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judgement


IN THE HIGH COURT OF JUDICATURE AT MADRAS

 

DATED:   15/ 10 /2012

 

CORAM

 

THE HONOURABLE MR.JUSTICE C.S.KARNAN

 

Crl.R.C.No.1321 of 2011 &

M.P.Nos.1 and 2 of 2011

 

 

 

 

K.Sugi       .. Petitioner 

 

Vs.

 

R.Rajarathinam .. Respondent 

 

 

 

 

PRAYER : Criminal Revision is filed under Sections 397 and 401 of Cr.P.C.,  to set-aside the order dated 15.03.2011 of the learned VI Additional Sessions Judge, Chennai, allowing the criminal appeal No.197 of 2010 and restore the order in Crl.M.P.No.1582 of 2010 in C.C.No.277 of 2010, on the file of the XV Metropolitan Magistrate, Chennai, awarding a sum of Rs.7,500/- as interim maintenance to the petitioner herein.

 

 

For Petitioner : M/s.Sudha Ramalingam

 

For Respondent : Mr.Shivakumar

 

 

*******

 

O R D E R

 

The revision petitioner / respondent / petitioner had preferred the present revision in Crl.R.C.No.1321 of 2011 against the judgment made in C.A.No.197 of 2010, on the file of VI Additional Sessions Judge, Chennai, setting aside the order made in Crl.M.P.No.1582 of 2010 in C.C.No.277 of 2010, on the file of the XV Metropolitan Magistrate, Chennai, awarding a sum of Rs.7,500/- as interim maintenance to the petitioner herein and remanding the matter back to the trial Court

 

2. The short facts of the case are as follows:-

The petitioner / wife has filed a petition under Section 12 r/w Section 18(a), (b), (d), Section (19)(1)(f), 19(8), Section 20(1), Section 22 of the Protection of Women from Domestic Violence Act, 2005, along with an affidavit praying for 

(A) Protection Order: Preventing the respondent from (a) Committing any act of domestic violence, (b) aiding or abetting in the commission of acts of domestic violence, (c) attempting to communicate with the petitioner; in any form whatsoever, 

(B) Residence Order: (a) direct the respondent to secure same level of alternate accommodation as enjoyed by the petitioner in the shared household or to pay rent of Rs.7,500/- per month for a similar accommodation; (b) to return all her household articles, jewels, clothes and furnishings etc., as furnished in the schedule hereunder.

(C) Monetary Order:-directing the respondent to pay a sum of Rs.20,000/- (Rupees Twenty Thousand only) per month towards maintenance for the petitioner.

(D) Pay Rs.20,00,000/- (Rupees Twenty Lakhs only)towards damages for injuries, mental torture and emotional distress caused by the acts of domestic violence.

 

3. It was submitted that the petitioner married the respondent herein on 10.11.2008, at Balaji Sree Mahal, 3rd Avenue, 3rd Floor, Anna Nagar, Chennai-40 and the marriage was an arranged one with the consent of the elders of both families. It was stated that soon after marriage, the petitioner began living with the respondent and his family at Chennai. It was submitted that on the first night of her marriage, the respondent had told her that he had married her only because he was told that her parents would give him 100 sovereigns of gold and conduct the marriage at their expense and that he was not keen on marrying her otherwise as she was only 5 feet tall. It was submitted that the respondent was not interested in conjugal relationship right from the beginning of her marriage and that the marriage has not been consummated. It was submitted that within a week of marriage, the respondent along with his parents and sisters started ill-treating and harassing her. It was submitted that on 25.11.2008, the petitioner was instructed by the respondent and his family that she must not meet or talk to any of her own family members. It was submitted that the demands for more jewels and money continued and for pongal festival, the respondent's family demanded Rs.5,000/- in cash and also 5 sovereigns of gold. When the petitioner's parents asked for some time to arrange for the same, the respondent insisted that she must stay with them and not set feet in the matrimonial house until they brought him the 5 sovereigns of gold as per his demand.  Left with no other option, the petitioner's parents made arrangements for the required amount and the respondent was given a gold chain weighing 5 sovereigns and Rs.5,000/-. It was submitted that in February 2009, the respondent demanded Rs.5,00,000/- to set up a new business. When the petitioner confronted him about his salary and asked him about his earnings, he admitted that he had not actually completed his M.B.A. as was represented at the time of marriage negotiations. The petitioner was shocked, since at the time of marriage, the respondent had told her that he had completed his M.B.A and earning more than Rs.50,000/- per month. It was submitted that the petitioner was subjected to constant cruelty, both physically and mentally by the respondent. On the night of 23.06.2009, the petitioner was threatened by the respondent that even if he cuts her fingers with a knife, she must not tell any one and must say that it was something which had accidentally happened while chopping vegetables. The petitioner was extremely threatened about her safety and has secretly called up her house and told them to come and secure her from the respondent. She had preferred a complaint at the W-13, All Women Police Station, Old Washermenpet and the same has been registered as Crime No.4 of 2009, dated 24.11.2009. Apprehending arrest, the respondent herein approached the Court of the Sessions Judge seeking anticipatory bail and during the course of these proceedings, the matter was referred for Mediation by the learned Principal Sessions Judge. It was submitted that even before the Dowry Prohibition Officer  and the mediators in the Sessions Court, the respondent behaved rudely and called her "kullachi". It was submitted that the  respondent and his family are in possession of a total of 72 sovereigns of jewels and other household items and silverware that were bought by the petitioner's parents for their wedding. It was submitted that the respondent had told her that if she initiates any  kind of action against him, he will ensure that none of the jewellery are returned to her and had also threatened that more harm will be caused to her life and that of her family.

