1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE08H DAY OF JANUARY, 2021 BEFORE THE HON'BLE MR. JUSTICE V. SRISHANANDA CRIMINAL REVISION PETITION NO.125/2015 BETWEEN: SMT. SHEELAVATHI W/O. SRI. M. LOKESH AGED ABOUT33YEARS R/AT. JODI THIMMASANDRA MADHURE HOBLI DODDABALLAPURA TALUK PIN CODE - 562103. ... PETITIONER (BY SRI. B.S.VENKATA NARAYANA, ADV.) FOR SRI. MADHUKAR DESHPANDE, ADV.) AND: SRI. M . LOKESH S/O. SRI. T. MUTTE GOWDA AGED ABOUT40YEARS R/AT. MADHURANAHOSALLI VILLAGE DODDABALLAPURA HOBLI DODDABALLAPURA TALUK PIN CODE - 562103. …RESPONDENT (RESPONDENT- SERVED) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION397READ WITH401CR.P.C PRAYING TO SET ASIDE THE ORDER
DATED1612.2014 PASSED BY THE IV ADDL. DIST. & SESSIONS COURT, DODDABALLAPURA, BANGALORE RURAL DIST., 2 BANGALORE AND CONFIRM THE ORDER
DATED1102.2014 PASSED BY THE PRL.CIVIL JUDGE AND JMFC., DODDABALLAPURA. THIS CRIMINAL REVISION PETITION COMING ON FOR ORDER
S THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER
This Revision Petition is by the wife challenging the order dated 16.12.2014 passed in Criminal Appeal No.10006/2014 on the file of the IV Additional District and Sessions Judge, Doddaballapur, Bengaluru Rural District.
2. Parties are referred to as wife and husband for the sake of convenience.
3. The germane facts for disposal of the Revision Petition are as under: Wife filed an application in C.Misc.No.3/2010 on the file of the Principal Civil Judge and JMFC, Doddaballapur under Section 12 of the provisions of the Protection of Women from Domestic Violence Act, 2005 [hereinafter referred to as ‘DV Act’ for short]..
4. It is contended by the wife that she was married to Mr.M.Lokesh on 10.2.2006 at Lakshmi Venkateshwara 3 KalyanaMantap, Kanasawadi, MadhureShanimahatma Temple (Belavangala cross) Madhure, Doddaballapur Taluk. It is contended that thereafter she joined the matrimonial home. It is contended that at the time of marriage 300 grams of gold jewellary and 880 grams of silver articles were given as dowry and huge amount was also spent towards the marriage. It is further contended that after fifteen days of the marriage, her husband and parents-in-law and other members of the husband’s family demanded a motor bike as dowry and since her father was unable to meet the demand, he requested his son Mr.Santhosh to purchase a motorcycle which could be given to her husband and her brother had to obtain loan from HDFC Bank and purchased a two wheeler and gave it to her husband. It is further contended that the demand of her husband did not stop there and after some time, he again demanded a sum of Rupees two lakhs from her parents as dowry but her father could only arrange Rupees One lakh and that was also given to her husband. 4
5. It is further contended that to her dismay, she found that her husband had been addicted to bad vices and used to stay only two days in a week in the house and spend remaining days outside the house. On being questioned by her, her husband gave evasive reply and when insisted for the proper reply, she was beaten by her husband and her parents-in-law also supported to her husband. It is further contended that even when her husband visited the house, he used to behave indifferently and her parents-in-law joined him and harassed her physically and mentally. It is also contended that all of them gave life threat to her and she somehow managed to put up. In the meanwhile, she got conceived and same message was conveyed to her parents. It is at that juncture she explained the trauma she has experienced in her matrimonial home to her parents and her parents took her to their house wherein she gave birth to a boy baby on 16.5.2007. Despite conveying about birth of baby boy, there was no proper response from the matrimonial home and her husband refused to participate in the naming 5 ceremony. Ultimately naming ceremony was also performed in his absence and she contacted matrimonial home to join her husband which was refused by her husband without there being any reason whatsoever. It is further contended that her husband and his family members are having sufficient means to maintain her and they have deliberately deserted her and her son and therefore, sought for the reliefs under the DV Act before the Judicial Magistrate First Class, Doddaballapura with the following prayer:
