S Prabhudev vs Smt B P Poornima
2022 Latest Caselaw 2230 Kant

                             1


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11TH DAY OF FEBRUARY, 2022

                         BEFORE:

        THE HON'BLE MR. JUSTICE V.SRISHANANDA

   CRIMINAL REVISION PETITION NO.679 OF 2021

BETWEEN:

S. PRABHUDEV,
S/O. S.N. SADASHIVA,
AGED ABOUT 44 YEARS,
RESIDING AT NO.65/2, 4TH CROSS,
NAGAPPA BLOCK, SRIRAMPURA,
BENGALURU - 21.                            ...    PETITIONER

[BY SRI. MANGANNAVAR GIRISH BABURAO, ADVOCATE]

AND:

SMT. B.P. POORIMA,
W/O. S. PRABHUDEV,
RESIDING AT NO.65/1,
4TH CROSS, NAGAPPA BLOCK,
SRIRAMPURA,
BENGALURU - 21.                           ...    RESPONDENT

                            ***

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) READ WITH 401 OF CR.P.C., PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 15.12.2017 PASSED IN CRL.MISC. NO.160/2013
BY THE M.M.T.C.-VI, BENGALURU AND CONFIRMED IN JUDGMENT
AND ORDER DATED 03.06.2021 PASSED IN CRL.A. NO.51/2018 BY
THE LXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU.

      THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION, THROUGH VIDEO CONFERENCE/PHYSICAL HEARING,
THIS DAY THE COURT MADE THE FOLLOWING:
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                              ORDER

Heard Sri. Mangannavar Girish Baburao, learned

counsel for the revision petitioner.

2. The present revision petition is filed by the

husband, against an Order dated 15.12.2017 passed by

the Presiding Officer, Metropolitan Magistrate Traffic

Court-VI, Bengaluru City, in C.Misc. No.160/2013 and

ordered to pay a sum of `4,000/- p.m. to the

respondent/wife till her life time or till her re- marriage

and to pay a sum of `3,000/- p.m to the daughter of the

couple towards maintenance till her marriage and further

directed to pay `50,000/- towards the compensation

which was confirmed in the Judgment and Order dated

03.06.2021 passed by the LXIV Addl. City Civil and

Sessions Judge in Crl.A. No.51/2018.

3. Brief facts of the case are as under:

The parties are referred to as 'husband' and 'wife'

for the sake of convenience. The marriage of the parties

was got solemnized on 04.09.1995 at Mysuru.

Subsequent to that, they could not live together. The

husband joined an NGO i.e., Welfare Association for the

blind in Sesadripuram and thereafter, differences

between the couple has enlarged. Ultimately, the

husband left the house and therefore, towards

maintenance, a petition came to be filed by the wife

under Section 12 of the Protection of Women from

Domestic Violence Act, 2005 seeking relief under

Sections 18, 20 and 22 of the said Act. After registration

of the case, the husband appeared before the learned

Magistrate and filed his objections denying the

averments made in the petition.

4. In order to prove the case of the wife, she got

herself examined as P.W.1 and daughter Shivani was

examined as P.W.2. The husband got himself examined

as R.W.1 and relied on the documents which were

exhibited and marked as Exs.R1 to 9. The wife in her

examination-in-chief deposed that she is the legally

wedded wife of the revision petitioner herein and their

marriage took place on 04.09.1995. Out of their

wedlock, a daughter was born on 18.08.1996. The

couple lived for 12 years and led happy married life.

Subsequent thereof, the husband had illicit relationship

with a lady by name 'Jyothi'. After the husband had

relationship with 'Jyothi', he started ill-treating his wife

and did not take care of his wife and daughter. It is also

contended that she was made to stay in the ground floor

and 3 floors were leased by her husband and he was

earning a sum of `10,000/- p.m towards rent of 3rd floor.

The husband has also left the house deserting his wife

and daughter. P.W.2 is the daughter of the couple. She

also deposed the same in her examination-in-chief. In

the cross-examination, no useful materials are elicited

except admitting the relationship.

5. The husband in his evidence, denied the

averments made in the petition and produced documents

to establish that he had availed a loan and used to repay

the said loan.

6. On conclusion of the evidence of the parties, the

trial Magistrate heard the learned counsel on both sides

and following the dictum of the Hon'ble High Court of

Karnataka in Savitha Ben, Soma Bai Bhatia Vs. State

of Gujarat, reported in AIR 2005 SC 1809 held that it

is the fundamental and natural duty of the husband to

maintain his wife and daughter and allowed the petition

in part and directed the husband to pay the amount as

referred to supra.

7. Being not satisfied with the order passed by the

trial Magistrate, the husband preferred an appeal before

the District Court in Crl.A. No.51/2018. The learned

Judge of the first appellate Court secured the records

and heard the parties in detail. Thereafter, the learned

Judge re-appreciated the material on record by the

impugned Judgment and Order dated 03.06.2021,

dismissed the appeal filed by the husband and confirmed

the Judgment and Order passed by the trial Court.

