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2023 DIGILAW 292 (KAR)

Prema Shetty v. Hemanth Shetty

2023-02-17

RAMACHANDRA D.HUDDAR

body2023
JUDGMENT/ORDER Ramachandra D. Huddar, J. - The Revision Petitioner has filed this Revision Petition under Section 397 of Cr.P.C. being aggrieved by the Judgment in Crl.A. No.51/2012, dated 05.03.2015 passed by the learned Dist. and Sessions Judge, Udupi, allowing the said appeal and setting aside the Order dated 02.06.2012 passed by the learned Prl. Civil Judge and JMFC, Karkala, in M.C. No.38/2010 filed by the petitioner. 2. Parties to the Revision Petition are referred to as per their rank before the Trial Court in M.C. No.38/2010, for the purpose of convenience. 3. Brief and relevant facts leading up to this Revision Petition are as under: That petitioner is the permanent resident of Kukkundoor Village in the residential house called 'motherland' bearing door No.4/221. The said house is standing in the name of one deceased Sundara Shetty. As per her petition averments, she is the legally wedded second wife of the deceased Sundara Shetty. Her marriage was registered. After her marriage, herself and her husband Sundara Shetty used to reside in the aforesaid house. As he was seriously ill, he was admitted to K.M.C. Hospital, Manipal. Her husband Sundara Shetty died on 04.01.2010 because of his illness. 4. It is alleged by the petitioner that when her husband during his life time was admitted in KM.C. Hospital, Manipal, the respondents and their people came to the hospital and forcibly tried to take his thumb impression. Respondent No.1 appears to be his son and respondent Nos.2 and 3 appear to be sons-in-law of her husband from his first wife. 5. It is alleged that after the death of her husband, these respondents forcibly took the dead body of her husband. It is alleged, that on 19.01.2010, respondents along with their henchmen, came to their house and by force took away her Santro car, 25 pound gold and another 10 pound gold belonging to her husband so also ring, watch etc., forcibly dispossessed her from the said house and put the lock to the said house. Therefore, petitioner submitted a complaint before the Karkala Town Police Station which is being registered in FIR No.13/2020. 6. It is alleged that on 28.01.2010, the petitioner came to her house for her domestic work. At that time, respondents suddenly entered her house and locked the main door and did not allow her to enter the house. Therefore she filed a petition before the learned Prl. 6. It is alleged that on 28.01.2010, the petitioner came to her house for her domestic work. At that time, respondents suddenly entered her house and locked the main door and did not allow her to enter the house. Therefore she filed a petition before the learned Prl. Civil Judge and JMFC, Karkala, in M.C. No.38/2010 under s.9(b) and 37 (2)(c) read with Section 19 of the Protection of Women from Domestic Violence Act, 2005. She prayed to allow the said petition. 7. Pursuant to the notice, respondents appeared before the Trial Court and resisted the petition by filing detailed objections, denying the very domestic relations with the petitioner. Each and every allegations so did in the petition have been denied by the respondents. It is contended that a false complaint was filed before the police station. The petitioner is not a legally wedded wife of Sundara shetty. During his life time he had executed a will and that Will is questioned before the Civil Court in O.S No.35/2010, so also O.S. No.106/2011, seeking injunction. The said suits are pending. Therefore they prayed to dismiss the Petition. 8. Before the Trial Court, petitioner entered witness box as P.W.1 and got marked in all, 20 documents from Exs.P1 to P20 and closed her evidence. Respondents have not let in any evidence. 9. The learned Trial Court having heard the arguments of both the sides, allowed the Petition as prayed for. Being aggrieved by the same, the respondents preferred Crl.A. No.51/2012 before the learned Prl. Sessions Judge, Udupi. Vide Judgment dated 05.03.2015, the learned Prl. Sessions Judge, Udupi has allowed the appeal and set aside the Judgment being passed in M.C. No. 38/2010 by Judgment dated 02.06.2012 by the Prl. Civil Judge and JMFC, Karkala. As there are divergent findings, being aggrieved by the same, now the petitioner has preferred this Revision Petition challenging the said Judgment of the Appellate Court on the following: GROUNDS 10. That order of the learned Sessions Judge is highly arbitrary and illegal and liable to be set aside by this Court. The learned Sessions Judge has committed a grave