Research › Search › Judgment

Karnataka High Court · body

2021 DIGILAW 105 (KAR)

Shahida W/o Abubakkar v. Abubakkar S/o Late Abdul Khadar

2021-01-15

V.SRISHANANDA

body2021
ORDER : 1. This Revision Petition is by the petitioner being aggrieved by the Order dated 27.1.2015 passed in Criminal Appeal No. 125/2014 on the file of the IV Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru, whereby the Order dated 5.5.2014 passed by the learned Magistrate in M.C. No. 41/2012 is partly set aside by denying the maintenance to the Revision Petitioner modifying the maintenance amount to the children of the Revision Petitioner from Rs. 2,000/- to Rs. 1,500/- per month each for the two daughters who born to them. 2. The brief facts which are necessary for disposal of the Revision Petitioner is as under: A petition was filed u/s.12 of the Protection of Women from Domestic Violence Act, 2005 [hereinafter referred to as ‘DV Act’ for short] contending that the Revision Petitioner is the legally wedded wife of the first respondent and their marriage got solemnized as per the rites and customs prevailed in their community on 11.7.1999 at Noor Mahal, Beeri, Mangaluru Taluk. After the marriage, the Revision Petitioner joined the matrimonial home and two daughters are born from the marriage. Thereafter, it is contended that the husband of the Revision Petitioner started ill-treating the Revision Petitioner in one way or the other and she tolerated the cruelty with a fond hope that the respondents may mend their behavior on one day or other. It is further contended that at the time of marriage a sum of Rs. 50,000/- in cash and 40 sovereign gold and one Rado watch was given to the first respondent. It is further contended that when she was unable to bear the ill-treatment, she complained to the elders and well-wishers who mediated the matter and her husband agreed to look after her properly. It is further contended that even after the said re-conciliation, there was a demand of Rs. 2 lakhs by the husband and threatened the complainant that if the said demand is not met, he would divorce her. Ultimately, she got issued a legal notice to pay the maintenance and stop the torture and return the dowry amount. It is further contended that thereafter a false and frivolous reply came to be issued alleging that she has illicit relationship with one Mohammad Haneef, which resulted in serious mental agony to the Revision Petitioner and therefore, she was constrained to file the present petition. 3. It is further contended that thereafter a false and frivolous reply came to be issued alleging that she has illicit relationship with one Mohammad Haneef, which resulted in serious mental agony to the Revision Petitioner and therefore, she was constrained to file the present petition. 3. On service of notice, husband and the mother-in-law of the petitioner, appeared through their counsel and filed objections admitting the relationship. It is further contended that the Revision Petitioner left the house on and from November, 2007. But admittedly, the two children who are studying in 4th and 1ststandard are with the Revision Petitioner but denied any domestic violence and sought for dismissal of the Revision Petition. 4. After recording the evidence of the parties, the learned Magistrate allowed the petition and passed the following Order: “The petition filed by the petitioner under Section 12 Protection under of Women from Domestic Violence Act, 2005 is hereby allowed. The respondents are hereby restrained from committing further domestic violence against the petitioner. The respondents are directed to return the golden ornaments to the complainant. The respondent No. 1 is hereby directed to pay a sum of Rs. 2,000/- per month to the petitioner and Rs. 2,000/- each to her two children towards the maintenance from the date of petition. The respondent No. 1 is hereby directed to pay a sum of Rs. 50,000/- as compensation for the petitioner.” 5. Being aggrieved by the said order, the husband and the mother-in-law of the Revision Petitioner preferred a Criminal Appeal before the District and Sessions Judge, Mangaluru in Criminal Appeal No. 125/2014. On securing the records and hearing the parties, the first Appellate Court modified the Order passed by the learned Magistrate which reads as under: “The appeal filed by the appellant under sec. 29 of Protection of Women from Domestic Violence Act is hereby allowed partly. Consequently, the order passed by the JMFC III Court, Mangaluru in M.C. No. 41/12 dated 05.05.2014 is hereby set aside subject to the modification of maintenance to the children. The 1st appellant is directed to pay the maintenance of Rs. 1,500/- per month each both the children from the date of order passed by the trial court in M.C. No. 41/12 till their marriage. Send LCR with copy of this judgment.” 6. It is that judgment, which is the subject matter of this Revision Petition. 7. The 1st appellant is directed to pay the maintenance of Rs. 1,500/- per month each both the children from the date of order passed by the trial court in M.C. No. 41/12 till their marriage. Send LCR with copy of this judgment.” 