Category Archives: Madras HC

wife’s #Sec125 #maintenance #dismissed for wrong jurisdiction; #MadrasHC ; K.#Mohan vs #Balakanta #Lakshmi

Educated couple start matrimonial litigation. Since both were residing at Bangalore, before separation, Husband files for divorce at Bangalore. Wife leaves husband, comes to Ambattur, which is outside Madras Metropolitan limits (in 1982 / 83) and files for maintenance under CrPC Sec 125 at Madras court. Husband assails jurisdiction. Husband proves with evidence that wife is outside Madras (and is residing under the jurisdiction of nearby Chengalpattu courts) Madras HC analyses “Domicile” and “jurisdiction”, verifies the facts and dismisses wife’s case, asking her to file at appropriate jurisdiction !!

While such technical victories may be short-lived, these are important to frustrate errant women filing usurious maintenance cases


Madras High Court

K. Mohan vs Balakanta Lakshmi on 13 December, 1982

Equivalent citations: 1983 CriLJ 1316

Author: R Pandian

Bench: R Pandian

ORDER Ratnavel Pandian, J.

..1. This revision is directed against the preliminary order made’ in M. C. 806 of 1980 on the file of the II Metropolitan Magistrate, Edmore, Madras, rejecting the contention of the revision petitioner (respondent in M. C. 806 of 1980 — husband) that the Court below did not have the territorial jurisdiction to entertain an application under Section 125, Cr. P.C. filed by the respondent herein (wife).

..2. It is a very unfortunate case wherein the highly educated couple are perpetually fighting with each other obviously for the reason, that they are not able to get on together amicably. It is seen from the records that after the marriage, both the parties resided at Bangalore and that the revision petitioner filed an original petition for annulment of the marriage before the Principal Civil Judge, Bangalore city. Be that as it may, the respondent had left Bangalore and thereafter had filed an application under Section 125 Cr. P.C. before the Second Metropolitan Magistrate, Edmore, Madras, claiming maintenance from the revision petitioner. In that petition she has stated in the preamble that she is now residing at Madras. The respondent, on receipt of the notice from the Court of the Second Metropolitan Magistrate, Madras, had filed a counter denying the allegations and raising a preliminary objection, stating that the said Court had no territorial jurisdiction to entertain this application under Section 125 Cr. P.C. on the ground that the respondent is not residing within its jurisdiction, viz. in the Madras City, but on the other hand is permanently residing with her parents at Ambattur within the jurisdiction of the Chengalpattu district and therefore the application ought to have been presented before the Court concerned in Chengalpattu district having jurisdiction over Ambattur area. To substantiate his preliminary objection, the petitioner has filed a number of documents marked as Exs. R-l to R-5. No oral evidence was let in by either of the parties. The learned Magistrate, observing that the term ‘resides’ occurring in Section 125 (1) (b) of the Cr. P.C. should be liberally construed, held, on the sole basis of the averment in the preamble of the petition that the respondent is residing at Madras, that he has got the territorial jurisdiction to entertain that application and the preliminary objection raised by the petitioner with regard to the jurisdiction is to be overruled. It is as against this order, the present revision is preferred.

..3. Though the respondent has received the summons, she is neither appearing in person nor appearing through any counsel. Therefore this Court has appointed Mr. A. Sasidharan, as amicus curiae to appear on behalf of the respondent and to assist this Court.

..4. This revision raises the question as to the true construction of the term ‘resides’ appearing in Section 126 (1) (b) of the Criminal P.C. Leaving apart the question about the respondent’s entitlement for maintenance, we have to determine in this case the question about the territorial jurisdiction of the Court at Madras to entertain this application filed under Section 125 Cr. P.C. because the jurisdiction of the Court is to be determined by the residence of the parties. The answer to this question turns upon the interpretation of Causes (a) to (c) of Section 126 (1) of the Code which demarcate the jurisdictional limits of a Court to entertain a petition under Section 125. I shall presently give the present and, the corresponding past provisions of the Code in the following table so that one can easily understand the position of law that stood earlier and the present position consequent upon the amendment made in the present Code.

 

Sec. 488 (8) of the Criminal   Section 126 (1) of the Criminal
Procedure Code, 1898        Procedure Code, 1973
Proceedings under this Proceedings ‘under Section 125 may be
section may be taken taken against any person in any
against any person district
in any  district (a) where he is, or
where he resides or is, (b) where he or his wife resides, or
or where he last resided (c) where he last resided with his
with his wife, or, as the case may be the wifeor as the case
mother of illegitimate child. case may be, the
mother of illegitimate child.

On a plain reading of Section 488 (8) of the old Code, it can be seen that the place where the wife resided after desertion by her husband was not material. This caused great hardship to wives. who after desertion were living far away from the place where they and their husbands last resided together. So, in order to remove such hardships, on the recommendation made by the Law Commission, the present Section 126 (1) (b) was enacted by introducing the expression ‘or his wife’ between the words ‘he’ and, ‘resides’, so that the venue of the proceedings should also include the place where the deserted or neglected wife may be residing on the date of the application. In the present revision, the crucial word ‘resides’ occurring in Section 126 (1) (b) alone comes up for interpretation. Under the old Code, the Magistrate of the district where the husband or father, as the case may be, resided, only had the jurisdiction. Now the jurisdiction is enlarged or widened. 5. 126 (1) gives three alternative forums as enumerated, in Clauses (a) to (c) there under. These alternative forums are designedly given by the Parliament so as to enable a discarded wife or helpless child to get the much-needed and, urgent relief in one or the other of the three forums that is convenient to them. Needless to say that the proceeding under Section 125 is in the nature of a civil proceeding and the remedy is a summary one, as laid down in Sub-section (2) of Section 126, and the person seeking the remedy, as pointed out above, is ordinarily a helpless person. The introduction of the expression in Section 126 (1) (b) is ‘or his wife.’

