Modification of Order under Section 25(2) of the DV Act

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 27 TH DAY OF JUNE, 2014

BEFORE

THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA

CRIMINAL REVISION PETITION No. 2184/2012

C/w.

CRIMINAL REVISION PETITION No. 2185/2012

BETWEEN:

  1. K. SHIVAKUMAR S/O K. RAJA RAO AGE: 35 YEARS, R/O. RAYADURAGA, DIST: ANANTAPUR
  2. C. RAJARAO S/O. K. NAGOJI RAO AGE: 70 YEARS, OCC: ADVOCATE R/O. 15-1-27/2A, RAILWAY STATION ROAD, RAYADURGA, DIST: ANANTHAPUR
  3. SMT.C. NAGO BAI W/O. C. RAJA RAO AGE: 60 YEARS, R/O. 15-1-27/2A, RAILWAY STATION ROAD, RAYADURGA, DIST: ANANTHAPUR
  4. SMT.SURYAKALA W/O. K. RAJASHEKAR AGE: 25 YEARS, R/O. BASATHALLI VILLAGE, DODDA BALLAPURA TALUKA, KARNATAKA STATE
  5. SMT.CHANDRAKALA W/O GOPIKRISHNA M. AGE: 28 YEARS, R/O. D.NO. 16/4-519 NETAJI ROAD, RAYADURGA, DIST: ANANTHAPUR
  6. K. PRAVEEN S/O. C. RAJA RAO AGE: 23 YEARS, SENICURE R/O. 15-1-27/2A, RAILWAY STATION ROAD, RAYADURGA, DIST: ANANTHPUR
  7. KRISHNAKUMAR K. S/O. C. RAJA RAO AGE: 30 YEARS, R/O. TORANAGALLU, JINDAL TOWN SHIP, DIST: BELLARY
  8. YOGENDRA KUMAR K. S/O. C. RAJA RAO AGE: 29 YEARS, APSRTC CONDUCTOR, R/O. RAYADURGA, ANANTHAPUR  ……. PETITIONERS

(COMMON)

(BY SRI. B CHIDANANDA, ADV. )

AND:

K. PARVATHI D/O LATE HULUGOJI RAO AGE: 30 YEARS, R/O. C/O. NARASAMMA AGADI MAREPPA COMPOUND, PLOT NO. 8, NEAR RAGAVENDRA TALKIES, BELLARY… RESPONDENT

(COMMON)

(BY SRI. V M SHEELVANT, ADV.)


CRIMINAL REVISION PETITION NO.2184/2012 IS FILED U/S 397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED 01.06.2012, IN CRL.A.NO.37/2012 PASSED BY THE II-ADDL. DIST. SESSIONS JUDGE, BELLARY, AND TO SET ASIDE THE ORDER DATED 12.03.2012, MADE ON I.A.NO.01 IN CRL.MISC.NO.94/2011, PASSED BY THE PRL. CIVIL JUDGE JMFC COURT, BELLARY, IN THE ENDS OF JUSTICE AND ALLOW THE I.A.NO.1 BY HOLDING THAT, THE CRL.MISC. PETITION NO.94/2011, PENDING ON THE FILE OF THE PRL. CIVIL JUDGE JMFC COURT, BELLARY, FILED BY THE RESPONDENT HEREIN IS NOT MAINTAINABLE AGAINST THE PETITIONERS 2 TO 8 HEREIN, IN THE ENDS OF JUSTICE.

CRIMINAL REVISION PETITION NO.2185/2012 IS FILED U/S 397 R/W 401 OF CR.P.C. SEEKING TO 1) SET ASIDE THE JUDGEMENT/ORDER DATED 01.06.2012, MADE IN CRL.A.NO.36/2012, PASSED BY THE II-ADDL. DIST. SESSIONS JUDGE, BELLARY, AND THERE BY DIRECTING THE FIRST PETITIONER TO PAY MONTHLY INTERIM MAINTENANCE OF RS.3000/- P.M. IN ADDITION TO RS.1500/- P.M. FIXED IN CRL.M.C.NO.191/2010 AND AFFIRMING THE PROTECTION ORDER AND SHARED HOUSE IN FAVOUR OF THE RESPONDENT AS PER SECTION 23(2) R/W 18, 19 20 OF PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005, IN THE ENDS OF JUSTICE.

