Sri Shivamurthappa P vs Smt M Prathima
2022 Latest Caselaw 3536 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 03 R D DAY OF MARCH, 2022

                        BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

 CRIMINAL REVISION PETITION NO.725 OF 2015


BETWEEN:

Sri. Shivamurthappa P.,
S/o Puttaswamy,
Aged about 33 years,
R/at No.2, Mahad eshwara Nilaya,
9 t h Cross, Vidyap eeta Road,
Keng eri, Beng aluru - 560 060.
                                             ...Petitioner
(By Sri Sidd arth B. Muchand i, Advocate)

AND:

Smt. M. Prathima,
W/o Shivamurthappa P.,
D/o Sri. Manjunatha,
Aged about 23 years,
No.32/1, Police Quarters,
Mag adi Road , Beng aluru - 560 048.
                                            ...Respondent
(By Sri N.Ud ayakumar, Advocate)

     This Criminal Revision Petition is filed under
Section 397 read with 401 of Cr.P.C., p raying to set
aside the order dated 4.3.2015 passed by the III
M.M.T.C., Bengaluru in Crl.Misc.No.7/2014 and b eing
confirmed dated 6.7.2015 passed by the LXIX
Additional City Civil and Sessions Judge, Bengaluru in
Crl.A.No.365/2015.

    This Criminal Revision Petition coming on        for
hearing this d ay, the Court made the following:
                         :: 2 ::


                       ORDER

The petitioner has challenged the judgment

dated 6.07.2015 passed by Addl. City Civil and

Sessions Judge, Bengaluru in Crl.A.No.365/2015.

The learned Sessions Judge dismissed the appeal

and confirmed the order dated 4.3.2015 passed by

the Metropolitan Magistrate in Crl.Misc.No.7/2014

instituted under section 12 of the Protection of

Women from Domestic Violence Act (for short

'Act'). Referring to the parties with respect to

their position in the Court of Magistrate, the facts

may be briefly stated as follows:

2. The complainant before the Magistrate is

the wife and her marriage with the respondent was

solemnized on 4.3.2012 at Bengaluru. At the time

of marriage, the parents of the complainant gave

to the respondent 8 grams of gold ring, 30 grams

of chain, 1.5 kgs. of silver articles, Rs.30,000/-

cash for buying new clothes and Rs.2,00,000/- as :: 3 ::

dowry. The complainant was also given 30 grams

of gold chain, 50 grams of gold long chain, 30

grams of gold necklace, one pair of vole and

jumki, two gold rings, silk sarees and other

clothes.

3. The complainant alleged that she went to

her matrimonial home after the marriage and three

months after her stay there, the respondent, his

sister and parents started harassing her. They

used to taunt her saying that the marriage was not

performed to their expectation and status, and

they demanded the complainant to get registered

a site and a mango grove situated in her native

place in the name of the respondent. She further

alleged that she was not allowed to visit her

parents' house and that one day the respondent

and his parents made her drink water mixed with

acid when she was taking breakfast. As a result

she started vomiting blood and then she was taken :: 4 ::

to H.K.Hospital, Kengeri for treatment. When the

doctors in the hospital told that they would inform

the police, the respondent, his parents, his sister

and his brother-in-law threatened not to give

statement to the police against them and asked

her to give statement that she herself drank the

acid in the bathroom and thus she was compelled

to give statement in that manner. After the

complainant's parents came to the hospital, the

respondent and his parents went away from that

place and her father nearly spent Rs.7,00,000/-

for her treatment.

4. Further allegations is that on 8.12.2013,

when complainant's parents and relatives took her

to the house of the respondent, they were all

abused in vulgar language and assaulted with

slippers. Therefore the complainant went to

Kengeri Police Station for lodging an FIR and

accordingly it was registered in Cr.No.402/2013 :: 5 ::

for the offences under sections 498-A, 506 r/w 34

IPC and sections 3 and 4 of Dowry Prohibition Act.

