Madras High Court
Ganesh Kumar vs R. Rajini Devi on 24 October, 2018
Author: G.Jayachandran
Bench: G.Jayachandran
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 24.10.2018
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.R.C.(MD)Nos.335 and 336 of 2018
and
Crl.M.P.(MD).Nos.4628 & 4629 of 2018
Ganesh Kumar .. Petitioner/ Appellant/
1st respondent in Crl.R.C.(MD)
No.335/2018 and
Petitioner/ 1st respondent / 1st
respondent in Crl.R.C.(MD).
No.336 of 2018
Vs.
R. Rajini Devi .. Respondent/ Respondent
Complainant in Crl.R.C.(MD)
No.335 of 2018 and
Respondent/Appellant/
Complainant in Crl.R.C.(MD)
No.336 of 2018
Common Prayer: Criminal Revision Petitions filed under Section
397 and 401 Cr.P.C., to set aside the impugned order passed by the
Learned Principal District Court, Srivilliputhur in Cr.A.Nos.92 and 93
of 2016 dated 13.03.2018 dismissing the appeal preferred by the
petitioner against the order passed in M.C.No.11 of 2014 dated
17.12.2015 respectively.
For Petitioner : Mr.K.K.Kannan
in both cases
For Respondent: Mr.R.Gandhi
in both cases
http://www.judis.nic.in
2
ORDER
The Criminal Revision Cases, Crl.RC(MD) Nos.335 & 336 of 2018 are arising out of Crl.A(MD) Nos.92 & 93 of 2016 on the file of Principal District Court, Sriviliiputhur. The revision petitioner herein, is the husband of the respondent. They both got married on 05.06.2011 at Rajapalayam. At the time of marriage, it is alleged that the respondent's family had given 100 sovereign jewels as Sreedana in addition to 11 sovereign jewels to the revision petitioner. The marriage has been celebrated in a grand manner providing house hold articles worth Rs.3,00,000/- (Rupees Three Lakhs only).
2. On 08.12.2012, a female child was born to them. Since the child was born in Moolam star, which according to the respondent's family is not a lucky star and also it is considered by the family that it will be difficult for getting her married in future, they started harassing the respondent to bring more dowry. The respondent was subjected to physical and verbal abuse. On 23.04.2013, a complaint has been given by the respondent to the Community representatives to conciliate the dispute. The said attempt did not fructify. Thereafter, the respondent was driven out from the matrimonial home.
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3. With the above allegation, M.C.No.11 of 2014 was filed by the respondent for which the revision petitioner herein has filed counter affidavit, denying all the allegations including the Sree Dhana of gold jewels alleged to have given during the marriage. Further in the counter affidavit, it is contended by the revision petitioner that the respondent has failed to do her moral obligations of a dutiful wife. She used to take food along with her friends in the hotel and made the petitioner starve. When the petitioner admonished the respondent about her conduct, she threatened him that her father and uncle being served in Police Department, so with their influence, false complaint will be filed against the petitioner and family members.
4. The Judicial Magistrate considering the petition filed under Sections 18,19,20 and 22 of the Domestic Violation Act, after appreciating the evidence let in by the husband as well as the wife, has directed the revision petitioner/ husband to return 27 items of gold jewels, 158 Sreedana articles within three months from the date of receipt of the copy of that order. Maintenance of Rs.25,000/- (Rupees Twenty Five thousand only) to the minor child and Rs.10,000/-(Rupees Ten thousand only) to the wife, payable from http://www.judis.nic.in 4 the date of order (17.12.2015) and compensation of Rs.3,00,000/- (Rupees Three Lakhs only) was ordered.
5. Aggrieved by the said order dated 17.12.2015, the revision petitioner/husband has preferred Cr.A.No.92 of 2016 before the Principal District Court, Srivilliputhur. The respondent herein, has preferred Crl.A.No.93 of 2016 as against the denial of financial assistance of Rs.10,000/- and Rs.25,000/- to the respondent and the child from the date of separation viz., 21.03.2013 till the date of order.
