Smt. Dr Smitha B S Vs Sri Dr S Satish

SRI DR. S. SATISH S/O SUNDARAJAN AGED ABOUT 41 YEARS R/O NO. THONSWABAVI IYERS HOTEL GORIBIDANUR TALUK CHICKBALLAPUR DIST PRESENTLY WORKING MEDICAL OFFICER PRIMARY HEALTH CENTRE MANGALAWADA PAVAGADA TALUK TUMKUR DISTRICT - 572 103.

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…RESPONDENT

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(BY SRI B. RAVINDRA, ADV.)

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE ORDER DATED 06.01.2016 PASSED BY THE COURT OF THE II ADDL.S.J., MYSURU IN CRL.A.NO.393/2013 (ANNEXURE-A),

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BY WHICH JUDGMENT PARTIALLY ALLOWING APPEAL AND CONFIRMING ORDER DATED 28.11.2013 PASSED IN CRL.MISC.NO.100/2012 BEFORE THE I ADDL. I CIVIL JUDGE AND J.M.F.C., AT MYSORE (ANNEXURE-B) WITH DIRECTION TO ORDERED A MONTHLY MAINTENANCE OF RS.25,000/- PER MONTH FROM THE DATE OF FILING THE PETITION. AND MODIFY A COMPENSATION TO RS.1,00,000/- AND DIRECT THE RESPONDENT TO HAND OVER THE GOLD ORNAMENTS i.e. GOLD CHAINS, RING, BRACELET AND SILVER ARTICLES AND OTHER ITEMS GIVEN TO THE RESPONDENT BY THE PETITIONER.

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IN CRL.RP NO. 1017/2023:

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BETWEEN:

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DR. SATHISH S/O SUNDRA RAJAN AGED ABOUT 47 YEARS MEDICAL OFFICER WORKING AT P.H.C.D. PALYA GOWRIBIDANUR TALUK CHIKKABALLAPURA DISTRICT PIN - 561 208.

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...PETITIONER

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(BY SRI B. RAVINDRA, ADV.)

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AND:

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DR. SMITHA B.S W/O DR. S. SATHISH AGED ABOUT 37 YEARS R/AT NO. 7, 21ST BLOCK MADHUVANAN LAYOUT SRIRAMPURA 2ND STAGE MYSURU, PIN - 570 005.

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...RESPONDENT

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(BY SRI YESHU MISHRA, ADV.)

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 28.06.2023, ANNEXURE-A, IN

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NC: 2026:KHC:5913 CRL.RP No. 513 of 2016 C/W CRL.RP No. 1017 of 2023

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CRL.A.NO.225/2022 ON THE FILE OF THE 2nd ADDITIONAL DISTRICT AND SESSIONS JUDGE AT MYSURU U/S.29 OF D.V ACT WHEREIN THE PETITIONER IS DIRECTED TO CONTINUE TO PAY THE FUTURE MAINTENANCE WITHOUT DEFAULT UNTIL CANCELLATION OF THE ORDER OF MAINTENANCE.

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THESE PETITIONS, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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These two criminal revision petitions filed under Section 397 read with Section 401 of Cr.P.C., arise from the same proceedings between the same parties, and therefore, they are heard together and disposed of by this common order.

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Heard the learned Counsel for the parties.

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Facts leading to filing of these two revision petitions as

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revealed from the records narrated briefly are, Smt. Dr. Smitha.B.S., who is the petitioner in Crl.RP.No.513/2016 had initiated proceedings against the respondent, who is her husband before the jurisdictional Court of Magistrate at Mysuru,

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under the provisions of the Protection of Women from Domestic Violence Act, 2005 (for short, 'D.V.Act'), and in the said

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proceedings, she had claimed Rs.10,000/- per month as maintenance, residential accommodation and compensation and damages for the mental torture and emotional distress caused to her by the respondent. The said petition was opposed by the respondent. The learned Magistrate by order dated 28.11.2013 partly allowed the petition filed by the wife in Crl.Misc.No.100/2012 and directed the respondent/husband to pay maintenance at the rate of Rs.10,000/- per month with yearly increase of Rs.500/- per month and respondent was also directed to pay Rs.20,000/- as compensation for the act of domestic violence committed by him.

