Dhairya Khare vs Smt Roopali Sinha
2024 Latest Caselaw 25009 Kant

Karnataka High Court

Dhairya Khare vs Smt Roopali Sinha on 21 October, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                   NC: 2024:KHC:42157
                                               CRL.RP No. 950 of 2016




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                   DATED THIS THE 21ST DAY OF OCTOBER, 2024
                                   BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
                CRIMINAL REVISION PETITION NO. 950 OF 2016

            BETWEEN:

               DHAIRYA KHARE
               S/O SURENDRA BAHADUR KHARE,
               AGED ABOUT 38 YEARS
               R/AT NO.21
               KALYAN NAGAR GARH ROAD,
               NEAR SOHRAB GATE BUS STAND,
               MEERUT
               UTTAR PRADESH-250 002
                                                        ...PETITIONER
            (BY SRI. RAJESH M., ADVOCATE FOR
               SMT.RASHMI JADHAV.,ADVOCATE)

            AND:

               SMT ROOPALI SINHA
               W/O DHAIRYA KHARE
Digitally      D/O DR.PRAKASH NARAYANA SINHA
signed by      AGED ABOUT 39 YEARS,
MALATESH       R/AT NO.201,
KC             THEJA RESIDENCY
Location:      NO.61,
HIGH           MANGAMMAPALYA MAIN ROAD
COURT OF
KARNATAKA      BEHIND POST OFFICE,
               BOMMANAHALLI
               BENGALURU -560 068
                                                       ...RESPONDENT
            (BY SRI.SANJAY NAIR .,ADVOCATE)


                THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE
            ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
            ORDER DATED 16.04.2016 PASSED BY THE LXVII ADDL. CITY
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                                            NC: 2024:KHC:42157
                                        CRL.RP No. 950 of 2016




CIVIL   AND    SESSIONS     JUDGE,    BENGALURU, IN
CRL.A.NO.759/2015 THEREBY PARTLY CONFIRMING THE
ORDER DATED 6.05.2015 PASSED BY THE MMTC-3,
BANGALORE CITY IN CRL.M.C.NO.276/2014.

     THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM:    HON'BLE MR JUSTICE V SRISHANANDA


                        ORAL ORDER

Heard Sri Rajesh .M., learned counsel for Smt. Rashmi

Jadhav, learned counsel for revision petitioner and Sri Sanjay

Nair, learned counsel for respondent.

2. Parties are referred to as husband and wife for the

sake of convenience.

3. Wife filed a petition under Section 12 of the Protection

of Women from Domestic Violence Act, 2005 ('hereinafter

referred to as 'D.V. Act' for short) against the husband on the

ground that she has been thrown out of the residence by

imparting domestic violence and sought for necessary order at

the hands of the learned Magistrate.

4. Respondent/husband appeared and engaged the

services of the counsel, but did not file the written statement

nor participated further in the case by cross-examining PW.1 or

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placing the defence evidence. Learned trial Magistrate taking

note of conduct of the husband allowed the petition, granted a

sum of Rs.10,000/- as maintenance for the wife and Rs.5,000/-

for the minor son apart from granting Rs.10,00,000/- by way of

compensation and also directed return of the articles vide Ex.P1

marked in the case.

5. Being aggrieved by the said judgment of the trial

Court, husband filed an appeal before the first appellate Court

in Criminal Appeal No.759/2015.

6. Learned Judge of the first appellate Court modified the

judgment passed by the trial Magistrate by setting aside

payment of Rs.5,000/- to the minor child as the minor child

was not a party to the proceedings.

7. Being further aggrieved by the same, husband is

before this Court in this revision petition on the following

grounds:

i) The impugned order passed by the court below is contrary to law, facts and material on record, and as such the same are liable to be set aside.

ii) The reasons assigned by the Court below, while passing the impugned order are erroneous and

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hence he has slipped into error and proceeded to pass the impugned order, thereby resulting in substantial miscarriage of justice to the case of the petitioner.

iii) It is submitted that the petitioner was not given sufficient opportunity to produce of evidence before the Learned Magistrate and as such the Learned Magistrate has made an erroneous decision of awarding a compensation of Rs.10,00,000/- and maintenance of Rs.15,000/-

without taking into consideration the Petitioner's version of the case. The order was confirmed by the Learned Session Judge mechanically. As such, the impugned order is liable to be set aside.

iv) It is pertinent to note that when the petitioner tried filing his statement of objections at the time of arguments the Learned Court below did not take into consideration the same putting the Petitioner into severe jeopardy and resulting in miscarriage of justice to the petitioner. Also, the petitioner was not given sufficient time and opportunity to undertake cross-examination of the Respondent which clearly indicates the erroneous aspects of the proceedings conducted by the Learned Court below.

v) It is humbly submitted that the petitioner should not be a victim of the shortcomings of the Advocate engaged by the Petitioner. As settled by the various decisions of the Hon'ble Supreme Court, a client must not bear the brunt of the

