1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE6H DAY OF MARCH, 2015 B E F O R E THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA WRIT PETITION NO.48009/2012 (GM-RES) BETWEEN:
1. SRI N SHASHIKUMAR AGED ABOUT59YEARS S/O LATE C.L. NARAYANAMURTHY R/AT NO.71, 2ND CROSS DOMLUR LAYOUT BANGALORE56007 2. SMT INDIRA DEVI AGED ABOUT61YEARS D/O LATE C.L.NARAYANAMURTHY R/AT NO.71, 2ND CROSS DOMLUR LAYOUT BANGALORE56007. (BY SRI. PRABHAKAR L.SHETTY, ADV. ) AND: SMT S.LEELAVATHI @ S PRAMILA W/O N SHASHIKUMAR ... PETITIONERS2AGED ABOUT52YEARS R/AT NO.659, 5TH MAIN, VYALIKAVAL, BANGALORE560003. ... RESPONDENT (BY SRI.SRIDHAR N.HEGDE, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN CRL. MISC. NO.210 OF2012INCLUDING THE ORDER
DATED1010.2012 VIDE ANNEXURE-B, ON THE FILE OF THE METROPOLITAN MAGISTRATE AND TRAFFIC COURT III AT BANGALORE. THIS PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
Marriage of the 1st petitioner with the respondent was solemnised on 15.11.1991, and they lived together. Misunderstandings having arisen, 1st petitioner filed M.C. 786/1992, to pass a decree of divorce and for dissolution of the marriage. The said petition having been closed, the respondent rejoined the 1st petitioner and they lived in a rented house till 10.10.1994. 1st petitioner filed M.C. 704/1994 in the Family Court at Bengaluru, to pass decree of divorce and the same was dismissed on 15.07.2000. MFA34992000 filed was dismissed on 16.11.2006. 3 Respondent having filed C.Misc. 210/2012, against the petitioners herein, in the Court of the Metropolitan Magistrate, Bengaluru, under S.12 of the Protection of Women from Domestic Violence Act, 2005 (for short, 'the Act'), for grant of relief under Ss.18, 20 and 22 and the learned Magistrate, by an order dated 10.10.2012 having taken cognizance and ordered notice, this petition was filed to quash the proceedings of the said case.
2. Sri Prabhakar L. Shetty, learned advocate, contended that the C.Mis. No.210/2012 is not maintainable, as the respondent was not residing with the 1st petitioner, on the date the Act came into force i.e., on 26.10.2006. He submitted that the respondent having left the matrimonial home on 10.10.1994 and she having not been subjected to any act of “domestic violence” after the Act came into force, learned Magistrate has committed illegality in taking cognizance and ordering issue of notice.
3. Sri Sridhar N. Hegde, learned advocate, on the other hand contended that there being no dispute with 4 regard to “domestic relationship” between the 1st petitioner and the respondent, the conduct of the spouses even prior to the commencement of the Act could be taken into consideration while passing the order under Ss.18, 19 and 20 of the Act, as has been held in V.D. BHANOT Vs. SAVITA BHANOT, (2012) 3 SCC183 He submitted that the Act having retrospective application, the court below was approached for relief. He further submitted that this petition being devoid of any merit be dismissed and the court below be directed to decide the case in a time bound manner.
4. Considered the rival contentions and perused the record. The question for determination is, whether a petition filed by a woman, who shared a household in past but was no longer residing with her husband or who was subjected to any act of domestic violence prior to the coming into force of the Act is maintainable?..
