Karnataka High Court
Sri Lokesh C A vs Smt Shilpa on 5 December, 2023
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NC: 2023:KHC:43913
CRL. R.P. No.450 of 2017
C/W CRL. R.P. No.39 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE ANIL B. KATTI
CRIMINAL REVISION PETITION NO.450 OF 2017
C/W
CRIMINAL REVISION PETITION NO.39 OF 2017
IN CRIMINAL R.P. NO.450 OF 2017
BETWEEN:
1. SHILPA
W/O LOKESH
AGED 27 YEARS.
Digitally 2. SRIJAN
signed by S/O LOKESH
SUMITHRA R
AGED 7 YEARS
Location: SINCE MINOR REPT. BY HIS
HIGH COURT
OF MOTHER AND NATURAL GUARDIAN
KARNATAKA SHILPA W/O LOKESH
AGED 27 YEARS.
BOTH ARE RESIDING AT NO.87/2
7TH CROSS, JANATHA COLONY
BENGALURU - 68.
...PETITIONERS
(BY SRI. KARUMBAIAH T.A. ADVOCATE)
AND:
1. LOKESH
S/O ANJANAPPA
AGED 37 YEARS
R/AT CHANNASANDRA VILLAGE
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CRL. R.P. No.450 of 2017
C/W CRL. R.P. No.39 of 2017
BYATA POST, HESARGHATTA HOBLI
BENGALURU - 92.
...RESPONDENT
(BY SRI. BASAVARAJU P, ADVOCATE)
THIS CRL. R.P. IS FILED U/S.397 R/W 401 OF CR.P.C.
PRAYING TO SET ASIDE THE ORDER DATED 03.12.2016
PASSED BY THE LVIII ADDL. CITY CIVIL AND S.J., BANGALORE
IN CRL.A.NO.1436/2015 AND CONFIRM THE ORDER DATED
02.06.2015 PASSED BY THE III-M.M.T.C., BANGALORE IN
CRL.MISC.NO.211/2014.
IN CRIMINAL R.P. NO.39 OF 2017
BETWEEN:
1. SRI. LOKESH C.A.
S/O ANJINAPPA
AGED ABOUT 38 YEARS
R/AT CHANNASANDRA VILLAGE
BYATA POST, HESARAGATTA HOBLI
BANGALORE - 560 089.
...PETITIONER
(BY SRI. BASAVARAJU P, ADVOCATE)
AND:
1. SMT. SHILPA
W/O LOKESH C.A.
AGED ABOUT 28 YEARS.
2. MASTER SRUJAN
S/O LOKESH C.A.
AGED ABOUT 8 YEARS
BEING MINOR REP. BY HIS MOTHER.
BOTH ARE R/AT NO.87/2, 7TH CROSS
JANATHA COLONY
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CRL. R.P. No.450 of 2017
C/W CRL. R.P. No.39 of 2017
GIDADHA KONANAHALLI
MUDDAYANAPALYA
VISHWANEEDAM POST
BENGALURU - 560 068.
...RESPONDENTS
(BY SRI. T.A. KARUMBAIAH, ADVOCATE FOR R1 & R2)
THIS CRL. R.P. IS FILED U/S.397 R/W 401 OF CR. P.C.
PRAYING TO SET ASIDE THE ORDER DATED 2.6.2015 PASSED
BY THE MMTC-III, BENGALURU IN CRL. MISC. NO.211/2014
AND JUDGMENT AND ORDER DATED 3.12.2016 PASSED BY
THE ADDL. CITY CIVIL AND S.J., BENGALURU CITY (CCH-58)
IN CRL.A.NO.1436/2015.
THESE PETITIONS COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Revision petitioner/petitioner Nos.1 and 2 filed
Crl.RP.No.450/2017 and the revision petitioner/respondent
filed Crl.RP.No.39/2017 feeling aggrieved by the judgment
of the first appellate Court on the file of LVIII Additional
City Civil & Sessions Judge, Bengaluru in
Crl.A.No.1436/2015 dated 03.12.2016 preferred these
revision petitions.
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2. Parties to both the revision petitions are
referred with their ranks as assigned in the trial Court for
the sake of convenience.
3. Heard arguments on both sides.
4. After hearing the arguments of both sides and
on perusal of the trial Court records, so also the judgment
of both the Courts below, the following points arise for
consideration:
i. Whether the impugned judgment of the
first appellate Court under revision
petitions in confirming and modifying the
order of the trial Court with regard to
grant of maintenance and rejection of
compensation amount awarded by the trial
Court is perverse, capricious and legally
not sustainable?
ii. Whether any interference of this Court is
required?