8. Being aggrieved by both the Judgments and

Orders, the husband is before this Court in this revision

petition.

9. In the revision petition, the following grounds

are raised:

• The order passed by both the Courts is void of merits and is unsustainable in the eyes of law.

• The impugned order passed by the Courts below is illegal, arbitrary and unjust and it is contrary to the material on record. The Court below has passed impugned order mechanically without considering the evidence.

• The Courts below have falsely held that the petitioner is into illicit relationship with another lady without any basis or proof. The only fact that the Petitioner had deposed that the alleged lady was staying in 9th cross instead of 5th cross the Courts below have drawn a presumption that the Petitioner had illicit relationship with the said lady, which is vehemently illegal to draw such an assumption. Hence, on this ground the impugned order has to be reversed.

• The Courts below failed to notice the respondent and the daughter had specifically stated that the Petitioner is taking care of them and was providing all the basic necessities from time to time. The Court below has held that the appellant was negligent in taking care of his daughter and wife, which is illegal and unjust?

• The Courts below also failed to notice that the Petitioner had filed a petition seeking divorce against the Respondent had the admitted fact that the appellant is living separately since 22.02.2013 then the question of domestic violence does not attract.

• The Courts below has passed the impugned order without looking into that admittedly the Petitioner is not working and the respondents had failed to prove the same, the Court below has blindly come to an assumption that the appellant is having income and has passed the impugned order. The Court below also failed to consider the contentions raised in the objections that the Petitioner had to pay the loans which he had taken for his the development for the house and his treatment, and also he is maintaining his mother who is old aged and is suffering from various health aliments. The impugned order to pay Rs.7,000/- p.m. is on a higher side, if the Petitioner pays the amount as order will be left with no money to maintain himself and his aged mother.

• The defense of the Petitioner has not been properly considered by the court below. The court below has impugned order merely on allegations of the Respondent is illegal and arbitrary."

10. Re-iterating the above grounds, the learned

counsel for the revision petitioner Sri. Mangannavar

Girish Baburao vehemently contended that both the

Courts have not properly appreciated the material on

record and wrongly passed the impugned orders.

Alternatively, Sri. Mangannavar Girish Baburao, learned

counsel contended that the marriage of P.W.2 i.e., the

daughter of the couple is fixed and her marriage is to be

solemnized shortly and there is a classic incidents

between the husband and wife and after the marriage of

P.W.2, the parties would leave separately. He prayed for

a time till the marriage is solemnized to settle the matter

amicably. It is also contended that the revision

petitioner/husband is supplying groceries regularly and

also supporting financially and he is ready to contribute

towards the marriage expenses of his daughter.

11. In this case, notice is not yet ordered. On

enquiry, Sri. Mangannavar Grish Baburao, learned

counsel for the revision petitioner submits that arrears of

maintenance as ordered by both the Courts has not been

paid. Taking note of these aspects of the matter, this

Court perused the records in the light of the revision

grounds.

12. In the first place, this Court is sitting in

revisional jurisdiction. An order came to be passed in

C.Misc. No.160/2013 on 15.12.2017 directing payment

of `4,000/- p.m. to the wife towards her maintenance till

her life time or till her re-marriage and `3,000/- p.m. to

the daughter towards her maintenance till her marriage

and `50,000/- towards compensation. Admittedly, the

arrears of maintenance amount is not paid. The

contention of the learned counsel for the revision

petitioner that the husband is supplying groceries to the

family is not supported by any material on record. There

would not have been any reason for the revision

petitioner to file an appeal challenging the order passed

by the learned Magistrate in Crl.A. No.51/2018 even

after disposal of the appeal on merits on 03.06.2021.

There is no record to show that the revision petitioner

has complied the order passed by the learned

Magistrate. The submission made by Sri. Mangannavar

Girish Baburao, learned counsel for the revision

petitioner that the revision petitioner is supporting the

family of the respondent by supplying groceries and he is

ready to co-operate with the respondent/wife for the

marriage of their daughter [P.W.2] and contribute

towards her marriage expenses is not supported by any

material on record. Nothing prevented the revision

petitioner to pay the expenses. It is also submitted that

there is a duly constituted divorce petition pending

before the learned Magistrate. Needless to emphasise

that payment of compensation made in these

proceedings would definitely be considered at the time of

awarding permanent alimony, by the Family Court in the

duly constituted divorce petition. Likewise, any

contribution made in time is also to be considered by the

Family Court in the duly constituted divorce petition

proceedings, if proved. Suffice to say, since both the

Courts have taken into consideration the rival

contentions of the parties and passed an order directing

the revision petitioner/husband to pay the maintenance

amount to his wife and daughter, this Court having

regard to the limited scope of revision, does not find any

merit in any one of the grounds urged before the Court.

Accordingly, pass the following:

ORDER

Admission is declined. Consequently, the revision

petition is dismissed.

In view of the dismissal of the revision petition, I.A.

No.1/2021 does not survive for consideration and

accordingly the same stands disposed of.

Sd/-

JUDGE

Ksm*