Tag Archives: KArnataka HC

NO arrest for NON PMT of DV maintnance arrears. Non pmt does NOT attract sec 31 DV act. Kar HC

In this classic case a husband is threatened with arrest under sec 31 of DV act for non payment of arrears maintenance. Wife files NBW. He files for discharge (from that charge & NBW) . The discharge is NOT allowed by the Hon MM and Hon Sessions courts (both courts dismiss is petition). So Husband appeals to the Hon Karnataka HC which refers to an order by the Hon Rajasthan HC and decrees that a maintenance order is NOT a protection order (under sec 18) and so coercive provisions of sec 31 (like arrest) cannot be applied for NON payment of maintenance !!

The Hon court orders and we quote “….9. On a plain reading of Section 18 in the light of definition found under Section 2(o), it could be definitely said that the order of granting maintenance does not amount to “protection order” and violation of the same will not attract the provisions of Section 31 of the above Act. ….”

and goes on to order “…the petitioner stands discharged for offence punishable under sect ion 31 of P.W.D.V Act 2005…..”

So the wife has to go file execution for collecting her dues !!


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 18 TH DAY OF DECEMBER 2015

BEFORE THE HON’BLE MR.JUSTICE A.V.CHANDRASHEKARA

CRIMINAL REVISION PETITION NO.758 OF 2015

BETWEEN :

MR. FRANCIS CYRIL C CUNHA
AGED ABOUT 52 YEARS
S/O SYLVESTER D/CUNHA
RESIDING AT DEEPTHI COTTAGE
KALLABETTU POST, GANTALKATTE
MOODBIDRI, MANGALORE TALUK – 515 006 … PETITIONER
(BY SRI.THARANATH POOJARY.I., ADV.)

AND:

SMT, LYDIA JANE D’CUNHA
AGED ABOUT 42 YEARS
W/O FRANCES CYRIL D’CUNHA
RESIDING AT URPALPADE HOUSE
KALLABETTU POST, MANGALORE TALUK – 575 006 … RESPONDENT
(BY SRI. G.BALAKRSIHNA SHASTRI )

THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 04.02.2014 PASSED BY THE R 2 PRINCIPAL S.J., D.K., MANGALORE IN CRL.A.NO.211/2013 UPHOLDING ORDER DATED 28.02.2013 PASSED BY THE C.J. AND J.M.F.C., MOODBIDRI, D.K., IN C.C.NO.327/2012 DISMISSING THE DISCHARGE APPLICATION FILED BY THE PETITIOENR FOR THE OFFENCE P/U/S 31 OF THE PROTECTION OF WOMEN AGAINST THE DOMESTIC VIOLENCE ACT AND DISCHARGE THE PETITIOERN OF THE SAID OFFENCE.

THIS PETITION COMING ON FOR HEARING THIS DAY, THE COURT PASSED THE FOLLOWING:

O R D E R

  1. Present petition is filed under Section 397 of Cr.P.C. challenging the order of the learned Civil Judge, Moodbidri passed on 28.02.2013 in C.C. No.327/2012 and the confirmation of the same by the learned Sessions Judge, Mangaluru in Crl.A.No.211/2013. Petitioner is the accused in C.C.No.327/2012 and th e Trial Court has issued process against the accused for offences punishable under Section 31 of Protection of Women from Domestic Violence Act, 2005 (For short ‘Act’ herein afterwards). An application was filed under Section 239 of Cr.P.C. seeking discharge. The said application came to be dismissed after contest as against which an appeal was filed in terms of secti on 29 of the said Act before the Sessions Court at Mangal uru. The appeal is dismissed and thereby the order of th e Trial court is confirmed.
  2. The facts leading to the present revision petition are as follows: Petitioner is the legally wedded husband of the respondent. Respondent has chosen to file a case i n Crl.Misc.No.115/2009 under section 12 of the Act seeing various releifs against this petitioner befo re the Court of JMFC Moodbidri, Mangalore Taluk. By virtue of the order dated 01.03.2010, the learned JMFC cho se to award maintenance @ Rs.4,000/- per month to the respondent and her daughter. This order dated 01.03.2010 has become final.
  3. An application was filed to recover the arrears of maintenance pursuant to the order dated 01.03.2010 passed in Crl.Misc.No.115/2009 in MC No.256/2012. In accordance with the order dated 01.03.2010 passed in Crl.Misc. No.115/2009, recover y of the entire arrears of maintenance was sought but the executing court, applying the provisions of Section 125(3) of Cr.P.C. allowed to recover a sum of Rs.32,000/- only being the arrears for one year pri or to the filing of the application for recovery and that order is not challenged in any manner. ahttp://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  4.  private complaint was filed by the respondent in PCR No.96/2012 before the JMFC Court on 22.09.2012 requesting the court to take cognizance under Section 31 of the Act to issue summons for no t paying the entire arrears of maintenance. Cognizance was taken and summons were issued. After appearing before the court an application was filed in terms of Section 239 of Cr.P.C. to discharge him and said application came to be dismissed. Dismissal of the said application is confirmed by the Sessions Court. He nce the present revision petition is filed under section 397 of Cr. PC.
  5. The short point that arises for consideration by this court is as under:- “ Whether penal provision found in Section 31 of Protection of Women from Domestic Violence Act, 2005 could be invoked for non-payment of arrears of maintenance?”
  6. While disposing of Crl.Misc. No. 115/2009 on 01.03.2010, the learned judge has passed the following order:- “The petition filed by the petitioners no.1 and 2 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is hereby allowed. The respondent is hereby restrained from entering the school/college or any other places where the petitioner no.2 is studying. The respondent is hereby directed to stay away from the dependants, relatives or any other persons from the petitioner No.1 and 2 from committing violence against them. The respondent is hereby restrained from attempting to contact the petitioner no.2 either at the school or any other place. The respondent is hereby restrained from alienating, disposing, encumbering the shared household which is described in the petition schedule. The respondent is hereby directed to pay the maintenance of Rs.4,000-00 to the petitioner no.1 and 2 per month from the date of the petition.”
  7. It is true that all orders other than the one relating to maintenance are perfect protection orde rs within the purview of Section 18 of the Act. Sect ion 18 is reproduced below:- “Section 18 – Protection Orders. – The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from – (a) committing any act of domestic violence; (b) aiding or abetting in the commission of acts of domestic violence; (c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person; (d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact; (e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate; (f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence; (g) committing any other act as specified in the protection order.”
  8. The words “Protection Orders” are defined in Section 2(o) of the above Act and the same is extr acted below:- 2(o) – “Protection Order” means an order made in terms of Section 18.”
  9. On a plain reading of Section 18 in the light of definition found under Section 2(o), it could be definitely said that the order of granting maintenance does not amount to “protection order” and violation of the same will not attract the provisions of Section 31 of the above Act.
  10. Section 31 of the above Act is reproduced below in its entity:- “ Section 31. Penalty for breach of protection order by respondent.- (1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. (2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who has passed the order, the breach of which has been alleged to have been caused by the accused. (3) While framing charges under sub-section (1), the Magistrate may also frame charges under Section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.”
  11. Section 28 of the above Act deals about the applicability of certain provisions of Cr.P.C. to t he provision of this Act. Except as provided in this case, all proceedings under Sections 12, 15,18, 20, 21, 2 2 1 and 23 and offences under Section 31 shall be gover ned by the provisions of Cr.P.C.
  12. Certain rules have been framed under Section 37 of the Act which enables the Central Government to make rules.
  13. Rule 15 of the Protection of women from Domestic Violence Rules, 2006 deals about the breac h of protection order. It is extracted below:
    • “Breach of Protection Orders.-
    • (1) An aggrieved person may report a breach of protection order or an interim protection order to the Protection Officer.
    • (2) Every report referred to in sub-rule (1) shall be in writing by the informant and duly signed by her.
    • (3) The Protection Officer shall forward a copy of such complaint with a copy of the protection order of which a breach is alleged to have taken place to the concerned Magistrate for appropriate orders.
    • (4) The aggrieved person may, if she so desires, make a complaint of breach of protection order or interim protection order directly to the Magistrate or the police, if she so chooses.
    • (5) If, at any time after a protection order has been breached, the aggrieved person seeks his assistance, the protection officer shall immediately rescue her by seeking help from the local police station and assist the aggrieved person to lodge a report to the local police authorities in appropriate cases.
    • (6) When charges are framed under section 31 or in respect of offences under section 498A of the Indian Penal Code, 1860 (45 of 1860), or any other offence not summarily triable, the Court may separate the proceedings for such offences to be tried in the manner prescribed under Code of Criminal procedure, 1973 (2 of 1974) and proceed to summarily try the offence of the breach of Protection Order under section 31, in accordance with the provisions of Chapter 13 XXI of the Code of Criminal Procedure, 1973 (2 of 1974).
    • (7) Any resistance to the enforcement of the orders of the Court under the Act by the respondent or any other person purportedly acting on his behalf shall be deemed to be a breach of protection order or an interim protection order covered under the Act.
    • (8) A breach of a protection order or an interim protection order shall immediately be reported to the local police station having territorial jurisdiction and shall be dealt with as a cognizable offence as provided under sections 31 and 32.
    • (9) While enlarging the person on bail arrested under the Act, the Court may, by order, impose the following conditions to protect the aggrieved person and to ensure the presence of the accused before the court, which may include –
      • (a) an order restraining the accused from threatening to commit or committing an act of domestic violence;
      • (b) an order preventing the accused from harassing, telephoning or making any contact with the aggrieved person;
      • (c) an order directing the accused to vacate and stay away from the residence of the aggrieved person or any place she is likely to visit;
      • (d) an order prohibiting the possession or use of firearm or any other dangerous weapon;
      • (e) an order prohibiting the consumption of alcohol or other drugs;
      • (f) any other order required for protection, safety and adequate relief to the aggrieved person.”
  14. Hon’ble High Court of Rajasthan had an opportunity to discuss the applicability of the pro visions of Section 31 of the above Act in regard to the non -compliance of the order relating to the non-payment of arrears of maintenance. What is held by the Hon’bl e High Court of Rajasthan is that breach of order of monetary relief will not pave way to prosecute the husband. It is made clear that section 31of the Ac t does not include monetary relief. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  15. In the present case, the provisions of Section 31 of the Act was pressed into service before the trial court essentially on the ground that arrears of the maintenance was not paid and therefore it paved for penal action under Section 31 of the Act. The learned judge of the trial court has construed that even the non-payment of the arrears of maintenance amounts to the violation of protection order and thereby Section 31 could be invoked.
  16. What is argued by Sri. G. Balakrishna Shastri, learned counsel representing the respondent is that the non-payment of the arrears of maintenance amounts to domestic violence and therefore Section 31 is applicable.
  17. Providing two separate reliefs, one under Section 18 of the Act for protection and another for monetary relief under Section 20 of the Act will have to be taken into consideration while analyzing the scope of Section 31 of the Act. If protection order was inclusive of monetary relief of granting maintenance, Section 20 of the Act would not have been separately provided for.
  18.  After going through the records and the decision rendered by the High Court of Rajasthan in the case of SMT.KANCHAN .v. VIKRAMJEET SETIYA (2013 CrL.L.J. 85, this court does not find any reason to take a view different from the one taken by the Hon’ble High Court of Rajasthan. As already discussed, the High Court of Rajasthan has exhaustively dealt with the scope of Section 31 of the Act in the light of Sect ions 2 (o), (k), 12,18, 20 and 28 of the Act. In this view of the matter, the approach of the trial court in taking cognizance of the offence under Section 31 of the A ct ia a glaring legal error and hence the same will have to be set aside. Consequently the revision petition will have to be allowed and the order of the JMFC passed on 28.2.2013 and affirmed in Crl.A.211/13 will have to be set aside.
  19. In the result, the following order is passed:

