Court: Madras High Court
Bench: JUSTICE M. Venugopal
P.K. Nagarajan @ Meenakshisundaram Vs. N. Jeyarani & Ors. On 30 January 2014
Law Point:
Revision petitioner/husband and 1st respondent/wife have not adduced any oral and documentary evidence to substantiate their averments and counter averments — Order relating to maintenance claim and Residential protection order passed by Trial Court in favour of 1st respondent/wife set aside — Matter remitted back for fresh disposal to Trial Court in the manner known to law and in accordance with law — Interim maintenance of Rs. 10,000 p.m. be paid to respondent Nos. 2 and 3 towards their education as interim monetary order under Section 20 of Act — Directions issued by Trial Court to revision petitioner/ husband to pay sum of Rs. 3,000 p.m. to each of the 2nd and 3rd petitioners towards interim maintenance till disposal of main case.
JUDGEMENT
1. The Revision Petitioner/Husband has projected the present Criminal Revision before this Court as against the order dated 27.6.2013 in Cr.M.P. No. 47 of 2012 in S.T.C. No. 1 of 2012 passed by the learned Family Court Judge, Madurai. Crl.R.C. No. 609 of 2013:
The Revision Petitioners/Wife and Children have preferred the instant Criminal Revision as against the order dated 27.6.2013 in Cr.M.P. No. 47 of 2012 passed by the learned Family Court Judge, Madurai in so far as dismissing the claim of maintenance of the 1st Petitioner/Wife.
2. The learned Family Court Judge, Madurai, while passing the impugned order in Cr.M.P. No. 47 of 2012 in S.T.C. No. l of 2012 dated 27.6.2013 [filed by the Respondents (Wife and Children)], has, in paragraphs 10 and 11, inter alia, observed and held as follows:
“As per evidence she left the matrimonial home from October 2008. But she filed this application in the year 2009 and the address of the respondent also given in D. No. 73 & 74 Southveli Street, Madurai. The respondent also received notice which was served by this Court in the same address. The respondent also admits that he is residing in the said house. Admittedly, it is a matrimonial home where the petitioner is entitled to reside along with the respondent. Admittedly children are studying in the School at Madurai. Considering their welfare, this Court permitted the petitioner to reside in the house D. Nos. 73 & 74, Southveli Street, Madurai and in respect of the relief of protection to reside in that house, the petitioner is directed to approach concern police station, if she felt any in security in future, accordingly the petition is allowed.
11. In the result, the petition is allowed as follows:
(1) the respondent directed to pay the school fees as per Ex. P.1 and Ex. P.2 which is related to the period of 2010-2011.
(2) the respondent is also directed to pay a sum of Rs. 15,000 to each of the 2nd and 3rd petitioners for the school fees related to the period 2012-2013.
(3) the respondent is also directed to pay a sum of Rs. 3,000 p.m. to each of the 2nd and 3rd petitioners towards interim maintenance (totally Rs. 6,000 p.m.) till the disposal of the main application.
(4) with regard to maintenance of the 1st petitioner, the petition is dismissed.
(5) the petitioner is permitted to reside in the house D. No. 73 & 74, Southveli Street, Madurai and in respect of the relief of protection to reside in that house, the petitioner is directed to approach concern police station if she felt any in security in future.”
3. Petition Averments of the Respondents/Wife and Children (Petitioners in Crl.R.C. No. 609 of 2013):
(i) The Revision Petitioner is her husband and the marriage between them was solemnised on 22.5.1988 at Tamil Nadu Chamber of Commerce, Madurai Town. They resided at 18, Arumuga Aasari Lane, South Gate, Madurai. Thereafter, they resided at Ramachandrapuram and finally resided at D. Nos. 73-74, South Veli Street, Madurai along with her two sons till she was driven out from the house in the month of October 2008. Their last living together was at the house which belong to the Revision Petitioner/Husband and the same is not rented house.
(ii) The Revision Petitioner/Husband hails from a reputed business family in Madurai. The father of the Revision Petitioner/Husband P.Karuppasamy Nadar established a Multi-Crore Business in Textile Showroom and other fields. At the time of partition, the textile showroom was in the name and style of P.Karuppasamay Nadar Corporation and huge amount of movable and immovable assets were allotted to him.
(iii) After she was driven out from the matrimonial house by the Revision Petitioner/Husband during October 2008, she had to stay at her parents house at Thalavaipuram, Virudhunagar District and her two sons were put up in a private hostel at Madurai to complete their academic year at Vikasa School at Ponnagaram Compound, Madurai. In March 2010, she along with her two minor sons shifted to 2/8, Sivananthasalai, Arapalayam Cross Road, Madurai for mortgage. She took debts and other source of loans to take this house for mortgage and sheltered herself and two minor sons from then onwards till date. Her two minor sons continued their school from this residence. The eldest son P.K.N. Karuppasamy studying 11th Standard at Vikasa School, Ponnagaram Compound, Madurai and her youngest son (N. Jeyarajan) is now studying 10th Standard at the same school. Her two sons and herself feel very insecure in the present life without having a permanent and rightful residence to lead a dignified life. They are also suffering to meet out the day-to-day expenses such as food, medicine, cloths and other essential commodities.
(iv) She filed a petition under Section 12 of the Protection of Women from Domestic Violence Act before the learned Judicial Magistrate at Rajapalayam in 2009, seeking certain relief such as Monetary order, Residence order, Protection order etc.
(v) She is entitled to avail the remedy available under the Act and the Revision Petitioner/Husband (Respondent in Cr.M.P. No. 47 of 2012) is liable to provide all necessary amenities and reliefs that are claimed in her petition. She apprehend that the harassment, injury and harm may be inflicted upon her again by the Revision Petitioner/Husband before disposal of the petition. The pleadings and the documents prima facie discloses that the Revision Petitioner has committed the acts of Domestic Violence and there is always likelihood that he would committed domestic violence in future also.
(vi) Since she was residing at Thalavaipuram, Virudhunagar District, she filed the above S.T.C. No. 1777 of 2009 at Rajapalayam, where the Revision Petitioner/Husband appeared and filed counter. At present, she is residing at the above mentioned address at Madurai and filed a petition for transfer the aforesaid S.T.C. Case from Rajapalayam to Madurai before the Hon’ble High Court at Madurai Bench. In Crl.O.P.(MD). No. 15083 of 2011, on 28.3.2012, this Court allowed her Original Petition to transfer the aforesaid S.T.C. Case from Rajapalayam Magistrate Court to the Family Court at Madurai to be tried along with H.M.O.P. NO. 126 of 2009.
(vii) The mortgaged house at Arapalayam, Madurai where along with her two sons, she is put up now is at the verge of closure of mortgage. Further, the Revision Petitioner/Husband is vehemently taking steps to sell the aforesaid matrimonial home – shared house hold to some third parties. She has no independent source of income sufficient to support herself and her two minor sons and bear the necessary expenses of the legal proceedings. With great difficulty for the past 3 years, she is to maintain herself and her two minor sons. The burden of debt, loans through other sources is increasing on her shoulder day by day. The continuing Act of cruelty, desertion and harassment physically and mentally to herself and her two minor sons by the Revision Petitioner/Husband show that he has not mended his mind till date. Therefore, she has sought the following orders to be passed by this Court in directing the Revision Petitioner/Husband:
“1. To pay me Rs. 20,000 per month and Rs. 15,000 to second petitioner per month and Rs. 10,000 to third petitioner per month for maintenance, education, etc., as interim monetary order under Section 20 of the Act.
2. To give residence order to self and second and third petitioners at respondent’s residence (Matrimonial home-shared household) – at Door Nos. 73-74, South Veli Street, Madurai – 1, Under Sections 17 and 19 of the Act,
3. To give protection order under Section 18 of the Act, to self and second and third petitioners as against the respondent to reside at the Matrimonial home – shared house hold.”
