Sri L Nithyananda Vs Shyamala K C

THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE ORDER DATED 04.01.2023 PASSED IN CR.MISC.NO.177/2015 PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C., SOMWARPET AND THE JUDGMENT DATED 03.07.2023 PASSED IN CRL.A.NO.15/2023 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU, MADIKERI AND CONSEQUENTLY, DISMISS THE CR.MISC.NO.177/2015 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND J.M.F.C, SOMWARPET.

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THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MS JUSTICE J.M.KHAZI

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ORAL ORDER

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This is husband's petition, challenging judgment and

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order passed by the trial Court under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short 'DV Act') granting maintenance at the rate of Rs.15,000/- per month, which came to be confirmed by the Sessions Court by dismissing the appeal filed by him.

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For the sake of convenience, parties are

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referred to by their ranks before the trial Court.

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Petitioner/wife filed a petition under Section 12 of the DV Act, seeking several relief, including maintenance, contending that the marriage between her and respondent No.1 was a love marriage and it was also registered. However, later she came to know that respondent actually represented her to be belonging to Vokkaliga Caste, whereas he belong to schedule caste. Since he is a bank employee in Shanivarasante Corporation Bank, he worked at Sakaleshpura, Bhagamandala, Udupi, Bilagi of Bagalkote, Delhi, Mumbai and Chiplan.

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3.1 Within six months of the marriage, he started causing physical and mental harassment to the petitioner under the influence of alcohol. He was instigated by respondent Nos.2 and 3. They did not beget any children and on medical examination, it was found that defect was with the respondent No.1. He is also having illicit

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relationship with several women. Despite several complaints to the concerned police, things did not improve. He was forcing her to give divorce. Ultimately, on the instigation of respondent Nos.2 and 3, respondent No.1 left the petitioner in her matrimonial home on 15.02.2015 at Mangaluru. He has also forcedly snatched away her gold ornaments. Respondent No.1 is having several properties, including residential houses at Mysuru, Mandya, a site at Chottanahalli of Malavalli and agriculture land totally worth Rs.6 to 8 crores. He was drawing salary of Rs.90,000/- per month. Respondent No.2 retired as Chief Engineer in KEB and after retirement, he is getting pension of Rs.40,000/- per month. Petitioner is not having any property or income of her own.

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4. Respondents filed objections admitting that

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respondent No.1 is bank employee and they belong to schedule caste. They have admitted that the marriage between petitioner and respondent No.1 was love marriage and it is registered and after the marriage,

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petitioner and respondent No.1 stayed together at different places of transfer, but denied that respondent No.1 faslely represented that he belongs to Vokkaliga caste. They have denied that respondent No.1 under the influence of alcohol used to cause physical and mental harassment to the petitioner and also for not begetting children. At every place of his posting, petitioner was unnecessarily doubting respondent No.1 and indulged in character assassination among his colleagues. Petitioner's brother, who is an advocate has forcibly taken an undertaking from respondent No.1. When respondent No.1 did not agree to pay Rs.5 lakhs to the petitioner for establishing a beauty parlour, she quarreled with him and caused harassment.

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4.1 Petitioner never took care of respondent No.1 and used to give threat of filing criminal cases against respondents. She also refused to take the second child of her sister Komala in adoption when she was in coma and quarreled. Petitioner used to suspect respondent No.1

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having illicit relationship with every colleague who called him over phone. She used to abuse respondents referring to the caste. When respondent was not in the house, with the help of her brother, she broke the house at Delhi and transported all the household articles, including gold ornaments to Mumbai. Ultimately, she refused to join respondent No.1. The mother of petitioner is getting pension of Rs.10,000–12,000/- per month. Her brother is earning more than Rs.2 lakhs per month. The income of respondent No.1 is not sufficient for the maintenance and medical expenses of respondent and pray to reject the petition.

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In support of her petition, petitioner has given

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evidence as PW-1 and relied upon Exs.P1 to 42.

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On behalf of respondents, respondent Nos.1

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and 3 are examined as RWs-1 and 2 and Ex.R1 is marked.

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The trial Court partly allowed the petition

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against respondent No.1 granting maintenance at the rate of Rs.15,000/- per month with litigation expenses of Rs.10,000/-. Petitioner’s prayer for other reliefs was rejected.

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Respondent No.1 challenged the said order in Crl.A.No.15/2023. It came to be rejected.

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Aggrieved by the same respondent No.1 has filed this petition contending that the impugned judgment and orders are vexatious and arbitrary. The Courts below have failed to appreciate the evidence in its right perspective and as such it is perverse. Only on the basis of complaint filed by the petitioner, the Court below have come to a wrong conclusion that respondent No.1 was having illicit relationship with several women. Despite observing in the previous paragraphs that mere production

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of photographs would not be sufficient to establish such allegation, this conclusion has no basis. The Courts below

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have erred in holding that respondent No.1 has failed and neglected to maintain the petitioner though all along he was ready and willing to take the petitioner. Being tutored by her brother who conducted her case, petitioner was not ready and willing to go back with the respondent No.1. Petitioner is a beautician and she is also an orchestra singer and having sufficient income of her own and this fact is not appreciated by the Courts below and hence the petition.

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Heard arguments and perused the record.