5. On careful perusal of oral and documentary
evidence placed on record, it would go to show that on the
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basis of domestic incident report submitted by Child
Development Officer, Yelahanka, Bengaluru North, a
petition under Section 12 of the Protection of Women from
Domestic Violence Act (hereinafter referred to as 'the
PWDV Act', for brevity) is registered. In response to the
notice, the respondent has appeared through his counsel
and filed objections. The trial Court, after appreciation of
evidence on record, has granted monthly maintenance
amount of Rs.6,000/- to petitioner No.1 and Rs.2,000/- to
petitioner No.2 and also granted compensation of
Rs.2,00,000/-. The respondent has challenged the said
order before the first appellate Court in Crl.A.1436/2015.
The first appellate Court, after re-appreciation of evidence
on record, has modified the order by setting aside the
compensation awarded by the trial Court and granted
monthly maintenance of Rs.2,000/- to petitioner No.1 and
Rs.4,000/- to petitioner No.2, totally amounting to
Rs.6,000/- per month from the date of filing the petition.
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6. revision petitioners/petitioner Nos.1 and 2 in
Crl.RP.No.450/2017 are challenging the order of the first
appellate Court in setting aside the compensation awarded
by the trial Court and also in reducing the quantum of
maintenance; whereas, the revision petitioner/respondent
is challenging the order of first appellate Court and the
trial Court in Crl.RP.No.39/2017 in granting maintenance
to the petitioners.
7. Learned counsel for revision petitioners has
argued that the first appellate Court was not justified in
setting aside the compensation amount awarded by the
trial Court and also in reducing the maintenance awarded
by the trial Court. The maintenance amount awarded
would meet only the minimum requirement of the
petitioners in these hard days and no valid reasons have
been recorded by the first appellate Court to set aside the
compensation awarded by the trial Court and also in
modifying the quantum of maintenance. The respondent
has deliberately chosen not to contest the claim of
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petitioners. The respondent is duty bound to maintain the
petitioners, since they were subjected to domestic
violence. The respondent has got sufficient source of
income to maintain the petitioners.
8. Per contra, learned counsel for the respondent
has argued that findings recorded by both the Courts
below are contrary to the facts and law and there was no
any basis for grant of maintenance as awarded by the trial
Court and also the modified grant of maintenance ordered
by the first appellate Court. The petitioners have not filed
any documents evidencing the source of income of
respondent and no opportunity was given to the
respondent for leading his evidence. The first appellate
Court did not appreciate the factual aspect of the matter
and just proceeded to confirm the order of the trial Court
in granting maintenance.
9. On perusal of the trial Court records, it would
go to show that on the basis of the domestic incident
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reported by the Child Development Officer, Yelahanka,
Bengaluru North, the same was registered as a petition in
terms of Section 12 of the PWDV Act. The respondent,
after appearance through the counsel, filed objections to
the petition on 14.11.2014. The trial Court, after hearing
both the sides, granted interim maintenance of Rs.2,000/-
to petitioner No.2 and the petitioner No.1 was examined
before the trial Court on 18.02.2015. On 27.03.2015,
PW-1 was partly cross-examined and the matter came to
be adjourned to 07.04.2015. On the said date by noting
the absence of respondent and his counsel, the trial Court
has recorded that there is no further cross-examination of
PW-1 and posted the matter for respondent's evidence on
15.04.2015 and on the said day, the arguments of counsel
for the petitioner was heard and posted the matter for
hearing the arguments of the respondent to 25.04.2015.
On 25.04.2015, the respondent's arguments was taken as
Nil and judgment came to be passed on 02.06.2015. The
said proceedings maintained by the trial Court would go to
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show that the matter came to be disposed of without the
evidence of respondent. There was also no further cross-
examination of PW-1.
10. The mere absence of respondent on 07.04.2015
cannot be a ground to deny the requisite opportunity to
the respondent to participate in the proceedings. The only
opportunity given by the trial Court to the respondent is
on 15.04.2015 to lead his evidence. On the said day, it
was taken that the respondent has no evidence and
arguments of counsel for petitioner was heard. On
25.04.2015 by noting absence of the respondent and his
counsel, the trial Court reserved the matter for judgment
and the judgment came to be passed on 02.06.2015 by
allowing the petition partly. The aforementioned
proceedings would go to show that there was no
reasonable opportunity given to the respondent to contest
the claim of petitioners.
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11. The oral evidence of PW-1 and documents at
Exs.P-1 to P-4 would go to show that apart from petitioner
No.1 giving evidence that the respondent has got sufficient
source of income, the petitioner has not produced any
evidence on record to show the income of the respondent.