..5. So, the word ‘resides’ should be undoubtedly liberally construed, but at the same time, without doing any violence to the language and without defeating the very object of this provision.

..6. The word ‘resides’ has been subject to conflicting judicial opinions. In the Oxford Dictionary it is defined as ‘….to live permanently or for a considerable time, to have one’s settled or usual abode, to live, in or at a particular place.’

..7. The Corpus Juris Secundum, Vol. LXXVII at page 285 states that the word ‘reside’ is employed in a wide variety of significations, that its meaning may differ according to the connection in which it is used, that the particular signification of the term in any given instance depends on the context and the purpose under consideration and that it should be interpreted in the light of the object or purpose of its use. It is. further noted therein as follows:– It has been said that the word, ‘reside’ has two distinct meanings, and that it may be employed in two senses, and in what is sometimes referred to as the strict legal, or technical sense, it means legal domicile as. distinguished from mere residence or. place of actual abode. In this sense the word ‘reside’ means legal residence; legal domicile, or the home of a person in contemplation of law, the place where a person is deemed in law to live, which may not always be the place of his actual dwelling and thus the term may mean something different from, being bodily present, and does not necessarily refer to the place of actual abode. When employed in this sense, the word,’reside’,.includes not only physical presence in a place, but also the accompanying intent of choosing that place as a permanent residence.

..8. Again, at page 288, it is noted thus: Reside’ has been held equivalent to, or synonymous with, ‘abide’, ‘dwell; ‘to have one’s home’, ‘live’, ‘lodge?, ‘remain’, ‘residence’, ‘sojourn’, and ‘stay’ ‘Reside’ is said to be. usually classed as synonymous, with ‘inhabit’; but not., in strictness, properly so.

..9. In the Words and Phrases, Per manent Edn. Volume 37, at page 308 it is defined thus; To ‘reside’ in ordinary acceptation, means to dwell, or to live…’Reside’ means live, dwell, abide, sojurn, stay, remain, lodge.

..10. The above lexicographical meaning of the word, therefore, takes in both the permanent dwelling and the tern porary living in a place and it is therefore capable of different meanings including ‘domicile’ in the strictest and the most technical sense and a temporary residence in the liberal sense. Whatever meaning is given to it, one thing is obvious and it is that it does not include a casual stay in or a flying visit to a particular place. In short, the meaning of the word would in the ultimate analysis depend upon the context and the purpose of the particular statute..

..11. In this case, the context and the purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense. The purpose of the statute would, be better served if the word ‘resides’ is understood to include temporary residence. For example, if a person goes from his permanent place ‘A’ to another place ‘B’ either for carrying out certain work or as an invitee or as a tourist and resides or stays there for one or two days, he cannot be said to be residing at ‘B’ in the legal sense. But it he goes to the place ‘B’ and stay there for some length of time, though not permanently, but for the purpose of either educating his children or carrying on a business for a considerable length of time, he resides at ‘B’. One cannot give exhaustive illustrations to explain what the term ‘resides’ means. j But, its meaning has to depend upon the circumstances of each case. The main criteria in determining what the term ‘reside’ means, is the intention or the animus manendi of the person residing in a particular place, and the, cognate expression includes both temporary and permanent residence. But, the expression ‘resides’ used in Section 126 (b) of the new Code will not include a casual or flying visit or a brief, stay. On the other, hand, it implies more than that..

..12. Mr. V. Gopinathan drew the attention of this Court to decisions of the various High Courts and ultimately to the decision of the Supreme Court, all defining the term ‘reside’.

..13. The Full Bench of the. Allahabad High Court, in Arthur Flowers v. Minnie Flowers (1910) ILR 32 All 203, has held, while interpreting the expression ‘resides’ occurring in Section 3 of the Indian Divorce Act, that a mere temporary sojourn in a place, there being no intention of remaining there, will not amount to residence in.that place within the meaning of. the expression, so as to give jurisdiction under, the Act to the Court within the local limits of whose jurisdiction such a place is situate.

..14. In Charan Das v. Surasti Bai AIR 1940 Lah 449 : 1941-42 Cri LJ 105, it was held that the sole test on the question of residence was whether a party had the animus manendi or an intention to stay for a definite,period at one place and if he had such an intention, then alone could he be said to reside there.

..15. In Balakrishna v. Mrs. B. Sakun-lala Bai AIR 194-2 Mad 666 : 194-2 Mad WN Cri 73, it has been pointed, out that the word ‘resides in Section 488 (8) Cr. P.- C. implies the mere intention to rer maJn ata place and not merely to pay it a casual visit intending shortly, to move on to ones permanent residence.

..16. This Court has in Sampoornam v. N. Sundaresan , obseryed as follows at p, 275 of Cri LJ:– In short, Sub-section (8)of Section 488 Cr. P.C. does not necessarily refer to a permanent residence and it refers also to temporary residence, and the word ‘residence’ implies something more than a brief visit but not such a continuity as to amount to domicile. Each case, has to be dealt with on its merits as has been pointed out in Ganga Bai v. Pamanmal AIR 1938 Sind 223 1939-40 : Cri: LJ 117, bearing in mind that the section should not be so strictly cont, strued as to deprive the woman, who often in these cases is helpless, of assistance from the Court/which is most easily accessible to her. The Supreme Court in Jagir Kaur v. Jaswant Singh , after having referred to the meaning of the term ‘resides’ as defined lexicographically and as inter-: preted by the various High Courts, has observed as follows (at p. 415 of Cri LJ):- The decisions on the. subject are legion and it would be futile to survey the entire field. Generally stated no decision goes so far as to hold that ‘resides’ in the sub-section means only’ domicile in the technical sense of that word. There is also a broad unanimity that it means something more than a (lying visit to or a casual stay in a particular place. They agree that there shall be animus manendi or an intention to stay for a period, the length of the period depending upon the circumstances of each case. Having regard to the object sought to be achieved, the meaning implicit in the words used; and the construction placed by decided cases thereon, we would define the word ‘resides’ thus. :,a person resides in a place if, he through choice makes it his abode permanently or even temporarily,; whether a person has chosen to make: a particular place his abode depends upon the facts,of each case.

