Mr.Naseer Humayun Vs Smt.Seema Anjum

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, UNDER SECTION 482 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DTD. 06.12.2024 PASSED BY THE COURT OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSORE IN CRL.A NO. 203/2024 WHILE RESTORING THE ORDER DTD. 19.04.2024 IN CRL.MISC.NO. 220/2020 OF THE HONBLE V JMFC, MYSORE.

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

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CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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This petition by the respondent, in Crl.A.No.203/2024, is directed against the impugned order dated 06.12.2024 passed by the V Additional District and Sessions Judge, Mysore, whereby said appeal filed by the respondent under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘PWDV Act’) was allowed by the Sessions Judge.

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Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.

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A perusal of the material on record would indicate that the respondent, who is none other than the wife of the petitioner, instituted proceedings in C.Misc.45/2015 against the petitioner under Section of the 12 of the Domestic Violence Act of 2005 (Act No.43 of 2005). The petitioner has entered appearance and is contesting the said proceedings and after trial, at the stage of final argument, respondent filed an application seeking amendment of the main petition by seeking enhancement to the compensation claimed by her from Rs.2

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crore to Rs.5 crore. The said application having been opposed by the petitioner-husband, the trial Court passed an order dated 19.04.2024 rejecting the application. Aggrieved by the said order, the respondent filed an appeal in Crl.A.No.203/2024, which was allowed vide impugned judgment dated 06.12.2024, thereby permitting amendment by holding as under:

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“The Appellant being the petitioner before the Trial Court, being aggrieved by the order passed by the V JMFC., Mysuru in Crl. Mis. 220/2020 filed U/s 13 of the Domestic Violence Act 2005, has preferred this appeal and prays to set aside the order dated: 19.04.2024 by allowing the appeal.

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2. The rank of the parties is being referred to as referred before the trial court for the sake of convenience.

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3. The Appellant herein was the petitioner before the Trial Court. The Respondent herein was the respondent before the Trial Court. The Trial Court rejected the application filed U/s 13 of Domestic Violence Act. It is against the said order, the present appeal is preferred by the petitioner.

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4. The case of the Appellant in brief is that:

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At the time filing of the petitioner compensation sought by the petitioner under different heads was crystallized at Rs.2 Crores. In view of the escalation in costs, increase in prices of properties, commodities etc., advancing of the age of the petitioner, it is essential to seek for enhancement of the compensation from Rs.2 Crores to Rs.5 Crores. In this regard the capacity of the respondent is so far as the financial status, social status and relevant aspects are taken into consideration in seeking for such enhancement. The proposed amendment will not change the nature of the proceedings or alter the cause of action. With all these contentions prays to allow the application.

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5. On the other hand, the learned counsel for respondent filed objections stating that, the present application is not maintainable either in law or on facts, the application is misconceived and untenable under law. The grounds urged for the claim of enhancement of compensation from Rs.2 Crores to Rs.5 Crores are baseless and untenable in law. The proposed amendment does not relate to a simple infirmity but exposes the greedy nature of the petitioner to harass the respondent. The proposed amendment if allowed would cause serious prejudice to the case already pleaded by the respondent. It has come in the course of evidence that the parties

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have hardly stayed together or shared residence. When the petitioner has not made out a case for grant of compensation already claimed, the question of enhancement of the same does not arise at all. With all these contentions prays to dismiss the application with costs.

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6. Highly aggrieved with the impugned order of the trial court, the present respondent has preferred this appeal on the following grounds:

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1. It is submitted that the impugned order is unsustainable since the Trial Court has not considered the reasoning made out by the Appellant in support of her application along with the pleadings, facts, documents and grounds urged by the Appellant herein in support of her Application. The Trial Court erred in passing the Impugned order without applying its mind as contemplated under the Act.

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2. The Trial Court failed to appreciate the history of the case and the conduct of the Respondent that the proceedings of Crl. Mis. No.45/2015 were stayed at the behest of the Respondent and thereafter the case was renumbered as Crl. Mis. No.220/2020, thus causing substantial delay and harassment to

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the Appellant. This serves as a form of harassment to the Appellant, adding to her distress and delaying her access to justice and redressal of her grievances. The conduct of Respondent has set as a concerning precedent that undermines the expeditious and fair resolution of disputes under the Protection of Women from Domestic Violence Act, 2005. The Trial Court has failed to appreciate the fact that the application of the Appellant was as a result of these compelling circumstances and escalating costs. The Trial Court dismissed the Appellant's application for the amendment of the prayer column for enhancement of compensation from Rs.2 Crores to Rs.5 Crores without considering the same. This dismissal, it is contended, did not sufficiently consider the escalating costs and increased prices of properties which justified amendment. Hence the impugned order is liable to be reversed.