 

4. Subsequently, the complaint was taken on file of the XV Metropolitan Magistrate, George Town, Chennai as C.C.No.277 of 2010. During the pendency of the case, the petitioner / wife has preferred a petition in Crl.M.P.No.1582 of 2010 in C.C.No.277 of 2010 stating that she is unemployed and has no income whatsoever and was suffering as she was deprived of even her personal belongings such as dresses, ornaments and other things given to her by her parents at the time of her marriage. Hence, the petitioner has filed the petition for interim reliefs to avoid vagrancy and for getting her dresses etc., without any delay and has prayed the Court to grant ad interim order of maintenance directing the respondent to pay the petitioner:-

(a) Rs.20,000/- per month pending disposal of the above C.C. from the date of this petition and

(b) to direct the respondent to secure same level of alternate accommodation as enjoyed by the petitioner in the shared household or to pay rent of Rs.7,500/- per month for a similar accommodation;

(c) to return all the household articles, jewels, clothes and furnishings etc., as furnished in the schedule hereunder pending disposal of the above C.C. And grant such other reliefs as is deemed fit and proper in the circumstances of the case.

 

5. The respondent / husband has filed a counter and resisted the said petition. The respondent has admitted that the marriage between him and the petitioner was held on 10.11.2008 at Anna Nagar and it was an arranged marriage. The respondent has denied the allegation in the petition that he and his parents and sister demanded dowry from the complainant and her family members. The respondent had also denied the averments made by the petitioner that he had agreed to the marriage only after the petitioner's parents had fully met his demand of 100 sovereigns of gold jewellery and the marriage expenses.  It was submitted that the petitioner, even on the first night of marriage, had asked him to  set-up a separate house and wanted him to buy land with the help of her father, who is a land broker. It was submitted that the petitioner's whole idea was to separate him from his parents and establish a separate house. The respondent has stated that he had informed the petitioner that he was the only son to his parents and since his father had a heart attack in the month of July 2008, he cannot inform his parents about her desire to set-up a separate house. It was submitted that as the respondent had refused to accede to the demands of the petitioner, the petitioner had avoided having s*xual intercourse with him, in spite of the respondent's attempts to have s*xual intercourse with her. It was submitted that the allegation of the petitioner that the respondent was not interested in conjugal relationship is false. It was submitted that the entire marriage expenses was equally shared by the petitioner's parents and his parents. It was submitted that the petitioner, on the pretext of seeking a bride for her brother, left the respondent's residence on 24.06.2009 with her entire personal jewellery and never returned in spite of requests made by the respondent. It was submitted that the petitioner's sole intention was to extract money from the respondent's parents and for this purpose, the petitioner had preferred  a complaint, on false averments, at the All Women Wing Police Station, Old Washermenpet, and subsequently, the case was registered as crime No.4 of 2009. It was submitted that even at the time of mediation in the anticipatory bail application filed by the respondent, the petitioner had demanded Rs.50,000/-. The respondent had also denied the allegations in the petition that the petitioner was subjected to physical and mental cruelty and that she is subjected to threat by him and his family members. The respondent has submitted that he had not committed any domestic violence against the petitioner and that the complaint had been filed against him only for the purpose of extracting lumpsum payment from him and his family members. It was submitted that at the time of marriage, the respondent was running a consultancy business and as he had incurred loss, he closed down his business, and is not employed. At present, the respondent is assisting his father  in his father's small business. It was submitted that as the respondent has not caused any domestic violence to the petitioner, the petitioner is not entitled to receive Rs.20,000/- as interim monthly maintenance and Rs.7,500/- for alternate accommodation. Hence, it was prayed to dismiss the criminal miscellaneous petition.