..17. Therefore, it is clear that the exprecession ‘resides’ occurring in Section 126(1) (b) has to be given a liberal construe ion and the legislature could not have intended to use the said term in the technical sense of ‘domicile’ and it ‘has to be Understood to include a temporary residence also.

..18. Now, let us examine the facts of the present case, giving the word ‘resides’ the liberal interpretation as pointed put in the., above decisions.

..19. Mr. Gopinathan drew the attention of this Court to Exs. R. 1 toR 5,marked in this case and contended that the petitioner herein has unambiguously proved that the respondent is residing in Ambattur. In Ex. R-l, the postal acknowledgment containing the signature of the respondent dated 20-7-1979, her address read,s thus : “Mrs. K. Bala Kanaka Lakshmi, Laxmi Nivasl, No. 5, Kanniah Chetti St. Venkatapurarn, Ambattur P. O., Madras-53”. Ex. R. 2 is the reply notice dated 15-10-1979, sent by the respondent herself to the petitioner’s Counsel. In that reply notice also, she has given the same address as in Ex. R. 1. Ex. R. 5 is yet another postal acknowledgment dated 9-8-1980, containing the signature of the respondent and therein also the respondent’s address is the same as in Ex. R. I-Thus, it is clear that all the correspondence and the communications addressed to the respondent at her address at Ambattur, Madras 53, were duly served on her. Above -all, she -herself has given her address in October 1979′.in Ex. R. 2, stating that she is residing at No. 2 Kanniah Chetti St. Venkatapuram, Ambattur, Madras 53.

..20. As against the above, documentary evidence, the Court below was inclined to base its conclusion holding that the respondent is residing at Madras, solely on the recital made in the preamble of the petition filed under Section 125 Cr. P.C. which reads thus: The petitioner/complainant Balakanaka Lakshmi, aged about 23 years, residing at Madras, solemnly affirm and state as follows. Barring this, there is nothing on record to show that the respondent is residing within the territorial jurisdiction of the Court below or at any rate in any part of the Madras Corporation limits. The respondent would be conspicuously silent about the actual place of her residence in her affidavit. Only if the respondent gives her- residential address, the petitioner would be able to refute it by producing evidence to the contrary. Her bald, and vague statement that she is residing at Madras, will not enable the Court to arrive at any definite conclusion that she is residing within the territorial jurisdiction of the Court. If really the respondent is residing in any part of the Madras City, she should have specifically given the door number and the names of the street and of the locality, so that the Court below could unmistakably take seisin, of the matter. On the other hand, she has not denied the statement in the counter that she is residing at Ambattur, Madras 53 (Madras 53 denotes the postal division). Ex. R. 5 dated 9-8-1980, reveals that the correspondence addres sed to her has been served on her at her Ambattur address, even after her petition for maintenance dated, 20-2-1980 has been filed before the Court below, and the respondent herself has given her Ambattur address in Ex. R-2 Moreover, it may be noted that the notice issued from this Court in this revision sent to the respondent through the II Metropolitan Magistrate, Egmore, Madras, has been served on the respondent only at her residence at Ambattur mentioned above. Therefore, I unhesitatingly hold that the respondent is even now residing only at Ambattur. For all the reasons stated above, I hold that the respondent is not residing within the territorial jurisdiction of the Court below, either temporarily or permanently, but she is proved to be ‘residing’ within the meaning of the said expression used in which area the Court within the Chingalpattu district alone will have the territorial. jurisdiction’.

..21. In the result, the.revision is allowed, the order passed by the II Metropolitan Magistrate is set aside and the objection raised by the petitioner with regard to the territorial jurisdiction is upheld. It is left to the respondent to present the petition before the appropriate and competent Court having jurisdiction over Ambattur.

Sessions & HC have concurrent revisionary jurisdiction, so IF you loose @ sessions use 482 @ HC

Wife has been awarded maintenance in 2013 ! Husband delaying maintenance by filing revision, 482 etc etc !!

However this case illustrates an important point of law, as extracted below

Key excerpts :
“….4. The Sessions Court and the High Court have concurrent revisional jurisdiction and if a person elects to move the Sessions Court, he is precluded from filing a second revision petition before the High Court under Section 397(3) Cr.P.C. However, a petition under Section 482 Cr.P.C. is maintainable, when it is shown that grave illegality has been committed by the Courts below, resulting in undue prejudice to the party…..”

=============================

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 19.09.2016

CORAM

THE HONOURABLE Mr.JUSTICE P.N.PRAKASH

CRL.O.P.No.21143 of 2016

Elumalai .. Petitioner
Vs

A.Mangathal .. Respondent

Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C., praying to call for the records and order dated 03.12.2015 in CRP.No.21/2014, on the file of the II Additional District Judge, Tindivanam, confirming the order dated 08.10.2013 in M.C.No.9 of 2012, on the file of the Judicial Magistrate No.1 and to set aside the same.

