HC clarifies that a reading of the complaint shows that there are NO specific averments against relatives and so the magistrate to seek dom. violence report from social service officer, consider the facts and ONLY if there is a prima facie case against accude, the magistrate can proceed against other accused !!
#BackToMagistrate #SeekDVreport #DV_on_7Relatives #HusbandPLUSseven !!
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 27 TH DAY OF JUNE, 2014
THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL REVISION PETITION No. 2184/2012
CRIMINAL REVISION PETITION No. 2185/2012
C. RAJARAO S/O. K. NAGOJI RAO AGE: 70 YEARS, OCC: ADVOCATE R/O. 15-1-27/2A, RAILWAY STATION ROAD, RAYADURGA, DIST: ANANTHAPUR
SMT.C. NAGO BAI W/O. C. RAJA RAO AGE: 60 YEARS, R/O. 15-1-27/2A, RAILWAY STATION ROAD, RAYADURGA, DIST: ANANTHAPUR
SMT.SURYAKALA W/O. K. RAJASHEKAR AGE: 25 YEARS, R/O. BASATHALLI VILLAGE, DODDA BALLAPURA TALUKA, KARNATAKA STATE
SMT.CHANDRAKALA W/O GOPIKRISHNA M. AGE: 28 YEARS, R/O. D.NO. 16/4-519 NETAJI ROAD, RAYADURGA, DIST: ANANTHAPUR
K. PRAVEEN S/O. C. RAJA RAO AGE: 23 YEARS, SENICURE R/O. 15-1-27/2A, RAILWAY STATION ROAD, RAYADURGA, DIST: ANANTHPUR
KRISHNAKUMAR K. S/O. C. RAJA RAO AGE: 30 YEARS, R/O. TORANAGALLU, JINDAL TOWN SHIP, DIST: BELLARY
YOGENDRA KUMAR K. S/O. C. RAJA RAO AGE: 29 YEARS, APSRTC CONDUCTOR, R/O. RAYADURGA, ANANTHAPUR ……. PETITIONERS
(BY SRI. B CHIDANANDA, ADV. )
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
(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
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 circumstanc es 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 proceedi ngs. 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 petit ioners 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 applicati on. 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 provis ions 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 consi der 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 applicat ion.
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 of ficer 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 maintenan ce 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 enquir y has been done by the learned Magistrate before ordering an amount of Rs.7,000/- pm. Only considering the mate rials 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 maintenan ce to the extent of Rs.4,500/- per month including the aw ard passed in 125 proceedings. Both the Courts have an alysed 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 i nterim maintenance is reduced to Rs.4,000/- per month in t otal, it would meet the ends of justice because of the simpl e reason that, wife has to live in the society by having a s eparate house, grocery, clothes, medical expenses etc. The refore, 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 peti tioner as interim maintenance, pending disposal of the petiti on. However, the interim maintenance ordered by this Co urt 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 tr ial Court with a direction to reconsider the application file d under Sections 118 and 482 of the Cr.P.C. The said provi sion of law should be read as if filed under Section 25(2) of the DV Act. With these observations, I pass the following 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.
In the interview to a TV channel, the Hon J KARNAN, Judge Calcutta HC, openly alleges corruption and nepotism in judiciary ! He also supports the National Judicial Accountability act and questions the collegium !!
#COFFEE #cockroaches and #Molestation !!
Lots of men are rightfully angry about the #cockroach incident at a fast food / #coffee chain outlet. A male customer, indicated that there were cockroaches in the fridge where food was stored and served to customers . In spite of of his plea to clean up, the staff there did not care about it, and continued serving other customers. So this gentleman, took his mobile phone, and Recorded the cockroaches. A #female employee there PHYSICALLY slapped THIS #male customer ! And finally that same female employee ( the attacker ) filed a molestation case against that hapless customer. Pollees have now issued a notice of this for male customer asking him to turn up for enquiry . Of course, this sends shivers down the MIND of any male. * While I feel the same, and completely denounce false cases, I have a very simple alternate idea on this matter. Instead of shouting here, or shouting there, instead of expecting the Parliament to take notice, if just Few thousand men, in each city, each town, refuse to accept services in such fast food restaurants from #Women, we either boycott such a restaurants, or get into *other * restaurants and seek service only from male employees, that will create a huge backlash and corporate India will wake up with a thud … You can start in a very peaceful, civil boycott movement, just boycotting those eateries and fast food chains, that prominently employ women because these women pose a huge legal risk to male customers. The corporates that monitor sale on a daily basis, these megacorporations will immediately wake up . They have considerable clout and money power in today’s India, and will immediately take notice and taken action if you pinch their bottom line.
But the key question is, will men really unite for such a simple cause ?? as of today, Twitter is trending MUCH more about, elections, politics, Yogi, slaughterhouses than anything to do with #MALErights … so, in essesense, MGTOW or being aware of #MALErigjts isn’t something Himalayan or impossible… It is just being aware of one’s own basic rights and acting for the common good of justice, decency, and safety of fellow honest men… !!
#Maintenance is not meant for the wife to live in luxury. It should be fair and reasonable & take into account the #husband’s #earnings
IN THE ORISSA HIGH COURT, CUTTACK
Before the :- S. K. SAHOO, J.