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3. Misinterpretation of the Appellant's Intentions:

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The Trial Court's observations imply a misjudged perception of the Appellant's intentions, branding it as an act of greed rather than a legitimate claim for adequate compensation in light of the changed

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circumstances since the original filing is unjust. Hence the impugned order is liable to be reversed.

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4. Reliance on Precedents: The Learned Trial Judge has failed to appreciate the Judgment of the Hon'ble Supreme Court in the case of Kunapareddy alias Nookala Shanka Balaji Vs Kunapareddy Swarna Kumari and Anr. Reported in Criminal Appeal No.(s) 516/2016 (arising out of SLP (Crl.) No. 1537 of 2016), in the proper perspective, considering the fact that, the Hon'ble Supreme Court has clearly held that, amendment and incorporation of additional prayers in proceedings under Domestic Violence Act. Interpreting it in a manner that may not fully apply to the specific circumstances and request of the Appellant for amendment solely for compensation enhancement. In this back drop the impugned order is erroneous and liable to be reversed and requires the kind intervention of this Court.

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5. Applicability of Domestic Violence Act, Section 22: It is contended that the Appellant's request for enhanced compensation is legitimately grounded in the provisions of Section 22 of the Domestic

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Violence Act, given the alleged domestic violence and the subsequent emotional distress and mental torture suffered by the petitioner. The Trial Court has failed to appreciate the same. Hence the impugned order is liable to be reversed.

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6. The learned Trial Judge has arrived at a conclusion that "Petitioner is entitle for compensation only if she proves that, she was subjected to Domestic Violence in the hands of the Respondent" It is further held that "the concept the compensation comes only if Domestic Violence is proved". With these observations the application dismissed. These observations came to be are totally erroneous considering the fact that the Appellant has merely sought for amendment of the prayer and not for grant of compensation as sought for in the amendment application.

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7. The learned Trail Judge has failed to appreciate the fact that the Respondent herein has been protracting the proceedings under various pretexts and further the Interlocutory Applications filed by the Appellant herein have been pending since the year 2020. The same has led to escalation of cost of living.

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8. The learned Trial Judge has failed to appreciate that delay by itself cannot be a criteria to dismiss the application as such an opinion would come in the way of delivery of justice.

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9. The impugned order passed by the Trial Judge is opposed to the facts of the case, probabilities of the case and the provisions of Law.

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10. The impugned order amounts to miscarriage of justice. In any view of the matter the impugned Order as per Annexure-E is unsustainable and thus, is not justified as the same is erroneous.

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11. The impugned order is otherwise opposed to law and is liable to be set aside.

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12. The Appellant may be permitted to urge additional grounds in support of her case at the time of arguments.

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13. The impugned order is passed on 19-042024, copy applied on 20-04-2024 and delivered on 02-05-2024 and hence the present appeal being preferred on this day is in time.

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Hence, prayed to set aside the order dated 19.04.2024 passed in Crl. Misc. No. 220/2020 on the file of V JMFC... Mysuru of the trial court.

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7. Heard both sides.

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8. In the light of above materials and contentions of the appellant, following points raised for consideration;

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1. Whether the impugned order dated 19.04.2024 passed in Crl. Misc. No.220/2020 on the file of V JMFC., Mysuru, is incorrect, illegal and improper?

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2. Whether the order dated 19.04.2024 passed in Crl.Misc. No.220/2020 on the file of the V JMFC., Mysuru, do call for interference of this court?

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3. What order?

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9. Findings of this court to the aforesaid points is:

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Point No.1 In the affirmative Point No.2 In the affirmative Point No.3 As per the final order for the following:

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REASONS

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POINT No.1 and 2:-

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10. The appellant herein assailed order dated 19.4.2024 in Crl.Mis.No.220/2020 on the file of V JMFC, Mysuru. The appellant herein is the petitioner and respondent herein is the opponent/respondent in Crl. Mis.No.220/2020.

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11. The appellant herein has filed application for amendment of the petition. The court by impugned order dismissed the application. Aggrieved by the impugned order, the present appeal is preferred.

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12. The appellant/petitioner filed application U/s.12 of PWDV Act seeking reliefs. The said application is opposed by the respondent. The matter is tried by the trial court and the matter is set for arguments. At that stage, the petitioner/appellant maintained application for amendment of petition seeking amendment of the petition with respect to compensation from Rs.2 crore to 5 crore. The appellant urged in the application that, in view of the escalation in costs, increase in prices of properties, commodities etc., it is ONR necessary to seek for enhancement of compensation from Rs.2 crore to 5 crore. It is also urged that the capacity of the respondent in so far as the financial status, social

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status and relevant aspects are taken into consideration while seeking enhancement. It is also stated that, the nature of the proceedings will not change and there is no alteration in the cause of action. With these, petitioner/appellant seeks amendment of the petition.

