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The Muslim Women (Protection of Rights on Divorce) Act, 1986
The Code Of Criminal Procedure, 1973
Section 374 in The Code Of Criminal Procedure, 1973
Section 389 in The Code Of Criminal Procedure, 1973
Section 125(3) in The Code Of Criminal Procedure, 1973

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Karnataka High Court
Smt. Yashaswini vs Mr. M. Anegudde Ganesh on 29 January, 2016
Author: Rathnakala
                             1

                                                             ®
   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 29TH DAY OF JANUARY 2016

                        BEFORE

        THE HON'BLE MRS.JUSTICE RATHNAKALA

       WRIT PETITION NO.34469 OF 2015 (GM-RES)


BETWEEN:

SMT.YASHASWINI
AGED ABOUT 23 YEARS
W/O M.ANEGUDDE GANESH
R/AT MANASOORYA LANE
OPP. MASTHAN SAHEB
AKKIPET
BENGALURU - 560 053.                       ...PETITIONER

(BY SRI A.ABHINAV RAMANAND, ADV.)

AND:

MR.M.ANEGUDDE GANESH
AGED ABOUT 31 YEARS
S/O M.B.MRUTHUNJAYA
R/AT KOTTANA BEEDI
R.R.ROAD, MAGADI TOWN
RAMANAGAR DISTRICT - 562 117.              ...RESPONDENT

(BY SRI M.R.NANJUNDA GOWDA, ADV.)


      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482
OF CR.P.C., PRAYING TO PROHIBIT/QUASH THE ORDER DATED
21.05.2015 PASSED ON I.A.NO.1 IN CRL.APPEAL NO.730/2015 ON
THE FILE OF THE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE
AT ANNEX-E TO THE W.P.
                                 2



     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 14/01/2016 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE
THE FOLLOWING:-

                          ORDER

This petition is by the wife, who is aggrieved by the order of the Sessions Court whereby the learned Sessions Judge in his appellate jurisdiction on the interim application of appellant/husband stayed the order of the Magistrate.

2. The learned Magistrate while partly allowing the petition of the wife filed under Section 12 of the Protection of Women from Domestic Violence ct, 2005 ('the Act' for brevity), prohibited the husband from inflicting violence against the wife and further ordered, if any such violence is perpetuated, the concerned Police shall give adequate protection to her. That apart, the husband was ordered to pay monthly maintenance of Rs.10,000/- till her life or until she marries again, along with Rs.5 lakhs compensation towards the injuries caused to her, mental, emotional and financial distress suffered by her. Further, he was directed to arrange a separate residential house and pay legal expense of Rs.1,000/-.

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3. The aggrieved husband challenged above order in the appeal as provided under Section 29 of the Act read with Section 374 of the Code of Criminal Procedure ('the Code of brevity). On his interim application filed under Section 29 of the Act, an exparte order is passed by the learned Sessions Judge thus:

"The execution of order dated 06/05/2015 passed by the MMTC-3, Bangalore, in Crl.M.C. No.164/2014 is stayed for a period of three months with the following conditions:
The Appellant shall pay monthly maintenance of Rs.4,000/- to the Respondent from the date of order of the trial court till further orders.
Issue notice to the Respondent and call the L.C.R. Call on by 27/06/2015".

4. Sri.A.Abhinav Ramanand, learned Counsel appearing for the petitioner/wife submits that, the learned Sessions Judge had no jurisdiction to pass the interim order in an appeal preferred under Section 29 of the Act. Section 29 of the Act does not contemplate authority in the Sessions Court to pass an interim order staying the execution of the order appealed before it. Expressly the Legislature has not provided an avenue/platform to the Sessions Court to pass interim 4 orders. There is clear embargo/restriction on the power of the Sessions Court from passing the interim order, staying the operation and effect of the order impugned. In Super Cassettes Industries Limited -vs- Music Broadcast Private Limited reported in (2012) 5 SCC 488, the question came up before the Apex Court about the authority of the Copyright Board to grant interim order in the absence of express provision in the Act. After examination of the law on the point it was held that, the language employed under the Copyright Act contemplates only a final order after hearing and after holding enquiry to see whether the ground for withholding of the work from the public was justified or not and there is no hint of any power having been given to the Board to make interim arrangements, such as, grant of interim compulsory licences during the pendency of a final decision of an application. Same analogy holds good for the present circumstances also. The right of appeal though given to the respondent, no such order to pass interim order/interim arrangement during the pendency of the appeal is provided; the Sessions Court in its appellate jurisdiction could not have 5 passed interim order except disposing of the appeal on its merits.