O R D E R

The revision petition is allowed. The order dated 28.2.2013 passed in C.C.327/12 and affirmed in Crl.A.211/13 are set aside. Consequently the petitioner stands discharged for offence punishable under sect ion 31 of P.W.D.V Act 2005.

Send a copy of this order to the Trial Court.

Sd/-

JUDGE

BSV/vgh*

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************************

 

42yr old wife files DV on 52yr husbnd 8yrs later! Huge maint.& residnce sought ! Kar HC DV quash

A 42 year old wife files DV on a 52 year old husband approx 8 years after separtion. Pertinent to note that she ALREADY has won a maintenance of Rs 1000, p.m. which she wishes to enhance to Rs. 10,000 p.m. !! now. She also wants residence rights in his OWN house etc etc !! Hon KARNATAKA HC quashes the case quoting Sec 468 CrPC

**************************************

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 8 TH DAY OF JANUARY, 2014

BEFORE THE HON’BLE MR. JUSTICE K.N. PHANEENDRA

CRIMINAL PETITION NO.11476/2013

BETWEEN:

1. GURUDEV S/O. HANAMANT GURAV
AGE: 52 YEARS, OCC: AGRICULTURE
R/O. MALALI VILLAGE, TQ:MUDHOL
DIST: BAGALKOT

2. BASAPPA S/O. HANAMAPPA GURAV
AGE: 54 YEARS, OCC: AGRICULTURE
R/O. MALALI VILLAGE,
TQ: MUDHOL, DIST: BAGALKOT … PETITIONERS

(BY SRI PAVAN B DODDATTI, ADV.)

AND

JAYASHREE W/O. GURUDEV GURAV
AGE: 42 YEARS, OCC: AGRICULTURE
R/O.MALALI VILLAGE,
TQ:MUDHOL, DIST: BAGALKOT … RESPONDENT

(BY SRI S C HIREMATH, ADV.)

THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C. SEEKING TO QUASH THE ENTIRE PROCEEDINGS IN CRL.MISC.NO.110/2013 PENDING ON THE FILE OF THE PRL. CIVIL JUDGE & JMFC COURT, MUDHOL, BY ALLOWING THIS CRIMINAL PETITION. THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

Though this petition is posted for admission, with the consent of both the Counsels, the matter is heard o n merits.

2. It is seen from the records that the respondent-Jayashree W/o the first petitioner-Gurudev S/o Hana mant Gurvar lodged a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 for several reliefs. That is to say restraining the petitioners from dispossessing from the house and also for awarding Rs.10,000/- per month as maintenance etc. and also claiming Rs.15,000/- towards damages. It is also alleged in the petition that the applicant therein has a right to share the house at Bagalkot with opponent No.1. The op ponents ill-treated and tortured her, thereafter about 8 y ears back by beating his wife and daughter drove her out from the matrimonial house. It is also alleged that since t hen the petitioner is staying in the adjacent house of the opponent and opponent has neglected and even now harassing her under one or other pretext. Therefore, she is comp elled to file petition under Domestic Violence Act.

3. In the petition it is not specified as to what is the nature of harassment that has been given by the pet itioners herein. The learned counsel for the petitioners st renuously contended that the petition is barred by limitatio n. The petition is filed alleging the incident taken plac e about 8 years back. Therefore, he contends that the petiti on under Domestic Violence Act is liable to be quashed.