4. Counter Averments of the Revision Petitioner/Husband (Respondent in Crl.R.C. No. 609 of 2013):
(i) It is true that the marriage took place between the Petitioner/Husband and the 1st Respondent/Wife. But the two male children viz., Respondents 2 and 3 were not born to him and this fact was known to the 1st Respondent/Wife but still she deceived him by stating that the Respondents 2 and 3 were born to him. Further, for proving the fact that the Respondents 2 and 3 (Children) were not born to him, he had given a petition for DNA test.
(ii) Further, the 1st Respondent had illegal intimacy with one Kamarutheen and both of them were visiting various places and the said Kamarutheen is running a shop from his house at Therku Veethi Street at a distance of 100 feet. Only for continuing her illegal relationship with the said Kamarutheen, the 1st Respondent is requiring the house for residence. Before the Learned Rajapalayam Magistrate Court in the same petition the 1st Respondent had asked for the Anna Nagar house.
(iii) The Revision Petitioner/Husband contends that Cr.M.P. No. 47 of 2012 filed by the Respondents under the Domestic Violence Act is not maintainable and only with a view to lead a life of illegal intimacy along with Kamarutheen at Madurai, the 1st Respondent is asking the house and there is no other reason. Also that, the 1st Respondent had give a statement before the Learned Judicial Magistrate Court, Rajapalayam and that she is residing in her parents house quite comfortably and only after the Petitioner/Husband filed the HMOP Petition for divorce, the 1st Respondent/Wife as an afterthought by assigning false reasons had filed the Cr.M.P. No. 47 of 2012 without any basis or no proof.
(iv) Furthermore, she had admitted that per month she was getting an income of Rs. 50,000 through Textile Business. Also that, the 1st Respondent from the year 1993 had acquaintance with Kamarutheen and till the date of himself filing the divorce petition, the 1st Respondent had taken his money of Rs. 5,00,000 and given it to Kamarutheen and also she had pledged his jewels and obtained money and she was in possession of the same. As such, it is the plea of the Petitioner/Husband that there is no need for him to pay maintenance to the Respondents/Wife and Children.
(v) That apart, it is the stand of the Revision Petitioner/Husband that the Family Court has no jurisdiction to try the case under the Protection of Women from Domestic Violence Act.”
The Petitioner’s Contention in Crl.R.C. No. 570 of 2013:
5. The learned Counsel for the Petitioner/Husband contends that the order of the learned Family Court Judge, Madurai in Cr.M.P. No. 47 of 2012 in S.T.C. No. 1 of 2012 dated 27.6.2013 is arbitrary and suffers from non-application of mind.
6. According to the learned Counsel for the Petitioner/Husband, the learned Family Court Judge has committed a manifest error in taking the Cr.M.P. No. 47 of 21012 of the Respondents (Petitioners in Crl.R.C. No. 609 of 2013) for interim maintenance on file, when already there was similar application seeking interim maintenance is pending in H.M.O.P. No. 126 of 2009 (filed by the Revision Petitioner/Husband) and being tried with the application filed under the Protection of Women from Domestic Violence Act, 2005. Under these circumstances, the submission of the Learned Counsel for the Petitioner is that the Family Court should not have passed an order under this Act, depriving the right of Petitioner to file an appeal before the Court of Sessions as provided under Section 29 of the Act.
7. Advancing his arguments, the learned Counsel for the Petitioner/Husband contends that the learned Family Court Judge, Madurai failed to consider the fact that after marriage, the 1st Respondent/Wife’s demeanour, there is no good as she was having illicit intimacy with one Kamarutheen and out of said adulterous habit, the Respondents 2 and 3 (children) were born. At this stage, the learned Counsel for the Petitioner projects an argument that the Petitioner/Husband filed a petition for DNA test to prove the paternity of the Respondents 2 and 3 and the same is pending. Under such circumstances, the Family Court should not have passed an order, awarding interim maintenance to the Respondents 2 and 3 since they have sufficient means that too the Petitioner is indebted to several persons.
8. The Learned Counsel for the Petitioner/Husband strenuously submits that the learned Family Court Judge, Madurai committed an error in coming to the conclusion that the Respondents themselves left the matrimonial house and they are separately living as per their desire/wish and therefore, they could not attribute any domestic violence against the Petitioner.
9. Proceeding further, the Learned Counsel for the Petitioner takes a stand that even as per proviso to Section 12 of Protection of Women from Domestic Violence Act, 2005, before passing any order on such application, the Magistrate shall take into account any domestic incident report received by him from the Protection Officer or the service provider and also no such report received either from the Protection Officer or service provider and also no conclusion was arrived at as to whether it was satisfied that the Petitioner committed any domestic violence against the Respondents or not.
10. The learned Counsel for the Petitioner/Husband submits that the order dated 27.6.2013 in Cr.M.P. No. 47 of 2012 in S.T.C. No. 1 of 2012 passed by the Trial Court has no legal sanctity. Continuing further, the Petitioner/Husband contends that the learned Family Court Judge, Madurai has erred in considering the fact that the 1st Respondent/Wife owned a house worth about 50 Lakh in Alvarpuram, Madurai and the 2nd and 3rd Respondents were not at all born to the Petitioner, but they were residing in her parental house at Thalavaipuram, now they are resided at Madurai.
11. That apart, the learned Counsel for the Petitioner submits that the Trial Court has failed to appreciate that the 1st Respondent/Wife specifically admitted in her petition that she is running the Textile Business and running a Readymade Showroom earning Rs. 50,000 per month. In this connection, the learned Counsel for the Petitioner takes a plea that from the inception of divorce proceedings, it is the specific case of the Petitioner that she took away 400 sovereigns of golden jewels, 10 Kilograms of silver articles and 4 lakh cash from the matrimonial house and moreover, the 1st Respondent purchased a house in her name and she adduced evidence that the said house was already sold. Further, no sale deed is produced before the Court to prove the same. Per contra, the Revision Petitioner/Husband produced Ex. R.l sale deed.
12. The Learned Counsel for the Petitioner contends that the learned Family Court Judge simply allowed the Cr.M.P. No. 47 of 2012 in S.T.C. No. l of 2012 by means of an order dated 27.6.2013 by directing the Petitioner/Husband to bear the school fees for the Respondents 2 and 3 and granted interim maintenance of Rs. 3,000 to them till the disposal of the said application which is a clear case of gender bias besides the same being an arbitrary one.
13. Lastly, it is the contention of the learned Counsel for the Petitioner/Husband that the Respondents admitted that they are residing separately ever since 16.8.2008 and, therefore, they ought to have a conclusive findings that the domestic violence take place against the aggrieved person and the very complaint itself was filed only during 2009. Furthermore, in the present case, there was no such domestic violence is committed by the Petitioner before passing of the order under the Protection of Women from Domestic Violence Act, 2005.
The Respondents Contention in Crl.R.C. No. 570 of 2013:
14. The learned Counsel for the Respondents submits that the Trial Court has not appreciated a very important fact that the 1st Respondent (1st Petitioner in Crl.R.C. No. 609 of 2013) was restrained by the Revision Petitioner/Husband in doing the business of readymade shop and further, the Trial Court ought to have directed the Revision Petitioner/Husband to provide maintenance to the 1st Respondent/Wife because of the simple reason that she has no means to maintain herself.
15. The learned Counsel for the Respondents contends that the Revision Petitioner/Husband preventing the access of the wife to the premises is a domestic violence and wife conducted readymade garment business at P.K.N. Plasa and from the year 1988 till 2008 the family went on smoothly and later she was driven out from the house without any basis.
16. Added further, the learned Counsel for the Respondents submits that the 1st Respondent/Wife requires a place to reside and to do a business and also she must be provided with a monthly maintenance by the Revision Petitioner/Husband and for the past 4 years she was not doing any business.
