Karnataka High Court
Smt. P Shabeena Banu @ Gulab Banu vs Ejaz Khan on 25 March, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE Mr.JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION No.791 OF 2013
c/w
CRIMINAL REVISION PETITION No.691 OF 2012
In Crl.R.P.No.791/2013:
BETWEEN:
SMT.P.SHABEEN BANU
@ GULAB BANU
W/O EJAZ KHAN
AGED ABOUT 23 YEARS
HOUSEHOLD WORK
RESIDING AT 9TH WARD
TEKKADAGARADIKERE
HARAPANAHALLI TALUK
DAVANAGERE DISTRICT. ...PETITIONER
(BY SRI SHIVAKUMARAPPA.T.C., ADVOCATE
FOR SRI B.M.SIDDAPPA, ADVOCATE)
AND:
1. EJAZ KHAN
S/O HAMMEED KHAN
AGED ABOUT 33 YEARS
OCC: BUSINESS
2. SMT. JAHEERA } died on 09.02.2013; R1 & R3
W/O HAMMEED KHAN } to R6 are LRs of deceased R2
AGED ABOUT 51 YEARS } cause-title amended as per
HOUSEHOLD WORK. } Court order dated 10.09.2014
3. BABU SAB
2
S/O HAMMEED KHAN
AGED ABOUT 31 YEARS
OCC: BUSINESS
4. JABBAR
S/O HAMMEED KHAN
AGED ABOUT 30 YEARS.
5. SARJIYA
D/O HAMMEED KHAN
AGED ABOUT 29 YEARS
6. HAMMEED KHAN
S/O ABDUL REHAMAN
AGED ABOUT 55 YEARS
OCC: BUSINESS.
ALL ARE RESIDING AT 2ND CROSS
GANDHINAGAR, HARIHARA
DAVANAGERE DISTRICT. ...RESPONDENTS
(BY SRI Y.SURESH KUMAR, ADVOCATE
FOR R1 & R3 TO R6 - ABSENT-
As per police report - R2 is dead)
THIS CRIMINAL REVISION PETITION FILED U/S.397(1)
OF THE DOMESTIC VIOLENCE ACT 2005 PRAYING TO SET
ASIDE THE ORDER DATED 09.11.2011 PASSED BY THE II
ADDITIONAL SESSIONS JUDGE, DAVANAGERE IN CRL.A.NO.
118/2011 AND FURTHER BE PLEASED TO MODIFY THE ORDER
PASSED BY THE CIVIL JUDGE AND JMFC, HARAPANAHALLI IN
C.MISC.NO.72/2009 DATED 18.07.2011 BY ENHANCING THE
MAINTENANCE AMOUNT FROM RS.1000/- P.M. TO RS.5000/-
P.M. BY ALLOWING THIS PETITION.
***
3
In CRL.R.P.No. 691 OF 2012:
BETWEEN:
SMT.P SHABEENA BANU @ GULAB BANU
W/O EJAZ KHAN
AGED 23 YEARS,
HOUSE HOLD, R/O 9TH WARD,
TEKKADAGARADIKERE,
HARAPANAHALLI,
DAVANAGERE DISTRICT - 577 601. ...PETITIONER
(BY SRI SHIVAKUMARAPPA.T.C., ADVOCATE
FOR SRI B.M.SIDDAPPA, ADVOCATE)
AND:
1. EJAZ KHAN
S/O HAMMEED KHAN
AGED 33 YEARS
BUSINESSMAN.
2. SMT. JAHEERA } died on 09.02.2013; R1 & R3
W/O HAMMEED KHAN } to R6 are LRs of deceased R2
AGED 51 YEARS } cause-title amended as per
HOUSEHOLD WORK. } Court order dated 10.09.2014
3. BABU SAB
S/O HAMMEED KHAN
AGED 31 YEARS
OCC: BUSINESS
4. JABBAR
S/O HAMMEED KHAN
AGED 30 YEARS
BUSINESS.
5. SARJIYA
D/O HAMMEED KHAN
AGED 29 YEARS
HOUSEHOLD
4
6. HAMMEED KHAN
S/O ABDUL REHAMAN
AGED 55 YEARS
BUSINESS.