For Petitioner : Mr. J.Antony Jesus

O R D E R

This Criminal Original Petition has been filed to call for the records in CRP.No.21 of 2014 on the file of the II Additional District Judge, Tindivanam, confirming the order dated 08.10.2013 in M.C.No.9 of 2012, on the file of the Judicial Magistrate No.1 and to set aside the order dated 03.12.2015.

  1. For the sake of convenience, the parties will be referred to by their name. Mangathal got married to Elumalai in the year 1970 and they have two children through their wedlock. Their matrimonial life ran into rough weather, resulting the spouses getting estranged.
  2. Mangathal filed MC.No.9 of 2012 before the Judicial Magistrate No.1, Tindivanam under Section 125 Cr.P.C. against Elumalai. The learned Magistrate by order dated 08.10.2013, has directed Elumalai to pay a sum of Rs.1,000/- as maintenance per month. Aggrieved by the order, Elumalai preferred CRP.No.21 of 2014, which was dismissed by the learned II Additional District Judge, Tindivanam on 03.12.2015, confirming the order passed by the learned Judicial Magistrate, Tindivanam. Now, Elumalai is before this Court under Section 482 Cr.P.C.

  3. The Sessions Court and the High Court have concurrent revisional jurisdiction and if a person elects to move the Sessions Court, he is precluded from filing a second revision petition before the High Court under Section 397(3) Cr.P.C. However, a petition under Section 482 Cr.P.C. is maintainable, when it is shown that grave illegality has been committed by the Courts below, resulting in undue prejudice to the party.

  4. Mr.J.Antony Jesus, learned counsel appearing for Elumalai submitted that Elumalai had already settled some properties in favour of Mangathal as permanent alimony and therefore, he cannot be directed to pay further maintenance under Section 125 Cr.P.C. Both the Courts below have gone into this factual aspect and negatived the claim of Elumalai.

  5. The Courts below have awarded a paltry maintenance of Rs.1,000/- in favour of Mangathal. This Court does not find any serious illegality in the orders passed by the Courts below warranting interference under Section 482 Cr.P.C.

In the result, the petition is devoid of merits and dismissed.

19.09.2016 ds To

1.The II Additional District Judge, Tindivanam.

2.The Judicial Magistrate, Tindivanam,

  1. The Public Prosecutor, High Court, Madras.

P.N.PRAKASH, J.

ds Crl.OP.No.21143 of 2016 19.09.2016

In the absence of proof regarding domestic violence, wife is not eligible to claim maintenance. Madras HC

We see many honest, innocent husbands being harassed with #fake498a #fakeDV and #FakeMaintenance claims. Here is one such husband who has been actually harassed by the wife

the Hon Madras HC summarises the fate of the husband in the following lines
“…21. It is a case where the respondent herein as a father, has made his daughter a professionally qualified personality having educated her upto B.Tech. Even before the claim for maintenance, the respondent has provided shelter, medical facilities, educational facilities, rental income etc. Apart from that, as per the compromise, suggested by the Police Official, he was willing to pay a sum of Rs.400/- per month at that point of time, but the wife was not willing to receive it. In a house built by the husband on obtaining loan, it is the wife and daughter, who were residing and getting rent also by letting out one portion, while the husband is staying away from his own house. These details are not at all stated by the petitioner in chief examination and these facts have been brought out only in cross examination.

a) Suppression of material fact in a case between the husband and the wife involving intimate interpersonal relationship itself would amount to cruelty.

b) Neglecting the husband, treating him as invisible, not inviting him for the marriage of his daughter, where throughout the daughter has been supported by the father, certainly would amount to humiliation causing mental cruelty to the husband. The provisions of Domestic Violence Act can be used as a shield / sword to get protection from the domestic violence and it cannot be used as a sword for the purpose of causing violence to the other partner in the life….”

While on the matter of maintenance, the Hon Madras HC clearly states that eligibility of maintenance is to be tested on facts “… But the question to be seen is whether the petitioner is entitled to maintenance under the context, conduct and the circumstances alleged.…..”

The Hon HC concludes that “… Perusal of Section 20 of P.W.D.V.Act would go to show that monetary relief including maintenance can be given to the woman, who is proved to be the victim of domestic violence. In the absence of the proof regarding domestic violence, the wife is not eligible to claim maintenance….”

Criticizing the wife for frequently filing complaints the HC states “…. There is no clarification as to what made the wife to prefer 15 complaints. The details ought to have been clarified and it has not been done. However, everyday life must be at home and not in the Police Station.….”

and refuses maintenance to the erring wife

===================================

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 15.10.2015

CORAM

THE HON’BLE MRS.JUSTICE S.VIMALA

Crl.R.C.(MD) No.138 of 2014

Jeyanthi … Petitioner / Appellant / Petitioner

-vs-

Jeyapaul … Respondent / Respondent / Respondent

Prayer: Criminal Revision Petition has been filed under Sections 397 and 401 of Cr.P.C., to call for records in Crl.A.No.76 of 2012 on the file of the learned II Additional Sessions Judge, Thoothukudi, Thoothukudi District and set aside the judgment dated 26.11.2013, confirming the order dated 26.08.2011 passed in M.C.No.5 of 2010 on the file of the learned Judicial Magistrate No.1, Thoothukudi, Thoothukudi District.

For Petitioner : Mr.A.Thiruvadikumar
For Respondent : Mr.N.Dilip Kumar
Orders Reserved on : 06.10.2015
Orders Pronounced on : 15.10.2015


O R D E R

Alleging violence in domestic relationship, the aggrieved party, namely, the wife filed a complaint against the husband under Section 12 of Protection of Women from Domestic Violence Act (hereinafter referred to as “the P.W.D.V.Act”) before the Judicial Magistrate No.I, Thoothukudi.

