Channayya And Anr vs Gouramma @ Mahadevi
2021 Latest Caselaw 6909 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 21ST DAY OF DECEMBER 2021

                         BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

                CRL.RP.No.200103/2021

BETWEEN:
1.     CHANNAYYA
       S/O PRABHU KUMAR SWAMY,
       AGE: 40 YEARS, OCC: COOLIE,
       R/O KALYAN GADDI PROPER,
       TQ. CHINCHOLI, DIST. KALABURAGI-585307.

2.     KASTURIBAI W/O PRABHUKUMAR SWAMY
       AGE: 62 YEARS, OCC: HOUSEHOLD,
       R/O KALYAN GADDI PROPER,
       TQ. CHINCHOLI, DIST. KALABURAGI-585307.
                                         ... PETITIONERS

(BY SRI GANESH NAIK, ADVOCATE)

AND:

GOURAMMA @ MAHADEVI
W/O CHANNAYYA,
AGE: 38 YEARS, OCC: HOUSEHOLD,
R/O NEAR RANG MANDIR, BIDAR-585401
                                         ... RESPONDENT

                          ***

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CRIMINAL PROCEDURE CODE, PRAYING TO
SET ASIDE THE JUDGMENT PASSED BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE AT BIDAR BY JUDGMENT
DATED ON 09.11.2021 IN CRIMINAL APPEAL NO.98/2018.
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     THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:

                             ORDER

This matter is listed for admission.

Heard the learned counsel appearing for the

petitioners.

2. This petition is filed under Section 397 of

Cr.P.C., praying this Court to set aside the judgment

passed by the Principal District and Sessions Judge at

Bidar, by judgment dated on 09.11.2021 in Criminal

Appeal No.98/2018 granting maintenance of Rs.6,000/-

per month in favour of the respondent herein.

3. Factual matrix of the case is that the

respondent herein filed proceedings under Section 12 of

the Protection of Women from Domestic Violence Act

seeking maintenance. In support of her claim, she

examined herself as PW.1 and also examined one witness

as PW.2 and got marked the documents as Exs.P1 to P5.

On the other hand, the petitioner herein examined himself

as RW.1 and no documents were marked. The trial Judge

after considering the material on record dismissed the

petition on the ground that the respondent herein has not

produced any single piece of document to show that

petitioner No.1 herein is having good source of income and

petitioner No.1 herein admitted that he was doing coolie

work and the respondent herein has totally failed to

establish the domestic violence caused by petitioner No.1

herein and held that respondent herein is not entitled for

monetary relief as prayed.

4. Being aggrieved by the said order, the appeal

was filed before the appellate Court. The appellate Court

on re-appreciation of the material on record particularly, at

paragraph-10 has observed that it has come in the

evidence that there is landed property in the name of

father of petitioner No.1, the trial Court rejected that part

of evidence on the ground that no records have been

produced. ROR copy of Sy.No.64/2 measuring 17 acres 35

guntas standing in the name of petitioner No.2- Kasturibai

is produced. In column No.10 of the ROR there is a

reference about mutation having been certified during the

year 2013-2014 on 25.07.2014 just few months prior to

filing of the petition by the appellant/the respondent herein

before the trial Court. The respondent herein had filed

criminal case against her husband and others and as per

Ex.P1 right from the year 2005 she has been trying to

assert her right against her husband to take her back and

though petitioner No.1 agreed for the same before

Rudrambika Mahila Mandal Kutumba Salaha Kendra, Bidar,

in the year 2008, he has not complied with it. Hence, the

appellate Court comes to the conclusion that in order to

evade payment of maintenance, the land has been

mutated in the name of petitioner No.2 herein and the

reason for mutation is shown as 'Vibhajane' which shows

that petitioner No.1 herein has got means to pay

maintenance. Having considered the material on record

and also admissions, the appellate Court comes to the

conclusion that at the present cost of living it is just and

reasonable to order for Rs.6,000/- maintenance per month

and awarded an amount of Rs.6,000/- per month as

maintenance in favour of the respondent herein.

5. The learned counsel appearing for the

petitioner vehemently contended that very prayer in the

appeal itself is for remanding the matter by setting aside

the order of the trial Court. Instead of remanding the

matter, the appellate Court awarded maintenance of

Rs.6,000/- per month. The trial Court rightly came to the

conclusion that there is no domestic violence. The order

passed by the appellate Court is not based on the material

available on record. The appellate Court ought not to have

awarded an amount of Rs.6,000/- per month without any

documents. It is an admitted fact that petitioner No.1

herein is working as coolie and hence, directing petitioner

No.1 to pay maintenance of Rs.6,000/- per month would

be very harsh and hence, it requires interference of this

Court.

6. Having heard the learned counsel appearing

for the petitioner and on perusal of the material on record,

no doubt the respondent herein has not placed any

documents with regard to property standing in the name of

her husband, but the appellate Court has re-appreciated

the material available on record and also considered the

evidence of PWs.1 and 2 as well as evidence of RW.1.

Taking into note of the material available on record

particularly, in paragraph-8 discussed that petitioner No.1

herein in the cross-examination admitted criminal case

filed by the respondent herein and also appellate Court has

taken note of the transferring of property belonging to the

family in favour of petitioner No.2 and in detail discussed

in paragraphs-9 and 10 considering the answers elicited

from RW.1 and taking into consideration the transfer of the

property in favour of respondent No.2 which was standing

in the name of the father, taken note of the capacity to

pay maintenance. Taking into note of the present cost of

living a reasonable amount of Rs.6,000/- is awarded.

When such being the factual aspects of the case and when

the trial Judge did not appreciate the material available on

record including the admissions, the appellate Court rightly

reversed the finding of the trial Court considering both oral

and documentary evidence available on record. Hence, I

do not find any merit in the petition to interfere with the

finding of the appellate Court. Awarding maintenance of

Rs.6,000/- per month is also not exorbitant as contended

by the learned counsel for the petitioner. The very

contention of the learned counsel for the petitioner is that

when the matter was sought for remand, the learned

Sessions Judge ought to have remanded the matter. The

said contention cannot be accepted for the reason that

when the material available before the Court itself is

enough to decide the case on merits and having taken

note of the material available on record, at paragraphs-8,

9 and 10 the appellate Court re-appreciated the material

on record. Hence, I do not find any error in the order

passed by the appellate Court in granting maintenance of

Rs.6,000/- per month in favour of the respondent herein.

7. In view of the discussions made above, I pass

the following:

ORDER

The petition is dismissed.

In view of disposal of the main petition,

I.A.No.1/2021 for stay does not survive for consideration

and accordingly, it is disposed of.

Sd/-

JUDGE

NB*