5. In reply, Sri.M.R.Nanjunda Gowda, learned Counsel for the respondent/husband submits that, the order passed by the court below was only for a period of three months. The learned Counsel for the appellant has already submitted his arguments on the merits of the appeal. Without submitting reply argument in the appeal, this petition is filed without any reasonable cause. Though no express provision is provided under the Act, enabling the Sessions Court to stay the operation of the order of the Magistrate, it goes without saying that if during the pendency of the appeal, the order of the Magistrate if executed, then the very purpose of filing the appeal will be defeated. This Court in the matter of Munilakshmamma -vs- Deputy Commissioner, Kolar District reported in 1988(2) KLJ 209 examined the legality of the interim order passed by the Deputy Commissioner in his appellate jurisdiction in refusing to order interim stay pending disposal of the appeal. The Deputy Commissioner had rejected the application seeking stay of the order 6 challenged before him pending disposal of the appeal without assigning any reason. In the said circumstance, this Court observed thus:

"3. The point for consideration is whether the order passed by the 1st Respondent vide Annexure- A is sustainable. When a statute provides a remedy by way of appeal to the appellate Authority against the impugned order, such a legal remedy should not be frustrated by an order of refusal to grant a stay of the operation of the impugned order because the implementation of the impugned order would not only disturb the status of the appellant but also defeat the very purpose for which the remedy is sought before the Appellate Authority. Once the impugned order is implemented the appeal could not serve any useful purpose".

In that view of the matter, the appellate court having exercised its jurisdiction under Section 29 of the Act read with Section 374 of the Code by necessary implication has power to stay the operation of the order assailed before it. Section 374 of Code falling within Chapter 29 takes to its fold powers under Section 386 of the Code, which enables the appellate court to suspend the sentence pending appeal and releasing the appellant on bail, etc. Hence, the order of the Sessions Court is legal and the circumstances do not warrant invoking 7 the jurisdiction under Section 482 of Code to quash the said order.

6. With the above rival submissions, let us have a glance over Section 29 of the Act, which admits appeal on the order of the Magistrate passed under Section 12 of the Act, which reads thus:

"29. Appeal. - There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.

7. But in continuation of the above provision for statutory Appeal, the Act does not further depict any sort of jurisdiction, enablement on the appellate court to pass interim orders staying the execution of the order appealed before it. The Apex Court in a judgment reported in (2015) 2 SCC 99 in the matter of Shalu Ojha -vs- Prashant Ojha, though observed the said grey area, however, did not dwell much of on that, but only made a passing remarks as under:

". . . . We only note that there is no express grant of power granted on the sessions court while such power is expressly conferred on the Magistrate 8 under Section 23. Apart from that, the power to grant interim orders is not always inherent in every court. Such powers are either expressly conferred or implied in certain circumstances. This Court in Super Cassettes Industries Limited v. Music Broadcast Private Limited, (2012) 5 SCC 488, examined this question in detail. At any rate, we do not propose to decide whether the Sessions Court has the power to grant interim order such as the one sought by the respondent herein during the pendency of the appeal, for that issue has not been argued before us.
30. We presume (we emphasize that we only presume for the purpose of this appeal) that the Sessions Court does have such power. If such a power exists then it can certainly be exercised by the Sessions Court on such terms and conditions which in the opinion of the Sessions Court are justified in the facts and circumstances of a given case. In the alternative, if the Sessions Court does not have the power to grant interim orders during the Pendency of the appeal, the Sessions Court ought not to have stayed the execution of the maintenance order passed by the Magistrate. . . . "

That prompts an inference that no authority is vested with the Sessions Court to pass interim order in the nature of stay of the order of the court below or any other such order.

