Karnataka High Court
Soami Prasad vs Ashitha Prasad on 25 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25th DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.18/2024
BETWEEN:
1. SOAMI PRASAD
S/O MR. DAYAL PRASAD
AGED ABOUT 57 YEARS
RESIDING AT NO.3054
2ND FLOOR, SECTOR-46
GURGAON - 122 001. ... PETITIONER
(BY SMT. P. ANU CHENGAPPA, ADVOCATE)
AND:
1. ASHITHA PRASAD
D/O LATE SRI. R.D. GERA
AGED ABOUT 52 YEARS
NO.A-004, LAVENDER APARTMENT
5TH CROSS, 6TH MAIN,
AKSHAY NAGAR
YELLANAHALI MAIN ROAD
BANGALORE - 560 068. ... RESPONDENT
(BY SRI. JAGADISH N., ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 407 OF CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT DATED 15.11.2023 PASSED BY THE LEARNED LXXIV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL,
BENGALURU AND TO ALLOW THE MEMO OF CALCULATION FILED
BY THE REVISION PETITIONER IN CRL.MISC.NO.184/2017,
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PENDING ON THE FILE OF THE LEARNED METROPOLITAN
MAGISTRATE TRAFFIC COURT (MMTC-1), MAYO HALL,
BANGALORE AND FOR THE CRL.A.NO.25216/2023, ON THE
FILES OF THE LXXIV ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 21.01.2025 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
1. This revision petition is filed challenging the
order passed by the Trial Court in Crl.Misc.184/2017 vide
order dated 15.11.2023 rejecting the memo of calculation
filed by the revision petitioner and allowing the memo of
calculation filed by the respondent herein and also the order
passed by the First Appellate Court in Crl.A.No.25216/2023
confirming the order of the Trial Court and dismissing the
appeal with cost of Rs.25,000/-.
2. The factual matrix of case of the parties is that
the respondent had filed Criminal Miscellaneous Petition
before the learned Magistrate invoking Section 12, 19 and
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20 of the Domestic Violence Act (hereinafter referred as D.V
Act). The Trial Court passed a residential order restraining
the petitioner herein not to disturb the possession of the
respondent and directed to pay the rent without committing
any default and also directed to pay monthly maintenance
of Rs.15,000/- and so also passed an order Rs.15,000/- to
meet food, cloth, medical expenses and household
expenses and also directed to pay the school fee of
Rs.60,000/- and declined to pass order on loss of earnings.
The said order was challenged before the First Appellate
Court by both the petitioner and respondent in
Crl.A.No.25104/2010 and Crl.A.No.25116/2010 on the file
of FTC-III, P.O and Addl. Sessions Judge, Mayo Hall,
Bangalore. The Fast Tract Court upheld the order passed by
the learned Metropolitan Magistrate in a common order
dated 30.11.2011 and the same was challenged by both the
revision petitioner and respondent before this Court by
filing a Crl.P.No.125/2012 and Crl.P.No.1016/2012
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respectively. This Court passed common order vide order
dated 23.03.2017 by allowing the criminal petition filed by
the respondent herein in part, wherein, quantum of monthly
maintenance was increased at Rs.40,000/- from the date of
petition till the children attains the majority and thereafter,
at Rs.15,000/- per month to the respondent alone. This
order also challenged before the Apex Court in Special
Leave to Appeal (Crl.) No.5022/2017 and the same was
dismissed vide order dated 31.07.2017. The respondent
also filed a private complaint before the learned
Metropolitan Magistrate under Section 31 of Protection of
Women from Domestic Violence Act R/w Section 200 of
Criminal Procedure Code, in Crl.Misc.No.184/2017, for
recovery of arrears of maintenance and also for rentals
since the respondent moved out from the said premises to
other rented premises. The revision petitioner was enlarged
in the said case with conditions. An application was filed
before the Trial Court for discharge contending that Section
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31 of the D.V Act cannot be invoked as no protection order
has been passed, the said application was also dismissed
vide order dated 01.02.2023. It is contend that
Crl.Misc.No.184/2017 is not maintainable and the revision
petitioner wanted to settle all the outstanding arrears as
per the judgment passed by the Court and accordingly he
withdrew the appeal in Crl.A.No.25035/2023 as he was
taking all steps to settle the matter in
Crl.Misc.No.184/2017.
