Sri M Devaraj Vs Smt Rathna

THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 18.09.2017 IN CRIMINAL APPEAL NO. 2 OF 2017, PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE AT CHIKKAMAGALURU, IN THE INTEREST OF JUSTICE AND ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 07.03.2025, THIS DAY ORDER WAS PRONOUNCED THEREIN, AS UNDER:

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

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C.A.V ORDER

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This petition filed under Section 397 r/w 401 Cr.P.C is

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by the husband who is respondent before the trial Court, challenging the judgment and order passed by the Sessions Court, setting aside the dismissal of petition filed by the wife under Section 12 of Protection of Women from Domestic Violence Act, 2005 ('DV Act' for short) and remanding the case for fresh disposal after making enquiry by recording evidence of the parties and also considering the application, if any filed for DNA test.

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For the sake of convenience, parties are referred to by their ranks before the trial Court.

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Petitioner/wife filed the petition under Section 12 of the DV Act seeking several reliefs, contending that her marriage with respondent took place on 24.5.1992 at Uggehalli and through the wedlock daughter is born by name Sujatha. Though initially, respondent took care of

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them, later on he started harassing and irritating them. He deprived them of food and other facilities. Though after

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Panchayat, he used to take care of them, after sometime again, he used to revert back to his previous conduct. He was suspecting her fidelity and ultimately drive them out of the matrimonial home. She is not able to maintain her self and their daughter. When he tried to marry another woman, she filed a complaint and hence the petition.

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Respondent/husband filed objections disputing the marital relationship between him and petitioner and that through their wedlock a daughter is born. Consequently, he has denied all other allegations that he used to harass and ill treat the petitioner and her daughter, deprived them of food and other facilities and ultimately he had driven them out of the matrimonial home. He has also denied that Panchayat were held. Filing of criminal complaint and consequent charge sheet is admitted. However, he is acquitted in the said criminal case, wherein it is held that the petitioner has failed to prove the marital relationship between them.

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During the enquiry, petitioner has examined her herself as PW1 and relied upon exhibit P1 to 9.

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Respondent also gave evidence as RW-1. No

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documents are marked on behalf of the respondent.

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The trial Court dismissed the petition mainly on

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the ground that in the criminal case respondent is acquitted.

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Aggrieved by the same, petitioner approached the Session Court in Crl.A.No.2/2017. It came to be allowed setting aside the impugned judgment and order of the trial Court and case was remanded to the trial Court with a direction to dispose of the same after holding enquiry and also to consider the application if any filed for DNA testing.

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Aggrieved by the same, respondent is before this Court contending that the Sessions Court has erred in holding that the findings in C.C.No.509/2009 is not binding on the trial Court, while is making enquiry under Section 12 of the DV Act. In the criminal case, a finding is given

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that the prosecution has failed to prove the relationship of husband and wife between the petitioner and respondent

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and that a daughter is born through their wedlock. There was also delay in filing the complaint. The said findings in the criminal case is binding on the parties in the petition filed under Section 12 of the DV Act. The petitioner failed to establish that she lived with the respondent and through their union a daughter is born. The Sessions Court has also erred in holding that petition under Section 12 of DV Act comes under category of petitions enumerated under Section 26(2) of DV Act and any relief available under Section 26(1) could be sought. The findings of the Sessions Court that the proceedings under Section 12 of DV Act are not purely criminal in nature, but it is a mixed civil and criminal proceedings is not correct and hence the petition.

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10. Heard arguments and perused the record.

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It is pertinent to note that petitioner filed the

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petition under Section 12 of the DV Act seeking several

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relief on the premise that she is the legally wife of respondent and a daughter is born through their wedlock. It is also relevant to note that the petition filed under

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Section 12 is in the format and apart from filling up the gaps and tick the relevant portion applicable to her, the petitioner has not come up with any additional pleadings regarding the facts. However, in C.C.No.509/2009, the respondent is prosecuted for the offence punishable and Section 498-A IPC. In support of her case, petitioner has produced certified copies of order sheet, charge sheet, the deposition of prosecution witnesses, 313 statement of accused (respondent), judgment, the petition given to the protection officer and marriage invitation card at exhibit P1 to 9.

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In her deposition in the criminal case,

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petitioner has given evidence to the effect that initially their parents were not in favour of their relationship and therefore petitioner and respondent got married by exchanging garlands in the temple and stayed together for sometime. After coming to know about the relationship, the parents of both petitioner and respondent performed their marriage. The criminal case against the respondent for the offence punishable under Section 498 IPC came to be dismissed and respondent was acquitted on the ground

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that there is no sufficient evidence to prove the allegations.

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Based upon the observations made in the said case, the trial court has dismissed the petition filed by the petitioner under Section 12 of the DV Act. It has not examined the claim of the petitioner in the light of provisions of DV Act. Having regard to the fact that the proceeding under the DV Act are not purely criminal or civil, but of mixed nature, the Sessions Court has rightly held that the trial Court has committed error in relying upon the acquittal of respondent by the criminal court and not examining the evidence placed on record and giving an independent finding.

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Having regard to the fact that under the DV Act, even a live in relationship akin to that of a marriage, entitle a woman reliefs under Section 12 of the DV Act, the trial court was required to examine the claim of the petitioner in light of the specific provision, instead of relying upon the acquittal of respondent in a criminal case, where in the prosecution is required to prove the

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allegations against the accused beyond reasonable doubt. Therefore, rightly the Sessions Court has set aside the judgment and order of the trial Court and remanded the

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case with the direction to permit the parties to lead further evidence and also to consider application if any filed by either of the parties for DNA testing. In the light of the above facts, circumstances, this Court finds no justifiable grounds to interfere with the findings of the Sessions Court.

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