4. Per contra, learned counsel for the respondent – wife submits that, she has filed a suit for partiti on and separate possession and the said suit was decreed i n respect of landed property and now she is residing in the house situated adjacent to the house of the petitio ners herein. It is also submitted that the first petiti oner filed a petition for divorce and the same is pending. There fore, the petition under Domestic Violence Act is maintainabl e before the trial Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

5. Learned counsel for the petitioner brought to my notice the order passed by this Court in a similar matter in Crl.P.No.2419/2009 on 05.04.2013 and submits that t he said order passed by this court is applicable to th e facts and circumstances of this case. For the purpose of bet ter understanding whether the said order passed by this Court is applicable to the present case or not, it is jus t and necessary to look into the orders passed in that ca se.

“In the said case also, the wife alleged that she lived with her
husband in the matrimonial home up to November 2004 and she was
pregnant by then. She was treated cruelly by the petitioner and his
parents during that time. The wife left the matrimonial home as she
could not tolerate the torture of her husband and she was compelled
to eat certain substance in order to abort pregnancy. Making such
allegations she filed a petition under Section 12 of the Protection
of Women from Domestic Violence Act. The Trial Court has taken
cognizance of an offence which has taken place in the year 2005 and
issued summons to the petitioners. The learned judge of this Court
has observed the cause of action in the said case was 4 years prior
to the filing of the complaint. Under Section 468 of Cr.P.C., the
complaint could have been filed within one year. If the allegations
made in the complaint are proved, the punishment is one year. On
these grounds, this Court allowed the petition under Section 485 of
Cr.P.C. and quashed the entire proceedings.”

6. It is contended by the learned counsel for the petitioners that in the Divorce petition, an amount of Rs.1,000/- has already been awarded. It is admitted fact that the respondent has claimed maintenance in the divorce petition filed by her husband. She can workout her remedy so far as maintenance in the said Divorce Petition.

7. With these observations, I am of the opinion that, this petition under Domestic Violence Act is liable to be quashed which was filed after lapse of 8 years. In view of the same and in view of the observations made by this Court in similar matters noted above, the petition filed under Section 482 of Cr.P.C. deserves to be allowed.

Hence, I Pass the following order:

Petition filed under Section 482 Cr.P.C. is hereby allowed. Consequently, the complaint filed by the respondent herein in Crl.Misc.110/2003 before the P rl.Civil Judge and JMFC, Mudhol is hereby quashed. Further th e respondent is at liberty to agitate all these grou nds in the Divorce Petition.

(SD/-)

JUDGE

Rms

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
*******************************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************************

Serial case filing wife’s DV quashed by Karnataka HC as its nothing but abuse of process of Court

* Serial case filing wife files maintenance cacse, 498a and also DV
* Husband assails DV case and files for quash at the Karnataka HC
* HC appreciates facts of the case and the report of the social welfare officer who talks about some threats to withdraw a maintenance case
* However that maintenance case is already decreed and over some years ago and so there is NO chance of withdrawing that case
* So DV case by wife is quashed by Karnataka HC who calls it an abuse of the process of law !!

*****************************disclaimer*******************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
*******************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************

IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1ST DAY OF JULY, 2014

BEFORE
THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA

CRIMINAL PETITION No.11022/2013

BETWEEN:

1. SRI.RAVIKUMAR S/O RUDRAPPA KALASHETTI
AGE: 35 YEARS, OCC: SERVICE,
R/O.NEHRU COLONY 4TH CROSS ROAD,
UDAYANAGAR, BANGALORE

2. SMT.SUSHILA RUDRAPPA KALASHETTI
AGE: 55 YEARS, OCC: HOUSE WIFE,
R/O.NEHRU COLONY 4TH CROSS ROAD,
UDAYANAGAR, BANGALORE … PETITIONERS

(BY SRI. RAMACHANDRA A MALI, ADV.)

AND:

SMT.PANKAJA W/O RAVIKUMAR KALASHETTI
AGE: 30 YEARS, OCC: HOUSE WIFE,
R/O.ANANTPUR, TQ: ATHANI, DIST: BELGAUM … RESPONDENT

(RESDT – SERVED & UNREPRESENTED)

THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C. SEEKING TO QUASH THE ENTIRE PROCEEDINGS OF THE CASE BEARING CRL.MISC.NO.162/2013 ON THE FILE OF THE PRL. CIVIL JUDGE & JMFC, ATHANI, REGISTERED UNDER THE PROVISIONS OF SEC. 9(B) AND 37(2)(C) OF PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, AGAINST THE PETITIONERS ONLY.

THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Heard the learned Counsel for the petitioners and perused the records. The respondent though served remained un-represented.

2. This petition is filed seeking quashing of the entire proceedings in Crl.Misc.No.162/2013 on the file of the Principal Civil Judge & JMFC, Athani registered under the provisions of Sections 9(b) and 37(2)(c) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the ‘DV Act’, for short) against the petitioners.

3. The learned Counsel for the petitioners strenuously contended that, even on plain reading of the allegations made in the petition, it does not attract any provisions of DV Act. Secondly, he contended that the sole ground urged by the complainant in the misc. petition is that, the petitioners are forcing the complainant to withdraw the maintenance petition filed by her in the year 2009. He drew my attention to the fact that, the said petition was disposed of by the Court in Cri.Misc.No.523/2009 vide orders dated 03.12.2011 itself and the question of forcing the wife to withdraw the said petition does not arise. Except this one point, there is nothing in the complaint lodged by the wife before the trial Court.

4. Further the learned Counsel for the petitioners contends that, the respondent/wife is in the habit of filing cases against the petitioners and in fact there are a number of cases filed by her against the petitioners and this is one of those cases, which is filed in order to harass the petitioners invoking the provisions of DV Act. Such attitude of the respondent should be scuttled down by this Court by exercising powers under Section 482 of the Cr.P.C. Therefore, he pleads for quashing of the proceedings.

5. Having heard the arguments of the learned Counsel for the petitioners, I have carefully perused the materials produced before this Court and the certified copies of the documents showing the pendency of other cases between the parties. It is an undisputed fact that the marriage of complainant solemnized on 25.05.2003 with the 1st petitioner herein. On 24.09.2008, the respondent has filed a complaint in Mahadevapur police station at Bangalore against the petitioners and the learned Counsel for the petitioners submits that the said matter has been compromised between the parties. It is alleged that the respondent left the conjugal company of the 1st petitioner on 22.05.2009 along with her daughter Likita. Thereafter, it appears that rift began between the husband and wife. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

6. Records also disclose that, on 14.06.2009 the respondent/wife has filed a complaint against the petitioners before Athani police station in Athani PS Crime No.222/2009 alleging commission of offence punishable under Section 498A r/w. Section 34 of IPC. Thereafter, it appears the charge sheet has been filed and the said case is registered in C.C.No.636/2009, which is still pending before the said Court. The records also disclose that the respondent/wife has filed a maintenance petition in Crl.Misc.No.523/2009 and after due contest, the Court has ordered a sum of Rs.3,000/- per month to the respondent/wife and Rs.2,000/- per month to the daughter of the 1st petitioner towards their maintenance and also directed to pay Rs.2,000/- towards expense of the proceedings. However, the said order has not been put into execution since 2009. The respondent has not filed any application for recovery of any amount and it is not the allegation in the petition filed before the Domestic Violence Court that the husband has not at all paid any amount as ordered by the said Court. The learned Counsel submitted before the Court that the 1st petitioner has been regularly paying the amount which was ordered against him in the said maintenance petition. The respondent has not appeared before this Court and not raised any contention regarding any proceedings pending before the Court and that the amount ordered in the Crl.Misc.No.523/2009 has not been paid to her.