17. Further, the learned Counsel for the Respondents takes a stand that the Revision Petitioner/Husband took away her documents and when the 1st Respondent/Wife has no livelihood, then, she is entitled to get the maintenance amount from the Revision Petitioner/Husband.
18. The learned Counsel for the Respondents submits that as per Section 17 of the Protection of Women from Domestic Violence Act, the 1st Respondent/Wife has a right to reside in a shared household. Further, it is the plea of the 1st Respondent/Wife that the Revision Petitioner/Husband cannot virtually exclude her and that only in Revision, the Revision Petitioner/Husband submitted that he sold the property and in fact, the principles of ‘lis pendens’ will apply.
19. Moreover, the learned Counsel for the Respondents submits that the part of the house at Madurai is not locked and the 1st Respondent is in rented house at Madurai and in fact, to defeat the order of the Trial Court, the Petitioner/Husband has come out with a plea that the house property was sold. In fact, the plea of the 1st Respondent/Wife is that the ‘Residence Order’ granted by the Trial Court need not be disturbed.
20. The learned Counsel for the Respondents projects an argument that after 14 years of the marriage that took place between the Revision Petitioner/Husband and the 1st Respondent/Wife, it is not open to the Petitioner/Husband to take a plea that the Respondents 2 and 3 (Children) do not belong to him.
21. The Learned Counsel for the Respondents submits that the ‘Right of Residence’ (sharing household right) is a statutory one under the Social Welfare Legislation viz., the Protection of Women from Domestic Violence Act.
22. The Learned Counsel for the Respondents (Wife and Children) submits that the 1st Respondent/Wife and one R.Subramanian have entered into a House Rent Deed dated 13.2.2013 in respect of the Door No. 32/1 Sri Abirami Buildings, 1st Floor, Northern Portion, Flat – ‘D’ House (3-Bed Room Flat measuring 1300 square feet etc.).
23. The learned Counsel for the Respondents cites the decision of the Hon’ble Supreme Court in Goutam Kundu v. State of West Bengal and Another, II (1993) DMC 162 (SC)=AIR 1993 SC 2295 and 2296, wherein it is observed as follows:
“Section 112 requires the party disputing the paternity to prove non-access in order to dispel the presumption. ‘Access’; and ‘non-access’; mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual cohabitation. It is a rebuttable presumption of law under Section 112 that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. Thus following is the position as to permissibility of blood test to prove paternity.
(1) That Courts in India cannot order blood test as a matter of course.
(2) Wherever applications are made for such prayer for blood test cannot be entertained.
(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section112 of the Evidence Act.
(4) The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for analysis.”
Discussions and Dispositions
24. At the outset, it is to be pointed out that in S.T.C. No. 1777 of 2009, the Respondents (Wife and Children) as Petitioners have filed a Petition/Application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 seeking the following reliefs as against the Revision Petitioner/Husband:
[I] Protection Order under Section 18—
(i) Prohibiting the respondent from committing any act of Domestic Violence against the petitioner;
(ii) Prohibiting the respondent from committing any act of domestic violence against the parents and brother of the petitioner including filing false complaint against them by utilizing the cheques belong to them which are now kept by the respondent;
(iii) Prohibiting the respondent from alienating the assets/properties stand in his name;
(iv) Prohibiting the respondent from performing or entering into second marriage with any woman;
(v) Prohibiting the respondent from disturbing or interfering with the access and performance of business affairs of the petitioner at her Readymade Show Room namely P.K.N. Plaza at D. No. 18, Upstairs, South Chithirai Street, Madurai—
[II] Residential Order under Section 19
(i) Restraining the respondent from dispossessing or in any manner disturbing the possession of the petitioner from the shared household when she exercise her right under Section 19 of the Act; [or]
(ii) Directing the respondent to secure same level of alternative accommodation for the petitioner by handing over the lock and key of the house at D. No. 327, 80 Feet Road, Anna Nagar Madurai after vacating the tenant of the premises;
(iii) Directing the respondent to return a sum of Rs. 3,50,000 cash, 1 + kgs of Silver utensils and other household articles such as Refrigerator, T.V., wooden cot with bed Bureau, etc, which were presented by the parents and relatives of the petitioner at the time of marriage;
(iv) Directing the respondent to return and handover all the records and documents pertaining to the Readymade Show Room namely P.K.N. Plaza, situated at D.No. 18, Upstairs, South Chithirai Street, Madurai-1.
[III] Monetary Reliefs under Section 20
(i) Directing the respondent to pay a sum of Rs. 4,50,000 as a loss caused due to the removal of the petitioner by the respondent from the property P.K.N. Plaza from her control and directing the respondent to pay the further loss of Rs. 50,000 per month till he returns or hand over the property to the petitioner;
(ii) Directing the respondent to pay a sum of Rs. 5,00,000 as the expenses incurred and loss suffered by the petitioner as a result of domestic violence;
(iii) Directing the respondent to pay a sum of Rs. 1,00,000 the aggrieved person as monthly maintenance;
[IV] Compensation Order under Section 22
(i) Directing the respondent to pay a sum of Rs. 5,00,0000 (Rs. five crores only) as compensation for the injuries to mental torture and emotional distress caused by the acts of domestic violence committed by the respondent.Later, the said S.T.C. No.1777 of 2009 on the file of the learned Judicial Magistrate, Rajapalayam, was transferred to the Family Court, Madurai to be tried along with H.M.O.P. No.126 of 2009 filed by the Revision Petitioner/Husband on the file of the learned Family Court Judge, Madurai. It appears that the main case viz., S.T.C. No. 1 of 2012 (formerly S.T.C.No.1777 of 2009) is pending on the file of the Family Court, Madurai. Pending disposal of S.T.C.No.1 of 2012 on the file of the Family Court, Madurai, the 1st Respondent/Wife have filed Cr.M.P. No. 47 of 2012 and claimed a sum of Rs. 20,000 per month towards her maintenance and Rs. 15,000 per month to the 2nd Respondent/Son and Rs. 10,000 per month to the 3rd Respondent/Son for their maintenance, education, etc. as interim monetary relief as per ingredients of Section 20 of the Protection of Women from Domestic Violence Act and she has sought for passing of an Residential Order by the Trial Court to herself, Respondents 2 and 3 at Revision Petitioner/Husband’s residence (Matrimonial home-shared household) at Door No. 73-74, South Veli Street, Madurai – 1, as per Section 17 and 19 of the Act. That apart, the 1st Respondent has also sought for Protection Order under Section 18 of the Act to herself and her children viz., 2nd and 3rd Respondents as against the Revision Petitioner/Husband to reside at the matrimonial home (shared household).
25. It is to be pointed out that ordinarily the relationship is deemed to exist for claiming maintenance by a spouse against her husband. It is to be noted that the husband is bound to maintain his wife and mere offer to maintain is not sufficient, as opined by this Court. Ordinarily, the issue/question of maintenance is to be determined in relation to the income of the husband. The burden shifts on the Revision Petitioner/Husband when circumstances show that the 1st Respondent/Wife is unable to maintain herself. Also that, the onus is on the Revision Petitioner/Husband to show that the 1st Respondent/Wife has ample means to maintain herself.
26. At this juncture, this Court points out that even if the Husband is obtained a Divorce on the ground of adultery, he would be liable to pay maintenance to the Wife unless he proves in the proceedings under Section 125 of the Criminal Procedure Code that wife is living in adultery as per decision Nalini Kumar Pal v. Smt. Khukurani Pal, 1977 Cr.LJ (NOC) 148 (Cal.). Further, the Court will not shelve the question of validity of marriage and the paternity of child. But the Court must decide whether she is entitled to maintenance, as opined by this Court. One cannot be ignored a vital fact that the earning of the wife may be considered in determining the maintenance amount. Moreover, the father is also liable to pay for the children as per decision Shri Bhagwan Putt v. Smt. Kamla Devi and Another, (1975) 2 SCC 386. If the Revision Petitioner/Husband is not denying neglect or refusal to maintain his wife or children, then, the maintenance order passed by a Court of Law is a valid one. Also that, the mere friendship with a man does not amount to living in adultery as per decision Smt. Mehbubabi Nasir Shaikh v. Nasir Farid Shaikh and Another, 1977 Cr.LJ 391 (Bom.) (DB). As a matter of fact, the charge of adultery must be proved by cogent and reliable evidence as per decision Laharam v. Melan Bai, 1987 (2) Crimes 560, 562 (MP).
