Karnataka High Court
Smt J Kavitha @ Divya vs Krishna Kumar B J @ Raju on 18 May, 2023
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MAY 2023
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.175 OF 2023
CONNECTED WITH
CRIMINAL PETITION NO.178 OF 2023
IN CRIMINAL PETITION NO.175 OF 2023
BETWEEN
1. SMT J KAVITHA @ DIVYA
W/O KRISHNAKUMAR B.J. @ RAJU,
AGED ABOUT 28 YEARS,
2. KUMARI LEKANA K
D/O KRISHNAKUMAR B.J @ RAJU,
AGED ABOUT 8 YEARS,
3. KUMARI DRAVYA K
D/O KRISHNAKUMAR B.J @ RAJU,
AGED ABOUT 6 YEARS,
PETITIONERS NO.1 AND 2 ARE MINORS REPRESENTED
BY THEIR NATURAL GUARDIAN MOTHER
I.E. 1ST PETITIONER
ALL ARE R/AT NO.173/9,
KASHI VISHWANATHA LAYOUT,
K.R. PURAM
BANGALORE-560036
... PETITIONERS
(BY SRI C R RAGHAVENDRA REDDY, ADVOCATE)
2
AND
1 . KRISHNA KUMAR B J @ RAJU
S/O JAYARAMA REDDY B P
AGED ABOUT 40 YEARS,
2 . JAYARAMA REDDY B P
S/O LATE PAPANNAM
AGED ABOUT 68 YEARS,
3 . SMT JAYAMMA
W/O JAYARAMA REDDY B P,
AGED ABOUT 62 YEARS,
ALL ARE R/AT NO.393/A,
7TH CROSS, MARUTHINAGAR,
MADIVALA,
BANGALORE-560068
... RESPONDENTS
(BY SRI R.D. RENUKARADHYA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 397
OF CR.P.C PRAYING TO CALL FOR THE RECORDS IN
CRIMINAL.MISC.NO.185/2013 ON THE FILE OF TRAFFIC COURT
NO.3 AT BENGALURU AND CRIMINAL.A.NO.28/2015
CONNECTED WITH CRIMINAL,A,BI,11/2015 ON THE FILE OF LV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
AND ENHANCE THE AMOUNT AS PRAED IN THE LOWER COURT
IN CRIMINAL MISC. NO.185/2013 ON THE FILE OF TRAFFIC
COURT NO.3(MMTC-3) AT BENGALURU.
IN CRIMINAL PETITION NO.178 OF 2023
BETWEEN
SRI.KRISHNA KUMAR B.J.
@ RAJU
S/O JAYARAM REDDY B P
AGED ABOUT 47 YEARS
R/AT NO.393/A, 7TH CROSS
MARUTHINGAR, MADIVALA
BANGALORE-560 068 ... PETITIONER
(BY SRI. P B AJIT, ADVOCATE)
3
AND
1. SMT. J.KAVITHA @ DIVYA
W/O KRISHNA KUMAR B J @ RAJU
AGED 35 YEARS
2. KUMARI LEKANA K
D/O KRISHNA KUMAR B J @ RAJU
AGED 7 YEARS
3. KUMARI DRAVYA K
D/O KRISHNA KUMAR B J @ RAJU
AGED 5 YEARS
RESPONDENTS NO.2 AND 3 ARE
MINORS REPRESENTED BY
NATURAL GUARDIAN I.E. RESPONDENT NO.1
ALL ARE R/AT NO.173/9,
KASHI VISWANATH LAYOUT
K R PURAM
BANGALORE-36
... RESPONDENTS
(BY SRI C.R. RAGHAVENDRA REDDY, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 397
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT PASSED IN
CRL.MISC.NO.185/2013 PASSED BY THE M.M.T.C.-III,
BANGALORE AND WHICH HAS BEEN CONFIRMED IN
CRL.A.NO.28/2015 BY LV ADDL. CITY CIVIL AND S.J.,
BANGALORE DATED 22.03.2016.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 11.4.2023, THIS DAY, THE COURT
MADE THE FOLLOWING:
4
ORDER
Criminal Petition No.175/2023 is filed by the
petitioners under Section 482 of Cr.P.C. for enhancement
of the maintenance order dated 22.03.2016 passed by the
LV Additional City Civil and Sessions Judge, Bangalore, in
Criminal Appeal No.28/2015.