Criminal Revision No. 70 of 2016, Decided on : 4th January, 2017
From the order dated 30.08.2014 of the J. M.F.C., Cuttack passed in Criminal Misc. Case No. 48 of 2013 and the judgement and order dated 24.12.2015 passed in Criminal Appeal No. 126 of 2013 and Criminal Revision No. 132 of 2014 by the learned Sessions Judge, Cuttack.
SAYED FAKIRUDDIN …. Petitioner
HENA BEGUM …. Opp. Party
For Petitioner : Mr. Sushanta Harichandan
For Opp. Party : Mr. Manoj Kumar Panda
Protection of Women from Domestic Violence Act, 2005 – Sec. 20 – Grant of Maintenance – Monetary relief in the form of maintenance for the aggrieved person as well as her children under the section should be adequate, fair and reasonable and consistent with slandered of living to which the aggrieved person is accustomed – Amount should not be fixed which would enable the aggrieved person as well as her children to live in luxury – Needs/requirements of the claimant’s, the income of husband of the aggrieved person, the status of the husband’s family and the standard of life which the claimants would have led had they continued to live in the house of the respondent should also be considered – Mechanical way of fixation of maintenance at the whim and pleasure of the Court is not permissible – Decision should not be arbitrary but judicious.
S. K. SAHOO, J. – Heard Mr. Sushanta Harichandan, learned counsel for the petitioner and Mr. Manoj Kumar Panda, learned counsel for the opposite party.
There is no dispute that the petitioner is the husband of the opposite party. The petitioner Sayed Fakiruddin has challenged the impugned judgement and order dated 30.08.2014 of the learned J. M. F.C., Cuttack passed Criminal Misc. case No. 48 of 2013 in directing the petitioner to pay a sum of Rs. 10,000/-(Rupees Ten Thousand) per month to the opposite party towards maintenance under section 20 of the P.W.D.V. Act, 2005. Inter alia, with other reliefs. The judgement passed by the learned J.M.F.C., Cuttack was confirmed in appeal by the learned Sessions Judge, Cuttack vied judgement and order dated 24.12.2015 in Criminal Appeal No. 126 of 2013 and criminal Appeal No. 132 of 2014, both the appeals were filed by the petitioner which was disposed of by way of common judgement.
Learned counsel for the petitioner contended that the petitioner is an Auto rickshaw driver and the amount of maintenance which was fixed is on the higher side and there was no proper assessment of the Income of the petitioner by both the Courts below and the order of maintenance has been passed in a mechanical manner. He further contended that no proper opportunity has been provided to the petitioner to adduce evidence regarding his income.
Learned counsel for the opposite party on the other hand contended that the petitioner is doing business and had landed properties and he is earning in lakhs in every month and therefore, the learned Courts below are justified in fixing the quantum of maintenance at Rs. 10,000/- per month.
Perused the judgement of learned Magistrate where the income side of the petitioner has been discussed. It seems that the learned Magistrate has accepted the statement of the opposite party even through no corresponding documents relating to the income of the petitioner has been filed and no clinching oral evidence has been adduced in that behalf. The monetary relief in the form of maintenance for the aggrieved person as well as her children as per section 20 of the P.W.D.V.Act, 2005 should be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. The amount should not be fixed which would enable the aggrieved person as well as her children to live in luxury. The needs/requirements of the claimants, the income of the husband of the aggrieved person, the status of the husband’s family and the standard of life which the claimants would have led had they continued to live in the house of the respondent should also be considered. The mechanical way of fixation of maintenance at the whim and pleasure of the Court is not permissible. The decision should not be arbitrary but judicious.
Considering the submissions, it is felt proper to remand the matter to the Court of learned J. M. F. C., Cuttack to give an opportunity to both sides to led evidence regarding the income of the petitioner and thereafter assess the quantum of maintenance.
It is pointed out by the learned counsel for the opposite party that even though the interim maintenance of Rs. 3,000/- per month was awarded but the petitioner has not complied with the same to which the learned counsel for the petitioner objected and stated that the entire interim maintenance award amount has already been paid by the petitioner to the opposite party and Rs. 50,000/- which was directed to be deposited as per the order of this Court dated 04.04.2016 in Misc. Case No. 96 of 2016 has already been complied with.
In view of such submission made by the learned counsel for both the parties, it is directed that if the petitioner makes payment of the entire arrears interim maintenance. If any outstanding to the opposite party before the learned J.M.F.C., Cuttack in Criminal Misc. Case No. 48 of 2013 on or before 20th January, 2017, both the parties shall be provided with opportunity to adduce evidence regarding the income of the petitioner and the ,learned Magistrate shall pass a fresh order in accordance with law. The entire exercise shall be completed by the end of February, 2017 and the parties shall cooperate with the Magistrate in concluding the proceeding within the stipulated period.
It is made clear that this Court has not expressed any opinion relating to the income of the opposite party and the quantum of maintenance to be awarded which will be decided strictly in accordance with law as per the evidence sought to be adduced by the respective parties. Only in case of payment of arrears interim maintenance, if any, by the petitioner to the opposite party by 20th January, 2017, the opportunity of adducing evidence on income aspect of the petitioner shall be provided.
It is further made clear that if the arrears interim maintenance amount is not paid by 20th January, 2017, the impugned judgement and orders passed by the Courts below shall stand confirmed.
With the foreside observation, the CRLREV is disposed of.