With this background, the complainant alleged that

she was neglected by the respondent, not provided

with food, cloth and shelter and thus she had to

face a lot of hardship. This led to her approaching

the court of Magistrate with a complaint under

section 12 of the Act for various reliefs such as

protection order under section 18 of the Act,

residential order under section 19 of the Act,

monetary reliefs under section 20 of the Act and

compensation under section 22 of the Act.

5. In the statement of objections filed by the

respondent, he denied all the allegations made by

the complainant and contented very specifically

that the complainant found it very difficult to

adjust herself in his house. He stated that he was

working as a constable in City Armed Reserve

Force (CAR) on a net salary of Rs.13,473/- and :: 6 ::

that his father who was also working as a police

was due to retire in a short time. He was

compelled to raise loan from a bank on the

insistence of the complainant and a sum of

Rs.5,700/- was being deducted towards the loan.

Thus his net income was reduced to Rs.7,773/-.

He stated that he would find it very difficult to

manage the family after the retirement of his

father. But the complainant was a person of high

ambition and she used to complain from the

beginning that she committed a mistake in

marrying him. She used to ridicule and taunt him

that he was just a constable and his earning was

very insufficient to lead a luxurious life. She had

a behavioural problem. Once in the month of

June, 2012 she tried to drink phenol in the

bathroom and the respondent somehow prevented

her from drinking it. In the month of September,

2012, she consumed diabetes tablets to the panic

of his family. Denying the specific allegation that :: 7 ::

he and his parents made her drink water mixed

with acid, he stated that on 20.02.2013 around

9.00 a.m., she went to clean the toilet and

immediately came out screaming and shouting. At

that time he was on his duty at D.G. Office. His

mother informed him that the complainant was

taken to hospital by his brother-in-law viz., Ravi.

Immediately he came to H.K.Hospital, Kengeri and

spent about Rs.20,000/- for her treatment and

thus saved her life. Later on when she was asked

as to what happened, she herself revealed that she

mixed the acid with water in a jug and as the

smell was too pungent, she left that water in the

jug for 15 minutes. Later on forgetting that she

had mixed the acid in the water, she gargled her

mouth with the same water. When a few drops

went inside her stomach she started screaming.

This was the actual incident, but she gave a twist

to it for blaming them. He spent a lot of money for

her treatment. She could have taken treatment in :: 8 ::

one of the hospitals listed under 'Arogya Bhagya

Scheme'. Being wife of a police constable, she was

entitled to be treated in any one of the listed

hospitals where better treatment facility was

available. He was never informed at all by the

complainant's parents that she need to undergo

surgery.

      5.1.       He   contended         further     that     the

complainant was a spend thrift.              She knew very

well his financial position, yet she wanted to live

in a bigger house and she used to say that she

would not care as to how he would arrange for

money and unless she was provided with the

facilities that she wanted, she would not live with

him and saying so she left his company. She was

ill advised by her parents and even when she was

staying in her parents' house, she would telephone

him and speak rudely with abusive language.

Because of her abnormal behaviour, he suffered :: 9 ::

mental agony and disturbance. Having found it

impossible to tolerate the cruelty and harassment

on him, he had no option but to dissolve the

marriage and therefore he issued a legal notice on

24.9.2013. After receiving the notice, on

8.10.2013 at 1.10 p.m., the complainant's father

telephoned and threatened him to get civil and

criminal cases instituted against him. Therefore

he had to report this threat call to the Kengeri

Police Station and obtain NCR acknowledgment.

Then he applied for divorce by filing a petition in

the Family Court, Bengaluru on 16.11.2013. On

8.12.2013, when his mother was alone in the

house, the complainant's father, mother and uncle

suddenly came to his house, picked up quarrel

with the mother for issuing legal notice and caused

injuries to her. In this connection, FIR was

registered in Cr.No.395/2013 at Kengeri Police

Station for the offences under sections 506, 341,

504, 448, 323 r/w 149 IPC. After all these :: 10 ::

events, as a counter blast, the complainant

ventured to get a false FIR registered against him,

his parents, sister and sister-in-law on 16.12.2013

alleging dowry harassment and criminal

intimidation. At last she approached the court of

Magistrate with a complaint under the Protection

of Women from Domestic Violence Act. This delay

itself would indicate that the said complaint was as

a result of after thought and outcome of due

deliberation.