Criminal Petition No.178/2023 is filed by the
petitioner under Section 482 of Cr.P.C. for setting aside
the aforesaid order passed by the LV Additional City Civil
and Sessions Judge, Bangalore in Criminal Appeal
No.28/2015, whereby the learned Sessions Judge has
enhanced the maintenance in favour of the wife and
children of the present petitioner.
2. Heard the arguments of learned counsels
appearing for the petitioners and respondent.
3. The petitioners in criminal petition
No.175/2023 are the wife and daughters of the petitioner
in Criminal Petition No.178/2023.
4. For the sake of convenience, the rank of the
parties is retained as before the trial Court.
5. The case of the petitioners before the trial Court
is that they have filed a petition under Section 12 of the
Protection of Women from Domestic Violence Act, 2005
(hereinafter referred to as DV Act) against respondent
No.1 (petitioner in Criminal Petition No.178/2023) claiming
the maintenance of Rs.50,000/- per month to the 1st
petitioner and Rs.50,000/- per month to the 2nd and 3rd
petitioners and another Rs.50,000/- towards rental
accommodation and Rs.20.00 lakhs towards compensation.
Subsequently, the 1st petitioner was examined as P.W.1
and got marked 22 documents and on behalf of the
respondent himself got examined as R.W.1 and got
marked 3 documents. After hearing the arguments, the
trial Court allowed the petition in part by granting the
maintenance of Rs.10,000/- per month for the 1st
petitioner and Rs.2,500/- per month each to the 2nd and
3rd petitioner and Rs.3.00 lakhs has been awarded
towards compensation for harassment, both physical and
mental.
6. Being aggrieved by the order passed by the trial
Court, both the petitioners and respondent No.1 therein
filed appeals in Criminal Appeal Nos.28/2015 and 11/2015,
respectively whereby the petitioners claimed enhancement
of maintenance passed by the trial Court and the
respondent No.1 for setting aside the aforesaid order of
maintenance. The First Appellate Court clubbed both the
appeal together and by common judgment dated
22.3.2016 dismissed the appeal filed by the respondent
No.1-husband and allowed the appeal filed by the
petitioners in part, enhancing the maintenance to
Rs.15,000/- per month from Rs.10,000/- per month for
the 1st petitioner and Rs.5,000/- per month each from
Rs.2,500/- per month each for the 2nd and 3rd petitioner.
7. The petitioners once again filed Criminal Petition
No.175/2023 for enhancement of further maintenance
from the order passed by the First Appellate Court and the
respondent No.1 filed Criminal Petition for setting aside the
said order.
8. Learned counsel for the petitioners has contended
that the First Appellate Court granted the maintenance of
Rs.15,000/- per month to the 1st petitioner, and
Rs.5,000/- each to the 2nd and 3rd petitioners, which is
insufficient for maintaining themselves. It is further
contended that the 2nd and the 3rd petitioners are
studying in the school where Rs.1.00 lakh is required for
expenditure. The respondent No.1 undertook to pay the
education expenditure, but the same was not paid. Even
the 1st respondent is also not paying the enhancement of
the maintenance order passed by the First Appellate Court.
It is also contended that respondent No.1 is having the
landed properties where he has entered into the joint
development agreement and he has received Rs.2.00
crores as advance amount and respondent No.1 is not
spending any amount towards the petitioners. The learned
counsel has further contended that respondent No.1 has
also owned the landed properties around Bangalore worth
of Rs.150 crores and he has not paid the compensation of
Rs.3.00 lakhs, in spite of the order passed in the year
2014. Therefore, prayed for further enhancing the
maintenance passed by the First Appellate Court.
9. Per contra, learned counsel for respondent No.1
(petitioner in Criminal Petition No.178/2023) objected the
petition and also contended in his petition before the trial
Court, the trial Court has not appreciated evidence on
record that the respondent is an unemployed and he is
depending upon his father's income. An FIR was also
registered against respondent No.1 which was not
considered. It is further contended that the property of
respondent No.1 is ancestral property and respondent No.1
would get only a share in the property and he is not the
owner of the entire property. Therefore, it is not possible
for respondent No.1 to pay Rs.25,000/- per month to the
1st petitioner, which is heavy burden on respondent No.1.
