IN THE COURT OF THE LIX ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE CITY.
Dated this the 1st day of February 2018
Present: B.B. Jakati, B.A., LL.B.,(Spl.)
LIX Addl. City Civil and Sessions Judge,Bangalore City.
CRIMINAL APPEAL No.1438/2016
PETITIONER: Sri H. Shantharaju,
S/o Late Hanumanthappa,
Aged about 56 years,
R/at No.82, 2nd floor, 16th Main, ITI Layout,
Near Jnana Mandir School,Nagarabhavi 2nd Stage,Bengaluru – 56.
Now residing at:
Imangala Hobli,Hiriyur Taluk,Chitradurga District.
(Rep. by Sri. Manjunath A.Advocate)
RESPONDENT: Smt. G. Janakamma,
W/o Sri H. Shantharaju,
Aged about 54 years,
R/at No.23, 7th B Cross
Near KTG School
Vishveswaraiah Circle, Srigandha Nagara, Hegganahalli,Bengaluru – 91.
(Represented by Sri. H.R., Advocate)
This is a Criminal Appeal filed under Section 29 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as D.V.Act), challenging the legality and correctness of the judgment passed by the Learned MMTC- IV, Bengaluru in Crl.Misc.No.10/2014 dated 11.11.2016.
2. The essential facts required for disposal of this appeal are that the respondent / wife filed petition under Section 12(1) of D.V. Act against the appellant/husband for the reliefs under Section 18, 19, 20, 21 and 22 of D.V. Act. In the petition the wife has contended that her marriage with the appellant was performed on 07.06.1979. From their marriage three children Crl.Ap.No.1438/2016 born and two of them are married. Two sons are working. The appellant / husband treated the wife for about eight years properly after the marriage and thereafter, he developed illicit relationship with Umadevi P. He married her in the year 1990. At her instance the husband was ill-treating the respondent/wife by beating her in drunken condition, by abusing her in filthy language and even he was pulling her by holding hair. Therefore, the respondent/wife left house of her husband in 2004. After intervention of the elders she was again brought to the house of petitioner and again in 2007 the husband ill- treated the respondent and therefore, she left the house. Since then, the respondent is residing with her son at Bengaluru. After 2007 the appellant totally neglected the respondent. The respondent not in a position to maintain herself and therefore, she has filed the petition on 13.01.2004 for various reliefs under the D.V. Act.
3. The appellant after service of notice appeared before the trial court and filed objection. He has admitted that respondent is his wife. He has also admitted that since from 2007 the respondent is residing separately along with her children. He has admitted that three children born to him through the respondent, two of them are married and two sons are working. Now the respondent is working with the sons. He has also admitted his marriage with Umadevi P. in 1990 and his marital life with her from 1990 till this date. He has contended that daughter has been born through him to Umadevi P. He has denied the domestic violence against the respondent as contended in the petition. He has pleaded that he has no properties to give maintenance and other financial assistance to the respondent. He has alleged that all his ancestral lands have been transferred in the name of respondent and her children Crl.Ap.No.1438/2016 and therefore, the respondent is having source of income. On these main grounds he prayed to reject the petition.
4. During the trial the respondent examined herself as P.W.1 and got marked documents at Ex.P.1 to 16. She has also examined her two brothers as P.W.2 and P.W.3. The P.W.3 not submitted for cross-examination and therefore, his evidence was expunged by the trial court. The appellant examined himself as RW.1 and got marked documents at Ex.R.1 to R.6 in support of his defence. The trial court has formulated four points for consideration. The point No.2 is relating to domestic violence said to be committed by the appellant on respondent. After hearing the parties, held that respondent is not residing with the appellant from more than nine years and therefore, there is no domestic violence by the appellant on the respondent/wife. On this ground the trial court has rejected the prayers under Section 18, 19, 20, 21 of D.V. Act. However, Crl.Ap.No.1438/2016 the trial court by acting under Section 22 of D.V. Act awarded compensation of Rs.4,00,000/- to the respondent. Against granting of compensation Order, the appellant/husband preferred this Appeal. The respondent not filed ay Appeal challenging the Order refusing to grant other reliefs claimed in the petition.