6. The learned Magistrate after holding an

inquiry by examining the parties and perusing the

documents that they produced, partly allowed the

complaint under section 12 of the Act. The

learned Magistrate directed the respondent to pay

Rs.10,000/- every month towards maintenance till

life time of the complainant, to provide a separate

house and bear medical expenses of

Rs.7,00,000/-, to further pay Rs.2,00,000/- as :: 11 ::

compensation for mental and emotional cruelty

and to pay Rs.1,000/- towards the litigation

expenses. In the appeal preferred against this

order by the respondent, the learned Sessions

Judge confirmed the findings and the order of the

learned Magistrate.

7. I have heard the arguments of Sri.

Siddarth B. Muchandi and Sri. Uday Kumar,

learned counsel for the parties respectively.

8. Sri. Siddarth B. Muchandi argued that the

courts below have not appreciated the evidence

properly. He submitted that the trial court would

come to conclusion that the complainant/wife

failed to provide cogent evidence before the court

that she was subjected to domestic violence by the

husband. The trial court disbelieved the evidence

of the complainant that she was made to drink the

acid. This was the main reason for the

complainant to say that she was subjected to :: 12 ::

physical cruelty. The trial court also came to

conclusion that the evidence of complainant was

difficult to be believed that she was ill-treated in

connection with dowry demand as she approached

the court ten months after the actual incident of

consuming acid with an allegation of domestic

violence. In spite of that if the trial court would

direct the respondent to pay maintenance, bear

the medical expenses and compensation for

emotional violence, such a finding is nothing but

perverse application of mind.

8.1. Sri. Siddarth B. Muchandi submitted that

on 28.01.2022 he filed a memo in this revision

petition to produce copy of the judgment and

decree in M.C.No.4655/2013, order in

Crl.P.No.2001/2015, copy of complaint dated

16.12.2013 and a copy of government order dated

23.7.2012. Referring to these documents he

argued that the respondent sought divorce on the :: 13 ::

ground of cruelty and in the same divorce petition,

the complainant set up a counter claim seeking the

relief of restitution of conjugal rights. The

respondent's petition for divorce was allowed and

the counter claim was dismissed. This was a

subsequent development which the court can

consider and the fact of granting divorce fortifies

the respondent's case that there is no truth in the

allegations made against him. The complainant did

not challenge the decree of granting divorce and it

has attained finality. The complainant herself

chose to live away from the company of the

respondent and in this view he cannot be fastened

with the liability of providing maintenance.

8.2. The complainant was aware of 'Arogya

Bhagya Scheme'. Her father was working in the

Police Department. She could have taken

treatment in any one of the hospitals included in

the list providing treatment to the police personnel :: 14 ::

and their dependants under the Arogya Bhagya

Scheme. The respondent initially paid the hospital

expenses when the complainant was admitted to

H.K. Hospital. She was there in this hospital only

for four days. After about one and a half months,

if she was admitted to other hospitals without

informing the respondent, he was not responsible

for not bearing the hospital expenses. He was not

informed at all that the complainant was admitted

to Chord Road Hospital and Victoria Hospital. He

has clearly given evidence that he was not

informed at all. His net salary is very meager and

if is asked to pay Rs.7,00,000/- towards hospital

expenses, certainly it is a big amount for him

which he cannot arrange.

8.3. Even the appellate court has failed to

appreciate all these aspects. In this view it was

his argument that the judgment of the courts

below should be set aside.

:: 15 ::

9. Sri. Uday Kumar argued that the evidence

of the complainant clearly discloses that she was

subjected to domestic violence. She was made to

drink acid by the respondent and his family

members. It was not accidental consumption.