27. The term expression ‘living in adultery’ connotes a course of adulterous conduct more or less continuous and not occasional as per decision Smt. Rachita Rout v. Basanta Kumar Rout, 1987 Cr.LJ 655 (Ori.). Further, it is not necessary that wife should live in the house of the adulterer.
28. In the decision M.A. Mony v. M.P. Leelamma and Another, 2007 Cr.LJ 2604, it is observed that ‘Claim before the Family Court relates to title over the property, whereas the claim here in this petition under Section 12 read with Section 19 of the Act is for a right of residence in the property which the petitioner claims to be his own. If declared by the Family Court, no order for residence need be insisted. But at the moment as per the documents, title vests in the petitioner and therefore the claim for an order of residence under Section 19 of the Act is in no way affected by the claim for declaration of title in the Original Petition pending before the Family Court’.
29. Really speaking, Section 19 of the Protection of Women from Domestic Violence Act, 2005 speaks of ‘Residence Orders’ is to be read along with Section 12 ‘Application to Magistrate’ of the Act. An established fact is that for an order under Section 19 of the Act an application under Section 12 is to be filed before the learned Magistrate and the Magistrate has to satisfy himself before passing an order under Section 19 of the Act that domestic violence has taken place as per decision M. Nirmala v. Dr. Gandla Balakotaiah, 2008 (3) ALD 486.
30. In terms of Section 12 of the Act, an aggrieved can directly approach the Magistrate or she can approach the Protection Officer in case of emergency service provider and with their help to the Magistrate concerned and there was no illegality in directly approaching the Magistrate for taking cognizance in the matter. The Magistrate concerned can take the help of Protection Officer and service provider after receiving the complaint etc., as per decision Baldev Raj Gagneja and Others v. Smt. Neha Gagneja, AIR 2010 (NOC) 689 (Uttar.).
31. The relief provided under the Protection of Women from Domestic Violence Act, 2005 is in addition to the relief which may be available in any legal proceeding before Civil Court, Family Court or Criminal Court affecting the aggrieved person and the Respondent. In the absence of notification of Protection Officer or the registered service provider, it may not be possible for the Magistrate to receive the Domestic Incident Report before disposing of the application made by an aggrieved person under Section 12 of the Act, as per decision Maroti v. Gangubai and Another, II (2012) DMC 201. Also, it is to be noted that the maintenance order need not be based on the Domestic Incident Report.
32. In the decision Jyotsana Sharda v. Gaurav Sharda, 169 (2010) DLT 630=II (2010) DLT (CRL.) 956=II (2010) CCR 460, in paragraph Nos. 19 to 21, it is observed and held as follows:
“19. I have gone through the said authority no doubt the Hon’ble Supreme Court in Amarnath’s case has clearly laid down that any order which substantially affects the rights of the accused and decides certain rights of the parties cannot be said to be an interlocutory order but if that principle is applied to the case of the husband/Gaurav Sharda, I do not feel that this judgment is of any help to him in the instant case. The rights of the husband/Gaurav Sharda, so far as the grant of maintenance is concerned, no doubt it effects his right and imposes obligation on him to pay the maintenance but does not decide the rights of the husband/Gaurav Sharda once for all. It is only an interim arrangement which has been arrived at after seeing the documents by the learned Magistrate in order to prevent the child going into the vagrancy because of lack of funds. Moreover, the judgment which has been relied upon by the husband/Gaurav Sharda case was involving a factual situation not under Domestic Violence Act but under Indian Penal Code. It has been laid down by the Hon’ble Supreme Court in Haryana Financial Corporation v. Jagdamba Oil, 2002 (3) SCC 496, that while applying the principle of law laid down in a case the same should not be done in a mechanical manner. Obviously, the said judgment in Amar Nath’s case does not help the husband/Gaurav Sharda in any manner whatsoever.
20. The second submission of the learned Counsel for the husband/Gaurav Sharda is that the learned Magistrate vide impugned order dated 1.2.2008 has given the rights of residence in respect of the entire flat to Jyotsana Sharda/wife which is situated in Shushant Estate, Gurgaon. It was contended that it has been laid down by the Apex Court in S.R. Batra v. Taruna Batra, AIR 2005 DELHI 270, that a property which is owned by the parents in law, then one cannot treat it as shared accommodation and consequently no right of residence can be given to anyone in the said principle. Similarly, proposition has been laid down by our own High Court in Rajinder Singh Saluja v. Sarbjyot Kaur Saluja Ors., 159 (2009) DLT 629 (DB). It was contended that admittedly the flat in question is jointly owned by Gaurav Sharda and his mother, therefore, at best the wife Jyotsana Sharda has a right to live only in one half of the portion which falls to the share of the husband Gaurav Sharda while as the impugned order which has been passed by the learned Magistrate and upheld by the learned Additional Sessions Judge has prevented the Gaurav Sharda and his mother or any other member of the family to go into said accommodation. It was next contended by the learned Counsel for the husband/Gaurav Sharda that the Petitioner is prepared to hire an accommodation and the wife Jyotsana Sharda may shift to the said hired accommodation while as the husband would continue to pay the rent and other charges for the essential amenities or alternatively it was contended that the petitioner Gaurav Sharda is even prepared to dispose of the said property and give one fourth share of the sale proceeds to Jyotsana Sharda for the purpose of hiring an accommodation rather than suffer the impugned order regarding rights of residence having been given to wife altogether as ordered by the learned Magistrate.
21. I have carefully considered the submission made by the learned Counsel for Gaurav Sharda. The learned Counsel has on the statement of the husband Gaurav Sharda provided the right of residence in the Sushant Estate flat of the husband which is also jointly owned by his mother. Jyotsana Sharda had got an FIR registered against the Gaurav Sharda and his other family members on account of threat to dispose of the flat and also on account of subjecting her cruelty with a view to demand dowry. It was in those proceedings that they had undertaken before the police that they would not go to the flat in question and disturb the possession of the wife Jyotsana Sharda. So far as the plea of the husband Gaurav Sharda to the extent that the house is not a shared accommodation is concerned that is not correct because admittedly the house is owned in the proportion of one and half each by the mother and the son Gaurav Sharda, therefore, this is a ‘shared accommodation’ because Jyotsana Sharda was living in the said accommodation as a matrimonial before differences erupted. The contention of Gaurav Sharda to dispose of the property or to hire the property where the wife of Gaurav Sharda namely Jyotsana Sharda could shift that plead is fraught with danger inasmuch as experience of cases of this nature shows that this is only ploy adopted by the husband invariably to divest the wife of their possession or right of residence in respect of shared accommodation. This offer has neither been accepted by the other side, i.e. Jyotsana Sharda, his wife nor approved by the Court even. The Court does not find that there is any infirmity in the impugned order by the learned Additional Sessions Judge upholding the order of the learned Magistrate both with regard to the payment of maintenance of Rs. 10,000 to the child of Gaurav Sharda or with regard to grant of right of residence to Jyotsana Sharda in the accommodation at Sushant Estate, Gurgaon. Both these arrangements are interim in nature, and therefore, cannot be varied at this stage.”
