Sujatha Harindhranath vs Harindhranath

Budihal R.B., J.—This revision petition is filed by the petitioner being aggrieved by the order passed by the learned Metropolitan Magistrate, II Traffic Court, Bengaluru, dated 10.2.2011 passed in Crl. Misc. No. 24/2010 and confirmed in the judgment and order dated 28.4.2012 passed in Crl. Appeal No. 125/2011 by the Fast Track Court No. 13, Bengaluru city.

The petitioner herein filed the petition in Crl. Msc. No. 24/2010 before the Magistrate Court under section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short the ''Act'') against the respondent seeking protection order under section 18 of the said Act and also seeking residence order under section 19 and monetary reliefs under section 20 claiming Rs. 1,25,00,000/- and Rs. 35,000/- so also the compensation order under section 20(2) of the said Act for the amount of Rs. 50.00 lakh and alternatively, prayed that if there is no valid marriage between the petitioner and respondent, to grant the reliefs under sections 18, 20 and 22 of the Act.

The facts pleaded in the said petition in brief are that the petitioner is a BA graduate. During the year 1986-89 to 1992, the respondent was an MBBS student of a medical college at Mysuru. The petitioner''s sister and her family were residing in Mysuru city and her brother in law was Special DC at Mysuru. The petitioner used to come and stay at her sister''s house often at Mysuru. Petitioner and respondent are the permanent residents of Harihara. Earlier they were residing at Chitradurga district and presently, Davanagere district. Due to family relationship, the respondent used to visit the petitioner''s sister''s house at Mysuru. At that time, the respondent developed acquaintance with the petitioner and gradually both became nearer and they used to spend time in parks and the other places and their friendship turned to love affair. When the petitioner''s sister and her family members were not in the house, petitioner and respondent underwent sexual intercourse, though it was opposed by the petitioner, the respondent did not leave her and forcibly had sex with her. After completion of the respondent''s MBBS course, he admitted to post graduation in MS during the year 1994-97 in the medical college at Davanagere. The respondent while studying in the PG course at Davangere, marriage between petitioner and respondent took place on 30.10.1995 at Srilakshmi temple at Harihara in the presence of elders, friends and family members of the petitioner. After the marriage, the petitioner and respondent were living together as husband and wife in Davanagere and Harihara. The petitioner was running beauty parlour in Harihara town and the couple were leading their life. At that time, she became pregnant. However, the respondent being the doctor, himself used to abort her by giving some treatment and medicine. After completion of the PG course during the year 1997, the respondent came to Bengaluru and he used to tell the petitioner that he would speak to his family within short period to shift to Bengaluru. Thereafter, the respondent got the government job in the year 2000 in Victoria hospital as a doctor cum lecturer and even after the said appointment, the respondent used to come and stayed with the petitioner at Harihara and Davanagere. However, because of the pressure of petitioner, the respondent brought her from Harihara to Bengaluru during year 2001 and taken the house at Jayanagar, Bengaluru just to satisfy the petitioner. Even at that time also, the respondent was not regular in coming to the house. Gradually, the respondent stopped to come to matrimonial house and not provided primary needs. Later, the petitioner came to know about the second marriage of the respondent with one Smt. Rupamalini, who is also a doctor. Thereafter, the respondent totally neglected the petitioner in all respects. Hence, she filed the petition before the learned magistrate court for the aforesaid reliefs.

The respondent filed his objection statement and denied all the averments made at para Nos. 1 to 22 of the petition and further pleaded that petitioner is the daughter of younger brother of Sri. Basavalingappa. The entire episode is stage managed by persons who opposed to Sri. K.H. Ranganath to be the chairman, PES College. The respondent admitted that he married to one Dr. Rupamalini at Bengaluru in the Bengaluru Palace grounds and more than 5000 guests had attended his wedding. Himself and his wife are residing at No. 1852, I Cross, Prakash Nagar, Bengaluru. The said Rupramalini is a dentist by profession. They have two children, aged 7 years and 3 years respectively. The fact that the respondent is married to Rupamalini is known to entire Harihara and the number of persons from Harihara, Davanagere, Chitradurga including the elder brother, sister of the petitioner and cousin sister Sheela, daughter of Basavalingappa, the Deputy Commissioner and others had attended the wedding of the respondent. The petition itself is not maintainable either in law or on facts. The petitioner is misusing the provisions of law. Hence, sought to dismiss the petition.