6. The Appellate Court dismissed the Appeal preferred by the revision petitioner herein challenging the financial assistance and compensation awarded in favour of the respondents. It partly allowed the appeal filed by the wife, by modifying the order of the trial Court fixing the date of effect of the trial Court order from the date of filing the application seeking maintenance.
7. The Appellate Court has clarified that the financial assistance ordered by the trial Court shall commence from the date of fling of the petition and not from the date of desertion. The respondent herein has accepted the order passed by the Appellate http://www.judis.nic.in 5 Court which has fixed the date of effect from the date of filing the petition in M.C.No.11 of 2014 (i.e.,) 31.07.2014 instead of 21.03.2013 as claimed by the respondent.
8. Whereas, the revision petitioner herein unsatisfied and aggrieved by the order passed by the Appellate Court in Crl.A.No.92 of 2016 and upon the order modified by the Appellate Court in Crl.A.No.93 of 2016 has preferred Crl.R.C.(MD) Nos.335 of 2018 and 336 of 2018.
9. It is pertinent to point out at this juncture that while M.C.No.11 of 2014 was pending, criminal case was also registered by the respondent against the petitioner herein and his family members for offence under Sections 294(b), 341, 406, 498(A), 506(i) r/w 34 IPC and Section 4 of Dowry Prohibition Act. The trial Court after considering the evidence in that case, has found that the prosecution has not proved the guilt of the accused persons beyond reasonable doubt and therefore, acquitted all the accused including the revision petitioner herein.
10. The Appeal preferred by the de facto complainant challenging the order of acquittal also came to be dismissed by the http://www.judis.nic.in 6 Principal District and Sessions Judge, Virudhunagar, Sreevilliputhur in Crl.A.No.55 of 2016. The respondent herein aggrieved by the concurrent findings of the acquittal has preferred Crl.R.C.(MD)No. 325 of 2018 and the same is pending before this Court. Since that issue is to be decided independently, based on the evidence let in by the parties and reasonableness of the reasons given by the trial Court as well as the Appellate Court, whether it is illegal, improper or perverse, this Court de-links the case to be dealt separately.
11. Now coming to the grounds of appeal raised in Crl.R.C. (MD)Nos.335 & 336 of 2018 filled by the husband, the main contention is that the petitioner is drawing only Rs.49,096/- (Rupees Forty Nine Thousand and Ninety Six only) as net salary. Therefore, he cannot afford to pay maintenance of Rs.10,000/- to the respondent and Rs.25,000/- to his minor child. Further, referring to the orders passed by the Magistrate in the Crl.Case No. 167 of 2014, wherein the petitioner and his family members were exonerated from the charges of dowry harassment and allied offenses, it is contended by the learned counsel appearing for the revision petitioner that the Courts below while dealing the application filed under Domestic Violence Act, has not properly appreciated the evidence.
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12. Alleging that the respondent deserted on her own and has enough source of income to maintain herself, the quantum fixed as financial assistance is challenged. Further the order regarding return of jewels, it is contended that the respondent/ wife has not proved her sreedana jewels about 100 sovereign is with the revision petitioner/husband. Therefore, it is contended that the order passed by the Courts below fixing the maintenance of Rs.10,000/- to the respondent and Rs.25,000/- to the minor child and compensation of Rs.3,00,000/- has to be set aside.
13. Further, it is contended that the Appellate Court fixing the commencement of maintenance from the date of filing the complaint is erroneous. It should be only from the date of order and not from the date of filing the complaint. The learned counsel appearing for the revision petitioner would rely upon the complaint, report of the Welfare Officer, the deposition of the de facto complainant and her father and would submit that there is no proper evidence to show 100 sovereigns of jewels were given to the revision petitioner during the marriage and the same has been retained by him. Whatever household articles were in possession has already been handed over to the revision petitioner herein http://www.judis.nic.in 8 during the month of June 2018 and nothing more to be given to the respondent.