7. In this context it is seen that, on 03.04.2013 the respondent/wife once again made an application before the CDPO, Athani invoking the provisions of Domestic Violence Act. I have carefully perused the application filed before the CDPO, who subsequently filed a report to the Court and the Court has taken cognizance and issued notice to the petitioners under the provisions of the DV Act. The said application filed on 03.04.2013 clearly discloses that since 4- 5 years after her marriage and after the birth of her daughter Likita, the rift started between the husband and wife. In fact she alleged that the 2nd petitioner – her mother-in-law is the main cause for the rift between the husband and wife, as the 2nd petitioner often forced the respondent herein to bring gold and money from her parental house. Insofar as these allegations are concerned, there is already a case filed under Section 498-A r/w. Section 34 of the IPC, which I have referred to above.

8. Insofar as Domestic Violence petition is concerned, it is specifically alleged that the Criminal Court ordered an amount of Rs.8,000/- per month as maintenance, but her husband and his family were forcing her to withdraw the said petition and therefore, she alleged that they have committed an illegal act under the DV Act. Except these two sentences, nothing has been stated in order to attract any other provisions of the DV Act. As rightly contended by the learned Counsel for the petitioners and also supported by the documents produced before this Court, the maintenance petition was disposed of by the Principal Civil Judge and JMFC, Athani in the year 2011 itself vide orders dated 03.12.2011. The impugned petition filed on 03.04.2013 i.e., merely after 2 ½ years. Therefore, the question of petitioners forcing the respondent to withdraw the said maintenance petition does not appear to be proper and correct.

9. Under the above said circumstances, in the absence of any other materials before the trail Court and the materials produced before this Court to attract D.V. Act, on the other hand other materials disclosing that the respondent is in the habit of filing complaint against the husband and his family members, particularly insofar as this case is concerned, there is no reason for filing the petition under the said act. The allegations made are proved to be not correct on the basis of the orders passed by the learned JMFC in Crl.Misc.No.523/2009. Therefore, as rightly contended, filing of the application before the CDPO, Athani on the allegations, which are not based on any factual proof amounts to abuse of process of the Court. Hence the proceedings deserves to be quashed.

10. Before concluding, it is also pertinent to note here the Domestic Incident Report submitted by the Child Development Project Officer, who has also categorically stated as under:

“The only problem is that of mother in law Smt. Sushila. The applicant told that mother in law is a widow in very young age. She also told that she is not of good character. Mother in law is doing all unwanted things in front of applicant herself. The applicant’s husband is sober man. Mother in law is misusing the obedient nature of her son. Mother in law taken away 10 tolas of gold from the applicant. Now forcing for Rs. 2 lakh from applicant. The mother in law is forcing applicant to go for job against her will. Regarding this, there is already a case in front of Hon’ble court at Athani. Rs.8,000/- per month maintenance is ordered but so far no maintenance is given by respondent. The major problem is that mother in law is forcing applicant along with her sisters to take the case back. They are also threatening the applicant of her life and also making false cases against the brother of the applicant. ”

11. The above said report discloses that, so far other allegation of demand of dowry and also threatening the respondent etc., there is a criminal case already filed and pending before the Court and the complainant might not have brought to the notice of the CDPO with regard disposal of the maintenance petition, in which an amount of Rs.5,000/- per month was ordered as maintenance and Rs.2,000/- as expenses ordered by the Criminal Court.

12. Looking at the above said circumstances, I am of the opinion, there is absolutely no domestic violence incident as alleged and the allegations referred to are of ill-treatment and harassment of the respondent, for which a case under Section 498A r/w Section 34 of IPC is already pending. Therefore, in my opinion, the present Domestic Violence petition filed before the trial Court is nothing but abuse of process of the Court and the same is liable to be quashed. Accordingly, the following order is passed:

ORDER : Petition is allowed.

All further proceedings pending before the Principal Civil Judge and JMFC, Athani in Cri.Misc.No.162/2013 under Section 9(b) and 37(2)(c) of the Protection of Women from Domestic Violence Act, 2006 insofar as it relates to the present petitioners is hereby quashed.

Sd/-

JUDGE gab/-

married 2004, divorced @ Famlycourt 2010, SETASIDE in 2015. 11 years lost in litigation ! and still NO respite for the husband

It is very difficult for a honest husband to get divorce unless he fights civil cases diligently and for long. (this is different from woman seeking divorce !! It has been noticed that Women get their divorce quite fast) Men need time, they need legal knowledge, a good lawyer and probably the most important is to have company of other men who are fighting such cases. Still a victory is a gamble

Here is a male who has complained of cruelty and neglect by his wife, litigation after litigation by wife, TV mud slinging by wife, but wife gets the decree set aside some 11 years after marriage and 8 years after the rift !! In 2015, the Case is back to family court for a fresh start !!

How do men still marry In India ? what sort of legal ignorance is this ?

key excerpts
***********************************
* inter alia that his marriage was solemnized with the appellant (wife) on 28.3.2004.
* The couple were blessed with a male child who was named Malatheshwarachar.
* Appellant (wife) initiated one after the other proceeding against the respondent and his family members.
Initially, she claimed maintenance.
Thereafter, she lodged a complaint with Women’s Police Station alleging demand for dowry.
She had also approached a media Channel, TV-9 and complained against the respondent.
* The husband also claims that “..After child’s birth, attitude of appellant (wife) towards the respondent (husband) and his family changed. She started picking up quarrels on trivial issues and demanding for a separate house. She was compelling him not to support his parents. In furtherance of her changed behaviour, she started neglecting her conjugal duties. Though efforts were made to bring harmony among the couple, the same did not yield any results. Finally during November 2007 appellant voluntarily left the matrimonial home and started residing with her sister. Respondent’s efforts to bring her back to his house were in vain….”
* With these averments, respondent (husband) prayed for a decree of divorce at the family court
* The family court grants divorce to the husband by “…decree dated:13.08.2010 passed in M.C.no.5/2010 on the file of the Judge, Family court Davanagere, allowing the application filed u/s 13(1) (ia) & (ib) of Hindu Marriage Act, for divorce…”

* Wife goes on appeal. Appeal is decide five years after family court decree i.e in 2015
* Wife appears party in person before the High court !! Wife brings in some news of her efforts in a mediation process !! just one mediation in front of a mutt !
* So the honourable HC sets aside the divorce and sends the case back to family court
* Now what ? Now ablaa can happily sit drag the case and claim more moolah !!

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
*******************************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************************

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Dated this the 30th day of September, 2015

PRESENT

THE HON’BLE MR. JUSTICE N.K. PATIL

AND

THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR

MFA No.8348/2010 (FC)

BETWEEN:

Mrs. GEETHA @ RANJITHA
AGED ABOUT 29 YEARS
W/O Sri GIRISHACHAR
HOUSE WIFE
RESIDENT OF SHAMSHIPURA VILLAGE
HARIHAR TALUK
DAVANAGERE DIST …APPELLANT
(By Sri IMRAN PASHA, Adv.,)

AND:

Sri GIRISHACHAR
AGED ABOUT 35 YEARS
S/O SRI KYOTHACHAR
POLICE CONSTABLE
B NO.G 81 ( G-481 )
BASAVANAGARA POLICE STATION
DAVANAGERE …RESPONDNET
(By Sri M R HIREMATAD, Adv.,)

THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED:13.08.2010 PASSED IN M.C.NO.5/2010 ON THE FILE OF THE JUDGE, FAMILY COURT DAVANAGERE, ALLOWING THE APPLICATION FILED U/S 13(1) (ia) & (ib) OF HINDU
MARRIAGE ACT, FOR DIVORCE.