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inefficiencies rendered by his lawyer. The Court has to take a cautious path in such unique circumstances.

vi) It is further submitted that after the birth of the child, the Respondent deserted the Petitioner and left the matrimonial home out of her volition and there was no force on the part of the Petitioner and his family members. It is pertinent to note that despite the consistent efforts of petitioner to bring back the Respondent to the matrimonial home, she was immensely opposed to the same. As such, the impugned order is liable to be set aside.

vii) It is pertinent to note that the Court below has taken a unilateral approach in trying to incarcerate the Petitioner. Despite, the respondent holding a PhD in Botany and being highly qualified to work, the Courts below has failed to take into consideration the capacity of the Respondent to work. This key aspect about the educational qualifications of the Respondent was totally ignored by the Learned Magistrate.

viii) It is submitted that the courts below have lost sight of the fact that out of the net salary of Rs.23,670/- the Petitioner has to pay a sum of Rs.11,000/- per month towards the House Loan and a sum of Rs.5,163/- per month towards other loans. It is submitted that, the Petitioner has aged parents to look after as he is the only son. Recently because of the behaviour of the respondent, the father of the petitioner has

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suffered several ailments and that he has been treated for the same and the Petitioner has incurred huge expenditure towards the treatment. That being the case when the Respondent herself is in a better position than that of the Petitioner, the court below is not right in passing the impugned order.

ix) It is humbly submitted that there is no evidence or basis to award a compensation of Rs.10,00,000/- to the Respondent. The Court below without application of mind has come to the conclusion of awarding the aforesaid compensation without cogent materials. Hence, the court below is not right in passing the impugned order.

x) Further, it is submitted that fixing an amount of Rs.10,000/- is arbitrary in nature without taking into account the educational qualifications as well the capacity to work of the Respondent. Hence, the Order of the courts below is erroneous.

xi) It is submitted that when the Respondent has failed to make out a prima facie case and has failed to satisfy that she is an aggrieved person under the Act, she is not entitled for any relief under the Act. In fact because of the perpetrated acts of cruelty by the Respondent herein and her act of willful desertion of the company of the Petitioner, as such the Respondent is not entitled for any relief.

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8. Reiterating the grounds urged in the petition, Sri

Rajesh .M., learned counsel for the revision petitioner

vehemently contended that the trial Court did not grant

sufficient opportunity for the husband to contest the petition

inasmuch as objection statement was not taken on record nor

opportunity was provided for cross-examination of PW.1 or to

place the defence evidence resulting in miscarriage of justice.

As such, there is violation of principles of natural justice and

fair trial and call for necessary reasons for further

consideration. He also submits that parties are now separated

by decree of divorce by the duly constituted Court and

therefore payment of monthly maintenance needs to be set

aside.

9. Per contra, Sri Sanjay Nair, learned counsel for

respondent/wife supports the impugned judgment.

10. In view of the rival contentions of the parties, this

Court perused the material placed on record including the trial

Court records.

11. The order sheet of the trial Court clearly depicts that

sufficient opportunity has been granted to contest the matter.

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But husband/revision petitioner failed to avail all such

opportunities. Therefore, the contention urged on behalf of the

revision petitioner that sufficient opportunity was not granted

and learned trial Magistrate did not comply the principles of

natural justice and concept of fair trial cannot be accepted.

12. Further, admittedly the wife was thrown out of the

shared residence. Explanation offered by the husband in this

regard is that the husband was transferred to Agra and the

wife did not join her. No such material is forthcoming on

record to show that there is a deliberate non-joining by the wife

to the husband.

13. Under such circumstances, when the allegations made

by the wife on oath are not controverted either by cross-

examining PW.1 or placing contra evidence, learned trial

Magistrate is justified in passing the impugned judgment.

14. The learned Judge of the first appellate Court rightly

set aside the order of grant of maintenance of Rs.5,000/- to

the minor child as the minor child was not a party to the

proceedings.

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15. Further, the parties are now separated by a decree

of divorce by the duly constituted Court and the said Court

taking note of the fact that a sum of Rs.10,00,000/- is awarded

as compensation in the present petition, did not grant any

permanent alimony while passing the order of divorce.

16. Therefore, taking note of these aspects of the matter

and having regard to the scope of revisional jurisdiction, this

Court does not find any legal infirmity, patent factual error or

jurisdictional error in passing the impugned judgment by the

trial Magistrate upheld by the learned Judge of the first

appellate Court so as to call for interference from this Court.

17. Further, since the parties are now separated by a

decree of divorce, the maintenance amount, if any is not paid

till the date of decree of divorce, the husband is bound to

comply the same.

18. In other words, since the parties are now separated

by a decree of divorce, till the date of decree of divorce, the

impugned judgment would be in force and it is clarified that

after the decree of divorce, payment of maintenance in a sum

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of Rs.10,000/- per month to the wife by the husband comes to

end automatically.

With the above clarification, revision petition is disposed

of.

Sd/-

(V SRISHANANDA) JUDGE

GSS