8. Similar question, that is authority to order stay of proceedings of lower Court mentioning correct Act came up for consideration before this Court in the matter pertaining to Scheduled Castes and Scheduled Tribes (Prohibition of 9 Transfer of Certain Lands)d Act, 1978. The Deputy Commissioner being the appellate authority under the Act having not been provided any power to pass interim order, in appeal he had rejected the interim order seeking stay of the order of the Tahsildar without assigning any reason. In that context, the learned Single Judge of this Court had observed thus:

"3. The point for consideration is whether the order passed by the 1st Respondent vide Annexure-A is sustainable. When a statute provides a remedy by way of appeal to the appellate Authority against the impugned order, such a legal remedy should not be frustrated by an order of refusal to grant a stay of the operation of the impugned order because the implementation of the impugned order would not only disturb the status of the appellant but also defeat the very purpose for which the remedy is sought before the Appellate Authority. Once the impugned order is implemented the appeal could not serve any useful purpose. In the instant case, the impugned order is not only cryptic but also devoid of reasons. It would be less than reasonable to say that the party who is likely to be affected by Civil consequences of an order refusing to grant stay, has not right to know the reasons which prompted the Appellate Authority to decline an order of stay. It has to be borne in mind that even an order passed on the interim application for grant of stay is an order which is subject to judicial review and unless reasons are assigned even the very process of judicial review 10 would suffer from handicap to a considerable extent. In short, an order of refusal to grant an interim order of stay against the impugned order by the Appellate Authority without assigning reasons tantaments to an arbitrary order violative of elementary principles of natural justice".

9. By virtue of Section 28 of the Act with respect to the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and the offences under Section 31, procedure as at the Code of Criminal Procedure 1973, is made applicable. Though by sub- section (2) of the said Section, the learned Magistrate can lay down his own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23. Under Section 12, an application can be presented to the Magistrate seeking one or more reliefs under the Act by the aggrieved person. Section 18 is in respect of protection orders; Section 19 is in respect of Residence orders; Section 20 is the maintenance to aggrieved woman and her children; Section 21 pertains to custody orders; Section 22 is regarding damage and compensation orders and Section 23 is about power to grant interim and exparte orders. But deliberately the procedure contemplated under the Code at Chapter XXIV 11 pertaining to Appeals is not made applicable to an appeal under Section 29 of the Act, though the appeal to the Sessions Court is provided. As such, a Sessions Court is not embedded with any inherent power to pass an interim order. Power is vested with the Magistrate to lay down a procedure on his own while dealing with a petition before him and pass appropriate order for interim custody of minor children. The Sessions Court under Section 389 of the Code gets jurisdiction to suspend the sentence in pending appeal and release the appellant on bail. But an appeal under Section 29 of the Act is not abridged with Section 389 of the Code by any express provision. That leaves a party aggrieved by the order of the Magistrate (under the Act) in void till disposal of the appeal.

10. As noticed above, relief in terms of money will be granted under Section 20 of the Act as maintenance, expenses met and losses incurred as a result of Domestic Violence; under Section 22 of the Act, by way of compensation and damages for the injuries including mental torture and emotional distress caused by the Act of Domestic Violence. When it comes to the question of recovery of monetary relief 12 except sub-section (5) and (6) of Section 20 of the Act, no effective procedure is contemplated.

11. Sub-Sections (5) & (6) of Section 20 of the Act reads thus:

"20. Monetary reliefs.-
(1). . .
(2). . .
(3). . .
(4). . .
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1). (6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the Court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent."

12. What if employer and debtor of the respondent is not there? The solution shall be looked for within the conspectus of the Act only. The Code having been made applicable to proceedings under the Act by necessary implication, the procedure contemplated under Section 125(3) of the Code (which is the one for recovery of maintenance 13 amount ordered under Section 125(1 & 2) of the Code) is the only mode for execution of a monetary relief ordered by the Magistrate. Section 125(3) with its proviso of the Code reads thus:

"125. Order for maintenance of wives, children and parents.-
(1) .....
(2) ......
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing".