 

6. When the case was taken up on 04.09.2010, for final hearing, the learned XV  Metropolitan Magistrate, George Town, Chennai-1, after hearing the arguments advanced by the learned counsels on both sides and after perusal of case records observed that both sides had agreed that the marriage was not consummated. The learned judge also observed that from the beginning of marriage life, the petitioner had been put into several hardships by the respondent and his family and that the petitioner was forced to give the complaint before the W-13 All Women Wing Police Station in Cr.No.4 of 2009, dated 24.11.2009. The learned judge observed that the respondent had given wrong information to vetri marriage bureau about his educational qualifications and salary and had wrongly informed that he is an M.B.A. Graduate and a computer engineer earning Rs.50,000/- per month.  The learned judge also observed that the allegation of the petitioner that her parents had spent Rs.20,00,000/- for the wedding had not been substantiated through documentary evidence. The learned Magistrate observed that on 23.06.2009 onwards, the petitioner herself  called her parents to take her away from the family of the respondent and that her parents came and took her to their house at Kolathur, Madras and that she had been staying with them from  that day onwards. The learned Magistrate observed that the petitioner had not stated anywhere in her petition or arguments made on her side that she was sent out of her matrimonial home by the respondent or by his relatives. It is seen on perusal of the complaint given by the petitioner at W-13, All Women Police Station that she had taken 48 sovereigns of gold with her while leaving the matrimonial home and that she had asked for remaining jewels. The learned Magistrate on observing that the petitioner is living with her mother and brother and holding that the petitioner is entitled to get a reasonable amount for conducting the case and for her food, clothing, travelling etc., awarded an interim monthly maintenance of Rs.7,500/- to the petitioner payable by the respondent from the date of the petition till the disposal of the case along with the cost of this petition also. The learned judge dismissed the prayer for the cost of alternate accommodation. 

 

7. Aggrieved by the order passed by the  XV Metropolitan Magistrate, Chennai in Crl.M.P.No.1582 of 2010 in C.C.No.277 of 2010, the respondent has preferred an appeal in C.A.No.197 of 2010, before the VI Additional Sessions Judge, Chennai. The learned counsel for the appellant contended that the trial Court erred in awarding a sum of Rs.7,500/- as interim relief without any materials on record. It was contended that as the respondent / wife is living with her mother and sister at Kulathur, the order of the Court is liable to be set-aside. It was also contended that the trial Court failed to see that as the father of the appellant had suffered from a heart attack, the appellant was forced to look after his business and as such the appellant does not have any independent income of his own and is not in a position to pay Rs.7,500/- per month as interim maintenance.

 

8. The learned judge, on perusal of records observed that no documentary evidence was relied on by the trial Court to come to the conclusion that the appellant had the financial capacity to pay such interim maintenance of Rs.7,500/- per month. The learned judge also observed that no specific averment had been made by the respondent / wife in the complaint about the business carried on by the appellant. The learned judge also observed that as per Section 12(1) of the Act, whenever, the application is filed under Section 12(1) r/w 23 of the Act, the trial Court is bound to consider the Domestic incidental report for passing any order. The learned judge opined that it is mandatory on the part of the trial Court to first consider the domestic incidental report. The learned judge also observed that a criminal case was filed by the wife as against the husband and it was pending on the file of Criminal court for offences under Section 498(A) and 4 and 6 of the Dowry Prohibition Act. It is also admitted that the respondent / wife is living with her mother and brother at Kolathur. As such, the learned judge opined that granting protection to live in a shared household will not arise because of strained relationship and the judge also observed that there was no allegation that the respondent / wife was dispossessed from the shared household. Hence, the learned judge, on considering the oral and documentary evidence, set-aside the order in Crl.M.P.No.1582 of 2010 in C.C.No.277 of 2010, on the file of the XV Metropolitan Magistrate, Chennai, in awarding a sum of Rs.7,500/- as interim maintenance and consequently Crl.M.P.No.1582 of 2010 was remanded back to the trial Court to consider afresh by allowing them to produce documentary evidences, or oral evidences and to dispose of the same on merits within a period of one week from the date of receipt of records. The learned judge also directed the trial Court to dispose of the main petition filed by the wife against the respondent / husband within 30 days from the date of receipt of the order.

 

9. Aggrieved by the dismissal of order in Crl.M.P.No.1582 of 2010, the respondent / wife has preferred the present revision.