33. Admittedly, Section 12(1) of the Act visualises an application before the Magistrate wherein the proviso to the Section makes it clear that before passing an order by the Magistrate he shall take into consideration the domestic incident report received from the Protection Officer. However, no such proviso is envisaged under Section 26. If the intention of the Magistrate is that even if an application is projected before the Civil Court or Family Court or a Criminal Court by the affected persons, an order shall be passed by them taking into consideration any domestic incident report received from the Protection Officer or the service provider, in that event, the Legislature would have added necessary proviso as in the case of Section 12(1) even in Section 26 also. Therefore, a combined reading of the ingredients of Sections 12 and 26 would make it clear that when a Magistrate passes an order, he shall receive the report from the Protection Officer. However, such a report is not contemplated when an order is passed by the Civil Court or by the Family Court as per decision M. Palani v. Meenakshi, AIR 2008 Mad. 162, 165. Further, just because a petition was filed initially under Section 12 before the Magistrate Court and when a plea was taken that overlapping claims were made before the Magistrate and before Family Court, the said plea could not be said to be sufficient to non suit an aggrieved and an option to claim identical relief elsewhere vested in would not oust jurisdiction of the Magistrate under the 2005 Act and the proceedings could not be quashed on that ground as per decision M.A. Mony v. M.P. Leelamma and Another, 2007 Cr.LJ 2604.
34. It is to be pointed out that it would be unjust and unreasonable to disallow a woman to claim maintenance when she had not pursued a carrier or be in service during subsistence and continuation of her marriage and had taken up a job or service only when parties had separated as per decision Anup Avinash Varadpande v. Anusha Anup Varadpande, II (2010) DMC 3.
35. Coming to the aspect of ‘Residence Orders’ under Section 19 of the Act, it is to be pointed out that the Magistrate may on being satisfied that domestic violence has taken place pass a residence order restraining the Respondents from dispossessing or disturbing the possession of the aggrieved person from the shared household, directing the Respondent to remove himself from the shared household etc. It is also provided that as per Section 19 of the Act, no order shall be passed against any person who is a woman directing her to remove herself from the shared household. In fact, Sub-section (2) of Section 19 of the Act enjoins the Magistrate to impose additional conditions and pass any other direction in order to protect the safety of the aggrieved person or her child. Sub-section (3) of Section 19 provides for execution of a bond by the Respondents for prevention of the domestic violence. Section 19(5) of the Act empowers the Magistrate to pass an order directing the officer-in-charge of the concerned police station to give protection to the aggrieved person or to assist in implementation of the residence order.
36. At this stage, it may not be out of place for this Court to make a relevant mention that in the decision Rakesh v. Rajnesh, III (2011) DMC 842=2012 (2) CCC 174 (Raj.), it was observed that there was pendency of divorce petition on the ground of desertion and the Court was empowered to grant maintenance as both proceedings independent of each other.
37. It cannot be disputed that the husband’s duty for maintaining his wife cannot be assigned to another person. Her right as against him is one that wife cannot transfer it to another. No doubt, a husband is personally liable for the wife’s maintenance as per decision Alluri Bala Satya Krishna Kumari and Another v. Alluri Varalakshmi and Others, AIR 1976 AP 365. Section 20(2) of the Protection of Women from Domestic Violence Act enjoins a duty upon the Court to award a fair, adequate and reasonable maintenance while keeping in mind the standard or living to which the aggrieved person is used to. Indeed, Section 26 of the Protection of Women From Domestic Violence Act speaks to the effect that any relief available under the Act may also be sought in any legal proceeding before a Civil Court, Family Court or a Criminal Court and that any relief which may be granted under the Act may be sought for in addition to and along with reliefs sought for in a suit or legal proceeding before a civil and criminal Court.
38. In the teeth of the scheme of the Act, especially this Court bearing in mind of the ingredients of Section 26 of the Protection of Women from Domestic Violence Act, the 1st Respondent/Wife is entitled to seek relief available to her in terms of Section 18, 19, 20, 21 and 22 in the maintenance proceeding pending in the Family Court. In the normal course, the 1st Respondent/Wife is to move an application under Section 26 read with Section 12 in which she seeks the relief in question. But, in the instant case, the 1st Respondent/Wife and her children viz., Respondents 2 and 3 in Crl.R.C. No. 570 of 2013 have originally filed S.T.C. No. 1777 of 2009 on the file of the learned Judicial Magistrate Court, Rajapalayam which later was transferred to the file of learned Family Court Judge, Madurai as per order of this Court in Crl.O.P.(MD). No. 15083 of 2011 dated 28.3.2012 to be tried along with H.M.O.P.No.126 of 2009 on the file of the Family Court, Madurai. The Family Court cannot grant any relief available under Sections 18 to 22 of the Act, if such reliefs are sought for in pending proceeding. However, for an independent proceeding claiming relief under Sections 18 to 22 of the Protection of Women from Domestic Violence Act only the concerned Magistrate has jurisdiction as per Section 27 of the Act, as per decision in Kumari Behera v. State of Orissa, AIR 2010 Ori. 68.
39. At this stage, this Court makes a useful reference to the following decisions to prevent an aberration of Justice and to promote substantial cause of Justice:
(a) In the decision Master Anant Narayan Rai and Another v. Siddharth Rai and Another, reported in I (2010) DMC 689=168 (2010) DLT 682, in paragraphs 40 to 44, it is observed and held as follows—
“40. In the case of Neelam Malhotra v. Rajinder Malhotra, 1994 AIR (Del) 234, it was held that there can be no precise or settled formulae to assess the quantum of interim maintenance. Each case depends upon its own facts. There is no doubt that where a person is self employed, she/he tends to disclose incorrect income in the income tax return filed by him/her. There is no mathematical formula to precisely calculate any accurate amount to be given during pendency of the interim maintenance proceedings. The legislature gives wide and flexible power to the Court to decide the maintenance pendente lite considering the income and other factors like status of living and day to day expenses of the parties, etc.
41. In the present case, the contention of plaintiff No. 2 that she is earning only Rs. 5,000 from the petrol pump is hardly believable and the true picture in this regard will come after recording of the evidence of the plaintiff No. 2. As already discussed, it cannot be determined with certainty as to how much the defendant No. 1 is earning. As regard the earning of defendant No. 1, if any, from the properties and assets allegedly belonging to the HUF of late Sh. Kalpnath Rai, since defendant No. 1 has challenged its validity as well as raised the point of jurisdiction in the written statement, therefore, the prayer sought thereof by the plaintiffs cannot be allowed at this stage unless the same is proved. At the same time, defendant No. 1 has not disputed the fact that he has been receiving rent of the sum of Rs. 88,000 from property No. D-4, Upasana Building, Hailey Road, Connaught Place, New Delhi and in light of this undisputed fact, I find that the relief of maintenance can be granted to the plaintiffs from the said earnings.
42. Therefore, the defendant No. 1 is directed to pay maintenance @ Rs. 30,000 p.m. from the date of filing the application as the monthly expenses of plaintiff No. 1 who is in the care and custody of plaintiff No. 2 and the maintenance to the plaintiff No. 2. It is made clear that the defendant No. 1 is allowed four weeks time from the date of passing of this order to pay the arrears of the maintenance.
43. The defendant No. 1 is also restrained from alienating/encumbering the properties mentioned in annexure ‘A’ of the plaint in any manner to any third party till the final disposal of the suit, as it appears from the facts and circumstances of the present case that the plaintiffs have made a prima facie case in their favour. The balance of convenience also lies in favour of the plaintiffs and against the defendants. If the interim order already granted is not confirmed, the plaintiffs will suffer irretrievable loss and injury. Thus, in order to protect the rights of the plaintiffs the order dated 12.10.2007 is made absolute.