THIS MFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 21.09.2015 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, P.S. DINESH KUMAR, J., DELIVERED THE FOLLOWING:-

JUDGMENT

Appellant – wife is aggrieved by the Judgment and Decree dated 13.8.2010 in M.C.No.5/2010 on the file of Family Court, Davanagere, allowing respondent’s petition under Section 13(1)(ia) & (ib) of Hindu Marriage Act, 1955 (‘Act’ for short) and dissolving her marriage.

2. Brief facts:

Respondent – husband presented the instant petition before the Family Court, contending inter alia that his marriage was solemnized with the appellant on 28.3.2004. The couple were blessed with a male child who was named Malatheshwarachar. After child’s birth, attitude of appellant towards the respondent and his family changed. She started picking up quarrels on trivial issues and demanding for a separate house. She was compelling him not to support his parents. In furtherance of her changed behaviour, she started neglecting her conjugal duties. Though efforts were made to bring harmony among the couple, the same did not yield any results. Finally during November 2007 appellant voluntarily left the matrimonial home and started residing with her sister. Respondent’s efforts to bring her back to his house were in vain.

3. Appellant initiated one after the other proceeding against the respondent and his family members. Initially, she claimed maintenance. Thereafter, she lodged a complaint with Women’s Police Station alleging demand for dowry. She had also approached a media Channel, TV-9 and complained against the respondent. With these averments, respondent prayed for a decree of divorce. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. Appellant contested the petition and contended in her pleadings that the respondent was insulting, assaulting and compelling her to bring money from her parents and finally drove her out of the matrimonial home. Having no other option, she was compelled to seek shelter under her sister.

5. In sum and substance, appellant pleaded before the Family Court that it was respondent who was inflicting cruelty upon the appellant and prayed for dismissal of the petition.

6. To prove his case, the respondent examined himself as PW.1 and produced two documents Exs.P1 and P2. Appellant was examined as RW.1 and two documents Exs.D1 and D2 were produced. On consideration of the material on record, learned Family Court by the impugned order granted the decree of divorce dissolving the marriage. Hence, this appeal.

7. Learned Counsel for the appellant was absent. Appellant – Smt Geeta @ Ranjitha was present. We have heard the appellant in person and Sri M.R. Hiremathad, learned Counsel for the respondent.

8. At the outset, appellant vehemently contended that the respondent has ill treated her and driven her out of the matrimonial home. She submits that several efforts to reconcile the differences between the parties did not yield any results. She placed for our perusal record of proceedings before “Saddharma Nyaya Peetha” run by an accredited Saint of Sree Taralabalu Jagadguru Brahanmath, Sirigere, in Case No.2221/2009. The said proceedings disclose that the parties were advised to live together by reconciling the differences. Appellant’s family members were advised to host a meal by inviting their son-in-law. But nothing fruitful emerged pursuant to Seer’s advice also.

9. Assailing the legality and correctness of the impugned order, appellant submits that the respondent has not brought any clinching evidence before the Court, which would merit consideration of his petition. The learned Family Court has granted the decree of divorce on the premise that no suggestion was given to the respondent – PW.1 in the cross – examination to dispel the allegation that she had failed in her conjugal obligations. In sum and substance, she contended that the petition filed by the respondent is wholly misconceived and filled with factually incorrect averments.

10. During the course of hearing, she has filed a memo along with photocopies of receipts cumulating to Rs.53,493/- towards the School fee, cost of books etc., incurred towards the education of her son and prays for a direction to the respondent to reimburse the said amount.

11. Per contra, learned Counsel appearing for the respondent supporting the impugned order contends that it does not suffer from any legal infirmity warranting interference by this Court. He submits that the learned Family Court has meticulously adverted to rival contentions and come to a correct conclusion that the appellant is a chronic litigant and failed in her conjugal obligation.

12. He further submits that the respondent had got the appellant treated for her mental illness from Dr. Ashok Pai in Manasa Hospital at Shivamogga and in NIMHANS at Bengaluru. She was quarrelling with him without any rhyme or reason and also ill treating their son. He submits that the respondent is a Police Constable and his life has become miserable at the instance of the appellant and accordingly prays for dismissal of this appeal.

13. We have given our anxious consideration to the submissions made by the appellant in person, learned Counsel for the respondent and perused the material papers.

14. Learned Family Court has framed following three points for it’s consideration:-

(i) Whether the petitioner – respondent proved the aspect of cruelty?

(ii) Whether the appellant had left the respondent’s Company without any valid reason?

(iii) Whether the respondent is entitled for a decree of divorce?

Both first and second points have been answered in the affirmative and respondent had been granted with the decree of divorce.

15. Admittedly, the petition is presented by the husband invoking the provisions of Section 13(1) (ia) & (ib) of the Act. In order to obtain a decree of divorce under these provisions, the petitioner will have to specifically aver and prove both elements of cruelty and desertion to the satisfaction of the Trial Court.

16. Insofar as the aspect of cruelty is concerned, the case of the respondent – husband is that the appellant was demanding for a separate house; she was going to the parents house without informing him; assaulting their child and showing dis-interest in physical relation. Learned Family Court has accepted the pleadings and evidence tendered by the respondent and held that the appellant did not fulfill her conjugal obligations and the same amounts to cruelty. Family Court has come to the conclusion on the premise that the appellant has not successfully dislodged the evidence of PW.1.

17. So far as the aspect of desertion is concerned, the learned Family Court has held that the appellant has left the matrimonial home in the year 2007 and not made any efforts on her part to reconcile the differences and to stay together with her husband. Learned Family Court has also considered the absence of issuance of any notice or a petition for restitution of conjugal rights by the appellant to come to the conclusion that she had deserted the respondent.

18. Parties have let-in oral testimony and produced copies of proceedings in Crl.Misc.No.48/2008, complaint filed under the Domestic Violence Act and police complaint in support of their respective cases. No independent witness is examined.

19. The proceedings before “Saddharma Nyaya Peetha” produced by the appellant discloses that she had made some attempts before a religious institution seeking justice. Respondent has presented the instant petition in the year 2010. A representation said to have been presented by the respondent before the said Math is also annexed to the proceeding sheet. The proceedings initiated by the appellant before the Math are not seriously contested by the respondent. However, in the absence of any specific challenge and evidence with respect to a document, no opinion can be expressed. But suffice to note that the parties had subjected themselves to some proceedings before the religious institution prior to presentation of the instant petition by the respondent.

20. In view of the fact that there were no independent witnesses and there is some material to suggest that the appellant had initiated some proceedings and sought help of a religious institution for resolution of matrimonial dispute leads us to infer that the finding recorded by the Family Court to the effect that no efforts were made by the appellant to reconcile the differences after her departure from the matrimonial home in the year 2007 appears incorrect. We hasten to add that the finding recorded by the learned Family Court is based on the evidence which was on record and our inference is based on the material produced by the party-in-person/wife before this Court, which is not disputed by the other side.

21. This appeal has emanated out of a family dispute. A decree of divorce has been granted to a husband accepting his pleadings and evidence on the ground of infliction of cruelty and desertion by the wife.