5. The Appeal was admitted and after service of notice, the respondent appeared through her counsel. The LCR was secured.
6. The learned counsel for the appellant has argued that when the trial court has accepted the case of the appellant that there was no domestic violence committed by him against his wife/respondent, the trial court ought not to have granted relief of compensation under Section 22 of D.V. Act. In order to grant any relief under the D.V. Act, the aggrieved person is Crl.Ap.No.1438/2016 required to prove the domestic violence against her in the hands of the husband/appellant. The wife has not proved the domestic violence against her and therefore, the trial court erred in granting the relief of compensation and such part of the Order has to be set-aside.
7. On the other hand, the counsel for the respondent has argued that the respondent is old-aged and the appellant has neglected her totally and looking to this aspect of the matter, the trial court has granted the compensation. Such order is sustainable. Accordingly prayed to dismiss the Appeal.
8. The points that arise for my determination are:
1. Whether the trial court has committed error in law in granting the Order of compensation to the respondent under Section 22 of D.V. Act inspite of the Crl.Ap.No.1438/2016 finding that there was no domestic violence?
2. What Order?
9. My findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : As per final order, for the following:-
R E A S O N S
10. POINT NO.1:- Both parties have admitted that their marriage was solemnized on 07.06.1979. From their marriage two sons and daughter born to them, marriage of one son and daughter has been performed and two sons are in job. It is also submitted that now the respondent is residing with her son who is employed at Bengaluru. It is also admitted by the parties that in the year 1990 the appellant married Umadevi P. and since 1990 the appellant is residing with Umadevi P. It is also admitted that from 2007 the appellant and respondent are Crl.Ap.No.1438/2016 residing separately. They are not jointly residing from 2007 onwards.
11. The respondent/wife in her evidence has stated that when she was residing with appellant till 2007 the appellant was ill-treating her and subjected her into domestic violence. She also stated that even after 2007 the appellant totally neglected her and thereby subjected her into mental domestic violence. These allegations have been denied by the appellant in the cross-examination and also in his examination-in-chief. There are no documentary evidence for the proof of domestic violence. The trial court by referring to the cross-examination of P.W.1 who is respondent herein has categorically held that respondent has not proved the domestic violence against the appellant and accordingly specific finding has been recorded. Such finding of the trial court has not been assailed by the respondent/wife either in this Appeal or in separate Appeal.
Crl.Ap.No.1438/2016 Therefore, the finding of the trial court that there was no domestic violence on the respondent reached its finality. In the present Appeal the appellant has challenged the Order of granting compensation only. Therefore, the scope of Appeal is restricted to legality or otherwise of granting compensation to the respondent. Therefore, this Court being the Appeal Court cannot decide whether the finding of the trial court that there was no domestic violence on the respondent is legal or illegal as there is no separate Appeal. Keeping these aspects in mind, the Court of Appeal is required to decide whether the trial court is right in granting the Order of compensation to the respondent under Section 22 of D.V. Act inspite of finding that there was no domestic violence.
12. Section 3 of D.V. Act provides the definition of domestic violence. Section 2(a) of D.V. Act provides definition of “aggrieved person”. According to that definition the Crl.Ap.No.1438/2016 respondent herein falls under this definition as aggrieved person. Section 2(q) of D.V. Act provides the definition of “Respondent”. The appellant herein is coming within the definition of respondent as he is the husband.
13. Section 12 of D.V. Act provides the right to aggrieved person to claim various reliefs provided under Section 18 to 22 of the Act. Section 22 of the D.V. Act reads under :
22. Compensation Orders – In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress caused by the acts of domestic violence committed by that respondent (appellant herein).