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Aggrieved by the said order dated 28.11.2013 passed in Crl.Misc.No.100/2012 by the jurisdictional Court of Magistrate, Mysuru, the wife had filed Crl.A.No.393/2013 and the husband had filed Crl.A.No.6/2014 before the Court of II Additional Sessions Judge, Mysuru. The learned Sessions Judge, by common judgment and order dated 06.01.2016 allowed Crl.A.No.393/2013 in part and dismissed Crl.A.No.6/2014 filed by the husband. The learned Sessions Judge having allowed Crl.A.No.393/2013, modified the order passed by the Trial

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Court and directed the respondent/husband to pay monthly maintenance at the rate of Rs.11,000/- per month from 01.12.2013. Aggrieved by the said judgment and order passed in Crl.A.No.393/2013, wife is before this Court in Crl.RP.No.513/2016. Respondent/husband has not challenged the judgment and order passed in Crl.A.No.6/2014 by the learned Sessions Judge and thereby the judgment and order passed in Crl.A.No.6/2014 has attained finality.

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It appears that since the husband had failed to pay the monthly maintenance amount in compliance of the order passed in Crl.A.No.393/2013, wife had initiated recovery proceedings in Crl.Misc.No.161/2017 before the jurisdictional Court of Magistrate and had filed a memo of calculation in the said proceedings. The learned Magistrate by order dated 05.07.2022 taking into consideration that respondent/husband had not filed any memo of calculation, has held that memo of calculation filed by the wife is as per law and accordingly, directed the husband to pay arrears of maintenance amount.

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The said order dated 05.07.2022 passed by the learned Magistrate in Crl.Misc.No.161/2017 was assailed by the

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husband before the jurisdictional Court of Sessions Judge in Crl.A.No.225/2022 which was dismissed on 28.06.2023 directing the husband to pay the arrears of monthly maintenance as per the memo of calculation dated 19.06.2023 filed before the said Court and also to continue to pay the future maintenance without default until the order of maintenance is cancelled. Aggrieved by the said judgment and order passed in Crl.A.No.225/2022, the husband is before this Court in Crl.RP.No.1017/2023.

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Learned Counsel for the wife submits that husband is a Government Servant and his present salary is Rs.2,00,000/per month. The maintenance amount awarded by the learned Magistrate is very meager compared to the present cost of living. He refers to the judgment of the Hon'ble Supreme Court in the case of Rajnesh vs. Neha and Another - (2021) 2 SCC 324 and submits that parties had not filed their assets and liabilities statement before the Trial Court as well as before the Appellate Court, and therefore, it cannot be said that the maintenance awarded is just and proper. He submits that though a specific prayer was made in the petition filed under

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Section 12 of the D.V.Act, to provide residential accommodation to the wife, the Trial Court had not considered the said prayer and no finding was recorded on the same. The Appellate Court also has not appreciated this aspect of the matter. Wife has now taken shelter in her parents house. Accordingly, he prays to allow the petition.

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Per contra, learned Counsel for the husband submits that, after the learned Magistrate had disposed of Crl.Misc.No.100/2012, in a separate proceedings bearing MC No.189/2014 which was filed by the wife seeking divorce, the jurisdictional Family Court has granted permanent alimony of Rs.5,00,000/- to the wife. Therefore, she is not entitled for payment of maintenance separately. He submits that the amount of Rs.5,00,000/- awarded as permanent alimony is already deposited before the Court, and therefore, it has to be held that wife is not entitled for separate maintenance amount.

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The courts below have erred in considering this aspect of the matter and the Appellate Court, on the other hand, has directed that husband is required to continue to pay maintenance

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amount even in future. He, accordingly prays to allow his petition and dismiss the petition filed by the wife.

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Crl.Misc.No.100/2012 was filed by the wife under Section

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12 r/w Section 20 of the D.V.Act with several prayers which included prayer to grant monthly maintenance at Rs.10,000/-, provide suitable residential accommodation and also to pay compensation for the domestic violence committed by the husband on her. Before the Trial Court, wife had examined herself as PW-1 and had got mark nine document as Exs.P-1 to P-9. On behalf of the respondent, he had examined himself as RW-1. However, no documents were got marked on his behalf.

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The relationship between the parties is not in dispute. Ex.P-8 is the salary certificate of the husband which whould go to show that as on December 2012, his gross salary was Rs.41,968/-. Prayer in the petition by the wife was to award maintenance at the rate of Rs.10,000/- per month. The learned Magistrate having appreciated the said prayer and also the oral and documentary evidence available on record, had directed the husband to pay monthly maintenance at the rate of Rs.10,000/- per month with yearly increase of Rs.500/- per

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month considering the fact that he was a Government servant and his salary would be enhanced periodically. In addition to the same, an amount of Rs.20,000/- was awarded as compensation for having subjected the wife to domestic violence.

