B T Gangadharappa vs Smt Veena
2023 Latest Caselaw 7319 Kant

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                                                    NC: 2023:KHC:38047
                                               CRL.RP No. 1254 of 2015




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 26TH DAY OF OCTOBER, 2023

                                     BEFORE

                      THE HON'BLE MR JUSTICE ANIL B KATTI

                CRIMINAL REVISION PETITION NO. 1254 OF 2015

             BETWEEN:

                 B.T.GANGADHARAPPA
                 S/O B.THIPPESWAMY,
                 AGED ABOUT 50 YEARS,
                 P.C.NO. 330, B-BATTLIAN,
                 K.S.R.P. MACHCHE,
                 BELAGAUM DISTRICT - 577 450
                                                          ...PETITIONER
             (BY SRI. SHASHIDHARA R., ADVOCATE)

             AND:

                 SMT VEENA
                 W/O B.T.GANGADHARAPPA,
                 AGED ABOUT 39 YEARS,
                 D/O MAHANTHAIAH,
Digitally        II CROSS, KUVEMPU NAGAR,
signed by        HOSMANE EXTENSION,
SUMITHRA R       SHIVAMOGGA - 577 501.
Location:
HIGH                                                     ...RESPONDENT
COURT OF     (BY SMT.SOHANI HOLLA, AMICUS CURIAE)
KARNATAKA
                  THIS CRL.RP FILED U/S.397(1) CR.P.C, PRAYING TO SET
             ASIDE THE JUDGMENT PASSED BY THE III ADDL. S.J.,
             SHIVAMOGGA    IN   CRL.A.NO.106/2014   DATED   05.10.2015
             CONFIRMING THE JUDGMENT PASSED BY THE J.M.F.C.-II,
             SHIVAMOGGA IN CRL.MISC.NO.3/2011 DATED 26.05.2014 BY
             ALLOWING THIS REVISION.

                  THIS PETITION, COMING ON FOR FINAL HEARING, THIS
             DAY, THE COURT MADE THE FOLLOWING:
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                                               NC: 2023:KHC:38047
                                         CRL.RP No. 1254 of 2015




                                ORDER

Respondent/Revision Petitioner feeling aggrieved by

the judgment of First Appellate Court on the file of

III Addl. District and Sessions Judge, Shimoga in

Crl.A.No.106/2014, dated 05.10.2015, confirming the

order of Trial Court on the file of JMFC-II at Shimoga in

Crl. Misc. 03/2011, dated 26.05.2014 preferred this

revision petition.

2. Parties to the Revision Petition are referred with

their ranks as assigned in the Trial Court for the sake of

convenience.

3. Heard the arguments of both sides.

4. The petitioner filed the petition under Section

12 of Protection of Women from Domestic Violence Act,

2005 (hereinafter for brevity referred as "D.V.Act".)

against respondent seeking maintenance. The said petition

after contest came to be allowed by awarding maintenance

of Rs.4,500/- per month to the petitioner from the date of

NC: 2023:KHC:38047 CRL.RP No. 1254 of 2015

petition except for four months of period during which she

was residing along with the respondent. The respondent

has challenged the said order of Trial Court before the

First Appellate Court on the file of III Addl.District and

Sessions Judge, Shimogga in Crl.A.No.106/2014. The First

Appellant Court after re-appreciation of evidence on record

dismissed the appeal and confirmed the order of Trial

Court in granting maintenance of Rs.4,500/- per month

and also awarded compensation of Rs.50,000/- to the

petitioner.

5. The said order has been challenged by the

Revision Petitioner/respondent contending that both the

Courts below have not considered the decree of Restitution

of Conjugal Rights passed by Trial Court, Belgaum in

MC No.215/2011 Ex.R.1. The petitioner without there

being any reasonable cause has deserted the company of

respondent and as such she is not entitled for any

maintenance. The Courts below have failed to appreciate

the evidence on record that petitioner and respondent

NC: 2023:KHC:38047 CRL.RP No. 1254 of 2015

lived together in Belgaum for about four months after the

decree of Restitution of Conjugal Rights in MC No.

215/2011 Ex.R.1. Thereafter petitioner has deserted the

Company of respondent without there being any legal

justification, therefore the grant of maintenance as

awarded by the Trial Court and confirmed by the First

Appellate Court cannot be legally sustained.

6. Per contra, learned counsel Smt.Sohani Holla

learned Amicus Curiae appointed by this Court has argued

that respondent has obtained ex-parte decree of

Restitution of Conjugal Rights, the petitioner has no any

independent income of her own. It is difficult to travel

from Bhadravathi to Belgaum to contest the petition filed

by the respondent seeking decree for Restitution of

Conjugal Rights. The allegations made in the petition and

the evidence of PWs.1 and 2 speaks about petitioner being

subjected to domestic violence and was having justifiable

cause to reside separately from respondent. Therefore, no

any fault can be found with the Courts below in granting

NC: 2023:KHC:38047 CRL.RP No. 1254 of 2015

maintenance not withstanding the decree of Restitution of

Conjugal Rights in MC No.215/2011 vide Ex.R.1.