14. Regarding the earning capacity, he would submit that the respondent herein is employed in the Collectorate, earning Rs.23,000/- per month and therefore, she is not entitled to any financial assistance.
15. Summing up, the learned counsel for the revision petitioner submits that he is ready to pay Rs.25,000/- to the minor child, commencing from the date of order passed by the Magistrate. Except that, he is not liable to pay any money to the respondent either as monthly maintenance or compensation or to return any jewels.
16. Per Contra, the learned counsel appearing for the respondent would submit that ever since the complaint given to the police, it has been consistently mentioned and pleaded that at the time of marriage, 100 sovereigns jewels were given and out of which, a portion of it was pledged by the revision petitioner and the remaining was kept in the locker, jointly held by the revision petitioner and his father. In the enquiry conducted by the Protection http://www.judis.nic.in 9 Officer, it has been found that out of 100 sovereigns Sreedana jewels, 24 sovereigns were with the respondent and 76 sovereigns are in possession of the revision petitioner. Besides 11 sovereigns like chain, bracelet and ring, which were given to the revision petitioner, during the marriage, it is still in possession of the revision petitioner. Regarding the earning capacity, the learned counsel for the respondent would submit that the respondent is employed as a temporary staff in the Collectorate. Her services is neither regularized nor made permanent. Therefore, her temporary income cannot be taken into account. Whereas, the salary certificate furnished and relied by the revision petitioner indicates that the revision petitioner is drawing Rs.95,000/- (Rupees Ninety Thousand only) as an IT Consultant in TCS.
17. Refuting the said claim regarding the earning capacity of the revision petitioner, the learned counsel for the revision petitioner would point out the bank account of the revision petitioner, wherein for the month of May 2018, a net sum of Rs.62,862/- has been credited to the account of the revision petitioner towards monthly salary.
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18. Point for Consideration: Whether the judgment passed by the trial Court in M.C.No.11 of 2014, as confirmed with modification, fixing the commencement of the order as the date of filing of petition by the Appellate Court is sustainable?
The factum of marriage and child birth is not in dispute. In fact, the guardian OP filed by the revision petitioner/ husband was dismissed and the learned counsel appearing for the revision petitioner submits that he has preferred an Appeal and the same is pending. The employment of the revision petitioner in TCS is also not in dispute. As far as the employment of the revision petitioner's wife, she admits that she is employed in Collectorate on temporary basis and her salary is Rs.23,000/- per month. Comparing the admitted income of the revision petitioner and disputed employment as well as income of the respondent, a sum of Rs.10,000/- for the respondent and Rs.25,000/- for the minor child is not an excessive or exorbitant amount. A man who gets Rs.64,000/- as take home salary, definitely will have his gross salary alteast 20% more than that and if liberally giving deductions of 10% TDS under Income Tax and other statutory contributions.
19. Learned counsel for the revision petitioner would say that he has to take care of his old parents and divorced sister. That http://www.judis.nic.in 11 is the reason, why this Court is not inclined to enhance the maintenance amount, though in the given facts and circumstances, only one third should be given to his personal expenses and rest of his earnings to be given to his wife and daughter as far as quantum of financial assistance by way of monthly maintenance. Therefore, this Court finds no error or illegality in the orders passed by the Courts below.
20. Coming to the compensation of Rs.3,00,000/- the amount fixed as compensation by the Courts below is not supported by any reasoning. No doubt, the respondent would have been put to hardship, mental agony and suffering due to the broken marriage and litigation. However, when a compensation is awarded it should have some reasoning. Fixation of Rs.3,00,000/- at random does not satisfy the judicial requirement. The point to be taken for consideration is the litigation which has been long drawn since 2014. The respondent herein should be compensated only to that extent.