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As rightly contented by learned Counsel for the wife, the Trial Court had not at all considered the prayer made by the wife for providing her a suitable alternative residential accommodation. According to the wife, she has no house of her own and she has now taken shelter in her parents house. The Appellate Court in Crl.A.No.393/2013, which was filed by the wife challenging the order passed in Crl.Misc.No.100/2012 by the learned Magistrate, taking into consideration that the Act provides for alteration of maintenance in the event of any change in circumstance, had arrived at a conclusion that the learned Magistrate was not justified in ordering to pay enhanced maintenance per month at the rate of Rs.500/yearly, and had therefore partly allowed Crl.A.No.393/2013 and enhanced the monthly maintenance to Rs.11,000/- per month

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instead of Rs.10,000/- per month ordered by the learned Magistrate.

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Since the claim of the wife itself was for payment of Rs.10,000/- per month, it cannot be said that the order passed by the Learned Magistrate in Crl.Misc.No.100/2012 or by the learned Sessions Judge in Crl.A.No.393/2013, to the extent it relates to granting monthly maintenance per month, was erroneous or illegal. Undisputedly, the judgment in Rajnesh's case supra was not in existence as on the date when Crl.Misc.No.100/2012 and Crl.A.No.393/2013 were disposed of. It is not in dispute that in a separate proceedings bearing M.C.No.189/2014, wife has been awarded permanent alimony of Rs.5,00,000/- which is said to have been already deposited by the husband before the Family Court. Under the circumstances, I am of the opinion that the prayer by the wife in Crl.RP.No.513/2016 for enhancing monthly maintenance amount needs to be rejected. However, since her prayer for granting residential accommodation had not been considered either by the Court of Magistrate or by the Appellate Court, the proceedings needs to be remanded to the Trial Court only to

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consider the prayer of the wife for granting a suitable residential accommodation.

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Crl.RP.No.1017/2013 is filed by the husband challenging

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the order passed in Crl.Misc.No.161/2017 which was filed by the wife for recovery of monthly maintenance amount as ordered by the learned Session Judge in Crl.A.No.393/2013. It is relevant to note here that husband had filed Crl.A.No.6/2014 challenging the very same order passed in Crl. Misc. No.161/2017, which was considered and disposed of by the learned Sessions Judge along with Crl.A.No.393/2013 filed by the wife.

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The judgment and order passed in Crl.A.No.6/2014 has not been questioned by the husband and thereby the order passed in Crl.Misc.No.100/2012 which was modified in Crl.A.No.393/2013 by the learned Sessions Judge, has attained finality in so far as the husband is concerned. Unless the said order directing the husband to pay monthly maintenance of Rs.11,000/- per month is set aside or modified in accordance with law, the husband is liable to pay the maintenance amount. Therefore, I do not find any illegality or irregularity in the order

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dated 05.07.2022 passed by the learned Magistrate in Crl.Misc.No.161/2017 directing the husband to pay the arrears of monthly maintenance in terms of the order passed in Crl.A.No.393/2017, as per the memo of calculation filed by the wife.

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The Appellate Court having appreciated the aforesaid aspects of the matter, has rightly confirmed the order passed in Crl.Misc.No.161/2017 and has directed the husband to pay the arrears of maintenance amount and also to pay the maintenance in future without default until cancellation of the order of maintenance. Under the circumstances, I do not find any merit in Crl.R.P.No.1017/2023 which is filed by the husband challenging the judgment and order passed in Crl.A.No.225/2022, wherein the order dated 05.07.2022 passed in Crl.Misc.No.161/2017 was confirmed. Accordingly, the following order:

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Crl.RP.No.513/2016 is partly allowed. The order dated 28.11.2013 passed in Crl.Misc.No.100/2012 which is modified in Crl.A.No.393/2013 enhancing the monthly maintenance from Rs.10,000/- to Rs.11,000/- per month is confirmed, and the

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matter is remanded to the Trial Court to consider the application filed by the wife in so far as it relates to providing her suitable residential accommodation. Parties are at liberty to

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lead fresh evidence before the Trial Court.

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Crl.RP.No.1017/2023 is dismissed.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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DN/KK

Smt. Dr Smitha B S v. Sri Dr S Satish

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Smt. Dr Smitha B S v. Sri Dr S Satish

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