14. On reading Section 22 of D.V. Act along with Definition Clauses under Section 2 and 3 of the Act, it is very Crl.Ap.No.1438/2016 clear that in order to grant the relief of compensation to the aggrieved person, the aggrieved person is required to establish the domestic violence on her by the husband or any male members. Therefore, the domestic violence is ‘sine qua non’ for grant of compensation under Section 22 of D.V. Act. In other words, in order to grant any of the reliefs provided under Section 18 to 22 of D.V. Act, the first and foremost fact to be proved by the aggrieved person is the domestic violence on her by the husband/male member.
15. While giving finding on point No.2 regarding domestic violence, the trial court has categorically held that there is no domestic violence committed by the appellant on the respondent. Such finding can be found in Para No.12 to 16 of the Judgment. As already stated there is no Appeal against such finding before this Court and therefore, in this Appeal the Court cannot alter such finding.
16. In Para No.17 of the judgment the trial court has held as under:
“17. the petitioner has sought for an amount of Rs.60 Lakhs as compensation. Since the act of domestic violence has not specifically proved before this court, granting compensation would be inappropriate. However, keeping the welfare of petitioner in her old age. It is found necessary to grant compensation amount of Rs.4 Lakhs to the petitioner by the respondent. Hence, I answer Point No.3 PARTLY IN THE AFFIRMATIVE.”
17. Finally, the trial court has granted compensation of Rs.4,00,000/- to the respondent. On perusal of the finding recorded by the trial court in para No.12 to 16 on the one hand and finding in Para No.17 on the other hand, it is apparent that the findings are contradictory with each other. It has been stated that there is no domestic violence committed by the appellant and then also proceeded to grant compensation. The Crl.Ap.No.1438/2016 court is required to adjudicate the matter in controversy between the parties in accordance with law. In this case the court is required to adjudicate the dispute in accordance with the provisions of D.V. Act. The trial court has stated in Para No.17 of the judgment that keeping the welfare of the petitioner in her old age, it is found necessary to grant compensation of Rs.4,00,000/-. This finding of the trial court is not supported by any of the provisions of D.V. Act. The advanced age itself is not sufficient to grant compensation under Section 22 of the Act. It is the act of the appellant in committing domestic violence on the respondent plays important role in granting relief of compensation. As per the trial court there is no domestic violence. Therefore, this finding of the trial court is totally erroneous and without any legal force. Hence, I hold that the trial court has committed error in law in granting compensation of Rs.4,00,000/- to the respondent/wife.
Crl.Ap.No.1438/2016 Such finding is not sustainable under law and it has to be set- aside. Accordingly, I answer the above point in the Affirmative.
18. POINT No.2:- With these observations, I proceed to pass the following:
ORDER The Criminal Appeal filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 is hereby allowed.
The judgment and order passed by the Learned MMTC – IV, Bengaluru in Crl.Misc.No.10/2014 dated 11.11.2016 in so far as granting Order of compensation of Rs.4,00,000/- to the respondent/wife is hereby set-aside.
Furnish copy of the judgment to both parties free of cost.
Crl.Ap.No.1438/2016 Send the copy of the Judgment to the lower court forthwith along with LCR.
(Dictated to the Judgment-writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 1st day of February, 2018).
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
Both parties and their counsel absent.
Judgment not ready. For judgment on 01.02.2018.
LIX Addl.C.C. & Sessions Judge, BANGALORE CITY.
Both parties & counsel absent.
(Order pronounced in open court,
vide separate detailed order)
O R D E R
The Criminal Appeal filed under
Section 29 of the Protection of Women
from Domestic Violence Act, 2005 is
The judgment and order passed by the
Learned MMTC – IV, Bengaluru in
Crl.Misc.No.10/2014 dated 11.11.2016 in so far as granting Order of compensation of Crl.Ap.No.1438/2016 Rs.4,00,000/- to the respondent/wife is hereby set-aside.
Furnish copy of the judgment to both parties free of cost.
Send the copy of the Judgment to the lower court forthwith along with LCR.
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.