Karnataka High Court
Sri M Devaraj vs Smt Rathna on 4 June, 2025
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO. 409 OF 2018
BETWEEN:
SRI. M. DEVARAJ
S/O VASANTHAIAH
AGED ABOUT 46 YEARS
R/AT UGGEHALLI VILLAGE
BETTADAMANE POST, MUDIGERE TALUK
CHIKKAMAGALURU DISTRICT-575 201.
...PETITIONER
(BY SRI. UMASHANKAR.M.N, ADVOCATE)
AND:
SMT. RATHNA
W/O SRI. DEVARAJ
AGED ABOUT 41 YEARS
R/AT UGGEHALLI VILLAGE
BETTADAMANE POST, MUDIGERE TALUK
CHIKKAMAGALURU DISTRICT-575 201.
...RESPONDENT
(BY KUM.SWATHI NAIK, ADVOCATE FOR
SRI. PRASANNA.B.R, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 18.09.2017 IN
CRIMINAL APPEAL NO. 2 OF 2017, PASSED BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE AT CHIKKAMAGALURU, IN
THE INTEREST OF JUSTICE AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 07.03.2025, THIS DAY ORDER WAS
PRONOUNCED THEREIN, AS UNDER:
-2-
CORAM: HON'BLE MS JUSTICE J.M.KHAZI
C.A.V ORDER
This petition filed under Section 397 r/w 401 Cr.P.C is
by the husband who is respondent before the trial Court,
challenging the judgment and order passed by the
Sessions Court, setting aside the dismissal of petition filed
by the wife under Section 12 of Protection of Women from
Domestic Violence Act, 2005 ('DV Act' for short) and
remanding the case for fresh disposal after making enquiry
by recording evidence of the parties and also considering
the application, if any filed for DNA test.
2. For the sake of convenience, parties are
referred to by their ranks before the trial Court.
3. Petitioner/wife filed the petition under Section
12 of the DV Act seeking several reliefs, contending that
her marriage with respondent took place on 24.5.1992 at
Uggehalli and through the wedlock daughter is born by
name Sujatha. Though initially, respondent took care of
them, later on he started harassing and irritating them. He
deprived them of food and other facilities. Though after
-3-
Panchayat, he used to take care of them, after sometime
again, he used to revert back to his previous conduct. He
was suspecting her fidelity and ultimately drive them out
of the matrimonial home. She is not able to maintain her
self and their daughter. When he tried to marry another
woman, she filed a complaint and hence the petition.
4. Respondent/husband filed objections disputing
the marital relationship between him and petitioner and
that through their wedlock a daughter is born.
Consequently, he has denied all other allegations that he
used to harass and ill treat the petitioner and her
daughter, deprived them of food and other facilities and
ultimately he had driven them out of the matrimonial
home. He has also denied that Panchayat were held. Filing
of criminal complaint and consequent charge sheet is
admitted. However, he is acquitted in the said criminal
case, wherein it is held that the petitioner has failed to
prove the marital relationship between them.
5. During the enquiry, petitioner has examined her
herself as PW1 and relied upon exhibit P1 to 9.
-4-
6. Respondent also gave evidence as RW-1. No
documents are marked on behalf of the respondent.
7. The trial Court dismissed the petition mainly on
the ground that in the criminal case respondent is
acquitted.
8. Aggrieved by the same, petitioner approached
the Session Court in Crl.A.No.2/2017. It came to be
allowed setting aside the impugned judgment and order of
the trial Court and case was remanded to the trial Court
with a direction to dispose of the same after holding
enquiry and also to consider the application if any filed for
DNA testing.
9. Aggrieved by the same, respondent is before this
Court contending that the Sessions Court has erred in
holding that the findings in C.C.No.509/2009 is not binding
on the trial Court, while is making enquiry under Section
12 of the DV Act. In the criminal case, a finding is given
that the prosecution has failed to prove the relationship of
husband and wife between the petitioner and respondent
-5-
and that a daughter is born through their wedlock. There
was also delay in filing the complaint. The said findings in
the criminal case is binding on the parties in the petition
filed under Section 12 of the DV Act. The petitioner failed
to establish that she lived with the respondent and through
their union a daughter is born. The Sessions Court has also
erred in holding that petition under Section 12 of DV Act
comes under category of petitions enumerated under
Section 26(2) of DV Act and any relief available under
Section 26(1) could be sought. The findings of the
Sessions Court that the proceedings under Section 12 of
DV Act are not purely criminal in nature, but it is a mixed
civil and criminal proceedings is not correct and hence the
petition.
10. Heard arguments and perused the record.
11. It is pertinent to note that petitioner filed the
petition under Section 12 of the DV Act seeking several
relief on the premise that she is the legally wife of
respondent and a daughter is born through their wedlock.
It is also relevant to note that the petition filed under
-6-
Section 12 is in the format and apart from filling up the
gaps and tick the relevant portion applicable to her, the
petitioner has not come up with any additional pleadings
regarding the facts. However, in C.C.No.509/2009, the
respondent is prosecuted for the offence punishable and
Section 498-A IPC. In support of her case, petitioner has
produced certified copies of order sheet, charge sheet, the
deposition of prosecution witnesses, 313 statement of
accused (respondent), judgment, the petition given to the
protection officer and marriage invitation card at exhibit P1
to 9.
12. In her deposition in the criminal case,
petitioner has given evidence to the effect that initially
their parents were not in favour of their relationship and
therefore petitioner and respondent got married by
exchanging garlands in the temple and stayed together for
sometime. After coming to know about the relationship,
the parents of both petitioner and respondent performed
their marriage. The criminal case against the respondent
for the offence punishable under Section 498 IPC came to
be dismissed and respondent was acquitted on the ground
-7-
that there is no sufficient evidence to prove the
allegations.
13. Based upon the observations made in the said
case, the trial court has dismissed the petition filed by the
petitioner under Section 12 of the DV Act. It has not
examined the claim of the petitioner in the light of
provisions of DV Act. Having regard to the fact that the
proceeding under the DV Act are not purely criminal or
civil, but of mixed nature, the Sessions Court has rightly
held that the trial Court has committed error in relying
upon the acquittal of respondent by the criminal court and
not examining the evidence placed on record and giving an
independent finding.
14. Having regard to the fact that under the DV
Act, even a live in relationship akin to that of a marriage,
entitle a woman reliefs under Section 12 of the DV Act, the
trial court was required to examine the claim of the
petitioner in light of the specific provision, instead of
relying upon the acquittal of respondent in a criminal case,
where in the prosecution is required to prove the
-8-
allegations against the accused beyond reasonable doubt.
Therefore, rightly the Sessions Court has set aside the
judgment and order of the trial Court and remanded the
case with the direction to permit the parties to lead further
evidence and also to consider application if any filed by
either of the parties for DNA testing. In the light of the
above facts, circumstances, this Court finds no justifiable
grounds to interfere with the findings of the Sessions
Court.
15. In the result the petition fails and accordingly
the following:
ORDER
(i) Petition filed under Section 397 r/w 401
Cr.P.C by the respondent/husband is
dismissed.
(ii) The impugned judgment and order dated
18.09.2017 in Crl.A.No.2/2017 on the file
of Prl.District and Sessions Judge,
Chikkamagaluru is confirmed.
(iii) The Registry is directed to send back the
trial Court as well as Session Court records
along with copy of this order forthwith.
Sd/-
(J.M.KHAZI)
JUDGE
RR