After considering the merits of the case, ultimately, the learned Magistrate dismissed the petition and provided liberty to the petitioner to seek appropriate relief before the jurisdictional court. Being aggrieved by the order of the learned Magistrate, the petitioner herein preferred an appeal in Crl. Appeal No. 125/2011 before the Fast Track Court-XIII Bengaluru City and the said Court has also dismissed the appeal and confirmed the judgment of the Magistrate Court by its judgment and order dated 28.4.2012.

Being aggrieved by the judgment of the first appellate Court, the petitioner has preferred the above revision petition on the grounds as mentioned as para Nos. (a) to (z) mentioned in the appeal memorandum.

Heard the arguments of the learned counsel appearing for the revision petitioner and also the learned counsel appearing for the respondent.

Learned counsel appearing for the revision petitioner during the course of his arguments made submission that the learned magistrate court has not at all properly considered the pleadings and also the relevant provisions of the Act. He also submitted that the documents produced in the case so also the oral evidence adduced by the parties were completely ignored by the magistrate court. The news items appeared in the news papers were produced before the magistrate court. However, the magistrate court has not considered the said items and held that the petition is not maintainable and wrongly directed the petitioner to approach the appropriate court for the reliefs. The learned counsel further submitted that the marriage between the petitioner and the respondent has taken place in the presence of the elders, friends and relatives. The evidence of PWs. 2 to 5 is very clear regarding the proof of the marriage between the petitioner and respondent, which fact is not properly considered by the magistrate court. It is also his submission that there is also evidence to show that the petitioner and respondent were staying together and they have been treated by the friends and the people in the same locality that they are the husband and wife. Hence, he submitted that the trial court is totally wrong in rejecting the petition. The learned counsel further made submission that even the first appellate court has also not properly considered the materials and wrongly confirmed the order passed by the magistrate court. Both the courts below are not correct in rejecting the petition filed by the petitioner. The judgment and orders passed by the courts below are not in accordance with the oral and documentary evidence produced in the case and they are not sustainable in law. Hence the learned counsel submitted that the petition be allowed by setting aside the judgment and orders passed by the courts below and the reliefs claimed by the petitioner in her petition be granted. In support of his contentions, the learned counsel appearing for the revision petitioner has relied upon the following decisions produced along with the list of authorities dated 26.2.2015:

"1. D. Velusamy Vs. D. Patchaiammal, AIR 2011 SC 479 : (2011) CriLJ 320 : (2010) 2 DMC 677 : (2010) 11 JT 325 : (2010) 11 SCALE 112 : (2010) 10 SCC 469 : (2011) 1 SCC(Cri) 59 : (2010) 9 UJ 4721 : (2010) AIRSCW 6731 : (2010) 7 Supreme 321

Preetam Singh and Another Vs. State of U.P. and Another, (2012) ACR 3286 : (2012) 8 ADJ 744 : (2013) CriLJ 22 : (2013) 1 Crimes 393 : (2013) 1 DMC 307

Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad and Another, (2013) 3 AD 59 : AIR 2013 SC 346 : (2013) CriLJ 684 : (2013) 2 CTC 232 : (2013) 1 DMC 18 : (2013) 1 JCC 508 : (2012) 1 JCC 502 : (2012) 12 JT 575 : (2013) 2 RCR(Civil) 400 : (2013) 1 RCR(Criminal) 338 : (2012) 12 SCALE 282 : (2013) 2 SCC 137 : (2013) AIRSCW 168