44. With the above-stated directions, I.A. No. 10842/2007 and I.A. No. 7820/2008 are disposed of.”
(b) In the decision Sukrit Verma and Another v. State of Rajasthan and Another, III (2011) DMC 394, 401 and 402, wherein in paragraphs 15 to 19, it is observed and held as follows—
“15. Learned Counsel for the Petitioner is not justified in claiming that maintenance should have been calculated in terms of rupees, rather than in terms of dollars. The documents which were submitted before the learned Trial Court showed the earning of the petitioner in terms of dollors. Moreover, while calculating the monetary relief under Section 20 of the Act, the learned Trial Court has clearly stated that equivalent amount of dollars should be paid to the respondent. Therefore, the contention raised by the learned Counsel is unsustainable.
16. Section 20(2) of the Act casts a duty upon the Court to award a fair, adequate and reasonable maintenance while keeping in mind the standard of living to which the aggrieved person has used to. In the present case since the respondent wife had lived in the USA, naturally she was used to a high standard of living. Therefore, the maintenance of $ 2000 per month is most fair, and reasonable.
17. In an era of human rights, of gender equality, the dignity of women is unquestionable. Articles 14 and 15 of the Constitution of India recognise the dignity of women. The Constitution empowers the Parliament to enact laws in favour of women. Flowing from the constitutional ranges, Section 125, Cr.P.C, Section 24, Hindu Marriage Act, Section 20, Domestic Violence Act ensure that women are paid maintenance by the husband. Section 26 of the Act further lays down that the maintenance paid under the Act, would be in addition to maintenance paid under any other law being in force for the time being. Therefore, the provisions of the Act are supplementary to provisions of other law in force, which guarantee the right of maintenance to the women Hence, the observations made by Their Lordships of Delhi High Court, in the case of Sanjay Bhardwaj, 171 (2010) DLT 644 = III (2010) DLT (Crl) 738 = II (2010) DMC 574, that ‘No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not’. Such an observation is clearly contrary to the provisions of law. Hence, this Court respectfully disagrees with the opinion of Their Lordships of the Delhi High Court.
18. None of the laws, mentioned above, make the inability of earning as a valid defence. In fact, according to Section 125(3), Cr.P.C, if a husband does not maintain his wife, after an order has been passed in favour of the wife, he is liable to be imprisoned. Section 20(6) of the Act empowers the Court to direct a debtor of the respondent to either directly pay the maintenance to the aggrieved person, or to deposit the maintenance/compensation in the Court. Of course, while granting maintenance the Court has to weigh the comparative hardship of the husband and of the wife. In case the wife has sufficient means to maintain herself, and in case the husband does not have any means whatsoever, in such a scenario the Court may not impose the liability of maintenance upon the husband. However, such is not the case here.
19. The Law has always stood to favour of the women. For the Law recognises their vulnerability for survival in the cruel world. Women, being a keeper of hearth in home, need to be protected as they are the foundation of any society. If women are exposed to physical abuses, to sexual exploitation, the very foundation of the society would begin to weaken. It is only after recognising their importance, sociologically, that the ancient Indian Seers had opined that “God dwell only in those houses, where women are respected”. Thus, both the law and society recognise a moral and legal duty of the husband to maintain the wife.”
(c) In the decision Smt. Neetu Singh v. Sunil Singh, AIR 2008 Chhat. 1, it is held as follows—
“In view of scheme of Domestic Violence Act, 2005, specially as per the provisions of Section 26 of the Act, the appellant wife is entitled to seek relief available to her under Sections 18, 19, 20, 21, 22 of Act, 2005 in the maintenance proceeding pending in the Family Court. But the appellant wife is required to move an application under Section 26 read with section in which she is seeking relief. However, instead of doing that, the appellant wife moved an independent fresh application under Section 12 of the Act, 2005 which can be entertained only by the Magistrate having jurisdiction. An application under Section 12 cannot be filed before Family Court because proceeding under Section 12 of the Act, 2005 as per the scheme of the Act, has to be filed before the Magistrate competent to entertain the application.”
(d) In the decision P. Chandrasekhara Pillai v. Valsala Chandran and Another, 2007 Cr.LJ 2328, 2329, it is held as follows—
“In the circumstances of the instant case there were no circumstances justifying the invocation of the powers under Section 482, Cr.P.C. against the impugned interim order of residence passed under Section 23 read with Section 19 of the Protection of Women from Domestic Violence Act, at the instance of the petitioner, who had not invoked his right of appeal under Section 29 of the Act nor invoked his right to appear before the Magistrate and pray for vacation/alternation/modification of the impugned interim order already passed. When the crucial question was about the grant of interim order in favour of the wife and in these circumstances the mere fact that relief had been granted in respect of the children also, though unsatisfactory, was not sufficient to justify the invocation of the jurisdiction under Section 482, Cr.P.C.”
(e) In the decision of this Court in Dennison Paulraj and Others v. Mrs. Mayawinola, (2008) 2 MLJ (Cr.) 389, 391, it is held as follows:
“I. The proceedings for judicial separation initiated by the first petitioner would not be a bar against the respondent/wife’s invoking protection under Protection of Women from Domestic Violence Act, 2005; II. In order to take a petition under Protection of Women from Domestic Violence Act, 2005, on file, the Court has to consider whether there is prima facie allegation of acts of domestic violence against the husband and in laws, by the wife.
III. As per Section 31 of Protection of Women from Domestic Violence Act, 2005, acts of domestic violence do not attract penal consequences.
IV. Only a breach of the protection order is construed as an offence and the penal consequence would emanate from the date of the protection order and would not dated back to acts of domestic violence by the husband and his relatives.
V. The Court is competent to take cognisance of acts of domestic violence committed even prior to the Protection of Women from Domestic Violence Act, 2005 coming into force.
VI. The Protection of Women from Domestic Violence Act, 2005 can be applied retrospectively to take cognisance of acts of violence allegedly committed even before Act came into force.
VII. Proceedings under Protection of Women from Domestic Violence Act, 2005 are summary in nature.”
40. The H.M.O.P. No. 126 of 2009 filed by the Revision Petitioner/Husband on the file of Family Court, Madurai is admittedly pending. As a matter of fact, the Revision Petitioner/Husband has filed the said H.M.O.P. under Section 13(i)(l) of the Hindu Marriage Act, 1955 seeking the relief of divorce in regard to the marriage that has taken place between him and the 1st Respondent/Wife (Revision Petitioner in Crl.R.C. No. 609 of 2013) on 22.5.1998, on the ground of adultery. Before the Trial Court in Cr.M.P. No. 47 of 2012 in S.T.C. No. 1 of 2012 on the file of the Family Court, Madurai (earlier as S.T.C.No.1777 of 2009 on the file of learned Judicial Magistrate, Rajapalayam), the 1st Respondent/Wife, as Petitioner, has not gone into the witness box and examined herself as a witness about the averments made by her in Cr.M.P. No. 47 of 2012 (filed by her). Likewise, the Revision Petitioner/Husband has also not gone into the box to substantiate his version of the case in Cr.M.P.No.47 of 2012 and has not examined himself as a witness. Only on the side of the Revision Petitioner/Husband, Ex. R.l-Xerox copy of sale deed was marked. However, on the side of the Respondents (Wife and Children), Exs.P.l and P.2-School Fee Receipts for the year 2010-2011 were marked.