  1. The Court, after conducting enquiry, gave a finding that the allegation of domestic violence is not proved and that the claim of maintenance should be made in an appropriate Court. Challenging the same, the wife filed appeal before the Sessions Judge in Crl.A.No.76 of 2012. The order passed by the learned Magistrate in M.C.No.5 of 2012 dated 26.08.2013, was confirmed by the Sessions Judge, by the judgment dated 26.11.2013. This judgment is under challenge in this revision petition.
  2. While confirming the order of the learned Magistrate, the Appellate Court considered the financial supports rendered by the husband to the wife and his child, which are as follows;

a) the wife herself admitted that her husband met the education expenses of the daughter upto her studies in XII standard.

b) the husband provided 25 sovereign of jewels to her and daughter

c) medical facility was provided to her and daughter through the company in which the husband was employed;

d) at the instance of Police at Pudukottai Police Station, the husband was made to pay Rs.400/- to the petitioner, but she refused to receive the same.

e) the wife is receiving a sum of Rs.900/- per month by letting the upstair portion of the house on rent;

  1. The husband stated in his evidence that he met the educational expenses of his daughter and remitted the fees at Kalasalingam University and in support of the same, documents were filed. Giving a finding that as per Section 20 of the P.W.D.V.Act, an aggrieved person can claim the relief of maintenance, as a result of domestic violence, but domestic violence in this case is not proved, the dismissal was held proper.
  • In order to appreciate the merits of the judgment passed, it is necessary to look into the details of the petition filed by the wife.

  • The wife filed a petition under Section 12 of the P.W.D.V.Act, 2005, seeking the following reliefs:

  • i) to pass protection order prohibiting the respondent from committing any act of domestic violence either physically or mentally against her and daughter;

    ii) to pass a residence order, making provision for residence at the house, where the petitioner was residing.

    iii) to pass maintenance order for the petitioner and her daughter at Rs.10,000/- per month from the respondent.

    Facts in brief:

    1. The marriage between the parties took place on 08.12.1983. After marriage, they were living at Thoothukudi and a female child born during the year 1992 is alive and other two children born during the year 1985 and 1988 died. When she was pregnant, uterus operations were done and at the time, she was treated cruelly by the respondent.

    7.1. The respondent had illegal intimacy with his brother’s wife and on account of that, she was treated cruelly.

    7.2. The respondent is working as Labour in Tuticorin Port Trust and earning Rs.22,000/- as salary, but he did not give money for the maintenance of the petitioner and her daughter. The respondent is also earning a sum of Rs.27,000/- from his agricultural land.

    1. On 03.05.2008, the petitioner was beaten and injuries were caused to her and hence, she gave a complaint to Sipcot Police Station and a case was registered in Crime No.103 of 2008 under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act. The husband filed a petition for divorce before the Sub Court, Thoothukudi on 07.05.2008 and later on, he withdrew the petition.
  • This petition, alleging domestic violence, was opposed by the husband as pregnant with false allegations; the alleged domestic violence is denied as false; the statement regarding income is an exaggerative one; the husband provided 25 sovereign jewels to the petitioner and her daughter and also provided a house, which was built by him worth Rs.8 lakhs and also provided household articles, apart from meeting all the educational expense of her daughter.

  • The petitioner gave complaint of dowry harassment falsely on three times against the respondent. During enquiry, the husband was asked to pay Rs.400/- per month to the wife, which was refused by her. About 5 years back, it was only the wife, who pulled and pushed the respondent and caused verbal and physical injury. She used to quarrel for nothing and use abusive languages. Unable to bear the cruelty, he sent a notice through Advocate on 10.01.2008. During the enquiry made by the Sipcot Police, the petitioner admitted her activities and assured to stop that, but she never stopped. Therefore, the respondent filed a petition for divorce in HMOP 40 of 2010 before Sub Court, Thoothukudi.

  • The wife examined herself as P.W.1 and the two documents marked were Ration Card and receipt for payment of college fees. On behalf of the respondent, he has been examined as R.W.1 and the documents marked are the receipt for having given a complaint along with the copy of the complaint apart from the salary certificate of the respondent.

  • The main contention of the learned counsel for the revision petitioner is that the complaint given by the wife has been registered by the Police, would remain as a proof for domestic violence and therefore, the order passed by the Courts below is liable to be set aside. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  • On the other hand, learned counsel for the respondent would submit that whether the complaint given by the wife was on account of the fact that the wife was an aggrieved party seeking redressal or whether the complaint was an outcome of making the husband as an aggrieved party to wreck vengeance against him is a matter for enquiry /trial and therefore, mere registration of the case alone would not amount to proof of domestic violence. This contention merits acceptance. The enquiry / trial alone would unearth the real facts.

  • 14. In view of the rival contentions raised, the following issues arise for consideration.

    i) whether there was any domestic violence to the wife

    ii) whether economic violence also would amount to domestic violence? If so, whether has the wife proved domestic violence.

    1. The word “Domestic Violence” has been defined in the P.W.D.V.Act, 2005. The P.W.D.V.Act creates three basic rights for victims of domestic violence.

    a) right to be protected from violence

    b) right to live in a shared household

    c) right to monetary relief

    1. The Act provides for very comprehensive definition of domestic violence and includes not only actual abuse, but threatened abuse that may be either physical, sexual, verbal, economical or emotional.
  • It is also a gender specific enactment, which means only woman can avail the provisions of this Act. “The Act clearly defines an aggrieved person as “any woman” who is, has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the husband…”

  • Respondent has been defined to mean any adult male person, who is or who has been in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought relief.