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13. The procedure under sub-Section (3) since contemplates fine levy warrant for every breach of order in the manner provided for levying fines, the procedure to be followed is Chapter XXXII-C-Levy of fine - Sections 421 to 424. That apart, the Magistrate at his discretion can sentence him to imprisonment for breach of the maintenance/interim maintenance as provided under sub-section (3) of Section 125. Form Nos.I to VII are contemplated under the Act itself for various purpose including an application under Section 12 of the Act to the Magistrate (Form II), etc. But no format for appeal is contemplated in the Schedule. No procedure is contemplated as to how said appeal shall be dealt by the Appellate Court. Magistrate dealing with a petition filed under Section 12 of the Act is empowered to grant both civil remedy and penal action. Relevant penal provisions are:

"31. Penalty for breach of protection order by respondent.- (1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.
15
(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who has passed the order, the breach of which has been alleged to have been caused by the accused.
(3) While framing charges under sub- section (1), the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.
32.........
33. Penalty for not discharging duty by Protection Officer.- If any Protection Officer fails or refuses to discharge his duties as directed by the Magistrate in the protection order without any sufficient cause, he shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both".

14. Imagine a situation where appeal is preferred against order of the Magistrate, in the absence of any empowerment, the Sessions Court would not stay the order impugned before it, in execution of the order of the Magistrate acting under Section 125(3) of the Code, the appellant is sentenced to imprisonment or prosecuted for any of offence 16 committed under sub-section (1) of Section 31 or Section 33 of the Act. The eventuality is defaulter appellant is put behind the bar. By the time the appeal is heard and disposed of on its merits, the appellant would have served whole of sentence, which is why it has become expedient to ascertain the procedure in respect of appeals under Section 29 of the Act until the Legislature addresses the issue.

15. The Sessions Judge dealing with an appeal under Section 29 of the Act has no other go except to adopt the procedure contemplated under Chapter XXIX of the Code; Section 372 to Section 394 pertaining to Appeals to fill up the vacuum under the Act. For our purpose, Section 389 (1) to (3) are relevant, which reads thus:

"389. Suspension of sentence pending the appeal; release of appellant on bail.- (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or 17 imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release;
Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.
(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-
(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail.
order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(4) ..............."

16. A respondent, who suffers an order of the Magistrate in a proceeding under the Act, cannot be equated to a convict 18 under any other Penal Laws for the purpose of Section 389. However, if he is ordered for imprisonment, during the course of recovery of the monetary benefit or in a proceeding initiated under Section 31 or 33 of the Act, the order of the Magistrate which is civil in nature when prosecuted on its breach takes the complexion of an offence punishable with fine or imprisonment. Consequently such sentence becomes amenable to the jurisdiction of the appellate court under Section 389 of the Code. The J.M.F.C. Court, which passes such order of imprisonment, can as well exercise its jurisdiction under sub-section (3) of Section 389, if necessary application is moved by the aggrieved party by suspending the sentence passed by it, so as to accommodate the respondent to prosecute his statutory appeal.

17. In the absence of any express or implied provision under the Act and also in the absence of anything conferring the benefits of Section 389 automatically in respect of any or every order in a proceeding under Section 12 of the Act until the Legislature addresses this issue, the Appellate Court has no power to stay the operation of the order passed by the 19 Magistrate with the exception of two situations noticed supra, (1) an order of sentence of imprisonment in a recovery proceeding under Section 125(3) of the Code. (2) In a proceedings under Section 31 and 33 of the Act.

18. The inevitable conclusion is, the interim order passed by the lower appellate court was without jurisdiction and perse illegal.

Accordingly, the petition is allowed. The order dated 21.5.2015 passed on I.A.No.1 in Criminal Appeal No.730/2015 by the Principal City Civil and Sessions Judge, Bangalore, is quashed.

Sd/-

JUDGE KNM/-