ALL ARE RESIDING AT 2ND CROSS
GANDHINAGAR,
HARIHARA - 577 601. ...RESPONDENTS
(BY SRI Y.SURESH KUMAR, ADVOCATE
FOR R1 & R3 TO R6)
THIS CRIMINAL REVISION PETITION FILED U/S.397
READ WITH 401 OF CR.P.C. PRAYING TO SET ASIDE THE
ORDER DATED 09.11.2011 PASSED BY THE II ADDITIONAL
SESSIONS JUDGE, DAVANAGERE IN CRL.A.NO. 118/2011
AND DATED 18.07.2011 PASSED BY THE CIVIL JUDGE AND
JMFC, HARAPANAHALLI IN C.MISC.NO.72/2009 AND ALLOW
THE ENTIRE PETITION FILED BY THE
PETITIONER/AGGRIEVED PERSON.
THESE CRIMINAL REVISION PETITIONS COMING ON
FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This Court had heard the learned counsel for the
petitioner on 23.03.2022 and the learned counsel for the
respondents had remained absent on the said date.
However, one more opportunity was given to the
respondents' counsel to make his submission. But today
also, counsel for the respondents is absent and there is no
representation on behalf. Hence, the matter is taken up for
final disposal.
2. The factual matrix of the case of the petitioner
before the Trial Court is that she is the legally wedded wife
of Respondent No.1 and their marriage was solemnized on
02.03.2008 and after the marriage, she started her marital
life in the house of the respondents. It is the case of the
petitioner that the first respondent is in the habit of
drinking alcohol and started harassing the petitioner and
demanding to bring more dowry from the petitioner's
parents. The respondents were physically assaulting the
petitioner. Ultimately, the respondents ousted the
petitioner from the matrimonial home. The petitioner is not
having independent means to maintain herself and hence,
she has claimed maintenance from the respondents
contending that the first respondent is carrying fruit
business and earning Rs.50,000/- per month.
3. After issuance of notice, the respondents
appeared through their counsel and filed their objection
statement contending that the marriage was not
consummated. The petitioner never lived in the house of
the first respondent and she is living with her parents at
Harihara. The first respondent is ready and willing to lead
marital life with the petitioner at any place of her choice.
The respondent is working under the fruit merchants and
he is getting Rs.50/- per day and hence, the petitioner is
not entitled for any maintenance.
4. The petitioner, in order to prove her case
examined herself as PW-1 and the respondent got himself
examined as RW-1 and both the parties have not filed any
documents before the Trial Court. The Trial Judge, after
considering oral evidence available on record, taking note
that the marriage is admitted and the petitioner is living
separately along with her parents, an order has been
passed granting maintenance of Rs.1,000/-. The same has
been challenged by the petitioner by filing an appeal in
Criminal Appeal No.118 of 2011 for enhancement. The
respondent-husband also filed an appeal in Criminal Appeal
No.137 of 2011. The First Appellate Court vide order dated
09.11.2011 dismissed the appeal filed by the petitioner
herein and allowed the appeal filed by the respondent
herein and set aside the order of the Trial Court. Hence,
the wife is before this Court in revision petition.
5. It is the contention of the revision petitioner/
wife that the Appellate Court has committed an error in
dismissing the appeal filed by her and it is highly
impossible to lead life with a meager amount of Rs.1,000/-.
The Appellate Court has also committed an error in setting
aside the said order by considering her deposition given
before the Trial Court in C.C.No.135/2011.
6. The learned counsel for the revision petitioner
would submit that no application is filed before the
Appellate Court to consider the additional evidence invoking
an application under Section 391 of Cr.P.C. The Appellate
Court has abruptly considered the same and the same is
not admissible in law and the judgment in C.C.No.
135/2011 is also not placed before the Trial court and not
put any questions before the Trial court with regard to the
judgment, which has been relied upon by the Appellate
Court and very receiving of the said document without any
proper application and relying upon the said judgment is an
error apparent on record and the Appellate Court has
committed an error in considering the same, which requires
interference by this Court.
7. Learned counsel for the respondents had
remained absent.
8. Having heard the learned counsel for the
petitioner and also on perusal of the records of the Trial
Court, the points that would arise for consideration are:
i) Whether the Appellate Court committed
an error in allowing Crl.a.No.137/2011 in setting
aside the order passed by the Trial Court?
ii) Whether the Appellate Court committed
an error in dismissing the appeal in
Crl.A.No.118/2011:
iii) Whether the petitioner made out the
case to exercise revision jurisdiction to set aside the
order passed in Crl.A.No.137/2011 as well as
Crl.A.No.118/2011?