5. Indisputably, the 1st petitioner married the respondent on 15.11.1991. After disposal of M.C. 5 786/1992, concededly, the 1st petitioner and the respondent lived together in a rented house till 10.10.1994. From 15.11.1991, there is “domestic relationship” as defined under S.2(f) of the Act, between the 1st petitioner and the respondent. Both of them lived together in a “shared household” as defined under S.2(s) of the Act, in view of they being married. M.C.704/2009 filed against the respondent having been dismissed, the decree, when assailed in MFA34992000 was affirmed on 16.11.2006, awarding maintenance at the rate of Rs.1,500/- p.m. Sections 2(a), 2(f) and 2(s) of the Act define “aggrieved person”, “domestic relationship” and “shared household” respectively. Definition of “domestic violence” can be found in S.3. Apart from “physical abuse”, “sexual abuse”, “verbal and emotional abuse”, “economic abuse” also constitute “domestic violence”. Chapter IV of the Act deals with “procedure for obtaining orders of reliefs”. As per proviso under sub-section (1) of S.12, Magistrate before passing any order is required to take into consideration any domestic incident report received by him from the 6 Protection Officer or the service provider. The relief which can be granted by the Magistrate under the Act are the one contained in Ss.17 to 22. S.23 provides for passing of interim and ex-parte orders.
6. Respondent by filing C.Misc.210/2012 before the Magistrate has sought for relief under Ss.18 to 22 of the Act. S.26 makes clear that it is not necessary that the relief available under Ss.18 to 22 can be sought for in a proceeding under the Act. Any relief available under the said provisions can also be sought for in any legal proceeding even before a Civil Court and Family Court apart from a Criminal Court, whether such proceeding was initiated before or after commencement of the Act, subject to the condition that, in case, any relief has been obtained by the aggrieved person in any proceedings other than the proceedings under the Act, she shall be bound to inform the Magistrate of the grant of such relief.
7. In V.D. Bhanot (supra), Apex Court, while considering a complaint by wife alleging domestic violence, 7 long years after marriage, having no children, left alone at her advanced age, without any proper shelter, protection and means of sustenance, has held that the conduct of parties even prior to the coming into force of the Act could be taken into consideration while passing an order under Ss.18, 19 and 20 thereof. The relevant portion reads thus: “ 12. We agree with the view expressed by the High Court that in looking into a complaint under S.12 of the Act, 2005, the conduct of the parties even prior to the coming into force of the Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the Act, 2005.” 8. In SARASWATHY Vs. BABU, (2014) 3 SCC712 the marriage of the parties was solemnised on 17.02.2000. Alleging domestic violence and seeking relief under Ss.19, 20 and 22 of the Act, a petition was filed. Finding that there was continued violence, it was held by the Apex Court that it is not necessary for the court below to decide 8 whether domestic violence was committed prior to the coming into force of the Act and whether such act falls within the definition of the term “domestic violence” as defined under S.3 of the Act. The issue considered was, whether the conduct of the parties even prior to the commencement of the Act can be taken into consideration while passing the order under Ss.18, 19 and 20 of the Act. It has been held as follows: “ 24. We are of the view that the act of the respondent husband squarely comes within the ambit of Section 3 of the Act, 2005, which defines “domestic violence” in wide terms. The High Court made an apparent error in holding that the conduct of the parties prior to the coming into force of the Act, 2005 cannot be taken into consideration while passing an order. This is a case where the respondent husband has not complied with the order and direction passed by the trial court and the appellate court. He also misleads the Court by giving wrong statement before the High Court in the contempt petition filed by the appellant wife. The appellant wife having being harassed since 2000 is entitled for protection order and residence order under Sections 18 and 19 of the Act, 2005 along with the maintenance as 9 allowed by the trial court under Section 20(1)(d) of the Act, 2005. Apart from these reliefs, she is also entitled for compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by the respondent husband. Therefore, in addition to the reliefs granted by the courts below, we are of the view that the appellant wife should be compensated by the respondent husband. Hence, the respondent is hereby directed to pay compensation and damages to the extent of Rs.5,00,000/- in favour of the appellant wife.” (emphasis supplied) 9. In view of the decisions noticed supra, the contention urged by learned advocate for the petitioner and the question raised, in the present case being covered by Judgments of the Apex Court, I do not find any illegality in the order passed by the learned Magistrate taking cognizance and in directing issue of notice. Consequently, the petition is dismissed. However, the other defence, if any, of the petitioners is left open for 10 consideration and decision by the court below, which shall decide the matter with expedition. Both parties are directed to appear before the court below on 30.03.2015 and receive further orders. sac* Sd/- JUDGE