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IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
M. VENUGOPAL, J.
K. Rajendran and Ors - Appellant
Versus
Ambikavathy and Ors - Respondent
Crl. R.C. (MD) No. 482 of 2012 and M.P. (MD) No. 1 of 2012
Decided On : 08-01-2013
Criminal Procedure Code – Section 397/401 - Trial Court – Jurisdiction - Modifying or revoking any order passed earlier - Learned counsel for the Revision Petitioners/Respondents submits that Learned Judicial Magistrate, while passing the impugned order in committed an error in directing the Revision Petitioners/Respondents that they should not evict the First Respondent/Petitioner from the house bearing Door District wherein she has a share because of simple fact that house referred to supra belongs to the Second Petitioner/Mother-in-law exclusively which cannot be in any manner as a shared household - Learned counsel for Petitioners/Respondents urges before this Court that the impugned order passed by trial Court in is a final order and in reality trial Court ought to have issued notice to the Revision Petitioners/Respondents and thereby an adequate opportunity ought to have been provided to them in the manner known to law – Held, Shared house/flat would only mean the house belonging to or taken on rent by the husband or the house which belongs to the joint family of which the husband is a member flat where wife is residing and which is owned by her father-in-law, cannot be said to be shared accommodation and she has no legal right to continue to live in that house, except with the consent of her father-in-law who is not agreeable to her continuing to live in the flat owned by him - Therefore no restraint order against the father-in-law can be passed in respect of the flat - In regard to the power to grant an interim ex parte order as per Section 23 of Act, it is to be pointed out that the Learned Judicial Magistrate ought to be construed of repercussions and ramifications of the orders to be passed under Section 23 of the Act. Moreover, to attract the provisions of the Domestic Violence Act 2005, it may be shown that the parties lived in the share household either jointly or singly/individually - It is not in dispute that jurisdiction of a concerned Court relates to the supervisory jurisdiction of a superior Court. A right of appeal is conferred only by a Statute. It is not itself a necessary part of procedure in an action but, it is the right of a person entering the superior forum invoking its assistance to correct the error committed by the lower forum. Furthermore, Section 372 enjoins that no appeal shall lie from any judgment or order of the criminal Court except as provided for by this Court or by any other Law for the time being in force - This Court aptly points out the decision in AIR 2009 wherein, it is inter alia observed and held that the Husband having interest in house by virtue of inheritance and he was not party to alleged sale transactions, the house can be treated as "shared household", wherein wife lived in domestic relationship with Husband - Moreover, in the said decision it is observed that the petitioners husband producing bogus sale deed regarding house in question and making false statement to defeat legitimate right of wife petition is liable to be dismissed with costs quantified – Petition dismissed
ORDER :
M. VENUGOPAL, J.
1. The petitioners/respondents have preferred the instant Criminal Revision Petition as against the order dated 21.9.2012 in D.V.O.P. No. 29 of 2012 passed by the Learned Judicial Magistrate, Valliyoor, Tirunelveli District. The Learned Judicial Magistrate, Valliyoor, while passing the impugned orders in D.V.O.P. No. 29 of 2012 on 21.9.2012, has directed that the Petitioner/First Respondent should not be evicted by the respondents (Petitioners in Revision Petition) from the house bearing Door No. 36 A Chokkanathan Kovil Street, Valliyoor, Tirunelveli District and also granted residence orders and further has directed that the Respondents (Revision Petitioners) should not cause trouble to the First Respondent/Petitioner in any manner and granted protection order, and further passed orders granting interim injunction restraining the Respondents/Revision Petitioners from any way interfering with the enjoyment of the house in which the Petitioner/First Respondent has share and in other properties thereby not to encumber the same. Further, the First Respondent/Revision Petitioner has been directed to pay a sum of Rs. 1,500/- per month to the Petitioner/First Respondent/Wife towards her Food, Clothing and for Medical expenses and also directed the Inspector of Police, Valliyoor Police Station to render assistance to the first Respondent/Petitioner in fulfilling the directives issued.
2. The Learned counsel for the Revision Petitioners/Respondents submits that the Learned Judicial Magistrate, Valliyoor, while passing the impugned order in D.V.O.P. No. 29 of 2012 has committed an error in directing the Revision Petitioners/Respondents that they should not evict the First Respondent/Petitioner from the house bearing Door No. 36 A Chokkanathan Kovil Street, Valliyoor, Tirunelveli District, wherein, she has a share, because of the simple fact that the house referred to supra belongs to the Second Petitioner/Mother-in-law exclusively which cannot be characterised in any manner as a 'shared household'.
3. The Learned counsel for the Petitioners/Respondents urges before this Court that the impugned order dated 21.9.2012 passed by the trial Court in D.V.O.P. No. 29 of 2012 is a final order and in reality, the trial Court ought to have issued notice to the Revision Petitioners/Respondents and thereby an adequate opportunity ought to have been provided to them in the manner known to law.
4. Yet another submission of the Learned counsel for the petitioners/respondents is that the Learned Judicial Magistrate, Valliyoor, Tirunelveli District, while passing the impugned ex parte order in D.V.O.P. No. 29 of 2012 dated 21.9.2012 should not have examined the First Respondent/Wife of the First Revision Petitioner on oath. In short, the contention of the Learned counsel for the petitioners is that the procedure contemplated has not been followed and therefore, the impugned order stands vitiated in the eye of law.
5. That apart, the Learned counsel for the petitioners contends that the Petitioners could have very well convinced the trial Court by producing earlier complaint lodged by the First Petitioner as against the torture and humiliation caused by the First Respondent/Daughter-in-Law. Furthermore, there is a divorce petition between the First Petitioner/Husband and the First Respondent/Wife which has a serious impact on the present proceedings.
6. The Learned counsel for the petitioners contends that the marriage between the First Petitioner and the First Respondent has taken place on 10.7.1993 and as a result of the wedlock, they have given birth to two children and for six months, they lived at Valliyoor and in connection with the employment, the First Petitioner/Husband has gone abroad and he returned back to India after 5 years viz., during the year 1998 and for 4 years, he lived at Tirunelveli. Further, the Learned counsel for the petitioners submits that the parents of the First Respondent/Wife are residing at Koodankulam an
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