Reshma Banu And Another vs Mohd.Abdul Qayyum And 4 Others
2022 Latest Caselaw 2348 Tel

          THE HONOURABLE SRI JUSTICE K. LAKSHMAN

           CRIMINAL REVISION CASE No.1065 OF 2019

ORDER:

This Criminal Revision Case is filed to set aside the judgment

dated 14.08.2019 passed in Crl.A.No.11 of 2019 by the VI Additional

District and Sessions Judge at Siddipet confirming the judgment dated

11.01.2019 passed in D.V.C.No.1 of 2016 by the Additional Junior Civil

Judge - cum - Judicial First Class Magistrate, Siddipet.

2. Heard Sri K.Govind, learned counsel for the petitioners and Sri

P.Vishnu Vardhan Reddy, learned counsel, representing Sri Rettala

Balraj Goud, learned counsel appearing for the respondents. Perused the

record.

3. The marriage of the 1st petitioner with the 1st respondent was

performed on 11.02.2012. Thereafter, matrimonial disputes arose

between them. The 1st petitioner herein had filed a petition under

Section 12 of the Protection of Women from Domestic Violence Act,

2005 (for short, 'the Act') vide DVC No.1 of 2016 against the

respondent Nos.1 to 4 herein seeking certain reliefs. Vide order dated

11.01.2019, the learned Magistrate has allowed the said case in part. The

operative portion of the order is as follows:-

1. The respondent Nos.1 to 4 are hereby restrained from committing any act of domestic violence against the petitioner.

2. Respondent Nos.1 to 4 are directed to pay Rs.3,000/-(Three Thousand) per month to petitioner to her residence.

3. Respondent Nos.1 to 4 are directed to provide Rs.15,00,000/- compensation to petitioner under Section 22 of the Act.

4. The petition against the respondent No.5 stands dismissed.

4. Feeling aggrieved by the said order, the respondent Nos.1 to 4

herein have preferred an appeal vide Crl.A.No.11 of 2019. The learned

VI Additional District and Sessions Judge at Siddipet, vide order dated

14.08.2019 allowed the said appeal and the operative portion of the

same as follows:-

'This appeal is allowed, setting aside the order of the Court below in DVC No.1 of 2016 dated 11.01.2019 passed by the Additional Judicial First Class Magistrate, Siddipet. Insofar as the relief No.2 is concerned, it is altered instead of respondents 1 to 4, only Appellant No.1/Respondent No.1 is directed to pay Rs.3,000/- per month to the respondent/petitioner herein for her residence and the respondent/petitioner herein is at liberty to work out her remedies in a proper forum for other reliefs available to her in accordance with law.'

5. Sri K. Govind, learned counsel for the petitioners would

submit that the learned Magistrate has passed a reasoned order dated

11.01.2019 in D.V.C.No.1 of 2016 on considering the entire evidence

both oral and documentary available on record. Learned Magistrate has

also considered the paying capacity of the 1st respondent herein.

Whereas, the appellate Court, without considering the said facts,

allowed the Crl.A.No.11 of 2019 setting aside the order passed by the

learned Magistrate dated 11.01.2019 in D.V.C.No.1 of 2016. The

appellate Court has directed the 1st respondent herein to pay an amount

of Rs.3,000/- per month to the 1st petitioner herein for her residence. The

appellate Court has erred in granting liberty to the 1st petitioner herein to

work out her remedies in a proper forum for other reliefs available to her

in accordance with law. He has also placed reliance on the judgment of

Bombay High Court in W.P.No.365 of 2018 dated 28.06.2019 and the

principle laid down by the Madras High Court in a judgment in

Jagadesan vs. State of Tamil Nadu1

6. On the other hand, Sri P.Vishnu Vardhan Reddy, learned

counsel, representing Sri Rettala Balraj Goud, learned counsel for the

2016 Crl.L.J. 1

respondents would submit that learned Magistrate has not considered the

evidence both oral and documentary available on record while granting

the aforesaid reliefs. Whereas, the appellate Court has considered the

same and set aside the order passed by the learned Magistrate. However,

the 1st respondent was directed to pay the said amount of Rs.3,000/- per

month to the 1st petitioner herein for her residence. The learned

Magistrate has not considered the order dated 02.11.2018 in M.C.No.33

of 2015 wherein the 1st respondent was directed to pay an amount of

Rs.5,000/- per month towards maintenance to the 2nd petitioner herein,

daughter of the 1st petitioner. In the said order, learned Magistrate held

that the 1st petitioner herein is not entitled for any maintenance from the

1st respondent herein. The said facts were considered by the appellate

Court. Therefore, it is a reasoned order and there is no error in it. He has

also placed reliance on the decisions in Neeta Rakesh Jain Vs. Rakesh

Jeetmal Jain2, Gaurav Gupta Vs. Radhika Gupta3 and Haimanti

Mal Vs. State of West Bengal4.