22. While allowing the petition, the learned Family Court has not made any provision for sustenance of wife by granting alimony. However, vide order dated 18.1.2013, this Court has directed payment of an interim monthly maintenance of Rs.6,000/- by way of salary deduction.

23. In the circumstances, we are of the considered view that the impugned order is unsustainable in law for two reasons. Firstly that, the evidence on record is not sufficient enough to hold that the respondent had proved to the satisfactions of the Family Court both aspects of cruelty and desertion. Secondly that, the learned Family Court has not made any provision for the maintenance of appellant after granting the decree of divorce. Therefore, in our view matter requires a fresh consideration of the entire case by the learned Family Court.

24. In the result, we pass the following:-

ORDER

(i) Appeal is allowed;

(ii) Judgment and Decree dated 13.8.2010 in M.C.No.5/2010 on the file of Family Court, Davanagere, is set aside and the matter is remitted back to the Family Court, Davanagere for fresh disposal in accordance with law;

(iii) The Family Court is directed to grant an opportunity to the parties to produce further documentary and oral evidence and thereafter to hear them and dispose of the petition as early as possible and at any rate within a period of six months from the date of appearance of parties;

(iv) All contentions of respective parties are left open;

(v) Parties are directed to appear before the Family Court, Davanagere on 13.10.2015 at 11.00 a.m without notice and collect further date of hearing;

(vi) It is made clear that pending disposal of the petition before the family Court, the order dated 18.1.2013 directing payment of interim maintenance of Rs.6,000/– per month payable by the respondent to the appellant through salary deduction shall remain in force;

(vii) Respondent is also directed to reimburse the sum of Rs.53,493/- spent by the appellant towards education expenses of their son and continue to bear all further expenses towards the education of their son – Master. Malatheshwarachar during pendency of proceedings before the Family Court.

Ordered accordingly.

No costs.

Sd/-

JUDGE Sd/-

JUDGE cp*

wife lawyer seeks separate house, files 498a on hubby lawyer. Still NO divorce for such flimsy reason !

Wife lawyer seeks a separate house and also files 498a on hubby lawyer. Wife’s ppl cause a stir. Husband files for Divorce and goes upto HC, … Still divorce DENIED for such flimsy reason !
* husband wife both are lawyers
* soon after marriage wife seeks a separate accommodation …meaning I don’t want your parents here !!
* her parents come to hubby’s house, all fights ensue
* wife also files 498a, police pick up husband at his office, In laws run for anticipatory bail. Following all this, hubby applies for divorce, but lower court disallows the same as the hubby is unable to prove cruelty conclusively
* hubby appeals at HC and HC also dismisses his appeal – meaning NO divorcec
* the HC affirmatively quotes Srikanth Vs. Smt.P.B.Nandhini and states “……….32. This Court in the case of Srikanth Vs. Smt.P.B.Nandhini reported in AIR 2010 KAR 1 (DB), has dealt at length about the allegation of cruelty in matrimonial offenses. It is specifically held by the Division Bench in Srikanth Vs. Nandhini’s case that if marriages are dissolved on trivial issues, no marriage would be saved. It is further held that there has been a recent trend to seek divorce on flimsy grounds. ,……….”
* the HC goes on to state “….We are also of the firm opinion that the possessiveness that the respondent has towards the petitioner has lead to some differences between the two and that has been blown out of proportion. In fact, there was no opportunity for her them to be in the matrimonial house for few months. Before she could settle in the matrimonial house, unfortunate incident took place between the two and that cannot be considered as a severe cause. Both the petitioner and the respondent are well educated people being practitioners of law. Respondent has not made any serious allegation against the petitioner imputing his chastity and the petitioner has also not made any serious allegation against the respondent touching her chastity….”
* So … Hence, we are of the considered opinion that the Trial Court is justified in dismissing the petition. As observed in Srikanth Vs. Nandhini’s case, even now we hope that the appellant would appreciate our concern to save the marriage and would live as good husband and wife. Hence, point No.1 is answered in the affirmative. …”

***************************************************************

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 15TH DAY OF OCTOBER, 2014

PRESENT

THE HON’BLE MR. JUSTICE K.L.MANJUNATH

AND

THE HON’BLE MR. JUSTICE A.V.CHANDRASHEKARA
M.F.A. NO.5813/2013 (FC)

BETWEEN:

SRI S SRIKANTH
S/O LATE S SUBBA RAO
AGED ABOUT 44 YEARS
RESIDING AT NO.32
6TH MAIN, 5TH CROSS
SARASWATHIPURAM
MYSORE- 570 009 … APPELLANT
(BY SRI D.L. JAGADEESH, SR. COUNSEL FOR
SRI: SRINIVASA D C, ADV.)

AND:

SMT B A VANI
W/O SRI S SRIKANTH
D/O B L ANANTHAKRISHNA
AGED ABOUT 39 YEARS
RESIDING AT LOKAMBA NILAYA
NEAR GOVT MODEL SERICULTURE
GRAINAGE, MARALUR
TUMKUR 572 105 … RESPONDENT
(SMT B.A. VANI, PARTY-IN-PERSON )

THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURT, AGAINST THE JUDGMENT AND DECREE DATED:08.04.2013 PASSED IN M.C.NO.409/2011 ON THE FILE OF THE JUDGE, FAMILY COURT, MYSORE, DISMISSING THE PETITION FILED U/S 13(1)(i-a) OF THE HINDU MARRIAGE ACT, DISSOLUTION OF MARRIAGE.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 12.08.2014 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, A.V.CHANDRASHEKARA, J., DELIVERED THE FOLLOWING:

JUDGMENT

Present appeal is directed under Section 19 of Family Courts Act, 1984, challenging the order of dismissal of the petition filed under Section 13(1) (ia) of Hindu Marriage Act by the Family Court at Mysore in M.C.No.409/2011.

2. Respondent is the legally wedded wife of the petitioner and their marriage was solemnized on 29.11.2009 at Tumkur, as per Hindu customs. Petitioner had filed a petition before the Family Court at Mysore, seeking a decree of divorce on the ground of cruelty under Section 13(1)(i-a) of Hindu Marriage Act. The said petition has been dismissed after contest. Several grounds have been urged in this appeal memo challenging the dismissal of the petition. Entire records of the Trial Court have been called for. Parties will be referred to as per their ranking given in the Trial Court.

3. The marriage of the parties solemnized on 29.11.2009 at Gayatri Kalyana Mantapa, Tumkur, was an arranged marriage and it was attended by the relatives and well-wishers of both the sides. Appellant is a practicing advocate at Mysore and the respondent was also practicing as an Advocate at Tumkur. After the marriage, respondent joined the appellant in the matrimonial house of the petitioner at Mysore. According to the petitioner, the respondent started pressurizing him to establish a separate house and demanded him to admit his parents to old age home. On 08.01.2010 the respondent’s parents along with their son and some of his colleagues visited the petitioner’s house and manhandled him and his parents and even went to the extent of filing a false complaint against the petitioner before the police. The respondent is stated to have lived in the matrimonial home for only twelve days and during this period his parents were forced to go the Police Station. She is stated to have made false, frivolous and reckless allegation stating that the petitioner had demanded dowry from her family members. Respondent is stated to have treated the petitioner as well as his parents with cruelty.

4. Respondent chose to appear before the Trial Court and filed a detailed statement of objections denying all the material averments except admitting the marriage solemnized between her and the petitioner. She has called upon the petitioner to prove the contents of the petition strictly.