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The relationship between the parties is not in dispute. It is also not in dispute that the marriage between petitioner and respondent No.1 was a love marriage and while petitioner belongs to Vokkaliga Caste respondents belong to Schedule Caste. Petitioner has alleged that respondent No.1 falsely represented that he also belongs to Vokkaliga Caste and only after the marriage she came to know that respondents belong to Schedule Caste. However, it has come in the evidence of

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petitioner that their houses were situated in the same area separated by two cross roads and since more than one year, they were in affair before they got married. Such being the case, it is hard to believe that petitioner was not aware of the caste of respondents and she was misled by respondent No.1. During the cross-examination, petitioner has admitted that when her parents came to know about her decision to marry respondent No.1, they objected mainly on the ground that respondent belong to Scheduled Caste. Such being the case, the contention of petitioner that respondent No.1 misrepresented her as belonging to Vokkaliga and made her to marry him, appears to be an afterthought for the purpose of maintaining this petition.

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The evidence led by both parties clearly indicate that petitioner and respondent No.1 could not bear children. For this, they have put blame on each other. There is also allegation on the part of respondents that on account of they belonging to Scheduled Caste, the treatment of petitioner with them was not as expected and

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she used to go to the extent of abusing respondents referring to their Caste. Though whenever respondent No.1 being a bank employee was transferred to different places, she has accompanied him, however, throughout she has made allegations against him and filed complaints. From the evidence placed on record, it is evident that it has reached such a stage that it became irreversible and ultimately petitioner left the matrimonial home and started living with her brother.

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Though petitioner has made an allegation that respondent No.1 relieved of her gold ornaments worth Rs.6 lakhs given by her grandmother, on detailed analysis of the evidence, the trial Court as well as the Sessions Court held that she has failed to prove that her grandmother had given her gold ornaments worth Rs.6 lakhs and that respondent No.1 has forcefully taken them away.

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Since the petitioner and respondent No.1 are not living together, as the husband he is having the responsibility to take care of her. Respondent No.1 has claimed that petitioner is a beautician and also an orchestra singer, he has failed to prove the said fact and that she is having income of her own. In the above facts and circumstances, taking into account the income of the respondent and also his other responsibilities, the grant of maintenance at the rate of Rs.15,000/- per month is just and reasonable. In fact, petitioner has not challenged the same.

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However, learned counsel for respondent No.1 submitted that in fact respondent No.1 is also not having any grievance with regard to the quantum of maintenance granted to the petitioner. However, he is aggrieved by the fact that despite in the previous paragraphs the trial court held that petitioner has failed to establish that respondent No.1 is having illicit relationship with other women, at page-29, para-37, the trial Court has grossly erred in

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making an observation that petitioner has proved the said allegation. The Sessions Court has also blindly accepted the said observation and pray to set aside the observation made by the trial Court.

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In order to prove the allegations that

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respondent No.1 was having illicit relationship with many women, including one Bhavana Rajput, the petitioner has relied upon Photographs at Exs.P10 to 17, 36 and 37. The trial Court has rightly held that these photographs do not prove the said allegation. Ex.P9 is stated to be a love letter written by respondent No.1 to said Bhavana Rajput. This document does not bear the signature of respondent No.1 and the petitioner has also failed to prove that it is in his handwriting. Ex.P35 is an X-ray sheet with the photographs of a woman and her name is stated to be Shobha Nithyananda. The petitioner has relied upon this photograph to say that respondent No.1 was having illicit relationship with Shobha Nithyananda. As rightly held by the trial Court, the petitionher is not having an explanation

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as to how on the X-ray sheet photograph of the woman is forthcoming. Moreover petitioner has not explained how she came across this document.

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Of course in the 3 complaints given by

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petitioner against the respondent, there are allegations that he is having illicit relationship with other women. After making the observations on the documents relied upon by the petitioner, that they are not sufficient to prove the said allegations, at para-37, page 29, the trial Court suddenly made an observation that the said complaints prove the allegation of illicit relationship of respondent No.1 with other women. Except the selfserving statement of petitioner, there is no evidence to establish the said allegations made in the petition, her evidence as well as in these documents. In the absence of proof of the contents, there is no sufficient evidence to establish this allegation. Therefore, the findings of the trial Court that petitioner has proved that respondent No.1 was

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having illicit relationship with other women is liable to be set aside.

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However, as held by the trial Court and affirmed

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by the Sessions Court, since the petitioner is not having income of her own to maintain herself, respondent No.1 is liable to pay the maintenance. In the result, though the order granting maintenance is affirmed, the observation made and findings given by the trial Court and affirmed by the Sessions Court that respondent No.1 had illicit relationship with other women is liable to be set aside and accordingly the following:

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ORDER

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Petition filed by the accused under Section 397 r/w Section 401 Cr.P.C is allowed in part.

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The Order dated 04.02.3034 in Crl.Misc.No.177/2015 on the file of

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Prl.Civil Judge and JMFC, Somwarpet and judgment and order dated 03.07.2023 in

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Crl.A.No.15/2023 on the file of I Addl.District and Sessions Judge, Kodagu at Madikeri, granting maintenance and litigation expenses passed by the trial Court is confirmed.

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However, the observation made by the trial Court as well as the Sessions Court that respondent No.1/husband is having illicit relationship with other women is set aside.

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The Registry is directed to send back the trial court as well as Sessions Court records along with copy of this order forthwith.

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Sd/(J.M.KHAZI) JUDGE

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RR

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List No.: 1 Sl No.: 49

Sri L Nithyananda v. Shyamala K C

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Sri L Nithyananda v. Shyamala K C

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