21. As far as the commencement of maintenance, though the revision petitioner has claimed the commencement must be from the date of desertion, it is only from the date of filing the http://www.judis.nic.in 12 petition cause of action arises and it cannot be pushed back from the date of desertion which is not very certain in this case. Further, there is no much difference between the date of desertion and date of filing this maintenance petition. At the same time, this Court finds that the plea of the revision petitioner that the commencement of paying maintenance will be from the date of order passed by the trial Court is also not acceptable because once law has been set into motion, the Courts delay cannot prejudice the parties. Hence, this Court finds no merit in the submission of the revision petitioner regarding payment of maintenance should commence only from the date of order and not from the date of filing the complaint. Accordingly, this issue is answered against the revision petitioner.
22. As far as compensation amount of Rs.3,00,000/- is concerned, it is also now under challenge. This Court finds taking into consideration of order, income capacity equitable has been passed pertaining to monthly maintenance. So no additional compensation needs to be given to the petitioner except the litigation expenses which could be at Rs.50,000/- at the optimum.
23. Regarding the Sreedana jewels, the evidence placed before the trial Court such as the list of articles annexed to the http://www.judis.nic.in 13 Protection Officer's report, the betrothal marriage agreement deed signed by parties of both sides, more particularly, the revision petitioner, his father and witnesses, the evidence of prosecution witnesses indicates that except 24 sovereigns out of 100 sovereigns, rest are in possession of the revision petitioner. Minor discrepancies whether the entire 74 sovereigns are in the locker or only part of it is in the locker is immaterial. Either way, it is in possession of the revision petitioner. Therefore, he is bound to return the jewels back.
24. The contention of the revision petitioner that he was not given an opportunity to dispute the list of 27 items of jewels has no legs to stand. Right from the day of complaint dated 22.06.2014 it is the consistent stand of the revision petitioner that 100 sovereigns was given as Sreedana along with 11 sovereigns jewels to the revision petitioner. It is now contended that no jewel is with the revision petitioner. The conspicuous silence of the revision petitioner regarding the 11 sovereigns of jewels given to him at the time of marriage gives an impression that the he does not want to part away even a single gram of jewel which he has taken away from his wife's family. Since the list of jewels and its weight are already been part of Ex.P.6 and Ex.P.7, we see adequate opportunities have been http://www.judis.nic.in 14 given to the revision petitioner to challenge the content of it. Both the Courts have disbelieved the revision petitioner denying the possession of the jewels. This Court also have no reason to take a different view regarding the jewels retained by the revision petitioner. Hence direct the revision petitioner to return the jewels within 15 days from the date of receipt of a copy of this order.
25. For the above said reasons, both the Criminal Revision Cases filed in Crl.R.C.(MD) No.335 and 336 of 2018 are dismissed. If the revision petitioner has converted 76 sovereigns of Sreedana jewels and 11 sovereigns given to him, then he is at the liberty to pay the cost of it at the current market rate.
26. When the cases were pending consideration this Court as interim order regarding the visitation right of the revision petitioner, permitted him to visit his minor daughter at Andal temple located at Srivilliputhur on every Sunday. Both the revision petitioner as well as the respondent are complying the direction continuously till date. The said order shall continue in the best interest of the minor child.
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27. The order passed in these Criminal cases are only with respect to monetary benefits. So far as the visitation rights are concerned, the revision petitioner is entitled to visit his minor daughter every week as directed by this Court vide its order dated 30.08.2018.
28. With these directions and observations, these Criminal Cases are dismissed. Consequently, connected miscellaneous petitions are closed.
24.10.2018 Index : Yes/no Internet: Yes/no sts To
1) The Principal District Court, Srivilliputhur.
2) The Judicial Magistrate No.2, Srivilliputhur (i/c)
3) The Section Officer, Criminal Section (Records) Madurai Bench of Madras High Court, Madurai. ( 2 copies) http://www.judis.nic.in 16 Dr.G.JAYACHANDRAN, J., sts Order in Crl.R.C.(MD)Nos.335 and 336 of 2018 24.10.2018 http://www.judis.nic.in