"WHEREFORE, it is prayed that this Hon'ble Court be pleased to take cognizance on the complaint/domestic incident report and pass all/any of the orders as this Hon'ble Court deems fit, proper and necessary in the circumstances of the case kindly: (a)pass protection order under section 18 and (b) pass residence order under section 19 and (c) direct the respondent to pay monetary relief under section 20 (d) direct the respondent to pay compensation or damages under section 22 of the Act and (e) pass any other order as deems fit and proper under the above said circumstance of the case. 6
13. Orders required: (1) Protection order under section 18:- Prohibiting acts of domestic violence to me and to my parents from the Respondents. (2) Residence order under section 19:- An order directing the Respondents to secure same level of alternative accommodation or to pay rents for the same. (3)Monetary relief under section 20:- Direct the Respondents to pay monetary reliefs under section 20 of the Act and direct them to pay the fallowing expenses as monetary reliefs. (For food, clothing, medication and other Basic needs of household Rs. expenses and other Expenses incurred during the period of 1 year After the marriage and for 5,00,000/- maintenance- In future: (4) Compensation order under Section 22: The Respondents spoiled my life and given Physical and mental torture, harassment for Dowry to my parents and for me by various Methods after solemnization of 4,00,000/- marriage (5) Any other order: To return the Stridhan, Gifts, Dowry, amount, gold jewels, marriage Expenses and articles which were given at the time of marriage and subsequently: (a) Marriage expenses 5,00,000/- (b) Dowry amount 1,00,000/- (c) Gold jewels & silver worth 5,00,000/- (d) Hero Honda Splendor plus 42,000/- Total amount:
20. 42,000/- 7 6. After registration of the case, notice of the petition was issued by the learned Magistrate and presence of the respondents (husband and his relatives) secured. Subsequently, petition came to be dismissed as not pressed as against the relatives of the husband. First respondent who is the husband filed a detailed written objections denying each and every allegations made in the petition and contended that he had issued a legal notice on 30.11.2009 for restitution of conjugal rights which was replied by the wife with false statement and refused to join him. It is also contended that the parents of his wife did not allow him to see his child and as a counter blast to the legal notice, petition under Domestic Violence Act is filed on false grounds. He also contended that gold jewels were taken by her when she went to her parents house during her pregnancy. He also pleaded that his parents are having only two (2) acres twenty-six (26) guntas of dry land and he is dependent on his parents as he is unemployed. He denied having received the motor bike as dowry and sought for dismissal of the petition. 8
7. The learned Magistrate proceeded to record the evidence of the wife, who was examined as PW-1 and three witnesses on her behalf as PWs.2 to 4. They relied on twenty-three (23) documents which were exhibited and marked as Exhibits P-1 to P-23. Husband also examined himself as RW1 and one witness Sathish was examined as RW-2.
8. PW-1 Sheelavathi, the petitioner herein, has filed an affidavit, re-iterating the contents of the petition and admits that respondent is her husband. She has deposed in her affidavit stating that her father during marriage talks agreed to give 300 grams of gold and 880 grams of silver articles and their marriage was performed on 10.2.2006 at LakshmivenkateshwaraKalyanaMantapa, Madhure, Doddaballapura Taluk, by incurring Rupees Five lakhs for performing engagement and marriage ceremonies and Rupees Five lakhs as expenses to purchase gold and silver articles. After fifteen days of their marriage, the respondent husband demanded for two 9 wheeler bike, and her brother got him a two wheeler and till today, he has been using the bike. Being not satisfied, the respondent and his relatives continued to harass and ill-treat her and demanded Rupees Two lakhs as dowry. But, her father could give only Rupees One lakh to the respondent. In spite of that the respondent had beaten her mercilessly. She has further deposed that on 16.5.2007, she gave birth to a baby boy, but the respondent did not visit her even to the naming ceremony of the child. She submits that the respondent is having self acquired house property and other landed properties and also he is running a Employees' Security office by name Ganga Enterprises at Bashettihalli, Doddaballapura providing labours to the different factories on requirement and getting commission of Rs.30,000/- per month and prayed to allow the petition.
