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2015 Supreme(Mad) 931

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M. SATHYANARAYANAN, J.
S. Jeeva Ashok – Petitioner
Versus
Kalarani – Respondent
Criminal Revision Case (MD) No. 291 of 2014 & M.P. (MD) No. 1 of 2014
Decided On : 18-02-2015

Advocates Appeared:
For the Petitioner:Y. Krishnan, Advocate.
For the Respondent:S. Palanivelayutham, Advocate.

Headnote:

Protection of Women from Domestic Violence Act, 2005 - Section 31 - DV Act - Section 23 – Indian Penal Code - Section 498-A – Criminal Procedure Code - Section 125 - Case of love marriage - Alienation of assets whether movable or immovable - Order of monetary relief - It was case of love marriage between revision petitioner and respondent which came to be solemnized and once again came to be performed as per the Hindu rites and customs and said marriage was also registered and out of wedlock a girl child was born - Respondent filed complaint under DV Act making allegations against petitioner herein husband and his relatives and prayed for number of reliefs including monthly maintenance for return of articles and to meet out educational expenses of her daughter and it came to be numbered on file of Court of Judicial Magistrate No. II and pending disposal of same she filed under Section 23 of DV Act praying for return of her articles utensils bureau cot and jewels family card ration card and also interim maintenance per month from revision petitioner – Held, Insofar as order made is concerned it contains two portions - First portion is that revision petitioner has to pay a sum initially and within a time frame to respondent herein and second portion of order is that revision petitioner herein shall return utensils and other articles of respondent herein - This Court while disposing by common order observed that above said order is only an interim measure and further directed revision petitioner herein to pay arrears in three equal installments in respect of petition filed under Section 125 Cr. P.C - According to Counsel for revision petitioner he has entirely paid arrears and continues to pay maintenance amount to respondent herein and fact is disputed by Counsel for respondent – However this Court at this stage is not prepared to consider said submission for reason that main case filed under DV Act is pending adjudication and any observation made herein may affect rights of either of parties - In considered opinion of this Court order made as observed by this Court in common order passed is only an interim order and it was passed under Section 23 of DV Act - In light of above said provisions of DV Act and decisions rendered by Rajasthan High Court as well as Kerala High Court this Court is of view that said order cannot be construed as a protection order and therefore it is not enforceable under Section 31 of DV Act - It is also pertinent to point out at this juncture that interim order directing return of articles to respondent herein has reached finality - Though it is an interim order of course it is subject to final orders to be passed in main case on file of Court of Judicial Magistrate - Criminal Revision Case is allowed

Judgment

M. Sathyanarayanan, J.

1. The petitioner is the respondent in Cr.M.P.No.8269 of 2013, filed under Section 31 of the Protection of Women from Domestic Violence Act, 2005, (in short "DV Act"), seeking enforcement of the order dated 11.02.2011 made in Cr.M.P.No.7910 of 2010, on the file of the Court of Judicial Magistrate No. II, Dindigul. The said petition came to be ordered, after contest, on 17.12.2013 and challenging the legality of the same, the present revision is filed.

2. It was the case of love marriage between the revision petitioner and the respondent, which came to be solemnised on 08.02.2004 and once again, came to be performed on 20.06.2004 as per the Hindu rites and customs and the said marriage was also registered on 27.07.2007 and out of the wedlock, a girl child, namely, Lashya was born on 24.11.2004.

3. The respondent filed the complaint under the DV Act making allegations against the petitioner herein/husband and his relatives and prayed for number of reliefs including the monthly maintenance of Rs.15,000/- (Rupees Fifteen Thousand only), for return of stridhan articles and to meet out the educational expenses of her daughter and it came to be numbered as C.C.No.412 of 2010 on the file of the Court of Judicial Magistrate No. II, Dindigul and pending disposal of the same, she filed Cr.M.P.No.7910 of 2010 under Section 23 of the DV Act, praying for return of her articles, utensils, bureau, cot and jewels, family card/ration card and also interim maintenance of Rs.7,000/- (Rupees Seven Thousand only) per month from the revision petitioner.

4. It was opposed by the revision petitioner who was arrayed as the respondent therein. However, the lower Court has taken into consideration the facts that the revision petitioner herein is facing prosecution for the commission of the offence under Section 498-A I.P.C, etc., and that he was also directed to pay maintenance under Section 125 Cr. P.C., from the year 2008 onwards and that he has also not paid the arrears of the same, thought fit to direct the revision petitioner to pay a sum of Rs.10,000/- (Rupees Ten Thousand only) initially and thereafter, a sum of Rs.3,000/- (Rupees Three Thousand only) per month on or before 10th day of every month until further orders.

5. The lower Court further directed the revision petitioner to return the utensils, bureau, cot, etc., said to have been taken by him.

6. The revision petitioner also filed Crl.R.C.(MD)No.459 of 2011 challenging the common order dated 21.04.2011 passed in Crl.R.C.No.1 of 2011 by the learned Principal Sessions Judge, Dindigul, in awarding the maintenance at the rate of Rs.2,500/- (Rupees Two Thousand and Five Hundred only) and Rs.3,500/- (Rupees Three Thousand and Five Hundred only) to the respondent and her minor daughter, while revising the order passed in M.C.No.63 of 2008 by the Court of Chief Judicial Magistrate, Dindigul.

7. The revision petitioner also made a challenge to the order dated 11.02.2011 in Cr.M.P.No.7910 of 2010 in C.C.No.412 of 2010 passed by the learned Judicial Magistrate No. II, Dindigul, by filing Crl.R.C.(MD)No.3391 of 2011.

8. Both the revisions were taken up for final disposal together and they were disposed of, by common order dated 30.07.2013, wherein it was observed that the order passed in Cr.M.P.No.7910 of 2010 is nothing but an interim order and the Maintenance Application is once for all, disposed of, then the question of implementing the order passed under the DV Act, is not necessary.

9. On the merits of Crl.R.C(MD)No.459 of 2011, this Court observed that the salary of the revision petitioner/husband was only Rs.17,000/- (Rupees Seventeen Thousand only) which was increased to Rs.33,000/- (Rupees Thirty Three Thousand only) and directed both the parties to produce the documents before the trial Court regarding the said aspect and the Court of the Chief Judicial Magistrate was directed to fix the maintenance from 01.01.2012 for the subsequent period.

10. This Court has also take




















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