The RTC at Ex.P-4 would go to show that the same does
not stand in the name of the respondent. The entries
found in Ex.P-4 would go to show that 3 acre 18 guntas of
land stand in the name of Bheemrao S/o.Akkayamma
W/o.Late H.Anjinappa. Therefore, the respondent has got
source of income from the agricultural land at Ex.P-4 has
not been substantiated by the evidence of PW-1.
12. The learned counsel for the respondent relied
on the judgment of Hon'ble Apex Court in the case of
Rajnesh vs. Neha and another reported in (2021) 2
SCC 324, wherein the Hon'ble Apex Court while deciding
the maintenance proceedings under various statutes,
including interim maintenance proceedings, with an
objective assessment and expeditious disposal of the
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applications, has issued directions and clarifications with
respect to the manner in which the responsible pleadings
are to be made and the particulars are to be provided
including affidavits of disclosure of assets and liabilities as
per Enclosures I, II and III appended with the said
judgment; availability of marriage counsellors for
expeditious disposal of the applications and incidental and
related issues.
13. The above said principle has been reiterated by
the Hon'ble Apex Court in the latest judgment in Aditi
alias Mithi vs. Jitesh Sharma in Criminal Appeal
No(s).3446/2023 dated 06.11.2023, wherein the Hon'ble
Apex Court reiterated the guidelines issued by the Hon'ble
Apex Court in the case of Rajnesh vs. Neha and
another referred above and has directed to re-circulate
the copy of the aforesaid judgment to all the Judicial
Officers through the High Courts concerned. Therefore, it
is obligatory on the part of trial Court while considering
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the maintenance to follow the guidelines laid down by the
Hon'ble Apex Court in both the aforementioned judgments.
14. Learned counsel for the petitioners has argued
that those directions have been issued subsequent to
disposal of the case by the trial Court and also by the first
appellate Court, therefore, the principles enunciated in
both the decisions cannot be applied to the facts of the
present case. There is no any such direction of the Hon'ble
Apex Court in both the aforementioned judgments that the
said guidelines are not applicable to the cases prior to the
said judgment. Therefore, the aforementioned contention
of the learned counsel for the petitioners does not survive.
15. Looking to the facts of the present case and the
proceedings of the trial Court as referred above, it would
go to show that the case has been disposed of by the trial
Court without the participation of the respondent and no
any suitable opportunity was given to the respondent to
putforth his evidence. The first appellate Court also
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proceeded to confirm the maintenance granted by the trial
Court only on the ground that when the petitioner, who
was a victim of domestic violence, is entitled for
maintenance. The petitioners have not produced any
material evidence to show the source of income of the
respondent for awarding the compensation and also
maintenance amount.
16. Therefore, in view of the reasons recorded as
above, opportunity is given to both the parties to file their
affidavit and declaration in terms of both the
aforementioned judgments of Hon'ble Apex Court and to
lead their evidence before the trial Court and then to
dispose of the matter in accordance with law. This Court is
aware that the matter is of the year 2014 and now due to
failure on the part of the trial Court to give suitable
opportunity to the respondent to participate in the
proceedings and also the grant of maintenance is without
determining the source of income of respondent, the
matter is required to be remanded.
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17. The entitlement of compensation is also to be
assessed on the basis of source of income of respondent.
Therefore, under these circumstances, if the maintenance
amount modified by the order of the first appellate Court
is maintained and the respondent is directed to continue to
pay the same, further directing the trial Court to dispose
of the petition within a period of three months is ordered,
will meet the ends of justice. Consequently, proceed to
pass the following:
ORDER
Crl.RP.No.450/2017 filed by the revision
petitioners/petitioner Nos.1 and 2 is hereby
allowed.
Crl.RP.No.39/2017 filed by the revision
petitioner/respondent is hereby allowed.
The judgment of the first appellate Court on
the file of LVIII Additional City Civil & Sessions
Judge, Bengaluru in Crl.A.No.1436/2015 dated
03.12.2016 and judgment of the trial Court on
the file of Metropolitan Magistrate III Traffic
Court, Bengaluru in Crl.Misc.No.211/2014 dated
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02.06.2015 are hereby set aside and the matter
is remanded to the trial Court for disposal of the
same in accordance with law within a period of
three months from the date of receipt of the
records.
The respondent is directed to pay the
maintenance as awarded by the first appellate
Court and also arrears, if any, and continue to
pay the same.
Now both the petitioners and respondent
have appeared in these petitions, and they are
represented through their counsel, in order to
avoid further delay in the matter, they are
directed to appear before the trial Court without
there being any notice on 18.01.2024.
Registry to transmit the records along with
copy of this order forthwith.
SD/-
JUDGE
BSR