9. She has further reiterated the same in her further examination in Chief and marked 23 documents and prayed for compensation. However, she admits in her 10 cross examination that the motor bike which was given to the respondent-husband was standing in the name of her brother.
10. PWs.2 to 4 have also deposed in line with the examination in chief of PW-1. Among them, PW-2 is the father, PWs.3 & 4 are uncles of PW-1. They also deposed about the demand of dowry etc., and harassment that was imparted to PW-1 during her stay in the matrimonial home. In their cross examination also except putting suggestions tot hem, that they have deposed falsehood to help PW-1 and no other worth material is elicited.
11. RW-1 husband of the petitioner has filed an affidavit admitting that the petitioner is his wife, and that she has filed the petition for maintenance against him and his family members and deny other averments made in the petition and submits that to harass the respondent, the petitioner filed false petition. He has examined one Sathish on his side examined as RW-2, who also submits 11 that he had witnessed the marriage solemnized between them.
12. In the cross examination of RW-1, he admits that he was drawing Rs.8,000/- as monthly salary between 2004-2007 and thereafter, he indulged in agriculturist. He also admits that for about five months, there was a cordial relationship between him and his wife and he also admits that there was a bickering matrimonial tie on account of mobile telephone. He also admits that there was a panchayath convened to sort out the differences between him and his wife. He also admits in the cross examination that the motorbike which is in his custody is in the name of his brother-in-law i.e., the brother of his wife. He also admits that there was a complaint to the police about a year later by his wife. He also admits that he has filed a case for restitution of conjugal rights in the year 2010 in MC No.4/2010 which is marked at Ex.P-23. Admittedly, the said petition for restitution for conjugal rights is filed 12 on 20.02.2010 whereas the petition under Section 12 of the Domestic Violence Act was filed on 7.1.2010.
13. Learned Magistrate after hearing the parties in detail and on cumulative consideration of the materials available on record allowed the petition in part by passing the following order:
"ORDER
The Petition is allowed in part. The respondent No.1 is hereby directed to pay Rs.1,50,000/- as Monitory relief to the petitioner Under Section 20 of Domestic Violence Act. The respondent No.1 is hereby directed to pay the compensation of Rs.1,00,000/- to the petitioner Under Section 22 of Domestic Violence Act. The respondent No.1 is hereby directed to pay a sum of Rs.1,00,000/- towards return of dowry amount paid to him and he shall return the golden jewels and silver articles given at the time of marriage and also directed to return the Motor Cycle bearing Registration No.K.A-41-E-6624 to the petitioner. The petitioner is at liberty to reside at the house of respondent No.1. Respondent No.1 is restrained from dispossessing the petitioner from the shared household and from renouncing his rights in the shared household, except with the leave of the Court. 13 The respondent is permanently prohibited from committing any act of the Domestic Violence to the petitioner
14. Being aggrieved by the said order of the learned Magistrate, husband approached the first Appellate Court in Criminal Appeal No.10006/2014.
15. The learned first Appellate Court secured the records and the presence of the wife. After hearing the parties in detail, learned first Appellate Court allowed the appeal and passed the following order:
"The appeal filed by the appellant is allowed. The petition filed by the petitioner is dismissed. However the appellant is directed to pay Rs.3,000/- to the respondent/petitioner as monitory relief. The respondent/petitioner is also directed to join the appellant along with her child and live with the appellant as a dutiful wife. Return the file to the concerned Court.