and serious error by holding that the provisions of the Protection of Women from Domestic Violence Act, 2005 are not applicable to the facts of the case. That order of the learned Sessions Judge is highly arbitrary and illegal and liable to be set aside by this Court. The learned Sessions Judge has committed a grave and serious error by holding that the provisions of the Protection of Women from Domestic Violence Act, 2005 are not applicable to the facts of the case. The said Court has grossly erred in coming to the conclusion that there is no domestic relationship between the appellant and respondents. Though there is sufficient evidence placed on record by the petitioner, the evidence so placed on record, both oral and documentary has not been properly appreciated to prove the relationship. The learned Sessions Judge is wrong in coming to the conclusion that the act of the respondents does not amount to domestic violence. She has sought the protection under the provisions of the said Act and now the respondents are trying to dispossess her from the property. Without accepting the documents of the petitioner, the impugned Judgment is passed accepting the contentions of the respondents. Thus the learned Sessions Judge has failed to appreciate the contentions of the petitioner. Whereas the learned Trial Court has understood and applied the facts of the case. Thus the impugned Judgment is only based on hearsay, untrustworthy and self serving statements. Thus it is prayed to allow the revision, set aside the impugned Judgment and restore the order passed by the Trial Court. 11. Heard the arguments of both the sides. Meticulously perused the records. 12. The advocate for the Revision Petitioner took this Court through various petition averments, oral and documentary evidence and also the reasons being assigned by the Trial Court in M.C. No.38/2010 while passing the order allowing the petition of the petitioner. He supported the reasons being assigned by the Trial Court and submits that without appreciating the factual findings of the Trial Court, the learned Sessions Judge has committed grave error in dismissing the petition filed by the petitioner. 13. On the other hand, the learned advocate for respondent No.1 supporting the reasons being assigned by the Sessions Judge, submits that as there exists no domestic relationship between petitioner and respondents, the question of application of the Protection of Women from Domestic Violence Act does not arise at all. In support of his submission, he relied upon the following Judgments: 1. 2007 (3) SCC 169 S.R. Batra and another. DD: 15.12.2006. In support of his submission, he relied upon the following Judgments: 1. 2007 (3) SCC 169 S.R. Batra and another. DD: 15.12.2006. 2. 2014 (2) KCCR 1797 Mrs. G.A Ferris v/s Svetlana and another. DD: 25.02.2014 3.Crl. Appeal. No.309/2011 Mr. Maniraju v/s Mr. G. Nagaraju. DD: 10.08.2021. 4. Crl. pet. No.200009/2021 Mr. Mareppa and others. v/s Pushpanajali. DD: 10.02.2021. 14. I have applied my mind to the submissions made by both the sides. 15. In the light of the records being placed by both side parties and the submissions of the respective counsel for respondent No.1, the following point arises for my consideration: "Whether, the Prl. Dist. and Sessions Judge being the First Appellate Court, by appreciating the evidence has rightly dismissed the petition of the petitioner?" 16. As could be seen from the pleadings of the petitioner before the Trial Court, she states that she is the permanent resident residing in the residential house called "Motherland" bearing door No.4/221 of Kukundoor Village which is standing in the name of deceased Sundara Shetty. It is her pleadings that she is the legally wedded second wife of the said Sundara Shetty who married her after the demise of his first wife. After marriage, she started residing in the aforesaid house. Her husband died on 04.01.2020 because of his illness. When for treatment he was admitted in the hospital, at that time, respondents and their people came to the hospital and tried to get his thumb impression by force. She states that respondent No.1 appears to be his son and respondent Nos.2 and 3 appear to be the sons-in-law of his husband from his first wife. 17. It is her allegation that after the death of her husband, these respondents forcibly took the dead body of her husband. It is alleged that on 19.01.2010, respondents along with their henchmen came to the house and forcibly took away her santro car, 25 pound gold, 10 pound gold belong to her and her husband ring watch etc. and forcibly dispossessed her. Thus, they have committed the offence. 