2010 12 SCC 242

2014 SCC Bom

CRR 3907 of 2016

7. The above said facts would reveal that there is no dispute that

the marriage of the 1st petitioner with the 1st respondent was performed

on 11.02.2012. The 2nd petitioner is their daughter. The 2nd respondent is

father, 3rd respondent is mother and 4th respondent is brother of the 1st

respondent herein. The 1st petitioner herein had filed a petition under

Section 12 of the Act, vide DVC No.1 of 2016 against the respondent

Nos.1 to 4 and respondent No.5- State seeking certain reliefs. 1st

petitioner was examined as P.W.1 and mediator as P.W.2. 1st respondent

was examined as R.W.1 and employer of the 1st petitioner as R.W.2. 1st

petitioner has filed 5 documents and the 1st respondent has not filed any

documents. On consideration of the said evidence both oral and

documentary, the learned Magistrate has granted the above said reliefs

to the petitioner herein.

8. It is relevant to note that the learned Magistrate in paragraph

No.41 of the order specifically mentioned that the 1st respondent's elder

brother is working as Assistant Professor at Kits College, Warangal, his

younger brother completed B.Tech Degree but is unemployed and his

father is a Government Teacher. Thus the family members of the

respondent No.1 herein are self-sufficient and there is no other family

member except his wife and child who are dependent upon his earnings.

The 1st respondent has also admitted that till now he did not spend a

single rupee for expenditure of his child. 1st petitioner is unemployee

and she has no source of income. With the said observations/findings,

learned Magistrate has awarded an amount of Rs.3,000/- per month to

the 1st petitioner in lieu of residence and an amount of Rs.15,00,000/-

towards compensation.

9. In the order in appeal, the 1st petitioner/P.W.1 has admitted that

she did job in Apollo Hospital as Pharmacist for one year and that prior

to reunion with the 1st respondent, she was working and admitted that

her joining into society of her husband and staying at Alwal was for her

employment and she further admitted that they filed a joint memo dated

27.08.2015 before the Court to close DVC No.6 of 2015 as they were

staying happily and that it was drafted by her brother and her

husband/1st respondent herein is not having any job at Alwal. The

appellate Court has not believed the version of the P.W.1. The appellate

Court further held that there is no substantial and appreciable evidence

against the respondent Nos.1 to 4 to appreciate evidence of the 1st

petitioner. The 1st respondent as R.W.1 has admitted that he has not paid

any money to the 1st petitioner towards the expenditure of their child i.e.

2nd petitioner. The 1st petitioner failed to prove the harassment whereas,

the 1st respondent is ready to take her to his company. The appellate

Court has also considered the evidence of R.W.2, employer of the 1st

petitioner/P.W.1 which shows that the 1st petitioner herein was on the

rolls of their company from 16.03.2015 to 18.03.2016 and she worked

as pharmacists, and drew salary of Rs.9,750/- per month and she has

resigned the job on 18.03.2016 by receiving full and final settlement.

Thus, the 1st petitioner is capable of working and her evidence goes to

show that there is no domestic violence. With the said findings, the

learned Sessions Judge allowed the said appeal in part.

10. It is relevant to note that the petitioners herein have filed an

application under Section 125 of the Cr.P.C. vide M.C.No.33 of 2015

seeking maintenance against the 1st respondent. Learned Additional

Judicial Magistrate of First Class -cum- Junior Civil Judge at Siddipet,

vide order dated 02.11.2018 allowed the said application in part and

granted an amount of Rs.5,000/- towards maintenance to the 2nd

petitioner, daughter of the 1st petitioner. Learned Magistrate has

declined to grant any maintenance to the 1st petitioner herein on the

ground that she is in a position to maintain herself.

11. Perusal of the record would reveal that though the order in

M.C.No.33 of 2019 was dated 02.11.2018, the same was not marked in

DVC No.1 of 2016. The order in DVC No.1 of 2016, dated 11.01.2019

and the order in M.C.No.33 of 2011 dated 02.11.2018 passed by the

very same Magistrate. The said facts were not considered. The order in

DVC No.1 of 2016 is contrary to the order in M.C.No.33 of 2015.

However, the learned Magistrate without giving any reasons for

awarding Rs.15,00,000/- towards compensation under Section 22 of the

Act to the 1st petitioner herein, has awarded an amount of Rs.3,000/- per

month to the 1st petitioner towards her residence. It is also relevant to

note that the respondent Nos.1 to 4 have filed the said appeal vide

Crl.A.No.11 of 2019. The appellate Court has allowed the said appeal

setting aside the order passed by the learned Magistrate in D.V.C.No.1

of 2016 and however, the said order is modified to the extent of a

direction to the 1st respondent only to pay the said amount of Rs.3,000/-

per month to the 1st petitioner towards her residence.