 

10. The learned counsel for the revision petitioner has contended that the appellate Court failed to consider that the marriage between the petitioner and the respondent is an admitted fact.  The fact that the petitioner herein is unemployed and is dependent on her parents is also not disputed. Under such circumstances, a prima facie case has been made out to award amount as interim maintenance considering the earning capacity of the respondent / husband and the style of living of the parties. It was also contended that the appellate Court erred in disposing the main appeal without taking into consideration the petition filed by the petitioner herein for payment out of the amount deposited by the respondent herein as per orders of the lower Court at the time of granting stay. The normal practice of disposing the interim applications before disposing main appeal was not followed and the petitioner could not even withdraw a minimal amount deposited by the respondent. It was also contended that the appellate Court has failed to consider that according to Section 23(2) of the Protection of Women from Domestic Violence Act, 2005, the learned Magistrate is allowed to pass even an ex-parte interim order if he is satisfied that a prima facie case of Domestic Violence exists, based on the affidavits submitted before him. That being the case, the appellate Court has erred in insisting on documentary evidence while deciding an interim prayer. It is also to be considered that the same was not an ex-parte order but a contested order passed on merits. The learned counsel for the revision petitioner submitted that the respondent had deposited a sum of Rs.50,000/-, on the file of  XV Metropolitan Magistrate, Chennai, as per the learned VI Additional Sessions Judge order passed in Crl.M.P.No.1100 of 2010 in C.A.No.197 of 2010. This deposit has been made by the respondent / husband by seeking permission after filing a Memo. Therefore, he cannot oppose the permission petition to withdraw the said amount.

 

11. The learned counsel for the revision petitioner has cited the following judgments in support of her contentions:-

(i) Sheetal Versus Hitesh & Another reported in CDJ 2011 BHC 2004

"It would be open for the parties to move for necessary alteration or modification of the INTERIM ORDER provided that, during pendency of the main application, necessary arrangement is made to provide residence to the applicant and her son. The Criminal Application is disposed of accordingly."

 

(ii) Sulochana Versus Kuttappan  reported in                                     CDJ 2007 Ker HC 359

 

"It may not inapposite in this context to remind the Magistrates also of the great responsibility on them while considering grant of interim ex parte orders under Section 23 of the Act. The nature of the possible orders under Sections 18 to 22 and the interim order that can be passed by invocation of such powers under Section 23 must instill in the mind of the Magistrate the concomitant degree of care and caution which is necessary before pausing ex parte interim orders under Section 23 read with Sections 18 to 22, In eases where existence of matrimony is disputed etc., alert application of mind will certainly be required be fore such ex parte interim orders are passed. I need only mention that the Magistrates must be conscious of the repercussions and ramifications of such ex parte interim orders which may be passed under Section 23 of the Act."

 

12. The learned counsel for the respondent submitted that the ex-parte order was passed in Crl.M.P.No.1582 of 2010 in C.C.No.277 of 2010, on the file of the XV Metropolitan Magistrate, Chennai. This ex-parte order was passed without framing necessary issues. In the said case, several issues had arisen and all the issues have to be decided after conducting full fledged trial. The said Criminal Miscellaneous Petition is also opposed by the respondent  after filing detailed counter statement. The learned counsel further submitted that without considering the income of the respondent and other documentary evidences, the ex-parte order has been passed in an arbitrary manner.

 

13. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side, and on perusing the  order passed in Crl.M.P.No.1100 of 2010 in C.A.No.197 of 2010, this court does not find any infirmity in the said order since the learned appellate judge ordered the learned XV Metropolitan Magistrate, to dispose the main case in C.C.No.277 of 2010, within a period of 15 days. Therefore, this Court is not warranted to interfere with the impugned order. However, the revision petitioner herein / wife is permitted to withdraw a sum of Rs.50,000/- (Rupees Fifty Thousand only) lying in the credit of  C.C.No.277 of 2010, on the file of the XV Metropolitan Magistrate, Chennai, after filing a Memo, without prejudice. This Court further directs the learned XV Metropolitan Magistrate, Chennai, to dispose the main case in C.C.No.277 of 2010, within a period of two months from the date of receipt of this order, after affording sufficient opportunities to the parties concerned.

 

14. Resultantly, the above revision is disposed of with the above modifications. Consequently, the order passed in C.A.No.197 of 2010, on the file of  VI Additional Sessions Judge, Chennai, dated 15.03.2011, setting aside the order made in Crl.M.P.No.1582 of 2010 in C.C.No.277 of 2010, on the file of the XV Metropolitan Magistrate, Chennai, dated 04.09.2010 is confirmed. Consequently, connected miscellaneous petitions are closed.  Accordingly ordered.

 

 

 

 

 

 

 

 

 

r n s

 

To

 

1.  The XV Metropolitan Magistrate,

    Chennai.

 

2.  The VI Additional Sessions Judge,

    Chennai

 
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