V.K. Anand vs Smt. S. Sujatha

A.V. Chandrashekara, J.—Respondent of a case bearing Cri.Misc.No.295/2011 which was pending on the file of the Court of II MMTC, Bangalore has filed this revision petition challenging the final order passed on 20.07.2013 in Crl.Misc.No.295/2011 and affirmation of the same in Crl.A.No.407/2013 an appeal filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (for short �the Act�). The respondent was the petitioner in the said case and petitioner herein was the respondent in the said Crl.Misc.295/2011. Parties would be referred to as petitioner and respondent as per their ranking before the trial Court.

Petitioner is the legally wedded wife of the respondent and their marriage was solemnized according to the customs of hindu religion. Petitioner had filed a petition under Section 12 of the Act against the respondent seeking monthly maintenance of Rs.5,000/- per month, for grant of compensation of Rs.2 lakhs, and to provide residence to her and protection order. The said petition was contested by the respondent by filing detailed objection. Ultimately, the petition came to be allowed granting a sum of Rs.5,000/- as monthly maintenance and a direction is given to the respondent to provide resident to the petitioner. The said final order passed on 20.07.2013 was called in question by filing criminal appeal under Section 29 of the said Act before the Sessions Court, Bangalore and the said appeal is dismissed after contest. It is these concurrent findings which are called in question on various grounds as set out in the petition.

Several grounds have been urged in the revision petition filed before this Court. It is contended that the trial Court has not properly analysed the oral and documentary evidence. It is contended that the income of the respondent is not properly taken into consideration. It is contended that in fact when the said order was passed on 20.07.2013, only a sum of Rs.2,500/- per month was awarded and it is rectified as Rs.5,000/- per month subsequently by the learned Judge of the trial Court. It is contended that the respondent had filed a petition seeking divorce on the ground of cruelty and desertion and the said petition filed in M.C.No. 1779/2011 is allowed by the III Additional Principal Judge, Family Court, Bangalore and the marriage has come to an end by virtue of decree of divorce dated 07.03.2014 and subsequent event will have to be taken into consideration to mould the relief.

Heard the learned counsel for the parties. Perused the decisions referred to by the respondent - husband. Learned counsel for the petitioner - wife has furnished a copy of the order passed in MFA No.5431/2014 dated 09.09.2014 admitting the challenge made to the decree of divorce granted in M.C.No. 1779/ 2011.

Learned counsel for the respondent husband has relied upon the order passed by the III Additional Principal Judge, Family Court, Bangalore in M.C.No. 1779/2011. It was a petition filed by Sri. V.K. Anand seeking divorce from his wife - Smt. Sujatha. The said petition is allowed after contest and marriage is dissolved on the grounds of cruelty and desertion. Hence, he has placed reliance on the decision referred in the case of Teja Singh v. Chhoto, Cri.LJ 1981 Page 1467 to contend that the judgment passed by the Civil Court between the parties is binding by virtue of the provisions of sub-section (2) of Section 127 of Code of Criminal Procedure. As per the said decision even after the order of maintenance passed in favour of the wife, if thereafter a decision between the parties is rendered by the Civil Court, it has a bearing on the question and the Magistrate Court has to give effect to the Civil Court order by cancelling the order granting maintenance.

It is true that the petition filed for divorce in the year 2011 ended in favour of the husband and decree of divorce is granted. But the said decree of divorce is admitted by a Division bench of this Court in MFA No.5431/2014 vide order dated 9.9.2014 and further proceedings are stayed. In the light of the decree of divorce granted by the Family Court being admitted to examine the correctness and legality of the judgment and divorce, the decision rendered in Teja Singh�s case will not come to the rescue of the respondent - husband and the decision is distributable on facts.

The contention of the learned counsel for the respondent - husband is that wife has been living separately on her own. No evidence of ill-treatment by husband is forthcoming and negligence by husband to maintain his wife is also not established. Reliance is placed upon the decision reported in 1999 Cri L.I 1789 Bheekha Ram v. Goma Devi and others.