41. At this juncture, a perusal of the averments in main S.T.C. No. 1 of 2012 goes to show that the 1st Respondent/Wife and her two children as Petitioners have sought the relief of Protection Order under Section 18 of the Protection of Women from Domestic Violence Act viz., prohibiting the Revision Petitioner/Husband from committing any act of domestic violence against her. Also, she has sought the relief of restraining the Revision Petitioner/Husband from committing any act of domestic violence against her parents and brother including filing of false complaint against them by utilising the cheques belong to them which are now kept by the Revision Petitioner/Husband. Further, the 1st Respondent/Wife has also sought order of prohibition, prohibiting the Respondent from alienating the assets/properties standing in his name. That apart, she has also sought the order of prohibition from the Trial Court in restraining the Revision Petitioner/Husband from performing or entering into second marriage with any woman. Furthermore, she has also sought for passing of a restraint order by the Trial Court prohibiting the Revision Petitioner/Husband from disturbing or interfering with the access and performance of business affairs at her Readymade Showroom namely, P.K.N. Plaza at D.No-18, Upstairs, South Chithirai Street, Madurai,
42. Pending final disposal of S.T.C.No.l of 2012 on the file of Family Court Judge, Madurai, the 1st Respondent/Wife as Petitioner in Cr.M.P. No. 47 of 2012 in S.T.C. No. 1 of 2012 has sought the relief of interim and ex parte orders from the Trial Court in directing the Revision Petitioner/Husband to pay her a sum of Rs. 20,000 per month, Rs. 15,000 per month to the 2nd Respondent/Son and Rs. 10,000 per month to the 3rd Respondent/Son for their maintenance, education, etc., as interim monetary order in terms of Section 20 of the Act. Also, the Respondents (wife and children) have sought an order of Residence Order in their favour concerning the Revision Petitioner/Husband’s residence (Matrimonial home-shared household) at Door No. 73-74, South Veli Street, Madurai-1, under Section 17 and 19 of the Act. Lastly, they had to give Protection Order under Section 18 of the Act, to herself and the Respondents 2 and 3 as against the Revision Petitioner/Husband to reside at the Matrimonial home – shared house hold. The 1st Respondent/Wife in her Cr.M.P.No.47 of 2012 (filed under Section 23 of the Protection of Women from Domestic Violence Act, 2005) has, inter alia, stated that she has no independent source of income sufficient to support herself and her two minor sons and to bear the necessary expenses of the legal proceeding. Further, with great difficulty for past 3 years till the date, she has been striving to maintain herself and her two minor sons. Further, she had stated that with great difficulty her two sons who are approaching their adolescence and who require extraordinary care in their health and education in particular are under big question mark.
43. A perusal of the contents of counter filed by the Revision Petitioner/Husband in Crl.R.C. No. 570 of 2013 unerringly points out that the 1st Respondent/Wife is in possession of both money and jewels over and above and therefore, there is no necessity for him to pay maintenance to his wife and her two children. In fact, even though the 1st Respondent/Wife filed an application in H.M.O.P.No.l26 of 2009 wherein she has sought maintenance claim from her husband, yet, there is no impediment in law for her and her children to project their claim in S.T.C. Case before the learned Judicial Magistrate at Rajapalayam and later the same being transferred to Family Court, Madurai as per order of this Court made in Crl.O.P.(MD). No. 15083 of 2011 dated 28.3.2012.
44. Another significant plea taken on behalf of the Revision Petitioner is that he disputes the paternity of the children viz., Respondents 2 and 3 (Petitioners 2 and 3 in Crl.R.C. No. 609 of 2013) only after a decision is given in DNA test, the 1st Respondent/Wife and her two children are entitled to claim maintenance. The application filed for DNA test before the Family Court, Madurai in H.M.O.P. No. 126 of 2009 was dismissed and later the Criminal Revision Petition is pending on the file of the Madurai Bench of Madras High Court.
45. According to the 1st Respondent/Wife, for the past 4 years she is not doing any business and originally she conducted Readymade Garment business at P.K.N. Plaza at Madurai. In fact, the said P.K.N. Plaza belongs to the Revision Petitioner/Husband. There is no dispute that the Revision Petitioner/Husband belongs to a well known business family. Whether the 1st Respondent/Wife is not doing any business for the past 4 years and also that whether she and her two children require monthly maintenance amount, are ordinarily to be proved by letting in oral and documentary evidence.
46. The Learned Counsel for the Respondents/Wife and Children submits that at the time of order being passed in Cr.M.P. No. 47 of 2012 in S.T.C. No. 1 of 2012, the Revision Petitioner was residing at Door No. 73-74, South Veli Street, Madurai. Further, in the counter to Cr.M.P. No. 47 of 2012, he has not stated that he is not residing there. Undoubtedly, the ‘Right to Reside’ by a spouse in a shared household is a valuable right and in fact, the Revision Petitioner/Husband and the 1st Respondent/Wife and two children can be placed in the same house. The Revision Petitioner/Husband cannot virtually exclude the 1st Respondent/Wife and the Children (notwithstanding the fact that the Revision Petitioner/Husband has taken a plea in counter to Cr.M.P. No. 47 of 2012 that the Respondents 2 and 3 (children) were not born to him), at this stage, it cannot be lost sight of that from the year 1988 till 2008 the family of the Revision Petitioner and the Respondents went on smoothly. After leaving with the 1st Respondent/Wife for nearly 20 years and having two children, it is not open to him to take a plea that the Respondents 2 and 3 viz., Children were not born to him. The main grievance of the 1st Respondent/Wife is that she was prevented by the Revision Petitioner/Husband from doing business and this was not taken into consideration by the Trial Court at the time of passing of the order in Cr.M.P.No.47 of 2012 on 27.6.2013.
47. It is also brought to the notice of this Court that because of the conditional stay granted in M.P.(MD). No. 1 of 2013 in Crl.R.C. No. 570 of 2013, the 1st Respondent/Wife has not gone to the house at Door No. 73-74 South Veli Street, Madurai. The prayer of the Respondents (Wife and Children) is that the Residence Order at Door No. 73-74 need not be disturbed.
48. The Learned Counsel for the 1st Respondent/Wife submits that the ground floor at Door No. 73-74 South Veli Street, Madurai was given on Lease and the upper portion is locked and kept by the Revision Petitioner/Husband and only to defeat the order of Trial Court passed in Cr.M.P. No. 47 of 2012 the Revision Petitioner/Husband has come out with the plea that Lessee has filed a suit in O.S. No. 658 of 2013 in which he has filed I.A.No.428 of 2013 arraying the Revision Petitioner/Husband and the 1st Respondent/Wife as parties. Whether the Lessee of the Revision Petitioner/Husband has filed O.S. No. 658 of 2013 on the file of the learned District Munsif Court, Madurai should also filed I.A. No. 428 of 2013 in a bona fide manner or he is only a Name Lender/Benamidar for filing the suit, are all matters which require adducing of oral and documentary evidence by the Revision Petitioner and the Respondents (Wife and Children) in Crl.R.C. No. 570 of 2013. It is true that the Court of Law can proceed on the basis of affidavit in Cr.M.P. No. 47 of 2012 and the counter averments made to the said miscellaneous petition, yet, this Court is of the considered view that the respective parties have taken a divergent stand to the litigation (since they make allegations and counter allegations in their petition and counter) and in fact, these can be thrashed out in a complete, comprehensive, conclusive and threadbare fashion only by adducing oral and documentary evidence to substantiate their version of their case in the manner known to law and in accordance with law, as opined by this Court.
49. It comes to be known that as against the Revision Petitioner/Husband and the 1st Respondent/Wife, one Madurai Air Systems represented by its Proprietor D.Jagdees has filed a suit in O.S. No. 658 of 2013 on the file of the learned District Munsif, Madurai in which I.A. No. 428 of 2013 has been filed by the Petitioner/Plaintiff therein seeking the relief of ad interim ex parte/temporary injunction pending disposal of the main suit against the Respondents/Defendants etc. from any way interfering with his peaceful possession and enjoyment of the suit property without resorting to the procedure established under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Further, on behalf of the Revision Petitioner/Husband, in the additional typed set of papers filed before this Court dated 19.11.2013, it is mentioned that the Certificate of Registration that the Madurai Air Systems principal place of business is situated at 73, 74, South Veli Street, etc. The Tax Payer’s Identification Number (TIN) is mentioned as 33844843082. The said Certificate was issued by the Assistant Commissioner (CT) (FAC), South Avani Moora Circle, Madurai dated 24.5.2013.