6. It is that judgment, which is the subject matter of this Revision Petition. 7. Learned counsel for the Revision Petitioner Sri. B. Lathif, vehemently contended that the first Appellate Court has lost sight of the fact that though the Revision Petitioner has to leave the matrimonial home on account of the ill-treatment meted out to her by the respondents herein, yet the first Appellate Court found fault with the conduct of the Revision Petitioner and held that there was no domestic violence as the Revision Petitioner has left the matrimonial home on and from November, 2007. He also contended that reducing the monthly maintenance to the daughters from 2,000/- to 1,500/- is arbitrary and without there being any proper materials on record and thus sought for allowing the Revision Petition. 8. The respondents are represented by Sri. P.N. Hegde and that there was no representation on behalf of the respondents even today. 9. In the light of the arguments advanced on behalf of the Revision Petitioner and on perusal of the material on record, the following point that would arise for consideration: “Whether the finding recorded by the first Appellate Court though there is no domestic violence and as such, the Revision Petitioner is not entitled to any maintenance and also reducing the compensation amount to the children from Rs. 2,000/- to Rs. 1,500/- per month is suffering from any legal infirmity and thus calls for interference?” Answer to the above point is in the Negative for the following: REASONS: 10. The materials on record available clearly indicate that the Revision Petitioner and the first respondent are wife and husband. They have two daughters by name Khathija Ashvira and Fathima Afra. It is found from the records that the Revision Petitioner left the matrimonial home and on from November, 2007. Admittedly, the petition came to be filed in the year 2012. Having regard to the scope of Sections 18, 19 and 20 of the Act, the first Appellate Court came to the conclusion that there was no domestic violence as the Revision Petitioner was not residing with the respondents as on the date of the petition. 11. Admittedly, the petition came to be filed in the year 2012. Having regard to the scope of Sections 18, 19 and 20 of the Act, the first Appellate Court came to the conclusion that there was no domestic violence as the Revision Petitioner was not residing with the respondents as on the date of the petition. 11. However, for reducing the monthly maintenance to the children, the first Appellate Court has discussed in detail in paragraph 23 of the impugned judgment and came to the conclusion that Rs. 2,000/- is on the higher side for each of the children and reduced it to Rs. 1,500/-. It is to be noted that the children are not made as parties in the petition. 12. The scope of the Act is meant to prevent the domestic violence that takes place in the matrimonial home. Thus, the grant of compensation is only an alternative in a given set of circumstances in a case. The relief that can be granted to a wife (aggrieved person) under the Act is not in derogation, but in addition to the other reliefs available to a wife in a different statutes. In the case on hand, as on the date of filing the petition, admittedly, there was no domestic relationship between the wife and the husband. Since the wife was staying away from the husband, as on the date of filing of the petition under the Act, this court does not find any illegality in the first Appellate Court recording a finding that the wife failed to establish the domestic violence which is a cine qua non for according relief to the wife under the Domestic Violence Act. However, this would not prevent the wife to seek other remedies available to her before the appropriate forum under the appropriate statutes. 13. In so far as reducing the maintenance to the children are concerned, in the first place the children would not put into the definition of the aggrieved person as is defined u/s. 2A of the Act. 14. Nevertheless, in the absence of any Revision Petition by the husband, this court in the Revision Petition filed by the wife need not go into the legality of the order passed by the first Appellate Court in so far as reducing the maintenance from Rs. 2,000/- to Rs. 1,000/- is concerned. 15. 14. Nevertheless, in the absence of any Revision Petition by the husband, this court in the Revision Petition filed by the wife need not go into the legality of the order passed by the first Appellate Court in so far as reducing the maintenance from Rs. 2,000/- to Rs. 1,000/- is concerned. 15. Suffice to say, that the order impugned is passed by the first Appellate Court by considering the actual scope of Domestic Violence Act. Therefore, there is no error apparent on record nor improper exercise of jurisdiction or any illegality as occasioned while passing the impugned-order so as to call for interference of this court. 16. Needless to emphasize that the observations made in this case would not deter or cause any hindrance for the Revision Petitioner to work out her remedy before the appropriate forum. 17. With the aforesaid observation, following order is passed: The Revision Petition sans merit and accordingly, dismissed.