  • 18.1. The term economic abuse has been defined in Clause 2(ix) as including,

    a) the unreasonable deprivation of economic or financial resources to which a complainant is entitled under law or which the complainant requires out of necessity, including household necessities for the complainant and mortgage bond repayment or payment of rent in respect of shared residence or

    b) the unreasonable disposal of household effects or other property in which the complainant has an interest.

    3(iv) “economic abuse” includes:-

    (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

    (b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

    (c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II.—For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.”

    1. The definition of domestic violence itself clearly spells out that it is not necessary that the aggrieved person has to be ill-treated and assaulted by the respondent to constitute domestic violence. Any continuous deprivation of economic resources and prohibition as defined under Section 3 (iv) of the Domestic Violence Act comes within the purview of Domestic Violence (K.Ramaraju vs. Lakshmi Prathima, 2008 2 ALD Cri.1).

    20. The learned Magistrate, without understanding that the deprivation of economic resources to which the petitioner is entitled to, may amount to domestic violence, has given a finding that the petitioner can separately file a petition for maintenance. The rationale behind this decision is certainly incorrect. But the question to be seen is whether the petitioner is entitled to maintenance under the context, conduct and the circumstances alleged.

    1. It is a case where the respondent herein as a father, has made his daughter a professionally qualified personality having educated her upto B.Tech. Even before the claim for maintenance, the respondent has provided shelter, medical facilities, educational facilities, rental income etc. Apart from that, as per the compromise, suggested by the Police Official, he was willing to pay a sum of Rs.400/- per month at that point of time, but the wife was not willing to receive it. In a house built by the husband on obtaining loan, it is the wife and daughter, who were residing and getting rent also by letting out one portion, while the husband is staying away from his own house. These details are not at all stated by the petitioner in chief examination and these facts have been brought out only in cross examination.

    a) Suppression of material fact in a case between the husband and the wife involving intimate interpersonal relationship itself would amount to cruelty.

    b) Neglecting the husband, treating him as invisible, not inviting him for the marriage of his daughter, where throughout the daughter has been supported by the father, certainly would amount to humiliation causing mental cruelty to the husband. The provisions of Domestic Violence Act can be used as a shield / sword to get protection from the domestic violence and it cannot be used as a sword for the purpose of causing violence to the other partner in the life.

    1. There are three allegations levelled by the wife against the husband. So far as the 1st allegation is concerned, the incident is said to have taken place around 1985 to 1988 during which she is stated to have been ill-treated after uterus operation. The manner in which the illtreatment caused is not explained. The allegation is vague.
  • The 2nd allegation is that the husband was maintaining illegitimate intimacy with his brother’s wife. The Trial Court has said that no documents have been filed to prove it. The Court has given a finding that nobody else excepting the petitioner has been examined to prove the same. At least some near relatives could have been examined to speak about the probability of the allegation levelled.

  • So far as the 3rd allegation is concerned, it is pertaining to non providing of maintenance to the wife and child.

  • It is appropriate to quote Section 20 of the P.W.D.V.Act, providing for monetary relief:

  • “20. Monetary reliefs.—

    (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to—

    (a) the loss of earnings;

    (b) the medical expenses;

    (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

    (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

    (2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

    (3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

    (4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides.

    (5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).

    (6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.”

    26. Perusal of Section 20 of P.W.D.V.Act would go to show that monetary relief including maintenance can be given to the woman, who is proved to be the victim of domestic violence. In the absence of the proof regarding domestic violence, the wife is not eligible to claim maintenance.

    1. As already indicated, the husband has provided several facilities, which has neither been disclosed in the evidence nor acknowledged in the complaint / petition. In all fairness, if the wife had stated that what was already provided was insufficient and what is the remaining amount of maintenance expected, it would have been fair. Now, the contention is raised with regard to justifiability of the wife to remain away from the company of the husband.

    28. Mere registration of a complaint will not amount to proof of cruelty, as registration of the First Information Report is towards the first step to investigate and to fine out whether the allegation stated in the complaint is true or not.

    1. When a query was raised with regard to the possibility of settlement either in terms of reunion or in terms of separation by mutual consent, having regard to the fact that already 30 years had elapsed, the parties having spent more time in Police Station and Court than at home, it was represented on the side of the wife that what is expected is only the order from the Court.
  • It is the case of the husband that she was always interested in humiliating the husband and was interested in seeing that the child is not affectionate towards the father; there was an intimidation to commit suicide often; levelling allegations; the husband was lavish in spending money; interested in preferring complaints before the Police Station; the wife frequently leaving the house without information; using abusive language against the husband etc.

  • In disputes relating to family matters, by analyzing a single incident, a Court cannot come to a definite conclusion. Only considering the totality of the facts and circumstances, Court will be able to find out what would have happened. The totality of the circumstances in this case indicates that the probability is, the case of the husband must be true, when the wife admits that she has preferred 15 complaints before various police station.

  • 32. There is no clarification as to what made the wife to prefer 15 complaints. The details ought to have been clarified and it has not been done. However, everyday life must be at home and not in the Police Station.

    1. Considering the facts and circumstances of the case, this Court finds nothing to interfere with the concurrent orders passed by the Courts below. The petitioner has not proved the alleged domestic violence as against her. This Court is conscious of the fact that provisions of the P.W.D.V.Act is a legislation providing for justice to victim. It is appropriate to quote the decision of the Hon’ble Supreme court, reported in 1984 AIR 1471 ( Sadhuram Bansal vs. Pulin Behari Sarkar & Ors.) :

    “In our opinion, there appears to be some misapprehension about what actually social justice is. There is no ritualistic formula or any magical charm in the concept of social justice. All that it means is that as between two parties if a deal is made with one party without serious detriment to the other, then the Court would lean in favour of the weaker section of the society, Social justice is the recognition of greater good to larger number without deprivation of accrued legal rights of anybody. If such a thing can be done then indeed social justice must prevail over any technical rule. It is in response to the felt necessities of time and situation in order to do greater good to a larger number even though it might detract from some technical rule in favour of a party. Living accommodation is a human problem for vast millions in our country. The owners, in this case, are getting legally Rs. 1 lakh more.