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13. The application of the appellant was countered by the respondent by filing objection. It is contended by the respondent that the guidelines applicable for allowing amendments in a civil case can also be applied in D.V.case. The proposed amendment does not relate to a simple infirmity but exposes the greedy nature of the petitioner to harass the respondent. The amendment if allowed would cause serious prejudice to the case. It is further contended that, the grounds urged for amendment are baseless and untenable in law. It is important that the petitioner has to establish the acts of Domestic Violence. But, the petitioner has miserably failed to establish any kind of domestic violence. It is clear from the evidence that the parties have hardly stayed in the shared house. The petitioner has not made out a case for grant of compensation already claimed. Hence, there is no question of enhancement of the further compensation. The case is long pending case and the application is hit by inordinate

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delay. With these respondent seeks to dismiss the application.

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14. After hearing the arguments of both sides and giving thoughtful consideration to the material on record, it reveals that the petitioner/appellant herein filed application U/5.12 of D.V.Act seeking number of reliefs. Same is challenged by the respondent. After the evidence, the matter is set for argument. At this stage, the present application is filed by the petitioner. There are number of facts, allegations and grounds are putforth by both the sides. If the scope of this appeal is considered, the trial court has passed the order dismissing the application of the appellant rejecting prayer for amendment of the petition. Now this court has look into the correctness and legality of the order. Hence, the details of the case with regard to the other aspects involved in the case are not necessary to be discussed and commented upon.

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15. The petitioner/appellant has initially filed the petition seeking for compensation U/s.22 of PWDV Act for Rs.2 crore. Now by way of this amendment, the appellant seeks to enhance compensation from Rs.2 crore to 5 crore and in respect of that, she seeks amendment of the petition. The issue involved here in this appeal is, whether the appellant is entitle for the relief of

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seeking amendment to the petition or not. The other issue is whether the trial court is proper and rejecting her prayer of amendment.

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16. Counsel for the petitioner/appellant has argued and put up many facts with regard to the case and in respect of the application. It is argued that the petitioner herein is seeking amendment to the petition to amend petition in respect of compensation from Rs.2 crore to Rs.5 crore. The said amendment will not affect the nature of the petition. Even it is argued that the petitioner herein is simply seeking for amendment to the petition. However, the court in its discretion can order after appreciating the evidence on record. But at this stage, the petitioner/appellant is only seeks amendment, which in no way affects the respondent and his case.

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17. On the other hand, the senior counsel for the respondent put up arguments that the said amendment cannot be allowed. He also put up many facts with regard to the present case including the merits of the case. In respect of the present application in question, he argues that the order of the trial court is proper and correct. The appellant/petitioner has to first establish that there is a domestic violence, after that, only she is entitle for reliefs including the compensation. The relief is subject to proving of the allegations of domestic

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violence. He emphasize on the provision of the D.V.Act and pointed that in the present case, the petitioner/appellant has failed to substantiate the allegation. When she is not entitle for the compensation, there is no question of seeking enhancement from Rs.2 crore to Rs.5 crore. It is also argued by the respondent that the amendment itself shows her greedy nature. The grounds urged are not justifiable to grant relief and allow amendment. Hence, on these grounds seeks to dismiss the application.

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18. It is pertinent to note that, the petitioner/appellant seeks to amend the petition. Though the counsel for the respondent has pointed out that the appellant has to establish the Domestic Violence then only she is entitle for the compensation, it is to be appreciated that the nature of the application and the prayer sought in the same. In the application it is sought to amend the petition in respect of the compensation from Rs.2 crore to Rs.5 crore. It is to be appreciated that, even this amendment is allowed the court by weighing the evidence on record can grant reasonable, justifiable compensation. Only the amendment is sought from Rs.2 crore to Rs.5 crore that does not mean that the court has to grant Rs.5 crore compensation. It is after appreciation of the evidence and facts and on

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law the court in its wisdom and discretion can grant proper and appropriate relief.