9. On perusal of the records, particularly in
Crl.Misc. No.72/2009, the judgment given in
C.C.No.135/2011 is not placed before the Trial Court by the
respondent and the same is also not confronted to the
witness during the cross-examination of PW-1 and no
questions are asked with regard to the said judgment. On
perusal of the judgment in Crl.A.No.118/2011 and
137/2011, in paragraph No.12, there is a discussion with
regard to judgment in C.C.No.135/2011 and the Trial Court
has relied upon the same, but the same is not placed
before the Trial Court seeking permission of the Court to
produce additional documents and not invoked provisions
under Section 391 of Cr.P.C. seeking permission to place it
before the Appellate Court. The Appellate Court has
committed an error in relying upon the judgment rendered
in C.C.No.135/2011 wherein in paragraph No.16 of page
No.7 has discussed the evidence of the petitioner herein
and the Appellate Court ought not have relied upon the
same, when the same is not part of the records. The
Appellate Court would have exercised its powers to re-
appreciate the material available on record. The Appellate
Court has committed an error in relying upon the judgment
passed in C.C.No.135/2011 and hence, the mistake in
apparent on the face of it and based on the said judgment
has reversed the finding of the Trial Court and the very
approach of the Appellate Court is erroneous and hence, I
am of the opinion that the Appellate Court has committed
an error in allowing Crl.A.No.137 of 2011, considering the
judgment passed din C.C.No.135 of 2011 and the same
requires to be set aside.
10. Now, coming to the aspect of Crl.A.No.118/2011
filed by the petitioner herein, she has sought maintenance
of Rs.5,000/- by giving representation to the Protection
Officer vide letter dated 23.06.2009 and based on the
same, the Protection Officer has submitted a report to the
Trial Court and process was issued against both of them
and the petitioner also adduced evidence before the Trial
Court by filing an affidavit and she has also been cross-
examined and answers were elicited from her wherein she
has stated that she was living with the respondent for a
period of only four days. Thereafter, the respondent had
given an application in the Masjid with a request to lead life
with him and she also admitted that she is not willing to go
and join the respondent. The respondent also got examined
himself by filing an affidavit. In the cross-examination, he
admits that marriage was performed in front of the house
of the petitioner. He also admitted that he is doing fruit
business. He also admitted that a complaint is given
against him in the police station by the petitioner.
11. Having considered the material on record, only
oral evidence is available on record and the marriage is not
disputed and petitioner also admits that she was stayed
with him for a period of only four days and also admits that
she did not agree to go and stay with the respondent but
demanded that the respondent should come and stay with
her. Though the respondent contend that he is working in
the fruit shop but in the cross-examination, he categorically
admits that he is doing fruit business. The Trial Court
having taken note of the material on record and also taking
note of the admissions made by the respondent in his
cross-examination that he is having a house and no
material is placed before the Court that this respondent is
maintaining the petitioner has awarded a sum of Rs.1,000/-
per month. Having perused the order of the Trial Court
and the judgment rendered by the Appellate Court, the
Appellate Court has reversed the finding mainly by relying
upon the judgment passed in C.C.No.135/2011. This Court
already comes to a conclusion that the same ought not to
have considered and the same cannot be placed before the
Appellate Court as additional evidence before the Appellate
Court. It is admitted that the petitioner stayed with the
respondent only for a few days and apart from that she
refused to come and join the respondent. She also admits
that a request is made by the respondent in the Masjid to
direct this petitioner to stay with him and having taken
note of the status of the respondent as he is doing fruit
business and when the marriage is not disputed, it is
appropriate to enhance maintenance of Rs.1,000/- to
Rs.3,000/- by setting aside the order passed by the
Appellate Court in Crl.A.No.118/2011. In view of the
discussion above, I answer points 1 to 3 in the affirmative
and accordingly, I pass the following:
ORDER
i) Both the criminal revision petitions are allowed.
ii) The order passed by the Appellate Court in
Crl.A.No.118/2011 and Crl.A./No.137/2011 are hereby set
aside. Consequently, the respondent/husband is directed
to pay maintenance of Rs.3,000/- (Rupees Three Thousand
only) per month to the petitioner/wife from the date of the
petition.
Sd/-
JUDGE
DH