    We must remember that in administering justice-social or legal jurisprudence has shifted away from finespun technicalities and abstract rules to recognition of human being as human beings and as human needs and if these can be fulfilled without deprivation of existing legal rights of any party concerned, courts must lean towards that and if the Division Bench of the High Court, in the facts and circumstances of the case, has leaned towards that, it is improper for this Court in exercise of the discretion vested under Art. 136 of the Constitution to interfere with that decision. We would do well to remember that justicesocial, economic and political-is preamble to our Constitution. Administration of justice can no longer be merely protector of legal rights but must whenever possible be dispenser of social justice.

    Call it social justice or solving a socio-economic problem or give it any other name or nomenclature, the fact of the matter is that this was the best course in the circumstances that could have been adopted by the court. Unfortunately, the Single Judge completely ignored the following important facts which have been indicated by me earlier:-

    (1) that a bulk of the consideration money, viz., Rs. 3 Lakhs out of Rs. 4 Lakhs, was not paid by the appellant even until the time when the learned Single Judge had passed the order nor was it paid even when the matter was in the High Court, and

    (2) the learned Single Judge overlooked the fact that an owner also has a right to impose certain conditions and in exercise of that he had imposed the condition that the purchaser would have to buy the land subject to the pending litigation whereas in the offer made by the purchaser he had placed the onus on the owners to give him a good marketable title free from litigation.”

    1. It would be appropriate to extract Section 20 of the Domestic Violence Act as under:

    “20. Monetary reliefs.-(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,-19

    (a) the loss of earnings;

    (b) the medical expenses;

    (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

    (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

    (2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

    (3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

    1. From the provisions of Section 20(1)(d) of the P.W.D.V. Act, it is clear that the grant of maintenance under this Act is in addition to the amount awarded under any other enactment providing for maintenance. Therefore, even though the revision petitioners is not granted any maintenance, it is open to her to work out her remedy before any other law if found eligible.

    S.VIMALA,J.

    In the result, the Criminal Revision Petition is dismissed.

    15.10.2015

    Index: Yes / No

    Internet: Yes / No

    ar

    To:

    1. II Additional Sessions Judge,
      Thoothukudi,
      Thoothukudi District.
  • Judicial Magistrate No.1,
    Thoothukudi,
    Thoothukudi District.

  • PRE-DELIVERY ORDER IN Crl.R.C.(MD) No.138 of 2014

    *****************************disclaimer**********************************
    This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


    CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
    *******************************************************************************

     

    No maintenance to educated employed wife till court conducts detailed inquiry, records evidence, ascertains income : Madras HC

    A well qualified wife, a doctor who is supposedly running  clinic and has staff etc, claims and wins maintenance decree at lower court. Husband appeals to Madras HC. At the HC wife claims that she has joined a Masters course, is without income and she has to maintain the kid. However The Honourable HC Orders “….7.Regarding the maintenance to the respondent/wife, the learned Judge has to conduct a detailed enquiry after recording evidence from the revision petitioner and the respondent as to whether the respondent gets sufficient income to maintain herself and also find out the revision petitioner’s gross income and decide the issue. Therefore, the maintenance granted to the wife, i.e., a sum of Rs.10,000/- per months from the date of maintenance application till date is set aside…”
    ============================

    BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

    DATED: 29/08/2011

    CORAM : THE HONOURABLE MR.JUSTICE C.S.KARNAN

    C.R.P(PD)(MD)No.1115 of 2008

    and

    M.P(MD)No.1 of 2008

    Dr.Prabhu Srinivasan  ..Petitioner

    Vs

    Ramaprabha ..Respondent

    PRAYER

    Civil Revision Petition filed under Article 227 of Constitution of India to set aside the fair and decretal order dated 14.03.2008 in I.A.No.8 of 2007 in H.M.O.P.No.69 of 2004 on the file of the Additional Subordinate Judge, Kumbakonam, Thanjavur District.

    !For Petitioner … Mr.K.Balasundaram

    ^For Respondent … Mr.D.Rajagopal
    http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

    :ORDER

    The revision petitioner has filed the above revision to set aside the fair and decretal order dated 14.03.2008 in I.A.No.8 of 2007 in H.M.O.P.No.69 of 2004 on the file of the Additional Subordinate Judge, Kumbakonam, Thanjavur District.

    2.The brief facts of the case are as follows:- The revision petitioner/husband has filed H.M.O.P.No.69 of 2004 against his wife for divorce for dissolving the marriage which was solemnized on 06.02.2003 between the petitioner and respondent on the ground of cruelty. The said case has been filed before the Principal Subordinate Court, Kumbakonam. The respondent/wife had filed counter statement and resisted the divorce petition. while so, the respondent/wife has filed an interlocutory application in I.A.No.8 of 2007 in H.M.O.P.No.69 of 2004 on 05.06.2007 for interim maintenance of a sum of Rs.70,000/- per month to her child and herself. Besides the respondent/wife has also prayed for payment of a sum of Rs.1,50,000/- for contesting the case and a further sum of Rs.1,00,000/- for dress, medical expenses and for festival expenses.