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19. The trial court in order to support its order has relied upon the observation of authority in Ramesh Vs. Navaneetha and observed that in that case, the Hon'ble High Court has observed that the Domestic Violence has to be proved for seeking of compensation. It is to be appreciated that the observation of the Hon'ble High Court is in respect of granting relief after proving of those Domestic Violence. The trial court here has come to conclusion that only after proving the domestic violence, the appellant is entitle for the relief. The court has missed the link that the present application is only for amendment. The court after appreciating the evidence with regard to proving of domestic violence can grant any relief. The stage is premature to come to conclusion that, whether Domestic Violence is caused or not. The court after considering all the facts and circumstances, appreciating the evidence and hearing the arguments on both the sides can come to conclusion, whether the domestic violence is caused or not and whether the appellant/petitioner is entitle for reasonable, justifiable compensation including the other reliefs. But only because amendment is sought, it is not necessary domestic violence to be proved. It is not pre-condition for

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seeking amendment that domestic violence has to be proved. This observation of the trial court is not correct and correct.

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20. Now, in respect of amendment to the petition, the observation of the trial court, while rejecting the application is that, petitioner is entitle for compensation only if she proves that she is subjected to domestic violence in the hands of respondent. But, there is no observation by the trial court with regard to whether the appellant is entitle for relief of amendment to the petition. The reason for rejecting the amendment application as per trial court is that, the petitioner is entitle for relief of compensation only if she prove the domestic violence. But, the trial court has not assigned any reason why the amendment is not necessary to the petition, why the petitioner is not permitted to amend the petition. The reason assigned by the trial court is not in consonance with the relief prayed in the application for amendment.

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The reason assigned by the trial court comes to into picture. While considering the petition of the petitioner on merit, that whether the petitioner is entitle for compensation or not subject to proving of domestic violence. But, here the trial court has assigned the very same reason for rejection of

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amendment, which has no relevancy for rejection of the application. As stated earlier the trial court has not assigned any reason as to why there is no necessity for amendment and the petitioner is not permitted to amend the petition. At the end of the day its only amendment to the petition and not the relief granted to the petitioner, which is subject to result of the petition. Now the point to be appreciated is that, whether the amendment can be carried out in respect of the petition under D.V.Act. In this regard, counsel for the petitioner has relied upon the authority. Even before the trial court he has relied upon the judgment of Hon'ble Apex Court Kunapareddy @Nookala Shanka Balaji Vs. Kunapareddy Swarna Kumari and Anr. Reported in Crl.A.No.(S) 516/2016. The very same authority is placed before this court also to substantiate his argument. This court has gone through the judgment of the Hon'ble Apex Court. The Hon'ble Apex Court has held as under:

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“We understood in this backdrop, it cannot be said that the court dealing with the application under DV Act has no power and/or jurisdiction to allow the amendment of the said application. If the amendment becomes necessary in view of subsequent events (escalation of prices in the instant

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case) or to avoid multiplicity of litigation, Court will the have power to permit such an amendment. It is said that procedure is the handmaid of justice and is to come to the aid of the justice rather than defeating it. It is nobody's case that respondent no. 1 was not entitled to file another application claiming the reliefs which she sought to include in the pending application by way of amendment. If that be so, we see no reason, why the applicant be not allowed to incorporate this amendment in the pending application rather than filing a separate application. It is not that there is a complete ban/bar of amendment in the complaints in criminal courts which are governed by the Code, though undoubtedly such power to allow the amendment has to be exercised sparingly and with caution under limited circumstances. The pronouncement on this is contained in the recent judgment of this court in S.R.Sukumar Vs. S. Sunaad Raghuram (2015) 9 SCC 609 in the following paras:

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"17. Insofar as merits of the contention regarding allowing is true that there is of amendment application, it no

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specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the Courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints. In U.P Pollution Control Board Vs Modi Distillery And Ors., (1987) 3 SCC 684, wherein the name of the company was wrongly mentioned in the complaint that is, instead of Modi Industries Ltd. The name of the company was mentioned as Modi Distillery and the name was sought to be amended. In such factual background, this court has held as follows:-

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“…The learned Single Judge has focused his attention only on the [pic] technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments Contained in para 2 of the complaint so as to make the

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controlling company of the industrial unit figure as the concerned accused in the complaint. All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Modi Industries Limited, the company owning the industrial unit, in place of Modi Distillery .... Furthermore, the legal infirmity is of such a nature which could be easily cured."

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18. What is discernible from the U.P. Pollution Control Board's case is that easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the Court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by a formal

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amendment or if there is likelihood of prejudice to the other side, then the court shall not allow such amendment in the complaint.

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19. In this context, provisions of Sub-Section (2) of Section 28 of the DV Act gain significance. Whereas proceedings under certain sections of the Dv Act as specified in sub-Section (1) of Section 28 are to be governed by the Code, the Legislature at the same time incorporated the provision like sub-section (2) as well which empowers the Court to law down its own procedure for disposal of the application under Section 12 or Sec.23(2) of the D V Act.