THESE REVISION PETITIONS COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

  1. These two petitions are filed respectively challeng ing the order of the learned Magistrate i.e., Principal Civil Judge and JMFC, Bellary in Criminal Case No.94/2011 in rej ecting the application filed by the respondents 2 to 8 the rein, under Sections 118 and 482 of the Cr.P.C. seeking their d ischarge from the said proceedings and the said orders being affirmed by the II Addl. Dist. and Sessions Judge at Bellary in Criminal Appeal No.37/2012 dated 1/06/2012; and als o challenging the entire order passed by the learned Magistrate in the same proceedings, wherein a sum of Rs.7,000/was awarded as interim maintenance in favour of the res pondent – wife in the said petition, which was reduced by t he II Addl. Dist and Sessions Judge, Bellary in Criminal Appeal No.36/2012 to the extent of Rs.4,500/- per month ti ll the disposal of the main petition pending before the JM FC, Bellary.
  • I have carefully perused both the orders.
  • In the first order by the learned Magistrate on the application filed under Sections 118 and 482 of the Cr.P.C, the provisions of law invoked by the petitioners are not proper because neither Section 118 of the Cr.P.C nor Section 482 of the Cr.P.C empowers the Magistrate in any manner to discharge the petitioners from the array of the parties in the said proceedings. However, though the provision of law mentioned in the said petition is wrong, the substance of the application has to be looked into by the Court and if the Court is satisfied with regard to the grounds urged before it, it can pass appropriate orders in accordance with law. Even otherwise, Section 25(2) of Domestic Violence Act, 2005 (hereinafter referred to as the ‘DV Act’, for short ) empowers the Magistrate that; “on receipt of an application from the aggrieved person or the respondent, if the Magistrate is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for the reasons to be recorded in writing pass such order, as he may deem fit appropriately.” Therefore, if at all the petitioners are aggrieved by issuance of any notice or summons/ any order passed against the parties and by virtue of the summons they have appeared before the Court, if they make out a ground before the same Court by means of changed circumstances or showing to the Court that they are not at all liable to be prosecuted in the said proceedings, the Court may take into consideration all the materials placed before the Court by both the parties and can pass appropriate orders in that regard. In this background, let me see what order the trial Court has passed.
  • The tone and tenor of the orders passed by the tria l Court discloses that, the application has been considered by the trial Court mainly concentrating on the provisions mentioned in the applications. Further added to that, on relying upon several rulings, the Court has come to the conclusion that the petition cannot be dismissed merely because along with the husband, other members of the family were also arrayed as parties to the proceedings. The Magistrate has assigned the reason at paragraph 13 of the orders passed by him on the application filed under Sections 118 and 482 of the Cr.P.C which reads as follows: “ With due respect to their Lordship, I have gone through the above rulings. The ratio laid down in the above rulings are applicable to the present set of facts to come to the conclusion that the petition filed by the petitioner against the respondents No.1 to 8 are well maintainable under this provision. So, in view of the rulings relied by the petitioner in this case, the petition filed for seeking monetary reliefs from the respondents under this Act is maintainable.” Except this observation, nothing is mentioned in th e order about what are the grounds urged by the petitioners in their application.
  • On careful perusal of the application filed by the petitioners 2 to 8 before the trial Court, it discloses that they have challenged the proceedings on the ground that by virtue of the relationship with the respondent No.2 in the said case, they were made as parties to the proceedings and no proceedings shall be continued against the relative s of the husband of the respondent therein without specific allegations against them. Apart from this ground, they have also taken up the contention that they never lived with the 1 st petitioner therein. They have also claimed that t he relief claimed against the 1st petitioner is exclusively against husband and he alone is liable to discharge the sai d relief. The contents of the petition also does not disclose any specific overt acts of the petitioners 2 to 8 in or der to draw them to the Court.
  • Therefore, it goes without saying that except one point, the trial Court has not considered the other grounds urged in the application. The trial Court ought to have considered the other grounds urged in the application. If the Court is satisfied that a prima facie case is made out against the petitioners, then only it can proceed against t hem.