7. The short question that arises for consideration

before this Court is:

1) Whether the wife against whom the decree for Restitution of Conjugal Rights has been passed is entitled for any maintenance in terms of Section 12 of D.V.Act?

2) Whether the interference by this Court is required?

8. On careful perusal of oral and documentary

evidence placed on record by parties to the Revision

Petition, it would go to show that marriage of petitioner

with respondent was performed on 26.12.1996 at

Chitradurga and out of the wed lock they have no any

issues. The Doctor has adviced the couple to adopt the

child. The parents, brothers and sisters of respondent have

objected for adopting any child with an intention to grab

the properties belonging to respondent. The respondent is

NC: 2023:KHC:38047 CRL.RP No. 1254 of 2015

working as a Police Constable and has got sufficient source

of income. The petitioner was subjected to domestic

violence by ill-treating and harassing her in the

matrimonial home and she was driven out of the

matrimonial home.

9. The respondent though admits that petitioner is

the wife and that their marriage was performed on

26.12.1996 at Chitradurga and he is working as Police

Constable in Belgaum, but denies that petitioner was

subjected to domestic violence. It is the contention of the

respondent that petitioner has withdrawn from company of

the respondent without there being any lawful excuse.

10. On going through the evidence of the parties

laid before the Trial Court, it would go to show that the

petitioner is residing separately since she was subjected to

domestic violence in the matrimonial home and she being

aggrieved person filed an application under Section 12 of

D.V.Act seeking monetary relief in terms of Section 20 of

NC: 2023:KHC:38047 CRL.RP No. 1254 of 2015

the said act. The petitioner has alleged that the respondent

and in-laws of the petitioner were ill-treating the petitioner

on the pretext that lesser amount of dowry was given to

the respondent, further they were instigating the

respondent to assault the petitioner and respondent use to

assault the petitioner. The relatives of the respondent had

planned to perform the second marriage of the respondent

and insisted the petitioner to give consent for divorce. The

allegation of respondent that petitioner has withdrawn

from the company of respondent without there being any

lawful excuse has been negated by both the Courts below.

11. The domestic incident report submitted by the

CDPO, Bhadravathi, would go to show that petitioner was

subjected to domestic violence and she has no means to

maintain herself and she needs the protection by way of

monetary relief in terms of Section 20 of the D.V.Act. The

respondent is admittedly working as Police Constable in

Belgaum Police Station. The salary certificate of

respondent is produced as Ex.P.22, it would go to show

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that the respondent is having total salary of Rs.21,533/-

and net salary of Rs.12,503/-. The Courts below have

appreciated the evidence on record and on being satisfied

of material evidence have recorded concurrent finding that

petitioner was subjected to domestic violence and she is

entitled for monetary relief in terms of Section 20 of the

D.V.Act.

12. The main grievance of the respondent is that,

the petitioner has not complied the judgment and decree

of the Familly Court in MC No. 215/2011, dated

04.11.2011, wherein the petitioner was directed to join

the company of respondent. The domestic incident report

was filed by the CDPO in the present case on 28.07.2010.

In response to notice, the respondent has appeared

through counsel on 20.08.2010 pending on the file of

JMFC-II at Shimoga. However, in spite of it the respondent

has chosen to file petition under Section 9 of 'Hindu

Marriage Act' on 03.08.2011 seeking decree of Restitution

of Conjugal Rights. The petitioner was placed ex parte in

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the said proceedings in MC No.215/2011 vide judgment

Ex.R.1. Indisputably, the respondent is the permanent

resident of Kuvempu Nagar, Hosmane, Bhadravathi and

the respondent has filed the petition for Restitution of

Conjugal Rights in Family Court, Belgaum. It appears from

the conduct of the respondent and the evidence on record

that in order to deprive the claim of petitioner for any

monetary relief in terms of Section 20 of the D.V.Act, the

respondent has chosen to file the petition seeking for

decree of Restitution of Conjugal Rights. The respondent

was very well aware that petitioner alone cannot travel

from Bhadravathi to Belgaum who has no any independent

source of income. If at all the respondent was very much

serious to lead marrital life with the petitioner, then he

would have made the same submission before the JMFC-

II, Shimoga where the present petition was pending. The

respondent instead of the same proceeded to file separate

petition seeking decree of Restitution of Conjugal Rights at

a faraway distance from Bhadravathi and filed the petition

before the Family Court in Belgaum.