12. It is relevant to note that perusal of the record would reveal

that this Court vide order dated 23.09.2019 in I.A.No.1 of 2019 in

Crl.R.C.No.1065 of 2019 has granted suspension of the order dated

14.08.2019 in Crl.A.No.11 of 2019.

13. Sri P.Vishnu Vardhan Reddy, learned counsel for the

respondent Nos.1 to 4 would submit that the 1st respondent has paid an

amount of Rs.9,50,000/- so far. The said fact is admitted by Sri

K.Govind, learned counsel for the petitioners. However, they would

submit that in view of the order passed by this Court dated 23.09.2019

in I.A.No.1 of 2019 in Crl.R.C.No.1065 of 2019, the petitioners herein

have filed a petition under Section 125(3) of Cr.P.C. alleging violation

of the order passed by the learned Magistrate in DVC No.1 of 2016.

14. Learned counsel for the respondent Nos.1 to 4 would submit

that the 1st petitioner herein now has completed her law degree and

practicing at Siddipet, and she is getting an amount of Rs.15,000/- per

month as on today. However, learned counsel for the 1st petitioner

disputed the same stating that as a Junior Advocate, she is not getting

any income. It is also relevant to note that in her evidence, the 1st

petitioner/P.W.1 categorically admitted that she is working in Apolo

Pharmacy and also she has withdrawn the DVC No.6 of 2015 in view of

the compromise. Thereafter, she has filed the present application vide

DVC No.1 of 2016. She has also further admitted that she has not filed

any proof to show that the 1st respondent is earning an amount of

Rs.30,000/- per month. However, 1st respondent has admitted about his

family status. He has worked as a Customer Executive in TATA

Business Service Support Company at Begumpet, Hyderabad and drew

a salary of Rs.7,000/- per month.

15. As stated above, at the cost of repetition, the Court below vide

order dated 02.11.2018 in M.C.No.33 of 2015 awarded an amount of

Rs.5,000/- per month to the 2nd petitioner towards maintenance. The

Court below has awarded an amount of Rs.3,000/- towards residential

order to the 1st petitioner vide order dated 11.01.2019 in DVC No.1 of

2016. It is not in dispute that the 1st respondent has been paying the said

amount to the petitioners herein in compliance of the said order. It is

also not in dispute that the 1st respondent herein has paid an amount of

Rs.10,00,000/- so far out of the said amount of Rs.15,00,000/- awarded

by the learned Magistrate towards compensation under Section 22 of the

Act.

16. As stated supra, the learned Magistrate has not given any

reasons while awarding an amount of Rs.15,00,000/- towards

compensation to the 1st petitioner herein. However, the 1st respondent

has already paid an amount of Rs.10,00,000/- to the 1st petitioner herein.

It is also not in dispute that the 1st petitioner herein has completed her

law degree and she is now practicing as junior lawyer. The 2nd

petitioner herein is daughter of the 1st petitioner and the 1st respondent. It

is also relevant to note that the respondent Nos.1 to 4 herein have not

challenged the order dated 14.08.2019 passed in Crl.A.No.11 of 2019 by

the appellate Court, directing the 1st respondent, to pay an amount of

Rs.3,000/- per month to the 1st petitioner towards her residence.

17. In view of the above discussion and also facts, the Criminal

Revision Case is liable to be allowed in part to the extent mentioned

below.

18. In the result, the Criminal Revision Case is allowed in part

and the order dated 14.08.2019 passed by the VI Additional District and

Sessions Judge at Siddipet in Crl.A.No.11 of 2019 is set aside. The

respondent Nos.1 to 4 are hereby restrained from committing any act of

domestic violence against the petitioner. Respondent No.1 shall pay an

amount of Rs.3,000/- per month to the 1st petitioner towards her

residence in compliance of the order dated 11.01.2019 passed in DVC

No.1 of 2016. The 1st respondent shall pay an amount of Rs.5,000/-

towards maintenance to the 2nd petitioner, his daughter, in compliance

of the order dated 02.11.2018 passed in M.C.No.33 of 2015. However, it

is made clear that the respondent Nos.1 to 4 shall not claim return of the

amount of Rs.10,00,000/- paid by them to the 1st petitioner towards

compensation awarded by the learned Magistrate in D.V.C.No.1 of

2016.

Consequently, miscellaneous Petitions, if any, pending, shall also stand closed.

__________________ K. LAKSHMAN, J Date:06.06.2022 Vvr.