He is ready to pay the education expenditure of the
children, but there is no regular income for him.
Therefore, prayed for dismissing the petition filed by the
petitioners and allow the petition filed by respondent No.1
and to reduce the maintenance order passed by the First
Appellate Court.
10. Having heard the arguments of the learned
counsel for the parties, perused the records.
11. The relationship between the parties is not in
dispute, where the petitioner No.1 is wife and petitioner
Nos.2 and 3 are daughters of respondent No.1 in Criminal
Petition No.175/2023. The daughters are studying in a
school where they required to pay Rs.92,000/- each
towards education expenses and the said fee is not paid by
respondent No.1. Admittedly, respondent No.1 is not an
employee of any of the organization, but himself and his
family are owning the lands. As per the documents
produced by the petitioners, respondent No.1's family has
given their property for joint venture to develop the landed
property and the respondent has received Rs.2.00 crores
from the developers. Of course, it goes to the entire
family members of respondent No.1.
12. It is also an admitted fact that in the G&WC
case, respondent No.1 undertook to pay the education
expenses of the daughters. The documents produced by
the petitioner reveals that from M/s. Maithri Developers,
respondent No.1 and his parents and his sister have
entered into a joint agreement for development on
02.04.2018 for construction of the commercial building
comprising of IT/BT and the first party therein, i.e.
respondent No.1 and his family members, is entitled for
48% of undivided share of the land and the second party
i.e. the developing company is entitled for 52% of
undivided share of the land. The respondents have
received Rs.1.00 crore which was non refundable security
deposit. Learned counsel for the petitioners contended
that the said amount was received by way of the bank
transaction and the respondents also received another
Rs.1.00 crore by way of cash. However, the document
reveals that respondent No.1's family has received Rs.1.00
crore. Even if respondent No.1 gets 1/4th share, he may
get Rs.25.00 lakhs out of the said amount. If it is the
ancestral property, the mother of respondent No.1 cannot
claim any share and his father, his sister and himself will
get 1/3rd each of the property. The said property
measures 1 acre 24 guntas situated at Devarabeesanahalli
Village, Varthur Hobli, Bangalore East Taluk. The said
document further clearly reveals that respondent No.1
received at least 16% percent of built-up area under the
joint development agreement, which is a commercial
building and respondent No.1 may get lakhs of rupees
towards rent.
13. The 1st petitioner is the house wife and the two
other petitioners are the minor daughters studying in a
school and they have no income for livelihood. Such being
the case, the contention of the respondent that he is
unemployed and he has no income, cannot be acceptable,
on the other hand, he is having sufficient income receiving
the same by way of goodwill as well as towards rent.
Remaining averments in the claim petition have been
proved by the petitioners. Therefore, the trial Court, while
awarding maintenance to the petitioners, has not properly
appreciated the evidence on record. The maintenance
awarded is very meagre for food, clothing and
accommodation. Therefore, the First Appellate Court has
reappreciated the evidence and enhanced the maintenance
from Rs.10,000/- per month to Rs.15,000/- per month to
the 1st petitioner and from Rs.2,500/- to Rs.5,000/- per
month each to the 2nd and 3rd petitioner. Therefore, the
order passed by the First Appellate Court is the reasoned
order after re-appreciating the evidence on record.
14. Though the petitioners have also prayed for
enhancement of maintenance, but looking to the
background of respondent No.1, the maintenance am
amount cannot be enhanced as the First Appellate Court
has already enhanced the maintenance, which meets the
ends of justice. Therefore, the order of the First Appellate
Court does not call for any interference. Respondent No.1
is required to pay the maintenance to the petitioners as
per the order passed by the First Appellate Court and he is
required to pay Rs.3.00 lakhs as compensation awarded by
the trial Court.
15. As regards to the education expenses,
respondent No.1 is said to be undertaken to pay the
education expenses before the Family Court in G&WC
proceedings. Therefore, the petitioners cannot claim the
education expenses in this proceedings.
16. Accordingly, both the criminal petitions are
hereby dismissed. The order of the Appellate Court in LV
Additional City Civil and Sessions Judge, Bangalore, dated
22.03.2016 passed in Criminal Appeal No.28/2015, is
hereby confirmed.
Sd/-
JUDGE
CS
