Madras High Court
Sridhar vs Ramyadevi on 9 August, 2024
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl. R.C. No. 529 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 09.08.2024
CORAM:
The Hon'ble MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.RC.No.529 of 2021
and
Crl.M.P.No.8643 of 2021
1. Sridhar
2. Krishnaveni
3. Sudha ...Petitioners/Appellants/Respondents
-Vs-
1. Ramyadevi
2. Minor.Srinesh
3. Minor.Sridharshan ...Respondents/Respondents/Petitioners
Prayer:- Criminal Revision filed under Section 397 r/w. 401 of the
Criminal Procedure Code, 1973, to set aside the Judgment dated
25.03.2021 made in C.A.No.36 of 2019 on the file of the learned Additional
District and Sessions Judge, Mayiladuthurai, Additional full in-charge Fast
Track Mahila Sessions Court modifying the Judgment dated 12.02.2019
made in D.V.C.No.18 of 2017 on the file of the learned Judicial Magistrate-
I, Mayiladuthurai.
For Petitioners : Mrs.D.Sathya
Legal Aid Counsel
For Respondents : Mrs.Vijayalakshmi K.Rajarathinam
Legal Aid Counsel
https://www.mhc.tn.gov.in/judis
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Crl. R.C. No. 529 of 2021
ORDER
This Criminal Revision is filed to set aside the Judgment dated 25.03.2021 made in C.A.No.36 of 2019 on the file of the learned Additional District and Sessions Judge, Mayiladuthurai, Additional full in-charge Fast Track Mahila Sessions Court modifying the Judgment dated 12.02.2019 made in D.V.C.No.18 of 2017 on the file of the learned Judicial Magistrate- I, Mayiladuthurai.
2. When the case came up for hearing on 15.09.2023 there was no representation for both parties. Instead of dismissing the case, this Court had directed the Legal Aid Committee attached to this Court to nominate a Counsel for Petitioner and another Counsel for Respondent. Accordingly, the Legal Aid Committee had nominated Mrs.D.Sathya as Legal Aid Counsel for the Petitioner/Husband and Mrs.Vijayalakshmi K. Rajarathinam as Legal Aid Counsel for the Respondent/Wife.
3. When the case came up for hearing on 15.09.2023, this case was adjourned to 22.09.2023. Subsequently, it came up for hearing on 13.10.2023.
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4. The learned Legal Aid Counsel for the Revision Petitioner Mrs.D.Sathya submitted her arguments. As per her submission, the Petitioner is a Government servant. The second Petitioner is the mother of the first Petitioner. The third Petitioner is the sister of the first Petitioner. The first Respondent is the wife of the first Petitioner. It is the submission of the learned Counsel for the Petitioner that the first Petitioner/Husband was granted divorce on the ground of desertion and cruelty. The decree of divorce was granted after contest on 17.09.2016. Whereas the Domestic Violence Case was filed in the year 2017. The learned Judicial Magistrate No.I, Myladuthurai failed to appreciate the fact that there cannot be Domestic Violence when the wife had left the matrimonial home and living with her parents. The learned Judicial Magistrate No.I, Mayiladuthurai failed to appreciate those facts that the ingredients of Domestic Violence Act is not at all attracted in this case. Still the learned Judicial Magistrate No.I, Mayiladuthurai had granted the relief under Sections 18, 20, 22 of the Domestic Violence Act by granting relief of sharing household or in the alternative to pay rent to the premises taken on lease by the wife under Section 20 of the Maintainance Act, Rs,8,000/-; from the date of filing of Petition and under Section 22 the Respondent was granted Rs.3,00,000/- as compensation. Aggrieved by the same, the Respondent in the Domestic https://www.mhc.tn.gov.in/judis 3/16 Crl. R.C. No. 529 of 2021 Violence Case/the husband had preferred an Appeal. In Appeal, after hearing the arguments of both parties, the learned Appellate Judge/Additional Sessions Judge, Fast Track Court, by judgment dated 25.03.2021 confirmed the order of the learned Judicial Magistrate No.I, Mayiladuthurai.
