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2019 DIGILAW 245 (KAR)

Shakuntala, W/o Kashappa @ Kashinath Athani v. Kashappa @ Kashinath, S/o Mallappa Athani

2019-01-24

BELLUNKE A.S.

body2019
ORDER : 1. Heard learned counsel for the revision petitioner and counsel for 1st respondent. 2. This revision petition is filed against the judgment dated 10.08.2018 passed by the Additional District and Sessions Judge, Bagalkot sitting at Jamakhandi in Crl.A.No.2/2017 filed under Section 27 of the Protection of Women from Domestic Violence Act, 2005. 3. The revision petitioner and the 1st respondent are the wife and husband, 2nd respondent is the 2nd wife of 1st respondent and respondent Nos.3 to 7 are the family members of the 1st respondent. 4. Briefly stated the facts are that, the revision petitioner had filed criminal miscellaneous No.10/2013 under Section 12 of Protection of Women from Domestic Violence Act, 2005 read with section 127 of the Code of Criminal Procedure, before the Civil Judge and JMFC, Banahatti. The respondents herein resisted the same regarding maintainability. The Trial Court after hearing both the side dismissed the said petition on the ground that, it is not maintainable. The said order was challenged before the learned I Additional District & Sessions Judge, Bagalkot sitting at Jamakhandi in Crl.A.No.2/2017. The learned District and Sessions Judge, Bagalkot sitting at Jamakhandi held that the petition filed by the appellant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was not maintainable in law and consequently dismissed the appeal. The said judgment of the learned District and Sessions Judge has been challenged before this Court on the following grounds. 5. It is contended that the order passed by the Courts below are against to the provisions of Section 26(1) (2) (3) of the Protection of Women from Domestic Violence Act, 2005. The petitioner was an aggrieved person and there was economic abuse of the petitioner by the 1st respondent. The 1st respondent had agreed to bear marriage expenses of his daughter born out of their wedlock. He has not paid the marriage expenses. He had paid only permanent alimony to the petitioner since marriage expenses were not borne by the respondents, the petitioner had filed petition before the Civil Judge & JMFC, Banahatti. The same was dismissed as not maintainable. Therefore, appeal was preferred before the learned District and Sessions Judge, same was also dismissed as not maintainable. Hence the petitioner is before this Court. 6. The facts stated are not in dispute. The same was dismissed as not maintainable. Therefore, appeal was preferred before the learned District and Sessions Judge, same was also dismissed as not maintainable. Hence the petitioner is before this Court. 6. The facts stated are not in dispute. This Court also heard the counsel on the point of maintainability of this revision petition before this Court. 7. The learned counsel for the revision petitioner has contended that petition is maintainable in law on facts therefore the orders of the Courts below are liable to be set aside. The learned counsel is also submitted the following list of authorities. 1. Criminal Appeal No.1656/2015 (Lalita Tappo Vs. The State of Jharkhand and another disposed by the Hon’ble Supreme Court on 30.10.2018) 2. AIR 2013 Supreme Court 1541 (Nagendrappa Natikar Vs. Neelamma). 3. 2017(1) Civ.C.R. 786 (Guj) (Rajendrabhai Virjibhai Mavadia Vs. State of Gujarat and others.) 4. 2018 (1) Civil Court Cases 441 (M.P.) (Manoj Pillai S/o Shri K.V.S. Pillai Vs. Smt.Prasita Manoj Pillai. 5. 2017 (4) Criminal Court Cases 415 (Gujarat) (Varshaben Himantlal Vejani Vs. State of Gujarat & another.) 8. The learned counsel drew my attention to the certified copy of the order sheet in Crl.Misc.No.10/2013. On perusal of the same, in paragraph No.6 the learned trial judge has held as under: “6. The material on record reveals that, from the year 1999 the petitioner and respondent No.1 are residing separately. The respondent has already married and residing separately. There is no cohabitation in between petitioner and respondent No.1. The petitioner is not residing in the shared house of respondent No.1. Though the matter was settled in the year 2007 but prior to that they are residing separately. The protection of womens from domestic violence Act came into force in the year 2005. The Act has no retrospective effect. Therefore, it cannot be said that, the petitioner is entitled for claim any relief in the said provisions. 7. Further the petitioner has already received permanent alimony from the respondent No.1. They have also submitted in the compromise petitioner that, they have no right over the immovable property belongs to respondent NO.1. The petitioner has received permanent alimony. Therefore, question of enhancement of order of maintenance does not arise. The order passed in the Lok Adalath dated: 23.01.2007 has attained finality.” 