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13. The learned counsel for the respondent relied

on the judgment of Hon'ble Apex Court in Rohtash Singh

vs Smt. Ramendri And Ors in special leave petition

(Crl.) 2763/1999, dated 02.03.2000 and another

judgment of Hon'ble Bombay High Court in Atul Amrut

Rai Borde and another Vs. Shubangi Atul Rai Borde

and another. In both these judgment, it has been held

that even the divorced wife is entitled for maintenance

under Section 125 of Cr.P.C., in view of the explanation

offered to Section 125 of Cr.P.C. There cannot be any

dispute with regard to the proposition of law laid down in

both the judgment.

14. The Hon'ble Delhi High Court in the latest

decision in Babita vs Munna Lal in Crl.RP.No.1001/2018,

dated 22.08.2022 has considered the effect of ex-parte

decree obtained by the husband for Restitution of Conjugal

Rights in terms of Section 9 of Hindu Marriage Act, and the

petition filed under Section 125 of Cr.P.C. seeking

maintenance. In the said case also the Family Court has

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declined to grant the maintenance only on the ground of

respondent obtaining decree of Restitution of Conjugal

Rights. The Hon'ble Delhi High Court having considered

the inter relation between Section 9 of 'Hindu Marriage

Act' and Section 125 of Cr.P.C. in para 22 of its judgment

held that:

"A reading of both statutes will reveal that they are intertwined to some extent, in the sense that in case, if a decree of Restitution of Conjugal Rights is granted in favour of the husband and it is clearly opined on an issue so framed in the said case that the wife has left the company of the husband willingly and has not been living with him without reasonable cause, Section 125(4) will come into picture which lays down the ground when the wife will not be entitled to maintenance".

15. The Hon'ble Delhi High Court having so

observed recorded its conclusion in para 55, 56 and 57 as

under:

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"55. There is nothing in law to debar grant of maintenance under Section 125 Cr.P.C. in case a decree of restitution of conjugal rights is possessed by the husband.

56. There is no express bar to grant maintenance to a wife, against whom a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act has been passed.

There is, therefore, no bar to entertain application for grant of maintenance.

57. Thus, this Court holds that the view held by the learned Trial Court that an order of a Civil Court granting ex-parte decree of restitution would automatically put an end to her right to grant on maintenance under section 125 Cr.P.C. is incorrect. In case it was contested by both the parties and then would have been decided in favour of the husband and being in default in not returning, in these circumstances it could become a ground to deny maintenance to her. An ex-parte decree for restitution of conjugal rights is not an absolute bar for consideration of application under section 125 Cr.P.C. In case the court is

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satisfied on the basis of evidence before it that the wife had justifiable grounds to stay away from the husband, maintenance can be granted. In the case at hand, the learned judge clearly mentioned in the order that the wife had led evidence to prove that she had every reason to stay away from the husband as there was risk to her life at the hands of the husband. The learned Judge should have in that case decided the case based on the said evidence, which unfortunately, he did not even assess or appreciate. If the evidence on record shows that due to husband's conduct the wife has not been able to live with him and he has denied to maintain her and the minor children, maintenance cannot be refused to her".

16. It has been further held that a decree of Civil

Court can be held to be binding qua leaving company of

husband without reasonable cause, only if the proceedings

before Civil Court 9 of Hindu Marriage Act dealing with

case under specific issue has been framed in this regard

and the parties have been given opportunities to lead

evidence and specific findings are recorded by the Civil

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Court on contested merit. However, in cases where the

husband has obtained ex-parte decree of Conjugal Rights

from a Civil Court, it cannot be held to be binding on the

Court exercising jurisdiction under Section 125 of Cr.P.C.

17. In the present case the proceedings are

initiated under Section 12 of D.V.Act seeking monetary

relief in terms of Section 20 of the Act. The same analogy

in the aforementioned judgment of Hon'ble Delhi High

Court though covered under section 125 of Cr.P.C. can be

equally applied to the proceedings initiated under different

statute seeking monitory relief. In the present case, the

petitioner has placed required evidence on record that she

was subjected to domestic violence by ill treating her in

the matrimonial home. The concurrent findings recorded

by both the Courts below that the petitioner was subjected

to domestic violence is based on the evidence of record.

The Courts below have also taken into consideration the

conduct of the petitioner and respondent, the source of

income of respondent and petitioner is a non earning

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member and has no any independent source of income of

her own. The Courts below have also taken into the

income of respondent by way of salary certificate Ex.P.22.

There are absolutely no any valid reasons to deviate from

the findings recorded by both the Courts below in holding

that the petitioner was subjected to domestic violence and

she is entitled for protection by way of monetary relief in

terms of Section 20 of D.V.Act. The said finding recorded

by both the Courts below on the basis of material evidence

on record and the same does not call for any interference

of this Court. Consequently proceed to pass the following

order:

ORDER

Revision Petition filed by respondent is hereby

dismissed.

Registry is directed to transmit the copy of this

judgment along with the records to the Trial Court.

SD/-

JUDGE GSR