Court is directed to reconsider the grant of interim maintenance to the respondent in the light of the fact that the Family

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Court in C.Misc.No.206/2009 had granted maintenance of Rs.15,000/- per month. Thus, the impugned order dated 23.05.2017 passed by Metropolitan Magistrate, Traffic Court III, Bengaluru in C.Misc.No.81/2017 granting a sum of Rs.6,000/- per month as interim maintenance to the respondent is set aside and the Domestic Violence Court is directed to reconsider the question regarding grant of interim maintenance to the respondent, in view of the observations made above.

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Sd/JUDGE

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PHM/HJ List No.: 1 Sl No.: 17

K. H. Umashankar v. Smt. R. Chandrakala

Case brief

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K. H. Umashankar v. Smt. R. Chandrakala

Case brief

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