5. It is her case that during her short stay in the matrimonial home of the petitioner between 30.11.2009 to 12.12.2009 she was harassed by the petitioner in many ways. It is alleged that he had demanded her to bring a sum of Rs.5 lakhs from her parents. Petitioner’s mother is stated to have opposed her practicing as an Advocate though the petitioner and respondent had agreed to continue the profession even after marriage, at Mysore.

6. On 02.01.2010 she had come to Tumkur to attend some examination and after the same, her father left her in the matrimonial house at Mysore on 06.01.2010. On that day, petitioner and his family members ill-treated her and on the night of 07.01.2010, petitioner and his mother assaulted her physically and did not give her food on that night. Therefore, she had to intimate her parents over phone immediately and thereafter her parents and her brother reached Mysore at about 3.45 a.m. on the early morning of 08.01.2010. The matter was orally reported to the jurisdictional Saraswathipuram Police Station. A case was registered in NCR No.6/2010 and on the advise of the parents, petitioner agreed not to harass her in future. She came back to Tumkur and waited for three months and there was no communication from the petitioner. There afterwards, respondent was shocked to receive a copy of the petition filed before the Family Court. Though she is willing to join the petitioner, nobody is interested in taking her back. The present petition is stated to have been filed with an oblique motive to get a divorce. Inspite of all these things, the respondent is ready to join and lead a happy matrimonial life with the petitioner.

7. It is her clear case that she has no ill-will whatsoever against her husband inspite of ill- treatment meted out to her. It is her case that she has already completed 36 years and petitioner has completed 42 years and that it would not be advisable to live apart by having a decree of divorce. Hence, she has prayed to dismiss the appeal.

8. Petitioner herself has been examined as PW1. Two witnesses viz., E.Raghavendra and U.S.Vijay have been examined as PWs2. and 3. Respondent is examined as RW1 and three witnesses have been examined on her behalf. After analyzing the oral and documentary evidence the learned Judge has chosen to dismiss the petition by framing following point for consideration:

“Whether the petitioner is entitled for the dissolution of marriage on the ground of cruelty?”

9. Several grounds have been urged in the appeal memo challenging the dismissal of the petition filed before the Trial Court.

10. We have heard the learned counsel appearing for the appellant and the respondent in person at length. After going through the records, following points arise for our consideration:

1. Whether the Trial Court is justified in holding that the petitioner has failed to prove the allegation of cruelty in order to obtain decree of divorce?

2. Whether any interference is called for by this Court and if so, to what extent?

11. Petitioner has examined himself as PW1. On his behalf, two witnesses have been examined to impress upon the Court that at about 10.00 a.m. on 08.01.2010, police came to the office of the petitioner and took the petitioner and his parents telling him that they were wanted in a case filed by the respondent for offence punishable under Section 498-A of IPC.

12. E.Raghavendra and U.S.Vijay examined as PWs.2 and 3 are stated to be the clients of the petitioner and that they were present at the time when police of Sarswathipuram Police Station came to the office of the petitioner at about 10.00 a.m. on 08.01.2010 and took him and his parents to the police station.

13. Ex.P2 is stated to be the complaint lodged by the respondent-wife against the petitioner and his family members on 08.01.2010. The background for filing this report vide Ex.P2 by the respondent will have to be looked into. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

14. Marriage of the petitioner and the respondent was solemnized on 29.11.2009 in Kalyana Mantap at Tumkur. Both the petitioner and the respondent are practicing the Advocates. Petitioner has been practicing as an Advocate at Mysore and respondent was practicing as an Advocate at Tumkur at that point of time. The respondent lived in the house of the petitioner for only twelve days from the date of marriage and according to the petitioner, she lived cordially with him and his parents. It is his case that she insisted him to establish a separate house so that both of them could live independently.

15. The case of the petitioner is that he was not agreeable to the said demand, since his parents were aged and suffering from several ailments. According to him, it was his pious duty to look after them in their evening days of their life. According to him, the respondent left the matrimonial house on 12.12.2009 on her own and stated that she would return only if a separate residence was made and their parents were kept away from them. After she left the house, the petitioner is stated to have visited the house of his in- laws thrice at Tumkur, in order to persuade her to come back to the matrimonial home. It is his assertion that the respondent never cared for his advice and did not return to Mysore.

16. It is stated by the petitioner that on 04.01.2010 when he contacted her over phone, she had assured to come back on 06.01.2010 to join him at the matrimonial home. Accordingly, she returned on 06.01.2010 and on the very next day, she started demanding him to establish a separate house, failing which, she would file a police complaint against him and his parents. It is his case that he tried his best to pacify her, but the respondent was so rude that she locked her room from inside and threatened to commit suicide. Thereafter, she contacted her parents and her brother over phone and at about 4.30 a.m. on the early morning of 08.01.2010, the brother and parents of the respondent came from Tumkur, and took her away with her belongings. She is stated to have taken even the mobile phone of the petitioner and cash of Rs.5,000/-.

17. It is his further case that at about 10.00 a.m. on 08.01.2010 when he was working in his office, the police of Saraswathipuram Police Station came there and took him and his parents stating that his wife had lodged a complaint against him. According to him, the said complaint was baseless. Whether Ex.P2 lodged by the respondent is really a complaint will have to be seen. Police have not registered any case on the basis of this report dated 08.01.2010.

18. On going through Ex.P2, it appears that the petitioner himself had abused the respondent by making reference to his sister-in-law. It is further mentioned that on 07.01.2010, the petitioner picked up a quarrel with him demanding her not to continue her practice and her in-laws also insisted her not to do so. The prayer sought for in Ex.P2 by the respondent-wife is to call her husband and in-laws and to suitably advise them not to do so and to give her protection. On the basis of the same, NCR No.6/2010 was registered. If the police had really treated this as a complaint of harassment to be punishable under Section 498-A of IPC, they would not have registered NCR; they would have registered a regular criminal case.

19. The intention of making a report to the police is not to harass them by filing a criminal case, but to see that no uncomfortable atmosphere was created in the matrimonial home. In response to the enquiry conducted by the police on the basis of NCR No.6/2010, both the parties had given their statement before the Police. Ex.P5 is the statement given by the petitioner and Ex.P6 is the statement given by the respondent-wife to the police on 08.01.2010.

20. The gist of the statement given by the petitioner Srikanth to the police on 08.01.2010 as evidenced in Ex.P5 is that there was a demand by his wife to establish a separate house and that he had not acceded to her demand. He had assured the police that his wife would go back to Tumkur for 15 days and then he would bring her back.

21. The gist of Ex.P6 the statement of respondent- wife given to the police is that she was going to back to Tumkur, along with her parents and that after 15 days her husband would come to Tumkur to take her back and look after her with all love and affection.

22. Unfortunately, some differences had cropped up between the husband and wife on the night of 07.01.2010 and as result of the same, she had approached the police for protection and not to file any criminal case against him or his parents. The reasonable inference that could be drawn from a conjoint study of Exs.P5 and P6 is that she wanted the matrimonial tie to continue and that she wanted to come back.

23. On 27.01.2010 respondent had written a letter from Tumkur to her husband and had even reminded him of his birthday on 1st February. The gist of the letter written by her as evidenced in Ex.P7 dated 27.01.20210 is that she did not like the authoritative nature of her mother-in-law i.e., the mother of the petitioner. This would also disclose that petitioner had suppressed some material fact regarding his character.