16. It is that judgment which is under revision before this Court. 14
17. Learned counsel representing the Revision Petitioner Sri B.S. Venkata Narayana, vehemently contended that the learned Judge in the first appellate court has grossly erred in passing the order of allowing the appeal of the husband. He further contended that the learned Judge in the first appellate court mis-directed himself in understanding the scope and object of the Domestic Violence Act, whereby reached a wrong conclusion in allowing the appeal. He also pointed out that the Act is meant for protecting the women from the domestic violence and without noticing the said aspect of the matter, the learned Judge in the first appellate court granted the relief to the husband which is not at all permissible, having regard to the object and scope of the Domestic Violence Act, and prayed for allowing the Revision Petition.
18. In this revision, even though the husband is duly served with the notice of this Revision Petition, there is no representation on behalf of the husband. 15
19. Having heard the arguments of the learned counsel for the Revision Petitioner and on perusal of the records, following point would arise for consideration:
"Whether the order passed by the learned Judge in the first appellate court in Criminal Appeal No.10006/2014 on the file of the IV Additional District and Sessions Court, is suffering from patent defect, error of jurisdiction or legal infirmity and thus calls for interference?.
20. Answer to the above point is in the Affirmative for the following reasons: In the case on hand, having regard to the pleadings available on record, the marriage between the parties is not in dispute. So also a child by name Likhith is born to the them is also not in dispute. The fact remains from the objection statement that when the wife presented a petition under Section 12 of the Domestic Violence Act, with the relief as referred to supra, she was not residing in the matrimonial home. These aspects of the matter has been taken into account by the learned Magistrate when the petition of the wife came to be allowed on 11th 16 February, 2014 by discussing in detail the evidence placed on record.
21. However, the learned Judge in the first appellate court while allowing the Criminal Appeal concluded that the oral and documentary evidence placed by the wife are not sufficient to prove the allegations levelled against the husband. The first appellate court also observed that PW- 2 is the father of the petitioner and PWs.3 & 4 are the uncles of the petitioner-wife, whose testimony are interested testimonies and therefore, the Trial Court has erred in accepting the testimony of her father and uncles. The first appellate court also took note of the fact that there was a legal notice issued to the wife seeking restitution of conjugal rights and the petitioner-wife should have joined her husband as a dutiful wife. The first appellate court also ruled that there is no acceptable documentary evidence on record to show that the husband has the capacity to pay the huge amount claimed by the wife. The first appellate court also recorded a finding that 17 the wife did not join the matrimonial home after the delivery of the child even though the husband was willing to take her back. Further, the first appellate court also considered the financial capacity of the husband in para number 12 of the impugned order and recorded a finding that the wife lived in the matrimonial home only for a period of five months and therefore, there is no ill- treatment at all which would give raise to a cause of action to the wife to file a petition under Section 12 of the Domestic Violence Act. The said findings of first appellate court is now required to be appreciated in the light of object and purpose of enacting the Act.
22. The object of enacting Domestic Violence Act is to prevent deep rooted patriarchal set up prevailing in the Indian society since time immemorial.
23. It is needless to emphasize that ‘domestic violence’ has got different facets which would affect the woman of every social background irrespective of their age, religion, caste or class. Indeed, it is a violent crime 18 that not only affects the woman but also her children. It is difficult to decipher the root or the cause behind the crime. However, one of the reasons resulting in the domestic violence is on account of gender discrimination and destruction of power. The framers of legislation having considered the relevant statutes which are already in force felt that there is an imminent need to arrest the particular type of violence that takes place in domestic set up.
24. In order to curb domestic violence, which includes emotional, mental, financial and other forms of cruelty and keeping in view the danger that would be caused to the healthy life (mental or physical) of victim and also to relieve the woman from physical, sexual, verbal, emotional and economic abuse, a special statute i.e., Protection of Women from Domestic Violence Act, 2005 has been enacted.