18. It is her further allegation that, because of these offences committed against her, she filed complaint before the Karkala Police Station, which is being registered in FIR No.13/2010. and forcibly dispossessed her. Thus, they have committed the offence. 18. It is her further allegation that, because of these offences committed against her, she filed complaint before the Karkala Police Station, which is being registered in FIR No.13/2010. She further alleges that on 20.01.2010 when petitioner was away from the house, these respondents suddenly entered the house and locked the house and threatened the petitioner with dire consequences. 19. As against these allegations, respondents have flatly denied all these allegations and according to them, the provisions of the aforesaid Act have no application to the facts of this case and rightly the learned Prl. Sessions Judge, Udupi has dismissed the appeal filed by the petitioner in Crl.A. No.51/2012. 20. As per her say itself, respondent No.1 appears to be his son and respondent Nos.2 and 3 appear to be the sons-in law of her husband from his first wife. 21. P.W.1 being the petitioner has spoken in line with the contents of the petition and relies upon Exs.P1 to P20. On reading the cross-examination directed to this P.W.1, she states that Sri. Sundara Shetty's children have filed suit for partition in O.S. No.35/2011 before the Civil Court, Karkala and she states that she has filed objections stating that she has got right in the properties of Sundara Shetty. She also admits that the respondents have also filed Civil Suit in O.S. No.106/2011 and the aforesaid suits are still pending. She has deposed ignorance with regard to availability of documents of she performing marriage with Sundara Shetty. She says that she does not remember. According to her, on the day of registering the marriage itself, she has married Sundara Shetty and she has not gone to any other place. 22. She admits that respondents are making allegations that she is a maid servant of Sundara Shetty and now she has come to know that her marriage is not valid. 23. She speaks with regard to the existence of RTCs etc. Even she states that her status as second wife of Sundara Shetty is seized before the Court. 24. She further states that amongst the respondents, one Ramesh Shetty was a Senior Officer in the bank and used to work at various places. Now he is retired and residing at Manipal. The son of Sundara Shetty by name Hemant Shetty is residing along with his family at Mumbai. 24. She further states that amongst the respondents, one Ramesh Shetty was a Senior Officer in the bank and used to work at various places. Now he is retired and residing at Manipal. The son of Sundara Shetty by name Hemant Shetty is residing along with his family at Mumbai. So another respondent is also residing separately. She submits that said property "motherland" belongs to his two sisters, deceased mother Saraswathi Shetty but she states that there is a Will in respect of the said property. According to her, her son compromised with regard to the dispute and to that effect, there is an agreement. 25. Except this evidence, no other evidence is placed on record by the petitioner to show her domestic relationship with the respondents. When these respondents are not residing at the address so stated by the petitioner and have never resided with the petitioner, how come the provisions of Domestic Violence Act are applicable is not made out. 26. So far as Exs.P1 to P20 are concerned, they are the pass book, report of CDOP and other documents. With regard to the contents of these documents, the respondents have not raised any objections. 27. It is argued by the counsel for respondents that as there exists no domestic relationship, therefore, the learned Sessions Judge has rightly allowed the appeal and dismissed petition. In a Judgment reported in 2007 (3) SCC 169 , IN S.R. BATRA AND ANOTHER VS. TARUNA BATRA (Smt.), it is held by the Hon'ble Supreme Court of India that, "when house exclusively belongs to mother in law of the respondent, wherein she only lived with her husband for sometime in the past after their marriage, it is held that it is not a shared household within the meaning of S.2(s) and hence, respondents are not entitled to claim right to live therein under S.17." 28. It has come in the evidence of P.W.1 that the said house belongs to Hemant, respondent No.1 and his sisters so also their deceased mother. When the said house belongs to them, how S.2(s) of the Protection of Women from Domestic Violence Act, 2005 can be made applicable to the facts of the case is not made clear. 