3. In the meanwhile the respondent filed a memo
of calculation dated 12.01.2023 claiming arrears totaling to
Rs.45,72,838/- and it is contend by the revision petitioner
without deducting the payments already made, the said
calculation was filed. The revision petitioner also filed a
memo of calculation dated 21.04.2023 whereby he
contended that he has already paid Rs.39,17,500/- and
outstanding due is only Rs.7,25,847/-. The revision
petitioner has deposited Rs.18,00,000/- by a way of D.D
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dated 27.03.2023 and he is entitled for refund of excess
amount of Rs.10,74,153/-. The learned Magistrate having
taken note of material and memo of calculation filed by
both of them, admitted the calculation made by the
respondent and rejected the claim made by the revision
petitioner and hence the revision petitioner filed an appeal
in Crl.A.No.25216/2023.
4. It is also the case of the revision petitioner that
he had no objection to withdraw the amount of
Rs.7,00,000/- as that was the approximate outstanding
amount by an order dated 07.10.2023, the learned Judge
ordered the said amount to be given to the respondent but
contend that the petitioner has cleared all the arrears and
only amount payable every month is Rs.15,000/-. It is
contended that both the Courts have committed error in
accepting the memo of calculation. It is contended that the
order passed by the Trial Court as well as the First
Appellate Court beyond the scope of decree. The decree is
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upheld by this Court specifies that revision petitioner is
bound to pay the rent of only the house in which the
respondent was residing at the time of decree being
passed. The order impugned passed by the First Appellate
Court imposing cost of Rs.25,000/- is erroneous and
calculation made by the Trial Court is also erroneous and
accepting the case of the respondent by both the Trial Court
as well as the First Appellate Court is also erroneous.
5. The main grounds urged in the revision petition
is that the execution proceedings in Crl.Mis.No.184/2017 is
not maintainable as Section 31 of the Domestic Violence
Act, 2005 can be invoked only for execution of protection
orders and respondent has not approached the Court with
clean hands and suppressed the material and filed the
petition. The learned Sessions proceeded to pass the
impugned judgment just as the learned Magistrate, under
the impression that the revision petitioner has to pay
whatever amount is claimed by the respondent without
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applying the mind and committed serious error. The learned
Sessions Judge has committed the same error as the
learned Magistrate and fail to bring about finality to the
proceeding by applying judicial mind in calculating the same
and fails to consider the question of law which has been
raised by the petitioner.
6. The counsel also in support of her argument
relies upon the judgment reported in 2016 Crl.L.1967 in
case of Francis Cyril C. Cunha V/s Smt.Lydia Jane
D'Cunha and counsel referring this judgment brought to
notice of this Court discussion made in paragraph Nos.14
and 18 and contend that Protection of Women's from
Domestic Violence Act, Section 31 of the Act and also
discussion was made with regard to Section 18, Section 20
and Section 2(o) order for payment of maintenance is not
protection order. Husband cannot be proceeded against
under Section 31 for non-payment of arrears of
maintenance and order of granting of maintenance does a
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not amount to protection order and violation of the same
will not attract the provisions of the Section 31 of D.V Act.
The breach of order of monetary relief will not pay way to
prosecute the husband since Section 31 of Act does not
include monetary relief.
7. The counsel also relied upon the judgment of
this Court reported in Laws(KAR)-2023-12-40 in case of
Mohammed Yaseen Naikwadi V/s Aneesa
Moohammed Yaseen Naikwadi and brought to notice of
this Court discussion made in the very same judgment that
Section 31 penalty for breach of protection order by
respondent. The counsel brought to notice of this Court
paragraph No.12 wherein discussion was made with regard
to Section 18 and also reference was made Section 2(o)
protection order means an order made in terms of Section
18 of the D.V Act and also referred Section 31 of D.V. Act,
penalty for breach of protection order by respondent a
breach of protection order or of an interim protection order
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by the respondent shall be an offence under this Act and
shall be punishable with imprisonment of either description
for term which may extent to one year or fine which may
extent to Rs.20,000/- or with both. In paragraph No.15
with providing two separate relieves, one under Section 18
of the D.V Act for protection and another for monetary relief
under Section 20 of the D.V Act will have to taken note into
consideration while analyzing the scope of Section 31 of the
D.V Act. If the protection order was inclusive of monetary
relief of granting maintenance, Section 20 of the D.V Act
would not have been separately provided and Court comes
to the conclusion that glaring legal error has been crept in
and allowed the petition.
