Madras High Court
Natchathiram vs Vanitha on 26 August, 2011
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 26/08/2011 Coram The Honourable Mr. Justice S.PALANIVELU Crl.RC.(MD).No.470 of 2011 and M.P.(MD).No.1 of 2011 Natchathiram .. Petitioner Vs 1.Vanitha 2.S.Muthuramalingam 3.S.Krishnan .. Respondents Criminal Revision Petition filed under Section 397 r/w. 401 of Criminal Procedure Code to call for the records in Criminal Appeal No.62 of 2010, on the file of the learned Fast Track Court No.II, Madurai, confirming the order passed in CMP.No.246 of 2009 on the file of the learned Judicial Magistrate No.II, Madurai and set aside the same and pass appropriate orders. !For Petitioner ... Mr.Babu Rajendran ^For Respondents ... Mr.S.M.A.Jinnah ***** :ORDER
This Criminal Revision is preferred to call for the records in Criminal Appeal No.62 of 2010, on the file of the learned Fast Track Court No.II, Madurai, confirming the order passed in CMP.No.246 of 2009 on the file of the learned Judicial Magistrate No.II, Madurai and set aside the same and pass appropriate orders.
2. The petitioner is the husband of the first respondent. The second and the third respondents are the brothers of the petitioner. The first respondent filed an application before the learned Judicial Magistrate No.VI, Madurai, under Section 12 of the Protection of Women from Domestic Violence Act,2005. (for short 'the Act'). The petitioner filed a counter before the Court below stating that the learned Judicial Magistrate No.VI was not having jurisdiction to try the matter and hence, the said Magistrate suo motu transferred the case to the learned Judicial Magistrate No.II, Madurai. After several adjournments, an order was passed on 21.06.2010, directing the petitioner to pay Rs.5,000/- per month as interim maintenance to the first respondent herein. The said order was challenged by the petitioner before the learned Additional District Judge, Madurai, in Criminal Appeal No.62 of 2010. But, the said appeal was dismissed on 05.05.2011 confirming the order of the Court below. Hence, this revision.
3. The learned counsel for the petitioner would submit that the order of the learned Judicial Magistrate would clearly show that the petitioner was not heard before passing the afore-said orders, that the first respondent has wilfully suppressed the grant of interim maintenance by the Family Court, Madurai, in H.M.O.P.No.615 of 2008 in her favour, that without perusing any documents, the concerned learned Judicial Magistrate has passed the order of interim maintenance and the same has been wrongfully confirmed by the appellate Court.
4. The learned counsel for the respondents Mr.S.M.A.Jinnah would submit that the learned Judicial Magistrate is empowered under Section 20 of the Act to pass interim orders as and when necessary, that only after affording ample opportunities to both sides the order was passed by the said Judicial Magistrate and that there is no necessity to disturb the findings of the Court below.
5. When B-Diary extract maintained by the learned Judicial Magistrate No.II, Madurai, is perused, on the consecutive hearings, there is no mention about the hearing of arguments of Advocates on both sides. On 21.06.2010, it is stated that the petitioner and the respondents were present and the interim order was pronounced. The order of the learned Judicial Magistrate would show that the arguments of advocates were not heard, but the request of the first respondent herein was considered and the order was passed.
6.In the considered view of this Court, when both parties are represented by the respective Counsel, the Court below should have afforded ample opportunities to both sides to put forth their contentions through their Counsel, but, it is not done so.
7. The next contention of the petitioner is that as per Section 26(3) of the Act what are all the orders granted by other Court in favour of the aggrieved person, should have been produced before the concerned learned Judicial Magistrate in the proceedings taken under the Protection of Women from Domestic Violence Act, 2005 and in this case, the said provision has been violated; that the order of the learned Judicial Magistrate does not show that the respondents produced the earlier order of the Family Court below granting interim maintenance in her favour and therefore, the order challenged is vitiated in this regard. For better appreciation of the case, Section 26(3) of the said Act is extracted below:-
"26.Relief in other suits and legal proceedings:-
....
(3)In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief. "
8. In view of the said provision, the first respondent is legally bound to inform the concerned learned Judicial Magistrate as to the relief of interim maintenance granted in I.A.No.153 of 2009 in H.M.O.P.No.615 of 2008 by the Family Court, Madurai. It is seen that the said order was in existence at the time of passing the order by the learned Judicial Magistrate. In the aforesaid circumstances, the order of the learned Judicial Magistrate suffers from illegality.
9. On the basis of the report given by the Protection Officer, the learned Judicial Magistrate has fixed the salary of the petitioner at Rs.20,000/-, per month, since he is working as police constable in police department. But, it is the bounden duty of the Court below to peruse the salary certificate of the petitioner before fixing at the above-said amount.
10. In view of the above said circumstances, the orders challenged before this Court suffer from infirmities and they have to be set aside and accordingly, they are set aside.
11. In the result, the criminal revision case is allowed with following directions setting aside the orders passed by the Courts below and the matter is remitted back to the learned Judicial Magistrate No.II, Madurai, for fresh determination on the point of fixing quantum of maintenance after affording ample opportunities to both parties.
12. It is brought to the knowledge of the Court that as per the conditional order of this Court passed in the stay petition, dated 29.06.2011, the petitioner has not deposited Rs.15,000/-. On 22.10.2010, the Family Court, Madurai, had fixed Rs.3,000/- to each of the petitioners as interim maintenance in I.A.No.153 of 2009 in H.M.O.P.No.615 of 2008, till the disposal of the petition before the jurisdictional Magistrate. As per the order of the Court below, the petitioner shall pay tentatively a sum of Rs.3,000/- to the first respondent per month till the actual maintenance ordered by the Court below.
13. In view of the above, at present, the petitioner is directed to pay a total sum of Rs.40,000/- (Rupees Forty Thousand Only) to the first respondent, out of which, a sum of Rs.15,000/- shall be paid within a period of two weeks from the date of receipt of a copy of this order and a sum of Rs.25,000/- shall be paid within six weeks thereafter. On making the said deposit, the first respondent shall withdraw the said amount. Besides, the petitioner shall continue to pay a sum of Rs.3,000/- per month on or before 05th of every month without any default, till the fixation of maintenance orders passed by the concerned learned Judicial Magistrate as maintenance. Interim order for maintenance shall be passed by the Court below preferably within a period of fifteen days from the date of receipt of a copy of this order and the main case shall be disposed of within 40 days thereafter. Consequently, the connected miscellaneous petition is closed. No costs.
ssm To
(i)Fast Track Court No.II, Madurai
(ii)Judicial Magistrate No.II, Madurai