9. They have also submitted in the compromise petitioner that, they have no right over the immovable property belongs to respondent NO.1. The petitioner has received permanent alimony. Therefore, question of enhancement of order of maintenance does not arise. The order passed in the Lok Adalath dated: 23.01.2007 has attained finality.” 9. Learned Judge has also held that the ruling reported in AIR 2013 SC 1541 would not be applicable to the case in hand as the petition was filed under Section 12 of the Domestic Violence Act. Further she can also involve Section 18(2) of the Hindu Adoption and Maintenance Act, 1956. 10. Therefore, on perusal of the above said facts and circumstances, the following point would arise for consideration. (1) Whether the petition filed by the revision petitioner before the Trial Court was maintainable in law? (2) What order? 11. It is important to note that the revision petitioner had compromised with the 1st respondent before the Lok-Adalath. As per the terms of the compromise dated 23.01.2007, the 1st respondent had paid Rs.65,000/-to the petitioner as full and final settlement of her maintenance, thereby the recovery petitions were also closed. 12. After performing daughter’s marriage, the petitioner requested the 1st respondent to pay the marriage expenses, which were not paid by the 1st respondent. The recitals of the compromise petition would disclose that, in future the petitioner would not ask the respondent anything towards her maintenance and the 1st respondent agreed to contribute towards marriage expenses at the time of marriage of her daughter Kumari Shaila. The wordings used are ‘Manpan Babattu’ that means marriage expenses. The learned Sessions Judge relied on a decision reported in AIR 2013 Supreme Court 1541 (Nagendrappa Natikar Vs. Neelamma). Now the petitioner has not sought for any maintenance as such for herself. If at all marriage expenses were to be borne by the 1st respondent as agreed in the compromise, the same is to be enforced. As per the above said decision, the petitioner or her daughter are not precluded from proceeding against the respondents under Section 18 of the Hindu Adoption and Maintenance Act, 1956. But to attract the provisions of Section 12 of the Domestic Violence Act read with Section 127 of the Code of Criminal Procedure, the petitioner cannot move such an application. As per the above said decision, the petitioner or her daughter are not precluded from proceeding against the respondents under Section 18 of the Hindu Adoption and Maintenance Act, 1956. But to attract the provisions of Section 12 of the Domestic Violence Act read with Section 127 of the Code of Criminal Procedure, the petitioner cannot move such an application. It is also found from the Trial Court order that the right of the petitioner for the present and future maintenance was settled by receiving Rs.65,000/-in the open court. The petitioner is residing separately since 7 to 8 years. The trial Court also found that the petitioner and the 1st respondent have residing separately since 1999. Respondent No.1 has already married and residing separately. There is no cohabitation between them. Matter was settled in the year 2007, even prior to that they were residing separately. Moreover the daughter is not made as party to the petition seeking contribution of her marriage expenses by her father. 13. Therefore the daughter was at liberty to prefer claim against the 1st respondent under Section 18 of the Hindu Adoption and Maintenance Act and not under the Protection of Women from Domestic Violence Act, 2005 or under Sections 125 and 127 of the Code of Criminal Procedure. Therefore, petition under Section 127 would not be maintainable at all. Moreover, the quantum of contribution to be made by respondent No.1 towards marriage expenses of his daughter, are not specified in the compromise petition. Therefore, the quantum has to be fixed based on the evidence on record. The order cannot be executed straightaway without a finding that fact. 14. Learned counsel for the revision petitioner has relied on a ruling reported by the Hon’ble Supreme Court of India in Criminal Appeal No.1656/2015 between Lalita Toppo Vs. The State of Jharkhand and another wherein the Apex Court has defined that what would amount to economic abuse constituting domestic violence has defined under sub-section (1) (iv) of Section 33 of the Protection of Women from Domestic Violence Act, 2005. So far as petitioner is concerned, she has already been paid a permanent alimony of Rs.65,000/-as per the terms of compromise. Therefore, she cannot be an aggrieved person and non contribution of marriage expenses would not come within the definition of economic abuse. So far as petitioner is concerned, she has already been paid a permanent alimony of Rs.65,000/-as per the terms of compromise. Therefore, she cannot be an aggrieved person and non contribution of marriage expenses would not come within the definition of economic abuse. If there is a compromise then that order has to be executed in an appropriate forum and not by filing a petition under the provisions of the Protection of Women from Domestic Violence Act or under Section 127 of the Code of Criminal Procedure. 