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This provision has been incorporated by the Legislature keeping a definite purpose in mind. Under Section 12, an application can be made to a Magistrate by an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person to claim one or more reliefs under the said act. Section 23 deals with the power of Magistrate to grant interim and exparte orders and sub-section (2) of Section 23 is a special provision

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carved out in this behalf which is as follows:-

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"(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of that the viesonce, he may grant an exparte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 of, as the case may be, section 22 against the respondent."

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If the observation of Hon'ble Apex Court if carefully appreciated, it has categorically laid down that the court has power and jurisdiction to allow the amendment application. If the amendment becomes necessary in view of subsequent event such as escalation of prices or to avoid multiplicity of litigations, there is no complete ban or bar of amendment in the complaints in criminal courts. As per the observation of the Hon'ble Apex Court amendment to the petition can be allowed, if the amendment is necessary. It has categorically stated there is no bar or ban of amendment in the complaints in the criminal courts. Such being the

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case, there is no reason why the amendment cannot be allowed to be carried out by the petitioner to the petition in this case.

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21. As stated earlier, the reason for rejection of amendment by the trial court is not justifiable. It seems the court has misread the observation of Hon'ble Apex Court. The trial court has observed in its impugned order that, in the case before the Hon'ble Apex Court petitioner has sought amendment of entire prayer and was intended to amend additional prayer. But in the present case, petitioner is seeking only amendment of hike in the compensation. This observation of the trial court is not correct. It is to be appreciated that the Hon'ble Apex Court has laid down that amendment to the petition can be allowed, if the amendment is necessary in view of the subsequent event. The Hon'ble Apex Court has specifically stated the nature of issue involved in that case where it has in the judgment in a bracket specifically stated escalation of prices in the instant case that means in the subsequent event the amendment can be allowed. Whether the part of the prayer or additional prayer or entire prayer it does not make any difference for amendment. Amendment is to the petition including additional prayer or amendment to the prayer or entire prayer the Hon'ble Apex Court has not

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specified, differentiated or classified that particular portion of the petition or particular prayer has to be amended. It has not stated anything in its judgment. The Hon'ble Apex Court observed that the trial court has a power to allow the amendment. Such being the observation of the Hon'ble Apex Court, the observation of the trial court in the impugned order differentiating the entire prayer, additional prayer and amendment to the prayer is not proper and correct.

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22. As such, as observed earlier, only because the amendment is allowed and the petition is amended, it does not automatically gives conclusion that the petitioner is entitle for relief to an enhanced compensation of Rs.5 crore. The court after appreciation of material on record has to come proper conclusion and has to granting reasonable, justifiable relief in accordance with law. Hence, if the amendment is allowed that will not affect the respondent as the petitioner has to substantiate domestic violence to get any amount of compensation either 2 crore or 5 crore, subject to proof of the same, she is entitle for relief. The said amendment has to be allowed. The observation of the trial court is not proper and correct as discussed above. Hence, there is a need to interfere with the order of the trial court. The appellant has made out

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grounds to allow the appeal and to set aside the impugned order. Accordingly, the impugned order is set aside. The amendment application filed by the appellant is hereby allowed. Accordingly, point No.1 and 2 held in affirmative.

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Point No.3:

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23. In view of the foregoing discussion, I proceed to pass the following:

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ORDER

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The appeal filed by the appellant U/s 29 of PWDV Act, 2005 is hereby allowed.

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The impugned order dated 19.04.2024 passed in Crl.Mis. No.220/2020 on the file of V JMFC, Mysuru, is hereby set aside.

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Application for amendment filed by the petitioner/appellant is hereby allowed.

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Appellant/petitioner is permitted to amend the petition as prayed in the amendment application.

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Send copy of this Judgment along with Trial court records forthwith.

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re-consideration of entire material on record, I am of the considered opinion that there is no illegality or infirmity in the

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impugned order warranting interference by this Court in exercise of jurisdiction under Articles 226 and 227 or Section 482 of Cr.P.C. In this context, it is pertinent to note that the petitioner, who is contesting the proceedings, would have an opportunity to file additional statement of objections to the amended petition and contest the proceedings on merits and as such, there is no warrant for interference in the present petition.

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Accordingly, the petition is dismissed . Liberty is reserved in favour of the petitioner to file additional statement of objections to the amended petition and contest the same in accordance with law. All rival contentions kept open.

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SD/(S.R.KRISHNA KUMAR) JUDGE

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VM

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List No.: 1 Sl No.: 100

Mr.Naseer Humayun v. Smt.Seema Anjum

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