8. The counsel also relied upon the short notes
2010 Crl.L.J (NOC) 447 (KER) wherein also discussion
was made with regard to the offence under Section 31 of
the Act is only for breach of either a protection order or an
interim protection order passed under section 18 and as
11
defined under Section 2(o) of the Act. All other orders
passed either under Sections 19, 20, 21 or 22 could only be
executed as provided in the Code of Criminal Procedure in
view of the mandate under Section 28 of the Act as Section
28 provides that except as provided under the Act, the
proceedings under Sections 12, 18, 19, 20, 21, 22 and 23
and offences under Section 31 shall be governed by the
provisions of Code of Criminal Procedure. Further held that
if the order passed by the Magistrate is a protection order
or an interim protection order, the Magistrate can direct
registration of the case and investigate the case under
Section 31 of the Act.
9. Per Contra, the counsel appearing for the
respondent would vehemently contend that the petitioner is
misleading the Court and memo of calculation of the
revision petitioner herein excludes non-payment of rent and
the order was very clear continued to pay the rent. The
respondent was evicted and moved out to other rented
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premises. The counsel also not disputes the fact that matter
was taken to Apex Court. The order of this Court also
confirmed by the Apex Court in addition to the order passed
by the Trial Court and Apex Court dismissed the petition.
The counsel also would contend that review petition was
also filed and the same was also dismissed with cost. The
petition was filed and FLW was also issued and he was
secured from Haryana. The counsel would vehemently
contend that the order impugned challenge before this
Court is memo of calculation and not any other order and
the same is only with regard to the calculation made by the
petitioner and respondent and accepted the calculation
made by the respondent and dismissed the memo of
calculation made by the revision petitioner, the same was
challenged and the same was dismissed with cost of
Rs.25,000/- in a criminal appeal.
10. The counsel also would vehemently contend that
he also filed the separate memo of calculation before this
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Court calculating the same and the claim made by the
revision petitioner herein having made the payment of
Rs.39,00,000/- is also given adjustment. The counsel
brought to notice of this Court in terms of the order passed
by the High Court as well as the Trial Court separate
calculation is made i.e., monthly maintenance which
amounts to Rs.47,97,500/- and also calculated the
educational expenses upto the age of attaining the majority
of the son and daughter and the same amounts to
Rs.4,20,000/-, rentals also calculated from January-2011 it
amounts to Rs.36,26,400/- and details of payment was also
taken note of to the tune of Rs.54,97,500/- on different
heads and maintenance as per High Court order,
educational expenses rental towards accommodation till
December-2024 and also the award and also the cost
imposed in all, it comes to Rs.89,42,492/- and after
deducting Rs.54,97,500/-, balance due is Rs.34,44,992/-.
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11. In reply to this argument the counsel appearing
for the revision petitioner also brought to notice of this
Court memo of calculation filed by the revision petitioner on
06.12.2024 and monthly maintenance paid from
01.09.2009 to September -2014 since son attained majority
on 16.09.2014 to the tune of Rs.7,50,000/- and also
daughter attained majority on 04.02.2018 an amount of
Rs.12,62,000/- and maintenance of Rs.15,000/- to the wife
from 2018 to 2022 is Rs.22,20,000/-. In all grand total
Rs.42,32,000/- and education expenses for 5 years and 3
years to son and daughter amounts to Rs.3,90,000/- and
mental agony an amount of Rs.15,000/- was awarded.
12. It is contended that rent has to be paid at only
as long as the petitioner was staying in the matrimonial
home, she is stayed their till December-2010 and all rents
have been paid till then and no further dues and grand total
is Rs.46,37,000/- and details of payment are also given i.e.,
Rs.39,17,500/- was paid and difference amount only till
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January-2022 is Rs.7,90,500/- and already Rs.18,00,000/-
was deposited and excess amount was paid to respondent
and entitled for refund of Rs.10,80,500/-.