24. What is highlighted by her is that, it is but natural for a man to commit some mistakes and that the said mistakes must be rectified at the earliest. She was worried about the bad habit to which the petitioner was addicted and she was proud of her husband being an Advocate. She wanted her husband to give up the bad habit and lead a happy married life. If she had really made up her mind to severe her marital tie, a letter in the nature of Ex.P7 would not have emanated from her, that too within a span of 15 days from the alleged differences. On 24.04.2010 she approached the Saraswathipuram Police Station on the basis of NCR No.6/2010 dated 08.01.2010. She had referred to the undertaking given by her husband to take her back within 15 days from Tumkur to Mysore. Since he did not keep up his words, she wanted the police to intervene and persuade him so that he could take her back by creating a good atmosphere. This would also fortify her intention to lead her marital life with the petitioner. Against this, an endorsement was given to the petitioner stating that the matter was civil in nature and that they must approach the Court. It was but natural that the petitioner was torn between his wife and his parents.

25. What is argued before this Court is that as a result of the complaint lodged by the respondent, the petitioner and his parents had to approach the Sessions Court seeking anticipatory bail since there was an imminent threat of their arrest by the police. It is in this regard, the petitioner has relied upon Ex.P13 an order passed by the learned II Addl. Sessions Judge, Mysore, in Crl.Misc.No.1500/2010 on 23.08.2010 granting anticipatory bail to the petitioner and his parents. It is true that even in the absence of registration of a criminal case, anticipatory bail can be granted under Section 438 Cr.P.C. Whether the apprehension of the petitioner and his parents were well-founded to seek such anticipatory bail is the question?

26. A specific reference is already made to Ex.P2 alleged complaint or report lodged by the respondent to the Inspector of Police, Saraswathipuram Police on the morning of 08.01.2010. By no stretch of imagination it could be considered as one to rope in the petitioner and his parents in a criminal case and to prejudice them. One cannot forget that some unfortunate incident took place in the house of the petitioner within a few days of her marriage. A married lady requires some reasonable time so that she can adjust to the new atmosphere in the matrimonial house. Suffice to state that the petitioner did not give her sufficient time so that she could adjust to the new environment. On the other hand, he did not go to Tumkur to bring her back though he had undertaken to get her back within 15 days. On the other hand, he went to the extent of seeking anticipatory bail in the month of August 2010 on a report lodged on 08.01.2010 by the respondent.

27. He has placed reliance upon another report submitted vide Ex.P8 on 24.04.2010. She wanted the police to persuade her husband to take her back to the matrimonial home. If the contents of Ex.P8 are read as a whole, it is evident that it is not a complaint of another allegation made against her husband. Therefore, even if the petitioner and his parents have obtained anticipatory bail, it can only be said that it was obtained on an ill-founded apprehension.

28. What is argued before this Court is that cases came to be filed against the petitioner and his family members in the High Court by the respondent and hence, Ex.P15 is relied upon.

29. Ex.P15 is the certified copy of the writ petition filed by the respondent Smt.B.A.Vani, against her husband in W.P.No.22848/2010. The prayer sought for in the said writ petition is to issue a writ in the nature of prohibition, forbidding the proceedings initiated by her husband in case bearing M.C.No.235/2010 on the file of Family Court at Mysore, even before one year of her marriage. Of course, the petitioner had chosen to file a petition under Section 13(1)(ia) of Hindu Marriage Act, seeking divorce on the ground of cruelty even before the expiry of mandatory period of one year. He had chosen to file within a period of six months and 20 days of his marriage with the respondent. This also shows that the petitioner was more eager to have a divorce than sustaining the marriage.

30. What is argued before this Court by the learned Counsel for the petitioner is about the writ petition filed in W.P.No.37514/2010 (GM-FC) before this Court. The certified copy of the writ petition is marked as Ex.P17. The prayer sought for in the said writ petition is to prohibit further proceedings of M.C.No.235/2010 and for a direction to her husband to take her and provide her, harassment free atmosphere. All these would go to show that the respondent-wife was more interested in joining him than deserting him.

31. The innumerable SMSs sent by her through her mobile to her husband’s mobile are forthcoming in Ex.R3. The innumerable SMSs sent through her mobile to her husband’s mobile would clearly indicate that she was more possessive towards her husband and at any cost she wanted the marriage to remain. Instead of understanding the real intention of the respondent, the petitioner chose to file a petition for divorce even before the expiry of mandatory period of one year.

32. This Court in the case of Srikanth Vs. Smt.P.B.Nandhini reported in AIR 2010 KAR 1 (DB), has dealt at length about the allegation of cruelty in matrimonial offences. It is specifically held by the Division Bench in Srikanth Vs. Nandhini’s case that if marriages are dissolved on trivial issues, no marriage would be saved. It is further held that there has been a recent trend to seek divorce on flimsy grounds. Referring to various decisions of the Hon’ble Apex Court, more particularly, the cases of V.Bhagat Vs. D.Bhagat reported in AIR 1994 SC 710 and A.Jayachandra Vs. Aneel Kaur, reported in AIR 2005 SC 534, Naveen Kohli Vs. Neelu Kohli reported in AIR 2006 SC 1675, it is reiterated that public interest demands not only that the married status should as far as possible, as long as possible and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

33. It is not as though the parties lived as husband and wife for few years and that they have not been living separately for quite a long time. If the parties have been living separately for several years and if there is no possibility of rapprochement and if the marriage has irretrievably virtually broken down, that can only be taken as an additional ground, provided other main grounds are made out.

34. Learned Counsel for the appellant has relied upon the decision in the case of K.Srinivas Rao Vs. D.A.Deepa reported in AIR 20213 SC 2176. We have perused the said decision. The ratio of the said decision is that all honest efforts must be made when husband and wife approach a criminal Court with the allegation of dowry demand or harassment. As per the facts of the said case, the marriage between the parties had broken down irretrievably and they had been living separately for several years. False cases had been foisted by Deepa against her husband. Taking all these into consideration and invoking Article 142 of the Constitution of India, the marriage came to be dissolved. While granting the decree of divorce, a specific direction has been given to all the Criminal Courts dealing with matrimonial offences under Section 498-A of IPC that honest efforts should be made to send the parties for mediation and in this regard, pre- litigation mediation clinics will have to be established. Therefore, the said decision so cited on behalf of the appellant is not of any assistance.

35. After re-assessment of the entire oral and documentary evidence, we are of the considered opinion that the Trial Court has adopted right approach to the real state of affairs keeping in mind the law laid down by the Hon’ble Supreme Court in regard to the divorce to be granted on the ground of cruelty. We are also of the firm opinion that the possessiveness that the respondent has towards the petitioner has lead to some differences between the two and that has been blown out of proportion. In fact, there was no opportunity for her them to be in the matrimonial house for few months. Before she could settle in the matrimonial house, unfortunate incident took place between the two and that cannot be considered as a severe cause. Both the petitioner and the respondent are well educated people being practitioners of law. Respondent has not made any serious allegation against the petitioner imputing his chastity and the petitioner has also not made any serious allegation against the respondent touching her chastity.

36. The petitioner should have waited for sometime so that the differences could have been ironed out. Instead of doing so, he chose to approach the Court seeking the relief of divorce within a short period. Hence, we are of the considered opinion that the Trial Court is justified in dismissing the petition. As observed in Srikanth Vs. Nandhini’s case, even now we hope that the appellant would appreciate our concern to save the marriage and would live as good husband and wife. Hence, point No.1 is answered in the affirmative.

Point No.2: In view of our finding on point No.1, the appeal is dismissed.

ORDER

The appeal filed under Section 19(1) of the Family Courts Act, is dismissed, by upholding the judgment and decree dated 08.04.2013 passed in M.C.No.409/2011 on the file of the Judge, Family Court, Mysore.

Sd/-

JUDGE Sd/-

JUDGE JT/-

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
******************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE
******************************************************************