She was made to give a statement in the hospital

forcibly that she unknowingly drank the water

mixed with acid. The respondent did not care to

come to hospital to see the complainant, even he

did not bear the hospital expenses. Every expense

was met by complainant's father. Being the

husband, he neglected his responsibility and

therefore the trial court is justified in directing

him to bear the hospital expenses to the tune of

Rs.7,00,000/-.

9.1. Though it is true that the respondent

issued a notice for seeking divorce, she could not

reply to the notice because she was hospitalized at

that time. There is no proof for service of notice :: 16 ::

on her. She did not challenge the divorce decree

because the respondent assured of settling the

case. It was his argument that the two courts

below consistently have come to conclusion on

facts that the complainant was subjected to

domestic violence and in the revision petition

those findings cannot be upset. He argued for

dismissing the revision petition.

10. If the findings given by the learned

Magistrate are seen, it is held that the Magistrate

has not believed the evidence of the complainant

that she was subjected to ill-treatment in

connection with dowry demand after the marriage,

that she was made to drink the acid forcibly. The

Magistrate has believed the evidence of the

respondent that on 20.2.2013, the day when the

complainant consumed water mixed with acid, the

respondent attended to his duty and that he was

not in the house at that time. It is also held that :: 17 ::

the respondent applied for leave on 21 s t and 22 n d

March, 2013. The Magistrate has come to

conclusion that the complainant gave statement

before a doctor viz., Gururaj that she accidentally

drank water mixed with acid and this statement

was believable. The Magistrate also noticed the

conduct of the complainant in giving a complaint

after ten months. Having held that the evidence

of the complainant about ill-treatment as

unbelievable, the Magistrate proceeded to hold

that the respondent neglected his duty to take

care of his wife by bearing the hospital expenses.

His answer that he was not aware of the actual

expenses incurred by complainant's father cannot

be accepted and his conduct would show that he

neglected to take care of his wife and this would

amount to subjecting the wife to mental and

emotional domestic violence.

:: 18 ::

11. The appellate court has not actually

appreciated the evidence and has simply endorsed

the findings of the Magistrate.

12. Keeping in mind the arguments put

forward by the learned counsel, if the judgment of

the trial court is examined, it appears that its

conclusions that there is no proof for complainant

being subjected to domestic violence in the

background of demand for dowry are correct. Her

main allegation is that she was made to drink acid

which had been mixed with water, and it is rightly

held that it is a false allegation; rather the

evidence discloses she herself drank it and it is

evident by her admission statement as per

Ex.R.14. There is no proof for accepting the

argument of Sri. Udaykumar that Ex.R.14 was

obtained by force. Ex.R.14 shows that the

complainant gave the statement in the presence of

a doctor. There is another document which the :: 19 ::

trial court has not considered. Ex.R.21 shows that

Dr. Ravikumar of H.K.Hospital replied to a letter

written to him seeking some clarifications

regarding consumption of acid by the complainant.

In Ex.R.21, it is written very clearly that it was

not a case of forcible administration of acid into

the mouth of the complainant.

13. The respondent's counsel Sri. Siddarth

Muchandi has produced four documents along with

a memo, one of the documents is copy of the

judgment in M.C.No.4655/2013, which was a

proceeding for dissolving the marriage of the

complainant and the respondent. But divorce

petition was filed by the respondent on the ground

of cruelty on him by the petitioner, and in the said

proceeding, the complainant sought counter claim

against the respondent for restitution of conjugal

rights.

:: 20 ::

14. The said judgment can be looked into in

this revision, as section 401 Cr.P.C. provides that

the High Court while exercising revisional

jurisdiction can exercise power under section 391

Cr.P.C. which provides for receiving additional

evidence. The complainant contested in the

divorce petition and it is an undisputed document.

Therefore, it can be straight away considered

here. The Family Court has clearly held that it

was the complainant who caused cruelty, and while

giving such a finding, one of the circumstances

considered is making false allegation against the

respondent and his family members that the

complainant was made to drink acid. Therefore it

may be concluded that there is no probability in

the case as the complainant was subjected to

domestic violence when she lived in her

matrimonial home for a few months.