50. Continuing further, the plea taken on behalf of the Revision Petitioner/Husband is that the 1st Respondent/Wife is possessed of her own house at Aalvarpuram, worth about Rs. 50 Lakh and that the 1st Respondent/Wife and her children have taken away 10 grams of Silver Articles along with Rs. 20 lakh cash and for these pleas, there is no acceptable proof before this Court. Likewise, for the stand of the Petitioner/Husband that the 1st Respondent/Wife is doing Textile Business and earning Rs. 50,000 per month and therefore, she is not entitled for maintenance, there is no acceptable proof produced before this Court. Also, in regard to the plea taken by the Revision Petitioner/Husband that the 1st Respondent/Wife has taken 400 sovereign of gold. For that also, there is no acceptable proof to the satisfaction of this Court. Although the 1st Respondent/Wife has stated before the Trial Court (through her Counsel) that she has sold the Ex. R.I property standing in her name (a tiled house), yet, he has not produced any document to establish that she sold the house at a later point of time. As such, there is a simmering doubt in regard to the stand taken on behalf of the 1st Respondent/Wife that she is unable to maintain herself and her children.
51. In short, in the instant case on hand, there is no oral evidence adduced by the parties and also that witnesses have not been examined on their side. Also, there is absence of independent evidence. Furthermore, (a) whether the 1st Respondent/Wife is not doing business for the past 4 years? (b)whether the Revision Petitioner/Husband has let out only the ground floor of Door Nos. 73-74, South Veli Street, Madurai to a private party on lease? (c) whether the upper portion of the house is kept in his lock? are all matters which require oral and documentary evidence to be adduced by the parties concerned (by examining necessary witnesses). Also, whether the suit filed by the purported Lessee in O.S. No. 658 of 2013 as Plaintiff on the file of District Munsif, Madurai is a real one or whether it is a mere Name Lender of Benamidar’ is a matter to be thrashed out in the form of oral and necessary documentary evidence which has to be let in by the parties in the manner known to law and in accordance law.
52. It is not out of place for this Court to make a relevant mention that the Trial Court has not recorded a finding how much income the 1st Respondent/Wife was getting from the Textile Business she was doing, but, simply observed in paragraph 7 of the order in Cr.M.P. No. 47 of 2012 dated 27.6.2013 to the effect that’…. Further in her petition itself she prayed that the respondent should not cause any interference in the business affairs in a ready- made showroom where she doing textile business. So from her own evidence that she is having source of income to maintain herself. So she is not entitled for interim alimony at present’ are not correct because of the simple reason that the Revision Petitioner/Husband is bound to maintain her. Indeed, the Revision Petitioner/Husband cannot wriggle out of his statutory obligation to pay maintenance to the 1st Respondent/Wife and his two children. Only when he proves the ‘ground of adultery’ levelled against his wife viz., the 1st Respondent in H.M.O.P. No. 126 of 2009, till then, he is liable to pay maintenance. Ordinarily, if a husband neglects or refuses to maintain his wife, then, if a Court of Law passes an order of maintenance in favour of Wife or his Children, the same will be valid in law, as opined by this Court. It is to be remembered that the charge of adultery must be proved by cogent, coherent, convincing and reliable evidence.
53. It is to be pointed out that the Trial Court has not rendered a finding anywhere in its impugned order in Cr.M.P. No. 47 of 2012 dated 27.6.2013 or it quantified that the monthly income of the Revision Petitioner/Husband is so much. To put it precisely, the Trial Court has not stated in express words and that too with specificity that the income of the Revision Petitioner/Husband is so much by categorising the same in a definite form. Without rendering a finding on the income of the Revision Petitioner on a definite basis per month, the Trial Court has directed the Revision Petitioner/Husband to pay a sum of Rs. 3,000 per month to each of the 2nd and 3rd Petitioners (Respondents 2 and 3 in Crl.R.C. No. 570 of 2013) (totally Rs. 6,000 per month) till the disposal of the main application. Normally, the Wife and the Children are entitled to claim l/3rd income of the Husband/Father as maintenance, for their education, medical expenses etc.
54. Because of the interim order of conditional stay granted in favour of the Revision Petitioner/Husband passed by this Court in M.P.(MD). No. 1 of 2013 on 25.7.2013, the 1st Respondent/Wife is not able to enjoy the fruits of the Residence Order passed by the Trial Court in Cr.M.P. No. 47 of 2012 dated 27.6.2013 in a proper and realistic fashion.
55. On a careful consideration of respective contentions and in view of the fact that both the Revision Petitioner/Husband and the 1st Respondent/Wife have not adduced any oral and documentary evidence to substantiate their averments and counter averments, this Court, without expressing any opinion on the merits and demerits of the subject matter in issue, sets aside the order dated 27.6.2013 in Cr.M.P. No. 47 of 2012 insofar as it relates to the maintenance claim made by the Respondents 2 and 3 and the 1st Respondent/Wife; in regard to the Residential Protection Order passed by the Trial Court in favour of the 1st Respondent/Wife and remits back the matter for fresh disposal to the Trial Court in the manner known to law and in accordance with law.
56. Coming to the aspect of claim of interim maintenance made by the Respondents 2 and 3 that they should be paid a sum of Rs. 10,000 per month towards their education as interim monetary order under Section 20 of the Protection of Women from Domestic Violence Act, it is to be pointed out that the Trial Court has directed the Revision Petitioner/Husband to pay a sum of Rs. 3,000 per month to each of the 2nd and 3rd Petitioners towards interim maintenance (totalling in all, Rs. 6000 per month) till the disposal of the main S.T.C. Case and further, it also directed the Revision Petitioner/ Husband to pay of sum of Rs. 15,000 to each of the 2nd and 3rd Petitioners for school fees related to the period 2012 – 2013. Inasmuch as the interest of the Respondents 2 and 3 are not to be jeopardised and affected because of the lis between the Revision Petitioner/Husband and the 1st Respondent viz., Wife, (even though this Court has remitted the matter back for fresh consideration/disposal), this Court, by taking into account the paramount interest and welfare of Children, directs the Revision Petitioner/Husband to pay an interim maintenance of Rs. 3,000 each to the 2nd and 3rd Respondents continuously without any default till the disposal of the main S.T.C.No. 1 of 2012 on the file of the Family Court, Madurai. If the Revision Petitioner/Husband has paid a sum of Rs. 15,000 to each of the 2nd and 3rd Respondents for the school fees related to the period 2012 – 2013 based on the orders passed by the Family Court in Cr.M.P.No. 47 of 2012 dated 27.6.2013, the same is left undisturbed by this Court. If any final orders are passed by the Family Court, Madurai in S.T.C.No. 1 of 2012, then, the amount so far paid by the Revision Petitioner/Husband to the Respondents 2 and 3 shall be taken into account and it is open to the Trial Court to proceed further in accordance with law and in the manner known to law.
57. In the light of the aforesaid discussions and also this Court, taking note of the attendant facts and circumstances of the case in a cumulative fashion, disposes of the Criminal Revision Petitions, by remitting back the subject matter in issue (in so far as it relates to the maintenance claim made by the Respondents 2 and 3 and the 1st Respondent/Wife; in regard to the Residential Protection Order passed by the Trial Court in favour of the 1st Respondent/Wife) to the Trial Court for fresh consideration, in a Fair, Just, Dispassionate and Equitable fashion, within a period of three months from the date of receipt of copy of this order. Liberty is granted to the parties to adduce oral and documentary evidence to project/substantiate their version of the case, by raising all factual and legal pleas before the Trial Court in Cr.M.P. No.47 of 2012. The Trial Court shall provide adequate/enough opportunities to the parties to put forward their version of the case (of course after adhering to the Principles of Natural Justice). Before parting with the case, this Court opines that it is’ desirable for the learned Family Court Judge, Madurai to dispose of the main S.T.C.No.1 of 2012 and H.M.O.P. No. 126 of 2012 simultaneously, as expeditiously as possible. Consequently, connected Miscellaneous Petitions are closed.
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