  • It is worth to note here the decision of the Hon’bl e Apex Court reported in 1992 Supp (1) SCC 335 in the case of State of Haryana and Others Vs. Bhajan Lal and Others, wherein the Apex Court has held that; “considering the allegations made in the First Information Report or the complaint, even if they a re taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; Secondly, where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; and And lastly, where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. “
  • Even on analysis of the entire averments made in the petition, it does not attract any of the provisions under the DV Act and the factual aspects contained in the petition are also not sufficient to draw inference that any provisions under the DV Act can be invoked. On over all analysis of the materials on record, if the applicants are able to satisfy that the petition was filed only with a mala fide intention to wreck vengeance against them, then the Court has to consider all the grounds urged on the basis of the materials on record in view of the above said observations of the Apex Court and then has to pass appropriate orders on the application.
  • With these observations, I am of the opinion that the matter deserves to be remitted back.
  • At this stage, the learned Counsel for the respondent submitted that, when the Domestic Officer (CDPO) had been to the house of the petitioners the y have not cooperated in order to submit proper report to the Court. Per contra, the learned Counsel for the petitioners submit that they had no knowledge at all about the said officer having come to the place of the petitioners that th e Officer has not given any prior intimation or notice to the petitioners, otherwise they would have cooperated with him and they are the last persons to disobey the orders of the Court.
  • In view of the above said submissions, it is just and necessary for the trial Court to direct the concerned CDPO to once again visit the place of the petitioners with prior intimation to them in order to collect the domestic violence information and submit the Domestic Incide nt Report to the Court as early as possible. For that reason also, the matter requires to be remitted to the trial Court. In another petition, the challenge is regarding the interim maintenance awarded. The interim maintenance of Rs.7,000/- pm awarded by the trial Court is reduced to Rs.4,500/- pm by the appellate Court. The learned Counsel for the petitioners strenuously contends, no enquiry has been done by the learned Magistrate before ordering an amount of Rs.7,000/- pm. Only considering the materials on record and hearing the parties, the said award has been passed. The appellate Court having noticed that in Cr.Misc.No.191/2010 filed under Section 125 of the Cr.P.C, the wife was ordered with an amount of Rs.1,500/- p er month as maintenance and taking into consideration the submission made on behalf of the husband that the w ife has suppressed the said material aspect of getting Rs.1,500/- in the 125 proceedings, reduced the award of maintenance to the extent of Rs.4,500/- per month including the award passed in 125 proceedings. Both the Courts have analysed the factual matrix of the case to come to the conclusion that the petitioner is entitled for interim maintenance during the pendency of the proceedings. But as the wife has s uppressed material aspects before the Court by not bringing t o the notice of the Court the award passed in her favour in 125 proceedings, I am of the opinion, if an amount of interim maintenance is reduced to Rs.4,000/- per month in total, it would meet the ends of justice because of the simple reason that, wife has to live in the society by having a separate house, grocery, clothes, medical expenses etc. Therefore, considering the growing rates of groceries and othe r day to day expenses, I am of the opinion, an amount of Rs. 4,000/-is bare minimum to be awarded in favour of the petitioner as interim maintenance, pending disposal of the petition. However, the interim maintenance ordered by this Court is subject to any modification by the trial Court at t he time of final order to be passed in the case, based on prev ailing facts and circumstances of the case.
  • In view of the above said factual aspects, I am of the opinion, the matter is to be remitted to the trial Court with a direction to reconsider the application file d under Sections 118 and 482 of the Cr.P.C. The said provision of law should be read as if filed under Section 25(2) of the DV Act. With these observations, I pass the following order:

ORDER

Both the petitions are allowed.

The order passed by the learned Magistrate on I.A.1/2014 in Crl.Misc.No.94/2011 dated 12.03.2012 and confirmed by the appellate Court in Crl.A.No.37/201 2 is hereby set aside. The application filed by the app licants under Sections 118 read with Section 482 of the Cr. P.C, which should be read as if filed under Section 25(2 ) of the DV Act is restored to the file of the Magistrate to b e considered afresh in view of the observations made in the body of this order.

The order passed by the learned II Addl. District J udge in Cri.A.No.36/2012 dated 01.06.2012 is modified an d the amount of interim maintenance is reduced from Rs.4, 500/-to Rs.4,000/- per month pending disposal of the mai n petition. The amount deposited before this Court is ordered to be transmitted to the trial Court and the trial Court shall release the said amount in favour of the respondent -wife.

Sd/-

JUDGE

 

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