29. It has come in the evidence of P.W.1 that the said house belongs to Hemant, respondent No.1 and his sisters so also their deceased mother. When the said house belongs to them, how S.2(s) of the Protection of Women from Domestic Violence Act, 2005 can be made applicable to the facts of the case is not made clear. 29. S.2(s) of the said Act speaks as under: " 2(s) "Shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household." 30. Thus, the argument of the petitioner cannot be accepted as the petitioner was not residing in a shared house. In para 24 and 25 of the said Judgment it is observed by the Hon'ble Supreme Court of India as under: "24. Learned counsel for the respondent Smt Taruna Batra stated that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household. 25. We cannot agree with this submission." 31. It is further held in the said Judgment that as regards s.17(1) of the Act, the wife is only entitled to claim a right in a shared household and a shared household would only be the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case belongs to the respondent No.1 and his sisters as per the say of the petitioner herself. 32. The other Judgment so relied upon by the learned counsel for respondent No.1 also speaks with regard to the shared household. The property in question in the present case belongs to the respondent No.1 and his sisters as per the say of the petitioner herself. 32. The other Judgment so relied upon by the learned counsel for respondent No.1 also speaks with regard to the shared household. In another Judgment of the Hon'ble High Court of Karnataka, in Crl. A.309/2011, decided on 10.08.2021, this Court has discussed with regard to the provisions of D.V. Act in detail. The said principles can be made applicable to the present facts of this Case. 33. More so, the Protection of Women from Domestic Violence Act is undoubtedly a human rights issue and serious deterrent to development. This Act covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or their relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. But in the present case, no such ingredients are satisfied by the petitioner. 34. The word "domestic violence" being defined as actual abuse or threat or abuse i.e. physical, sexual, verbal, emotional or economical. In this case, except the bald allegations against the respondents, who are not residents of the said property, there is no evidence. No doubt, S.2(a) of the Act defines "Aggrieved person", which means any woman who is, or has been in a domestic relationship with the respondent and who alleges to have been subjected to an act of domestic violence by the respondent. As there exists no domestic relationship, how this petitioner would become aggrieved person is not explained. There is no evidence to show that at any point of time, respondents lived together in a shared household. Section 3 in Chapter II gives a definition of domestic violence. Thus, the petition averments also do not cover the definition of domestic violence as alleged by the petitioner. 35. If all these factual features coupled with the position of law are read together, the learned First Appellate Court has appreciated the facts of the case in proper perspective and has culled out the evidence in aforesaid Judgment to give a finding that there exists no domestic relationship and the petitioner does not become aggrieved person. 35. If all these factual features coupled with the position of law are read together, the learned First Appellate Court has appreciated the facts of the case in proper perspective and has culled out the evidence in aforesaid Judgment to give a finding that there exists no domestic relationship and the petitioner does not become aggrieved person. I do not find any factual or legal error being committed by the First Appellate Court in arriving at such a conclusion by re-appreciating the evidence. 36. Therefore in the considered view of this Court, the petitioner has not made out any acceptable grounds so as to interfere with the well reasoned Judgment passed by the First Appellate Court. Therefore I record my finding in the affirmative. 37. In view of aforesaid discussions, the Revision Petition filed by the petitioner fails and liable to be dismissed. 38. Resultantly, I pass the following: Crl. R.P. filed by the petitioner under Section 397 of Cr.P.C. is dismissed. The Judgment so passed by the Prl. Dist. and Sessions Judge, Udupi in Crl.A. No.51/2012 dated 05.03.2015 is hereby confirmed. Send a copy of this order to both the Trial Court and the Appellate Court, forthwith. Return the Trial Court and Appellate Court records.