13. The counsel also in the reply would contend that
no document is placed that she was evicted from the
premises. The counsel would contend that earlier petition
filed by the revision petitioner was dismissed for non-
prosecution and the same cannot be relied upon.
14. Having heard the learned counsel for revision
petitioner and the learned counsel for the respondent and
also the principles laid down in the judgments referred
supra and also considering the challenge made before this
Court, the point that would arise before this Court are:
1) Whether the Trial Court and First Appellate
Court committed an error in rejecting the
memo of calculation filed by the revision
petitioner herein and committed any error
in accepting the memo of calculation filed
by the respondent and whether this Court
can exercise the revisional jurisdiction on
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the ground of legality and correctness of
the order?
2) What Order?
15. Having heard the learned counsel for revision
petitioner and the learned counsel for the respondent and
Court has to take note of the challenge made before this
Court. It has to be noted that there is no dispute with
regard to the passing of an order by the Trial Court granting
the relief of residential order and direct him to pay the rent
and also direct him to pay monthly maintenance to the wife
for an amount of Rs.15,000/- and also other expenses
including household expenses cloth, food, medical expenses
and also the educational expenses-. It has to be noted that
both of them have challenged the said order before the First
Appellate Court and both the petitions have dismissed and
again both of them challenged the same in the revision. The
fact that this Court modified the order directing him to pay
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the monthly maintenance of Rs.40,000/- including wife and
children till attaining majority is also not in dispute. The
other order passed by the Trial Court remains with regard
to the payment of fee for an amount of Rs.60,000/- to the
children till attaining majority as education fee. No doubt
the order passed by this Court was challenged before the
Apex Court and the same was dismissed and ultimately
order was confirmed. The interpretation regarding
continued to pay the rent in respect of the premises
presently residing and not to cause any obstruction while
invoking Section 19 of D.V Act is not in dispute and that
order has not been modified but contention was taken by
the petitioner that she is liable to pay only rent till
December-2010 and not afterwards cannot be accepted.
The reason is that residential order has been passed and
not to cause any obstruction. On the other hand, it is the
contention that she was evicted, but no doubt no material is
placed before the Court and also Court has to take note of
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the fact that admitted rent was paid by the petitioner is
Rs.19,000/- as contended by the counsel. But the
contention that she moved out from the said house and the
same was not intimated and hence not liable to pay cannot
be accepted since there is an order of providing of
residential accommodation and hence, continue to pay the
rent in respect of the premises and whether intimated or
not is not the question and once the Court has directed to
meet the rent and the petitioner cannot surk his
responsibility to pay and comply with the residential order
and accordingly, the calculation was made. The contention
that not liable to pay the rent after December-2010 cannot
be accepted and the order of the Trial Court was not
modified, continued to pay the rent even if she resides in
the very same house or in different house and the said
amount has to be met by the petitioner only. Though
reference was made, the present house wherein she was
residing that does not mean that only in respect of the said
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premises as contended by the revision petitioner and the
same already been considered by the Trial Court also when
the objection was raised and even in the First Appellate
Court also and hence the memo of calculation given by the
revision petitioner was not accepted and rightly accepted
the memo of calculation filed by the respondent before the
Trial Court. The challenge is also before this Court with
regard to the memo of calculation.