25. Earlier to passing of domestic violence Act, victim could only resort to Section 498A of IPC or seek maintenance u/s.125 of Cr.PC. Since both the provisions 19 of law were not sufficient enough to deal with the situations referred to supra, Domestic Violence Act came into force on and from 13.09.2005. It is also worth to quote the objective of the Act which reads as under: ”An Act to provide for more effective protection of the rights of woman guaranteed under the constitution who are victims of violence of any kind occurring within the family and for matters connected therewith and incidental thereto.
26. This enactment was made in order to implement the recommendation No.12 of United Nations Committee on Convention for elimination of all forms of discrimination against woman [CEDAW, 1989 which was ratified in India in June, 1993].. Therefore, any interpretation in respect of the Act should always be in conformity to the international conventions and international instruments and norms.
27. An occasion was there for the Hon'ble Apex Court to emphasize the intent of the legislature in enacting the Domestic Violence Act in the case of Indra Sarma Vs. 20 V.K.V. Sarma reported in (2013) 15 SCC755wherein it is ruled as under:
"Domestic Violence Act is enacted to provide a remedy in civil law for protection of woman, from being victims of such relationship and to prevent the occurrence of the domestic violence in the society. Hon'ble Apex Court also held that already prevailing legislatures like Code of Criminal Procedure, Code of Civil Procedure, where the reliefs have been provided to woman who are placed in vulnerable situations is taken into account and the present act is in addition to the already available remedies and not in derogation with those remedies".
28. In this regard, it is worth to quote the judgment of Bombay High Court in the case of Ishpal Singh Kahai Vs.RamanjeettKahai reported in 2011 Online Bom 412 wherein Bombay High Court held that the object of the Domestic Violence Act is to grant statutory protection to the victims of violence in the domestic sector who had no proprietary rights. Bombay High Court further held that the 21 Act provides for security and protection of a woman irrespective of her proprietary rights in her residence and Act also protect the wife against the violence and provision of recurrence of act of violence.
29. In the background of object of the act and legal principles referred to supra, on re-appreciation and on cumulative consideration of the materials on record, especially the evidence adduced by the wife and witnesses examined on her behalf, this court finds that first appellate court passed the impugned judgment on assumptions and presumptions instead of discussing the material evidence on record in its proper perspective. For recording a finding that there was no financial capacity or for recording a finding that there was no ill-treatment, the learned Judge in the first appellate court, has not considered the material evidence on record. Further, having regard to the scope of the DV Act, no relief could have been granted to the husband by the first appellate court, except setting aside the order passed by the learned Magistrate. 22
30. In this regard, it is just and necessary for this court to place reliance on the judgment reported in 2020 SCC OnLine SC841in the case of Satish Chander Ahuja Vs. Sneha Ahuja.
31. Applying the legal principles enunciated in the aforesaid decision to the facts of the case on hand it is crystal clear that it is the wife who could only seek relief under the Domestic Violence Act and not the husband. The definition of "aggrieved person" under the Domestic Violence Act, clearly indicates that - "aggrieved person - means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent". Therefore, it is the wife or the woman alone can seek any relief under the DV Act. Therefore, need has arisen to this court to interfere with the finding recorded by the learned Judge in the first appellate court in passing the order whereby the wife is permitted to join the husband. In other words, the learned Judge in the first 23 appellate court has passed an order of restitution of conjugal rights which has impermissible having regard to the scope of the appeal under the DV Act.
32. In view of the foregoing discussions, invariable conclusion that this court can reach is to hold that the order of the learned Judge in the first appellate court suffers form serious legal infirmities, error patent on record and without jurisdiction as well, whereby this court is bound to set aside the impugned order. Having regard to the fact that the husband is not represented before this court it is just and necessary to set aside the order of the learned first Appellate Court and remand the matter for fresh disposal in accordance with law by affording reasonable opportunities for the parties. Accordingly, the Revision Petition is allowed. The order dated 16th December, 2014 passed by the first Appellate Court in Criminal Appeal No.10006/2014 on the file of the IV Additional District and Sessions Court, Doddaballapur, Bengaluru Rural District is set aside. 24 The matter is remanded for fresh disposal in accordance with law. Sd/- JUDGE PL*