As on the date when the petition filed under Section 12 of the Act, respondent had also filed a petition seeking divorce and this was one of the grounds for the petitioner to seek maintenance. The evidence adduced by the parties has been properly analysed by the trial Court. The respondent had sent a legal notice calling upon his wife to come back and join him, lest to give divorce by consent. This aspect of the matter is also taken into consideration while holding that the respondent has committed domestic violence.

The decision reported in AIR 2003 SC 3174 Deb Narayan Halder v. Smt. Anushree Halder is relied upon to contend that the allegation of demand of dowry and cruelty by the husband is not supported by evidence placed on record and wife had left the matrimonial home at her own without any justification. While sending a notice seeking restitution of conjugal rights normally no husband would ask his wife to give divorce by consent. An honest effort must be made to save the marriage and no such attempt is made by the husband. Learned Judge has assessed the evidence in right perspective in regard to the refusal of the husband to maintain his wife.

Insofar as quantum of maintenance is concerned, the trial Court has awarded a sum of Rs.5,000/- as maintenance. The same is upheld by the First Appellate Court after reassessing the evidence placed on record.

What is argued before this Court is that a free copy of the final order is given to the respondent - husband by the trial court. The amount of maintenance is mentioned as Rs.2,500/- per month and it is corrected by Rs.5,000/- per month by the learned JMFC subsequently. The certified xerox copy of the final order in Cri. Misc. No. 295/2011 is produced along with a memo by the counsel for the petitioner. In paragraph 32 of the said certified copy figure 2,500/- is deleted and in its place Rs.5,000/- is mentioned by making correction in figures and words also. Those corrections are initialled by the learned trial Judge. Perused the free copy of the order furnished by respondent - husband. On comparing the original order passed by the learned JMFC and certified xerox copy of the order obtained by the respondent - husband, it is seen that no corrections were carried out by the office while issuing the free copy. Office did not take into account the correction made by the learned JMFC. It can be said that the very free copy-given to the party was not at all properly verified by the office.

After perusing the original order passed by the learned JMFC, it is evident that correction was made in the green ink at relevant places and then only order was pronounced, liven otherwise, learned Judge has mentioned as to why a sum of Rs.5,000/- per month as maintenance is awarded. Taking into consideration the salary of the husband as Rs. 10,000/- and the income obtained by him through landed property, a sum of Rs.5,000/- is awarded. In fact the amount in paragraph No. 16 mentioned as Rs.2,500/- per month is deleted and in its place Rs.5,000/- is incorporated and bears the signature of the Judicial Officer. Taking into consideration and the escalation in the prices and minimum requirements of the petitioner - wile and the financial capacity of the husband, the learned Judge has awarded a sum of Rs.5,000/- per month as maintenance to the wife. By no structure of imagination over writing of Rs.2,500/- p.m. as Rs.5,000/ p.m. could be considered as an after thought anil later insertion by the learned Judge.

The scope of revision petition filed under Section 397 of Cr.P.C. is very much limited. Even after re-assessing the entire evidence, no glaring or apparent illegality is found to invoke the revisional jurisdiction vested by this Court under Section 397 of Cr.P.C. The First Appellate Court has re-assessed the evidence on record in right perspective by assigning cogent and valid reasons and has concurred with the order of granting Rs.5,000/-per month as maintenance. In fact, the First Appellate Court has assigned valid reasons in paragraph Nos. 13 to 18 both in regard to the refusal of the husband to maintain Iris wife and in regard to his financial capacity. Intact, the learned Judge has held that even to lead simple life one requires at least Rs.200/- per day and hence, he is of the view that the order of maintenance at the rate of Rs.5,000/- per month is perfectly justified and cannot be considered as excessive, in fact, the respondent had not produced any document relating to the income of the petitioner - wife. In paragraph No. 17 of the judgment, the learned fudge of the first Appellate Court has held that the husband is not interested to live with the petitioner and this is evident from the contents of Ex.Pb the legal notice got issued by him through which lie wanted the divorce by mutual consent.

Viewed from any angle, no illegality or perversity is found in the order passed by the trial Court and affirmation of the same by the First Appellate Court. In the light of the decree of divorce being admitted by this Court and further proceedings being stayed by this Court in MFA No.5431/2014 vide order dated 09.09.2014, no interference is called for. Accordingly, petition is dismissed. Hence, following order is passed:

ORDER

Revision petition is dismissed.