Chanmuniya Vs. Chanmuniya Virendra Kumar Singh Kushwaha and Another, (2011) 1 CTC 101 : (2011) 1 JCC 185 : (2010) 11 JT 132 : (2011) 1 SCC 141 : (2011) 2 SCC(Cri) 666 : (2011) 2 UJ 1602

1 Abdul Haque (MD.) Vs. Jesmina Begum Choudhury and Another, (2013) 1 DMC 384 : (2012) 4 GLT 668 : (2013) 3 RCR(Civil) 551 : (2013) 3 RCR(Criminal) 530

AIR 2008 Chhattisgarh 1 (Smt. Neetu Singh v. Sunil Singh)

Khageswar Naik Vs. Domuni Bewa and Another, AIR 1989 Ori 10

Parameshwari Bai Vs. Muthojirao Scindia, AIR 1981 Kar 40 : (1981) ILR (Kar) 78

Nedunuri Kameswaramma Vs. Sampati Subba Rao, AIR 1963 SC 884 : (1963) 2 SCR 208

Per contra, learned counsel appearing for the respondent during the course of his arguments made the submission that the allegations and the averments in the petition that the respondent after having acquaintance with the petitioner started to have sexual intercourse with her are all false. The allegation that there afterwards, the respondent married the petitioner is totally a false story created by the petitioner. He submitted that the respondent married to one Smt. Rupamalini, who is also a doctor and they are leading their marital life having two children. Only on the basis of the news items appeared in the news papers, the petitioner is falsely claiming that she is the legally wedded wife of the respondent. The learned counsel further submitted that when the respondent was not at all stayed with the petitioner nor married her, the question of giving ill treatment and neglecting the revision petitioner does not arise at all. He submitted that the courts below have properly appreciated the materials and rightly came to the conclusion in dismissing the petition. The findings recorded by the courts below are concurrent in nature. Hence, he submitted that there is no merit in the petition and the same may be rejected. In support of his contentions, the learned counsel has relied upon the following decisions:

"1. Smt. Suma Gouda @ Anitha @ Vasanthi Vs. Sri. M.K. Poovaiah, (2010) ILR (Kar) 5255 : (2010) 4 KCCR 2713

D. Velusamy Vs. D. Patchaiammal, AIR 2011 SC 479 : (2011) CriLJ 320 : (2010) 2 DMC 677 : (2010) 11 JT 325 : (2010) 11 SCALE 112 : (2010) 10 SCC 469 : (2011) 1 SCC(Cri) 59 : (2010) 9 UJ 4721 : (2010) AIRSCW 6731 : (2010) 7 Supreme 321

ILR 2012 KAR 218 (Mr. V.K.V. Sarma v. Ms. Indra Sarma)

Indra Sarma Vs. V.K.V. Sarma, (2014) 1 ABR 615 : (2014) 2 AD 447 : AIR 2014 SC 309 : (2013) 3 DMC 830 : (2013) 15 JT 70 : (2014) 1 RCR(Civil) 263 : (2014) 1 RCR(Criminal) 179 : (2013) 14 SCALE 448

Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad and Another, (2013) 3 AD 59 : AIR 2013 SC 346 : (2013) CriLJ 684 : (2013) 2 CTC 232 : (2013) 1 DMC 18 : (2013) 1 JCC 508 : (2012) 1 JCC 502 : (2012) 12 JT 575 : (2013) 2 RCR(Civil) 400 : (2013) 1 RCR(Criminal) 338 : (2012) 12 SCALE 282 : (2013) 2 SCC 137 : (2013) AIRSCW 168 "

I have perused averments made in the petition filed by the petitioner before the magistrate court, objection statement filed by the respondent therein, oral evidence of P.Ws. 1 to 5 and R.W.1 and the documents produced by the petitioner before the trial court as per Exs. P.1 to P.43 and also the documents produced by the respondents as per Exs. R.1 to R.19. I have further perused the judgment and orders passed by the courts below, the grounds urged by the revision petitioner herein and also the decisions relied upon by the learned counsel appearing for the parties which are referred above.