16. No doubt the counsel appearing for the
petitioner in support of the argument relied upon 2
judgments of this Court and the same are with regard to
invoking of Section 31 and no such application was filed
before the Trial Court regarding maintainability of the
petition is concerned and order is also not with regard to
the maintainability of the petition invoking Section 31. The
impugned order is only with regard to the accepting of
memo of calculation filed by the respondent and rejecting of
the memo of calculation filed by the petitioner. This Court
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at this stage cannot express any opinion with regard to the
maintainability of the petition is concerned since no such
order was before this Court. The order is only with regard
to the memo of calculation in terms of the order passed by
the Trial Court as well as the order passed by this Court in
the revision petition and the same has been upheld by the
Apex Court and the contention of the petitioner's counsel
that both Courts have committed in calculating the same
cannot be accepted. The Trial Court also while passing the
impugned order dated 11.07.2023 taken note of in detail
the contention of the parties and also the order passed by
the Trial Court and also the order passed by this Court and
confirming the order and attaining the finality and also
taken note of order passed by this Court in
Crl.P.No.1016/2012 which was partly allowed and modified
the order of the Trial Court and the same was challenged in
the Apex Court and the same was dismissed. The
calculation is also made by the respondent till the date of
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attaining majority of a son and also the daughter in respect
of educational expenses is concerned and also subsequent
to the attaining age by the children, the claim is made only
with regard to the maintenance of Rs.15,000/- and the said
aspect was also taken note of and also even taken note of
the contention of the petitioner with regard to present
house was used while passing an order and executing Court
cannot interpret the same. The instant recovery petition has
filed on the basis of D.V Act proceeding and not in suit and
passed the impugned order and not committed any error
and even First Appellate Court also while passing an order,
in detail taken note of the said fact into consideration. The
fact that she was resided in the said address along with
children till December-2010 and taken note of the fact that
she was moved out from the said house and there was an
order of eviction and also with regard to the presently
residing house interpretation was also taken note of in
paragraph No.19 and so also in paragraph No.29 discussed
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with regard to the fact that she moved out from the said
house where she was residing. When there was an order to
meet the rent and ought to have continued to pay the rent
and also the Court cannot expect the same rent is payable.
The rate of rent was fixed in the year 2009 when the
premises was taken and living after taking the premises on
rent basis and we are now in 2025. The very contention
that without intimation moved out from the premises
cannot be a ground to make the respondent for disentitle
the same and order was passed to meet the rent also and
the interpretation made by the petitioner's counsel that not
liable to pay rent after December-2010 cannot be
accepted.
17. The counsel also brought to notice of this Court
earlier order passed by this Court was only for non-
appearance. The counsel appearing for the respondent
brought to notice of this Court having noticed the conduct
of the petitioner and dismissed the same. The counsel also
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brought to notice of this Court each and every stage coming
in the way of recovery of the amount and the same is also
evident from the records and even an application was also
filed before the Trial Court invoking Section 239 of Cr.P.C
and the same was also dismissed. The present revision
petition is also arising out of the memo of calculation and
the same is based on the order passed by the Trial Court as
well as this Court and also which was confirmed by the
Apex Court. When such being case, the First Appellate
Court rightly dismissed the petition with exemplary cost of
Rs.25,000/- having taken note of the conduct and an
attempt was made to interpret the order to his convenience
and to avoid payment of amount to the aggrieved person
and the same has been discussed in paragraph No.26 with
regard to the residential order passed invoking Section 19
of D.V Act and also taken note of the fact that respondent
was residing in a rented premises along with the husband
when the difference was arisen between them. In
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paragraph No.29 also discussion was made with regard to
the payment of rent is concerned and when there was an
order to pay the rent even taken note of the fact that rent
has been calculated to the tune of Rs.31,66,400/- and
taken note of the fact that rent has to be paid as long as
the petitioner was staying in the matrimonial home, she
stayed till December-2010 and all rents have been paid is
also discussed in paragraph No.29 and discussed in
paragraph No.30 regarding moving out from the said
premises and in paragraph No.31 discussed with regard to
the very object of Domestic Violence Act in respect of
protection of women. Even the judgment of the Apex Court
Prabha Tyagi V/s Kamlesh Devi was discussed by the
First Appellate Court and comes to the conclusion that
husband always been willing to pay and discharge his
liability as per the Court order, but tried to avoid the
payment of rent and in that regard also discussion was
made in detail. The very contention that not liable to pay
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rent after 2010 cannot be accepted and except the dispute
with regard to the payment of rent is concerned, after 2010
no dispute is raised by the petitioner and hence, I do not
find any error committed by the Trial Court in coming to the
conclusion that payment of rent is also obligation on the
part of the petitioner as directed by the Trial Court and the
said order has not been varied by this Court as well as the
Apex Court. Under these circumstances, I do not find any
error committed in considering the material on record and
order not suffers from its legality and correctness and
question of invoking revisional jurisdiction does not arise.
Hence, I answer the point as negative.
18. In view of the discussions made above, I pass
the following:
ORDER
The Revision Petition is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
RHS
