MADRAS HIGH COURT
M. Venugopal, J.
P.K. Nagarajan @
Meenakshisundaram — Petitioner
versus
N.Jeyarani & Ors. — Respondents
Crl. R.C. (MD).No.570 of 2013 and M.P.(MD).Nos.1 & 2 of 2013 And Crl. R.C.(MD)No.609 of 2013
Decided on 30.1.2014

IMPORTANT POINT
Husband is bound to maintain his wife and mere offer to maintain is not sufficient- Even if the Husband is obtained a Divorce on the ground of adultery, he would be liable to pay maintenance to the Wife unless he proves in the proceedings under Section 125 of the Criminal Procedure Code that wife is living in adultery .Mere friendship with a man does not amount to living in adultery. The charge of adultery must be proved by cogent and reliable evidence.

Headnote:(i) Protection of Women from Domestic Violence Act, 2005— Section 12 — Respondents,Wife and Children, as Petitioners filed a Petition under Section 12 against Revision Petitioner/Husband, seeking protection u/s 18, residential order u/s 19, monetary reliefs u/s 20, compensation order u/s 22—Revision petitions against order passed by Family Court—Instantly there was no oral evidence adduced by the parties and witnesses had not been examined on their side— There was absence of independent evidence as to whether Respondent 1 /Wife was not doing business for the past 4 years—Whether Revision Petitioner/Husband had let out only ground floor of property to a private party on lease—Whether the upper portion of the house was kept in his lock—These were all matters which required oral and documentary evidence to be adduced by the parties concerned by examining necessary witnesses— Trial Court had not recorded a finding how much income Respondent 1/Wife was getting from the Textile Business she was doing—Trial Court had not stated in express words that the income of the Revision Petitioner/Husband was so much by categorising the same in a definite form—Without rendering a finding on the income of the Revision Petitioner on a definite basis per month,trial Court had directed the Revision Petitioner/Husband to pay a sum of Rs. 3,000 per month to each of the 2nd and 3rd Petitioners till the disposal of the main application— In view of fact that both the Revision Petitioner/Husband and Respondent1 /Wife had not adduced any oral and documentary evidence to substantiate their averments and counter averments, Court, without expressing any opinion on the merits and demerits of the subject matter in issue, set aside the order in so far as it related to the maintenance claim made by the Respondents 2 and 3 and the 1st Respondent/Wife; in regard to the Residential Protection Order passed by the trial Court in favour of the 1st Respondent/Wife and remitted back the matter for fresh disposal to trial Court for disposal afresh. (Paras 51 to 57)

       (ii) Claim for maintenance by wife—Scope and ambit of — Ordinarily the relationship is deemed to exist for claiming maintenance by a spouse against her husband— Husband is bound to maintain his wife and mere offer to maintain is not sufficient—Ordinarily, the issue/question of maintenance is to be determined in relation to the income of the husband— The burden shifts on the Husband when circumstances show that Wife is unable to maintain herself—Also onus is on Husband to show that Wife had ample means to maintain herself—Even if the Husband is obtained a Divorce on the ground of adultery, he would be liable to pay maintenance to the Wife unless he proves in the proceedings under Section 125 of the Criminal Procedure Code that wife is living in adultery –Again, mere friendship with a man does not amount to living in adultery—The charge of adultery must be proved by cogent and reliable evidence. (Paras 25, 26)

       (ii) Protection of Women from Domestic Violence Act, 2005— Section 19 —For an order under Section 19 of the Act an application under Section 12 is to be filed before Magistrate and the Magistrate has to satisfy himself before passing an order under Section 19 of the Act that domestic violence had taken place. (Para 29)

       (iii) Protection of Women from Domestic Violence Act, 2005— Section 12—The relief provided under the Protection of Women from Domestic Violence Act, 2005 is in addition to the relief which may be available in any legal proceeding before Civil Court, Family Court or Criminal Court affecting the aggrieved person and the Respondent— In the absence of notification of Protection Officer or the registered service provider, it may not be possible for the Magistrate to receive the Domestic Incident Report before disposing of the application made by an aggrieved person under Section 12 of the Act— Maintenance order need not be based on the Domestic Incident Report. (Para 31)

       (iv) Protection of Women from Domestic Violence Act, 2005— Section 19—Residence Orders’ under Section 19 of the Act—Magistrate may on being satisfied that domestic violence has taken place pass a residence order restraining the Respondents from dispossessing or disturbing the possession of the aggrieved person from the shared household, directing the Respondent to remove himself from the shared household etc—As per Section 19 of the Act, no order shall be passed against any person who is a woman directing her to remove herself from the shared household— In fact, sub-section (2) of Section 19 of the Act enjoins the Magistrate to impose additional conditions and pass any other direction in order to protect the safety of the aggrieved person or her child—Sub-section (3) of Section 19 provides for execution of a bond by Respondents for prevention of the domestic violence— Section 19(5) of the Act empowers the Magistrate to pass an order directing the officer-in-charge of the concerned police station to give protection to the aggrieved person or to assist in implementation of the residence order. (Para 35)

       Result: Ordered Accordingly.