The revision petitioner approached the magistrate court by filing the petition under section 12 of the Act, and sought reliefs about which I have already made reference. It is the contention of the revision petitioner that on 30.10.1995, she got married with the respondent in Sri. Lakshmi temple at Harihara and led the marital life for some time. It is also her contention that even earlier to the marriage, the respondent was studying in the MBBS course in the medical college at Mysuru. The sister of the petitioner was also staying at Mysuru. The respondent who is the distant relative used to come to the house of the sister of the petitioner and in the absence of the petitioner''s sister and other family members, and when the petitioner was alone in the house at Mysuru, the respondent was visiting the house and there was close acquaintance between them and there was love affair also. The respondent had the sexual intercourse with the petitioner even though she had objected for the same. It is also the averment in the petition before the trial court that even on subsequent days also, when she was not feeling well, the respondent used to come to the house of the sister of the petitioner and himself used to give the medicine to petitioner and after taking the medicine, she used to become unconscious. At that time also, the respondent used to have sexual intercourse with her. She further contended that during the subsequent period, the respondent was not coming to the house of the petitioner at Bengaluru, he stopped to meet her, he was avoiding the phone calls and not provided any amount for her maintenance. In the year 2001, the respondent married another lady Dr. Roopamalini and totally neglected the petitioner. With these averments, she approached the learned magistrate seeking the reliefs as claimed in the petition. However, the respondent denied the relationship with the petitioner. There was total denial of the marital status and about the alleged marriage between the petitioner and himself. The trial court after considering the pleadings of the parties, ultimately, held that since there is dispute with regard to the status of the petitioner as the wife of the respondent, it has no jurisdiction to entertain the petition and observed that under sections 7 and 8 of the Family Court Act, it is the Family Court which is having the jurisdiction to enquire into the matter. Observing as above, the trial court has dismissed the petition as not maintainable.

Section 12 of the Protection of Women from Domestic Violence Act, 2005 reads as under:

"12. Application to Magistrate.-(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:

Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance mount, if any, left after such set off.

(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of haring, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.

(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing."

The term ''aggrieved person'' has been defined under the said Act as per Section 2(a) as under:

"2. (a) "Aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;"

The term ''domestic relationship'' is defined under Section 2(f) of the Act as under:

"(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family; act of domestic violence by the respondent;"

The term ''domestic relationship'' would show that the two persons who lived or have at any point of time lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

Looking to the definition of the term ''domestic relationship'', the trial court ought to have ascertained as to whether there was a marriage between the petitioner and the respondent on 30.10.1995 as contended by the petitioner in her petition or if there is no such marriage, even then, the trial court ought to have ascertained as to whether there was a relationship in the nature of the marriage. To ascertain these aspects of the matter, the trial court ought to have considered the oral and documentary evidence produced by the parties. Petitioner herself examined as P.W.1 before the trial court and she has also examined four other witnesses. Out of the four witnesses, one witness P.W.3 Annappa is the relative of petitioner who had given his evidence before the trial court stating that he attended the marriage ceremony of the petitioner and the respondent that took place on 30.10.1995 at Sri Lakshmi temple at Harihara town, Davanagere District. P.W.5-Chandrashekar, who is said to be a devotee in Sri Lakshmi temple at Harihara town had also deposed that he attended the said marriage on 30.10.1995 which took place at Sri Lakshmi temple at Harihara town. P.Ws. 2 and 4 were also said to be the witnesses examined by the petitioner to prove that herself and the respondent were leading the life as husband and wife. It is no doubt true that P.Ws. 2 and 4 have not attended the marriage ceremony of the petitioner and respondent, but they have spoken that the couple were staying together and leading the life as husband and wife.