5. The maintenance ordered by the learned Judicial Magistrate No.I, Mayiladuthurai was modified in the appeal.
6. Aggrieved by the appellate Court judgment, the learned Additional Sessions Judge/Fast Track Mahila Court in confirming the Domestic Violence order passed by the learned Judicial Magistrate No.I, the husband/appellant before the learned Additional District and Sessions Judge, Fast Track Mahila Court, Mayiladuthurai, had preferred this Criminal Revision Case seeking to set aside the order passed by the learned Judicial Magistrate No.I, Mayiladuthurai and confirmed by the learned Additional District and Sessions Judge, Fast Track Mahila Court, Mayiladuthurai.
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7. It is the contention of the learned Counsel for the Revision Petitioner that the Domestic Violence Case itself is not maintainable as it is filed after delay of more than one year. When the divorce petition was filed in H.M.O.P. No.158 of 2015 before the learned Sub Judge, Mayiladuthurai the first Respondent in this case as Respondent in the HMOP filed counter in which she had not at all stated the averments claimed in the Domestic Violence Case. Therefore, filing of a Domestic Violence Case is an after- thought which is not at all maintainable. When the parties are not living under the same roof, there cannot be any complaint of Domestic Violence case. The Petitioner in Domestic Violence Case had filed it beyond the period of limitation for which she is not entitled to any relief. Still, the learned Judicial Magistrate No.I, Mayiladuthurai had granted the relief. The learned Additional District and Sessions Judge, Fast Track Mahila Court, Mayiladuthurai also did not consider the grounds of appeal filed by the Revision Petitioner as Appellant. Before the learned Additional District and Sessions Judge, Fast Track Mahila Court, Mayiladuthurai, the Appellant raised grounds regarding the maintainability. The learned Additional District and Sessions Judge, Fast Track Mahila Court, Mayiladuthurai had by his judgment partly modified the quantum of maintenance ignoring the facts raised in the grounds of appeal. https://www.mhc.tn.gov.in/judis 5/16 Crl. R.C. No. 529 of 2021
8. The learned Counsel for the Respondent/Wife vehemently objected to the line of arguments made by the learned Counsel for the Revision Petitioners stating that the first Petitioner as Respondent in maintenance case had not furnished the salary details. Also, the petition in Domestic Violence Case even though qualified to get a job was prevented from seeking employment. The first Petitioner along with second and third Petitioners had treated the Respondent/wife as a housemaid causing mental and physical harassment to her which made her to leave the matrimonial home.
9. The learned Counsel for the Respondent/Wife also invited the attention of this Court to Section 2 of the Domestic Violence Act which reads as under:-
“2. Definitions In this Act, unless the context otherwise requires,
(a)aggrieved person means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;
(b)child means any person below the age of eighteen years and includes any adopted, step or foster child;
(c)compensation order means an order granted in terms of section 22;
(d)custody order means an order granted in terms of section 21;
(e)domestic incident report means a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person;
(f)domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
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(g)domestic violence has the same meaning as assigned to it in section 3;
(h)dowry shall have the same meaning as assigned to it in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961);
(i)Magistrate means the Judicial Magistrate of the first class, or as the case may be, the Metropolitan Magistrate, exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) in the area where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place;
(j)medical facility means such facility as may be notified by the State Government to be a medical facility for the purposes of this Act;
(k)monetary relief means the compensation which the Magistrate may order the respondent to pay to the aggrieved person, at any stage during the hearing of an application seeking any relief under this Act, to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence;
(l)notification means a notification published in the Official Gazette and the expression notified shall be construed accordingly;
(m)prescribed means prescribed by rules made under this Act;
(n)Protection Officer means an officer appointed by the State Government under sub-section (1) of section 8;
(o)protection order means an order made in terms of section 18;
(p)residence order means an order granted in terms of sub-section (1) of section 19;
(q)respondent means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner;
(r)service provider means an entity registered under sub-section (1) of section 10;
(s)shared household means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;(t)shelter home means any shelter home as may be notified by the State Government to be a shelter home for the purposes of this Act.” https://www.mhc.tn.gov.in/judis 7/16 Crl. R.C. No. 529 of 2021
10. Citing the above said provision, the learned Counsel for the Respondent/Wife submitted that there had been sufficient materials before the learned Judicial Magistrate No.I, Mayiladuthurai to arrive at a conclusion that the conduct of the husband had resulted in Domestic Violence to the Petitioner before the learned Judicial Magistrate No.I, Mayiladuthurai. That is why, the learned Judicial Magistrate No.I, Mayiladuthurai had granted the relief sought by the wife as Petitioner in Domestic Violence Case under Sections 19, 20 and 21 of the Domestic Violence Act. This Revision lacks merit and is to be dismissed.