    3.The revision petitioner/husband has filed counter statement and opposed the interim maintenance case on various grounds. The learned Judge, after hearing the arguments of the counsels on both the sides and on perusing the averments of both the parties, allowed the interlocutory application in part, stating that the revision petitioner/husband has pay Rs.10,000/- per month as maintenance to his wife, and another Rs.10,000/- per month as maintenance to his son. The learned Judge had also ordered for payment of a sum of Rs.50,000/- by the husband as litigation charges to his wife.

    4.Aggrieved by the said decree and decretal order, the above revision petition has been filed by the revision petitioner. The learned counsel for the petitioner argued that the respondent is also a qualified doctor and she is economically well of. As such, the interim maintenance order is not sustainable. The learned Judge, erroneously had ordered for payment of a sum of Rs.20,000/- towards maintenance to the respondent and the child. This amount is on the higher side since the revision petitioner does not have sufficient income from his profession to comply with the order. The revision petitioner is not even getting a sum of Rs.5000/- per month through his profession. The respondent is running a clinic and had employed assistant doctors, nurses, and technicians including driver. It clearly proved that the respondent gets sufficient income through her profession. Therefore, the respondent/wife is not entitled to receive any maintenance from the revision petitioner.

    5.The learned counsel for the respondent/wife argued that the respondent has joined in a master degree course and as such she is a student, and not an earning doctor. Further, the child is with the respondent and she has to provide good education, dress and rich food to the child. Therefore, the revision petitioner is liable to pay maintenance to the respondent and the child. The learned Judge, after considering the contentions laid down on both sides had passed the interim maintenance, to the respondent. This order is a well considered one. As per order of the learned Judge, the revision petitioner is liable to pay about Rs.10,00,000/- i.e., from the date of filing the interim maintenance application till date, but the revision petitioner has wantonly and deliberately evading payment of maintenance, even though he gets sufficient income. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

    6.In view of the facts and circumstances of the case and arguments advanced by the learned counsel on either side and on perusing the impugned order of the learned Judge, this court is of the considered opinion that the learned Judge had ordered for a sum of Rs.10,000/- to be paid as maintenance to the child, which is fair and justifiable.

    7.Regarding the maintenance to the respondent/wife, the learned Judge has to conduct a detailed enquiry after recording evidence from the revision petitioner and the respondent as to whether the respondent gets sufficient income to maintain herself and also find out the revision petitioner’s gross income and decide the issue. Therefore, the maintenance granted to the wife, i.e., a sum of Rs.10,000/- per months from the date of maintenance application till date is set aside. Regarding the litigation charges, a sum of Rs.50,000/- has been awarded by the tribunal, which is on the higher side. Hence, this court reduces the amount granted towards litigation charges to Rs.25,000/- as it is found to be fair and justifiable. This court further directs the revision petitioner to pay the monthly maintenance a sum of Rs.10,000/- to his son, as per learned Judge order, from 05.06.2007 till date; along with litigation charge of a sum of Rs.25,000/- out of this total amount, the petitioner shall pay a sum of Rs.2,50,000/- within a period of four weeks from the date of receipt of this order by way of demand draft drawn in favour of the respondent/wife. The balance of maintenance payable to the child shall be cleared within a period of seven months from the date of receipt of this order. Accordingly ordered.

    8.In the result, the above revision petition is allowed in part with the above observations. Consequently, the order and decretal order passed in I.A.No.8 of 2007 in H.M.O.P.No.69 of 2004 on the file of the Additional Subordinate Court, Kumbakonam is modified. Connected miscellaneous petition is closed. There is no order as to costs.

    skn

    To

    The Additional Sub-Judge,

     

    source

    Indiakanoon.org

    *****************************disclaimer**********************************
    This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


    CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


    “Expecting wife to earn is against Hindu philosophy”: Madras HC! Rs 10000 pm levied on poor postman with aged mother & widowed sister !

    Madurai

    Expecting wife to earn is against Hindu philosophy: Madras High Court bench

    It is against Hindu philosophy for a man professing that religion to expect his wife to get employed, earn sufficient money and maintain herself without depending upon his income, the Madras High Court Bench here has said.

    Justice P. Devadass made the observation while dismissing a criminal revision petition filed by a postman against an order passed by the Family Court here on November 5 directing him to pay maintenance at the rate of Rs.5,000 each to his estranged wife and two-year-old daughter.

    The revision petitioner had challenged the order to pay maintenance on several grounds and one of them was that his wife was employed in a shop here and was earning sufficient money to maintain herself.

    Refusing to accept his contention, the judge said: “There is no evidence to establish that she is employed. Even otherwise, it is immaterial because under Hindu Law a husband should maintain his wife. A Hindu husband will not say that his wife must go to work and get herself maintained.

    “Nowhere a Hindu husband while marrying a lady will say: I will marry you provided you must work and earn and feed yourself. It would be against Hindu philosophy.”

    Pointing out that the petitioner was a Central government employee earning about Rs. 23,000 a month, the judge said government employees could not be heard to raise the plea of earning less since their salaries keep rising year after year apart from revision of Dearness Allowance once in six months.

    “Now in Madurai, Rs. 5,000 per month will not be a fabulous amount for a woman and a child to meet their expenses towards a roof, food, clothing and additional nourishment for the child. It would be sufficient only for a hand-to-mouth existence. This amount is what is required [as] bare minimum…” he added. On the petitioner’s contention that he had an aged mother, widowed sister and her children also to take care of, the judge said that it could not be a justification to pay less to the wife and child when the petitioner’s brother was sharing the burden of maintaining their mother.

     

    source

    http://m.thehindu.com/news/cities/Madurai/expecting-wife-to-earn-is-against-hindu-philosophy/article8846938.ece