:: 21 ::

15. The next question is whether the

Magistrate could have granted various reliefs

claimed by the complainant despite holding against

the complainant.

16. Any relief under the provisions of the Act

can be ordered only if domestic violence has taken

place, otherwise not. The judgment of the

Magistrate shows that the respondent derelicted

his responsibility to provide treatment to the

complainant. This was the reason for directing

him to pay Rs.7,00,000/- which was spent for

treatment. In this regard, the respondent's firm

stand was that when the complainant was admitted

to H.K. Hospital for treatment in connection with

drinking acid, he made payment of Rs.20,000/-.

The complainant was inpatient for about four days.

After discharge from hospital, she went to her

parents' house, and was again admitted to Chord

Road Hospital after about a month, which he did :: 22 ::

not know as he was not informed at all. If

complainant has stated in her evidence that her

parents informed the respondent over phone about

her hospitalization, the petitioner has denied any

information being given to him. It is quite natural

for them to take contrary stand, but another

important aspect is about not taking treatment in

one of the hospitals where the police personnel

and their dependents can take treatment under

'Arogya Bhagya Scheme' provided by the

Government. The complainant was aware of this

facility as her father was also a police. The

respondent has contended that if he had been

informed, he would have arranged for treatment in

one of the hospitals listed in Government

notification under 'Arogya Bhagya Scheme'. He

has also stated that even without informing him,

the complainant herself could have claimed that

benefit being his wife. It is not the case of the

complainant that either she or her father made an :: 23 ::

effort for availing 'Arogya Bhagya Scheme' facility.

Looked in this view, his specific contention that he

was not informed when the complainant was again

hospitalized appears to be probable. For this

reason, though it is possible to state that he

cannot be asked to bear medical expenses of

Rs.7,00,000/-, but it can also be stated that in

spite of difference between them, the complainant

being the wife might have felt the presence of her

husband during hospitalization period and to this

extent she might have emotionally distressed.

And atleast for this reason, the respondent has to

compensate the complainant, and a reasonable

sum of Rs.2,00,000/- is sufficient. The learned

Magistrate as also the appellate judge should have

applied their minds in this way.

17. The learned Magistrate has ordered to pay

maintenance of Rs.10,000/- p.m. and also provide

a separate residence to the complainant. As the :: 24 ::

circumstances indicate that the respondent did not

subject the complainant to domestic violence in

any manner and that the complainant herself

chose to live away from the company of the

respondent, the question would definitely arise

whether she can claim these reliefs. Moreover,

the Family Court, for rejecting the counter claim of

the complainant has given a finding against her, in

the sense that the respondent is not responsible

for the complainant leaving the matrimonial home.

There is no evidence that the respondent

intentionally neglected to maintain the

complainant. The learned Magistrate having given

a finding that there was no domestic violence,

ought not to have ordered for providing

maintenance and a separate residence for the

complainant. These releifs that the magistrate has

given and that the appellate court has confirmed

are totally against the findings on facts. In this

view the order concerning providing maintenance :: 25 ::

and providing separate residence cannot be

sustained.

18. In the result, this revision petition

partially succeeds. The order of the Magistrate

and the judgment of the appellate court are

modified as below:

      i.      The        order       of     the       Magistrate
              directing      the respondent husband
              to     pay        Rs.7,00,000/-           towards
              medical expenses is set aside.


      ii.     The        order       of     the       Magistrate
              directing      the respondent husband
              to pay maintenance of Rs.10,000/-
              every       month      to     the   complainant
              wife        and      provide        a    separate

residence for her is also set aside.

      iii.    The        order       of     the       Magistrate
              directing      the respondent husband
              to     pay        Rs.2,00,000/-           towards
              emotional abuse is confirmed.
                         :: 26 ::


     iv.   No   amount      is     granted   towards
           litigation   expenses      noticing   the
           conduct of the complainant wife.



                             Sd/-
                            JUDGE

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