11. The learned Counsel for the Respondent also invited the attention of this Court to paragraph 9 of the affidavit of the husband in the Criminal M.P.No.8643 of 2021 and ground (c) in the Criminal Revision. Also, the averments in the divorce petition also attracts the definition of domestic violence as per Section 2 of the Domestic Violence Act. Therefore, the finding of the learned Judicial Magistrate No.I, Mayiladuthurai in granting the relief to the Petitioner in the Domestic Violence Case cannot be considered perverse. On the other hand, the Appeal filed by the Respondent in the Domestic Violence Case rejected the contention of the Appellant and modified the quantum of amount granted https://www.mhc.tn.gov.in/judis 8/16 Crl. R.C. No. 529 of 2021 by the learned Judicial Magistrate No.I, Mayiladuthurai and on merits the Domestic Violence Case was confirmed. This Criminal Revision Case has no merit and is to be dismissed.
Point for consideration:
Whether the Revision Case filed by the Revision Petitioner is to be allowed and the order passed by the learned Judicial Magistrate No.I, Mayiladuthurai and modified by the learned Additional District and Sessions Judge, Fast Track Mahila Court, Mayiladuthurai is to be set aside as perverse?
12. On consideration of the rival submissions, it is found that the Domestic Violence Case was accepted by the learned Judicial Magistrate No.I, Mayiladuthurai based on the evidence let in by the wife as Petitioner. The contention of the Respondent/husband is that there cannot be a Domestic Violence when parties are not residing in the same residence.
13. As per the submission of the learned Counsel for the Revision Petitioner, the Domestic Violence Case is not maintainable as per Section 31 of the Protection of Women from Domestic Violence Act, 2005 which is extracted as under:-
“31. Penalty for breach of protection order by respondent. – (1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with https://www.mhc.tn.gov.in/judis 9/16 Crl. R.C. No. 529 of 2021 both.
(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.
(3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.”
14. As per the reported ruling in (2022) 15 SCC 50 [Kamatchi vs. Lakshmi Narayanan], the provisions of the Protection of Women from Domestic Violence Act, 2005 contemplate filing of an application under Section 12 to initiate proceedings before the Magistrate concerned. After hearing both sides and after taking into account the material on record, the Magistrate may pass an appropriate order under Section 12 of the Protection of Women from Domestic Violence Act, 2005. It is only the breach of such order which constitutes an offence as is clear from Section 31 of the Protection of Women from Domestic Violence Act, 2005. Thus, if there be any offence committed in terms of the provisions of the Protection of Women from Domestic Violence Act, 2005, the limitation prescribed under Section 468 Cr.P.C. will apply from the date of commission of such offence.
By the time an application is preferred under Section 12 of the Protection of Women from Domestic Violence Act, 2005, there is no offence committed in terms of the provisions of the Protection of Women from Domestic Violence Act, 2005 and as such there would never be a starting point for https://www.mhc.tn.gov.in/judis 10/16 Crl. R.C. No. 529 of 2021 limitation from the date of application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. Such a starting point for limitation would arise only and only after there is a breach of an order passed under Section 12 of the Protection of Women from Domestic Violence Act, 2005.
15. Further, a “complaint” as contemplated under the Protection of Women from Domestic Violence Act, 2005 and the Domestic Violence Rules is not the same as a “complaint” under Cr.P.C. A complaint under Rule 2(b) of the Domestic Violence Rules is defined as an allegation made orally or in writing by any person to a Protection Officer. On the other hand, a complaint, under Section 2(d) Cr.P.C. is any allegation made orally or in writing to a Magistrate, with a view to his taking action under Cr.P.C., that some person, whether known or unknown has committed an offence. However, the Magistrate dealing with an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is not called upon to take action for the commission of an offence. Hence, what is contemplated is not a complaint but an application to a Magistrate as set out in Rule 6(1) of the Domestic Violence Rules. A complaint under the Domestic Violence Rules is made only to a Protection Officer as https://www.mhc.tn.gov.in/judis 11/16 Crl. R.C. No. 529 of 2021 contemplated under Rule 4(1) of the Domestic Violence Rules.