The respondent has been examined as R.W.1. In the examination in chief, R.W.1 has reiterated the contentions that he has taken in the objections statement. The parties have produced the documents such as the judgment and orders of the criminal courts filed against the petitioner as well as the respondent and they have been acquitted by the said courts. The petitioner has produced the documents i.e., the paper publication as per Exs. P.23 to 25. The said paper publication goes to show about the dispute between the petitioner and the respondent. The petitioner has also produced the documents at Exs. P.41 and 42 i.e., the medicine books. It is her contention that the handwriting in Exs. P.41 and 42 are the handwriting of the respondent. During course of the trial, before the trial court, the petitioner has also produced M.O.1 the apron which was belonging to the respondent. Looking to the cross examination portion, the respondent admitted that the said M.O.1 belongs to him and he also admitted that Exs. P.41 and 42 also belong to him. However, in the cross examination, it is contended by the respondent that the petitioner stolen M.O.1-the apron from him and produced before the court. During the course of cross examination of respondent, he was also asked, whether he filed police complaint against the petitioner for stealing the apron, he said No. So far as Exs. P.41 an 42 are concerned, the cross examination of R.W.1 shows that he has not at all offered any explanation as to why they were in the custody of the petitioner. Now it is the contention of the petitioner herein that these documentary as well as oral evidence produced by the petitioner were not at all considered by the trial court and hence, there is illegality committed by the trial court in passing the order rejecting the petition.

I have perused the order passed by the trial court, who has mainly concentrated on the jurisdictional aspect. The trial court has held that the marital relationship itself is in dispute and as per Sections 7 and 8 of the Family Courts Act, it is the family court having jurisdiction and not the trial court. The trial court has not at all referred to the oral evidence of the parties so also the documents produced in the case to ascertain the factual aspects as to whether there was a marriage, and if there was no marriage, whether the relationship between the two was in the nature of the marriage. When the parties have adduced their oral evidence in proof of the particular facts, the trial court ought to have appreciated by referring to the oral evidence of each of the witnesses P.Ws. 1 to 5 so also R.W.1. The trial court was also under the duty to refer to each of the documents produced by the parties and to record its finding about the evidentiary value of each of the documents and after considering the entire materials on record, it ought to have come to the conclusion as to whether there was a marriage, and/or if not, the relationship was in the nature of the marriage. Ignoring these factual aspects and the oral and documentary evidence produced in the case, the trial court has simply mentioned that the marriage relationship itself is in dispute and it has no jurisdiction to entertain the petition. Unless and until the trial court refers to the oral and documentary evidence in detail and recorded its finding, the approach of the trial court directly coming to the conclusion that it has no jurisdiction to entertain the petition is not correct.

I have also perused the judgment and order passed by the first appellate court in the criminal appeal. Even the first appellate court was also under the duty to refer to each and every material and re appreciate the oral and documentary evidence in coming to such conclusion which is also not done by the first appellate court.

Therefore, looking to the oral and documentary evidence adduced by both sides so also the decisions relied upon by both parties, I am of the opinion that as the materials were not properly considered by both the Courts, the matter requires remand for reconsideration of the same and to decide it afresh. Looking to the materials on record and also perusing the judgment and orders of the courts below, they are not in accordance with law as the materials were not properly appreciated and considered and there is perverse and capricious view taken by the courts below. To do substantial justice and to pronounce more satisfactory and effective judgment in the matter, the matter requires remand to the trial court.

Accordingly, the criminal revision petition is allowed. The order dated 10.02.2011 passed by the trial court in Crl. Misc. No. 24/2010 so also the judgment and order dated 28.04.2012 passed by the first appellate court in Crl. Apl. No. 125/2011 confirming the judgment of the trial court are hereby set aside. The matter is remanded back to the trial court for fresh disposal. The trial court is directed to give opportunity to both sides to adduce the additional evidence, if any and then to dispose of the matter considering the entire materials produced both oral and documentary afresh.

Since the matter is pending from the year 2010, the trial court is directed to take up the matter on priority basis. The trial court is further directed to dispose of the matter without being influenced by the observations made in the body of the judgment.