15. The Hon’ble Supreme Court in a decision reported in AIR 2013 Supreme Court 1541 between Nagendrappa Natikar Vs. Neelamma, wherein it has held as under: Criminal P.C.(2 of 1974), S.125 – Hindu Adoptions and Maintenance Act, (78 of 1956), S.18 – Maintenance Act Granted under S.125 – is tentative – Does not foreclose remedy available under 1956 Act – Compromise to receive permanent alimony and give up right to claim maintenance reached in proceeding under S.125, Criminal P.C., -Order passed accordingly – would not preclude wife from making claim under Section 18 of 1956 Act. 16. That is not the case in the hand. Even according to the petitioner, the matter ended in a compromise in a Lok-Adalath. The compromise entered between the parties is not shown to be against to the public policy. 17. Another decision of the Gujarat High Court relied on by the petitioner’s counsel reported in 2017(1) Civ.C.R. 786 (Guj.) between Rajendrabhavi Virjibhavi Mavadia Vs. State of Gujarat and others, wherein it has held as under: Criminal Procedure Code, 1973 – Section 125 – Maintenance – A woman who is a wife as per explanation of Section 125 – continues to be wife even if divorced and not remarried and she cannot be denied maintenance under Section 125-Right of a wife who is in destitute condition to get maintenance from her husband is always available to her – Any compromise or a condition contained in agreement is held to be against public policy and not valid. As per the decision in the said authority even though the wife is residing separately from her husband and as long as they are not divorced she is entitled to file petition under the provision of Protection of Women from Domestic Violence Act. In this case the right sought to be enforced is one that of term of the compromise. 18. In this case the right sought to be enforced is one that of term of the compromise. 18. In the decision of the Madhya Pradesh High Court relied on by the petitioner’s counsel reported in 2018 (1) Civil Court Cases 441 (M.P) between Manoj Pillai S/o Shri K.V.S. Pillai Vs. Smt.Prasita Manoj Pillai, wherein it has held as under: “(i) Protection of Women from Domestic Violence Act, 2005, Ss.2(a), 12-Domestic violence – Aggrieved person – Wife was not living with her husband at the time when Act came into force, Legal relationship between husband and wife continues, as they have not divorced as per law – Wife acquired the status of aggrieved person and provisions of the Act are thus applicable”. 19. In this case the petitioner has not come to the Court contending that inspite of the compromise before the Lok-Adalath she is entitled for any additional maintenance as such. All that is claimed is the marriage expenses payable by the respondent as per the terms of the compromise petition. No fixed amount has been stated in the compromise petition, the amount stated in the compromise is towards the permanent alimony that was payable to the wife as on that day the marriage of the petitioner’s daughter had not taken place. Therefore, it is at the time of marriage or after the marriage the right will accrue to recover the marriage expenses. Hence, for all the aforesaid reasons I found that the aforesaid authorities would not applicable to the case in hand. 20. The position of law has been settled by Hon’ble Apex Court in the decision reported in AIR 2012 SC Page 719 between K.N.Govindan Kutty Menon Vs. C.D.Shaji. In the said proceedings a criminal case under Section 138 of Negotiable Instrument Act came to be settled before Lok-Adalath by entering into a compromise. The terms of compromise were not complied by the respondent – accused therein. Therefore, appellant had filed execution petition for execution of the order. The said application was dismissed by the Trial Court on the ground that the order passed by the Magistrate on a reference in Lok-Adalath was not decree executable by the Civil Court. Whenever any award passed by the Lok Adalath it is said to be a decree of Civil Court and as such it is executed by that Court. The said application was dismissed by the Trial Court on the ground that the order passed by the Magistrate on a reference in Lok-Adalath was not decree executable by the Civil Court. Whenever any award passed by the Lok Adalath it is said to be a decree of Civil Court and as such it is executed by that Court. Whether reference is made by Civil Court or Criminal Court it is immaterial. 21. Therefore, in this case the compromise entered into under the 125 proceedings or under the Protection of Women from Domestic Violence Act can be enforced as if it is a decree by the Civil Court in view of the law laid down by the Hon’ble Apex Court. Therefore, on that count also the revision petition is not maintainable. 22. Looking from any angle, I find that the petition is not at all maintainable in law. Hence reserving liberty to the petitioner or her daughter to initiate appropriate proceedings in accordance with law to recover the marriage expenses, the revision petition is dismissed.