16. Rule 6(1) sets out that an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 shall be as per Form II appended to the Protection of Women from Domestic Violence Act, 2005. Thus, an application under Section 12 not being a complaint as defined under Section 2(d) Cr.P.C., the procedure for cognizance set out under Section 190(1)(a) Cr.P.C., followed by the procedure set out in Chapter XV Cr.P.C. for taking cognizance will have no application to a proceeding under the Protection of Women from Domestic Violence Act, 2005. To reiterate, Section 190(1)(a) Cr.P.C. and the procedure set out in the subsequent Chapter XV Cr.P.C. will apply only in cases of complaints, under Section 2(d) Cr.P.C., given to a Magistrate and not to an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005.
17. In the light of the above observation of the Hon'ble Supreme Court, the submission of the learned Counsel for the Revision Petitioner that the learned Judicial Magistrate ignored the fact that the petition had been filed beyond the period of limitation cannot be sustained. At the same https://www.mhc.tn.gov.in/judis 12/16 Crl. R.C. No. 529 of 2021 time, the contention of the learned Counsel for the Revision Petitioner that the Domestic Violence case was filed as an after-thought after filing of the HMOP by the Revision Petitioner is justified.
18. The submission of the learned Counsel for the Revision Petitioner/Husband that the wife in H.M.O.P No.158 of 2015 had filed counter before the learned Sub Judge, Mayiladuthurai. In the counter, she had not at all stated the facts mentioned in the Domestic Violence case. Only after HMOP was filed the Domestic Violence Case had been filed as an after-thought. When the parties are not living under the same roof, there cannot be any complaint of domestic violence. The learned Judicial Magistrate No.I, Mayiladuthurai had ignored these circumstances available on record. When the Appeal was filed by the Husband as Appellant, the learned Additional District and Sessions Judge, Fast Track Mahila Court, Mayiladuthurai also failed to consider those circumstances. The claim of the husband is found justified on perusal of Section 2(f) and 2(s) of the Domestic Violence Act. Section 2(f) defines the word “Domestic Relationship” and Section 2(s) defines “shared household”. Considering the relationship between the husband and wife had been severed after grant of divorce by the learned Sub Judge, Mayiladuthurai the submission of the https://www.mhc.tn.gov.in/judis 13/16 Crl. R.C. No. 529 of 2021 learned Counsel for the Revision Petitioner/Husband is found acceptable. It is found that the divorce had been granted on the ground of desertion and cruelty by the wife. Under those circumstances, the petition for Domestic Violence is only for the purpose of maintenance.
In the result, this Criminal Revision Case is allowed. The Judgment dated 25.03.2021 made in C.A.No.36 of 2019 on the file of the learned Additional District and Sessions Judge, Mayiladuthurai, Additional full in-charge Fast Track Mahila Sessions Court modifying the Judgment dated 12.02.2019 made in D.V.C.No.18 of 2017 on the file of the learned Judicial Magistrate-I, Mayiladuthurai is set aside. Consequently, the connected miscellaneous petition is closed.
09.08.2024 srm/shl Internet:Yes/No Index:Yes/No Speaking/Non-speaking order https://www.mhc.tn.gov.in/judis 14/16 Crl. R.C. No. 529 of 2021 To
1.The Additional District and Sessions Judge, Mayiladuthurai, Additional full in-charge Fast Track Mahila Sessions Court.
2.The Judicial Magistrate-I, Mayiladuthurai.
3.The Public Prosecutor, High Court, Madras.
SATHI KUMAR SUKUMARA KURUP. J https://www.mhc.tn.gov.in/judis 15/16 Crl. R.C. No. 529 of 2021 srm Order made in Crl.R.C. No.529 of 2021 09.08.2024 https://www.mhc.tn.gov.in/judis 16/16