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HIGH COURT OF KERALA
Kauser Edappagath, J
NOORJAHAN P.A.,
– Appellant
Versus
MUHAMMED ASHARAF K.I., – Respondent
Crl.Rev.Pet 1335 2019
Domestic Violence - Protection of Women from Domestic Violence Act - Sections 12 - 20 - The court examined the procedural integrity in the maintenance order under the DV Act, emphasizing fair trial rights and directing payment of arrears while remanding the matter for proper hearing.
Fact of the Case:
The wife filed a petition under the DV Act seeking maintenance from her husband. The Magistrate granted maintenance, which was later appealed by the husband, leading to the appeal court setting aside the order and remanding the case, prompting the wife to challenge this.
Finding of the Court:
The appellate court found procedural irregularities in the Magistrate's ruling, particularly lack of opportunity for the husband to cross-examine. The court emphasized the need for a fair process while ensuring the wife receives a portion of her due maintenance.
Issues: Whether the order of maintenance was justified and if the husband was provided sufficient opportunity to defend against the claims made by the wife under the DV Act.
Ratio Decidendi: The court highlighted that a fair hearing is a cornerstone of justice, and despite revealing procedural flaws by the lower court, it focused on the urgency of addressing accrued maintenance in favor of the wife.
Final Decision: The husband must deposit Rs.8,00,000/- towards maintenance arrears within specified timelines.
ORDER
This Criminal Revision Petition has been filed by the wife in a proceedings under the Protection of Women from Domestic Violence Act, 2005 (for short 'the DV Act') challenging the order passed by the Additional Sessions Court-II, North Paravur in Crl.A.No.331 of 2018.
2. The revision petitioner is the wife of the first respondent.
She filed an application under Section 12 of the DV Act against the first respondent claiming various reliefs before the Judicial First Class Magistrate Court, Njarakkal as M.C.No.17 of 2016. The learned Magistrate allowed the application as per the order dated 7.7.2018 directing the first respondent to pay monthly maintenance of Rs.50,000/- to the petitioner or to pay Rs.25,00,000/- in lumpsum within one month. The said order was challenged by the first respondent herein at the Additional Sessions Court-II, North Paravur as Crl.Appeal No.331 of 2018. The Sessions Court as per the judgment dated 20.9.2019 allowed the appeal and set aside the order passed by the learned Magistrate and remanded the case to the learned Magistrate Court for disposal. The wife has challenged the said order in this revision petition.
2. I have heard Smt.Amrutha Vidyadharan, the learned counsel for the petitioner and Sri.P.Samsudin, the learned counsel appearing for the first respondent.
3. The M.C. was originally filed in the year 2012 before the Judicial First Class Magistrate Court-I, Kochi. Thereafter it was transferred to the Judicial First Class Magistrate Court, Njarakkal and was renumbered as M.C.No.17 of 2016. Initially, the learned Magistrate passed an interim order of monthly maintenance at the rate of Rs.50,000/- and in appeal it was reduced to Rs.20,000/-. This Court as per the order dated 5.12.2019 also directed the first respondent to continue to pay the monthly maintenance at the rate of Rs.20,000/- from the date of the petition. The M.C. was filed in the year 2012. Now more than ten years have been elapsed.
4. The learned counsel for the first respondent submitted that, so far, only Rs.3,80,000/- has been paid by the first respondent towards the maintenance.
5. The learned counsel for the petitioner submitted that if the interim maintenance granted by the court is calculated at the rate of Rs.20,000/- per month, the total arrears would come to Rs.17,00,000/-. The petitioner herein has no other source of income, submitted the counsel.
6. The order passed by the Judicial First Class Magistrate Court, Njarakkal is an exparte one. The appellate court found that no sufficient opportunity was given by the learned Magistrate to the first respondent to cross examine the revision petitioner herein and there is procedural irregularity resulting in miscarriage of justice. It was in these circumstances, the appellate court set aside the order of the learned Magistrate and remanded the case back to the learned Magistrate. However, no condition was imposed. There was no direction to deposit the arrears of maintenance. Considering the fact that even if the maintenance at the rate of Rs.20,000/- is calculated, there is arrears of Rs.17,00,000/-, I am of the view that the first respondent has to be directed to deposit at least half of the said amount as a condition to contest the case on merits.
7. In the light of the above findings, this Criminal Revision Petition is disposed of as follows :
(i) The first respondent shall deposit a sum of Rs.5,00,000/-
(Rupees Five Lakh only) at the court below within one month and another sum of Rs.3,00,000/- (Rupees Three Lakh only) within one month thereafter as arrears of maintenance. On such deposit, the petitioner is entitled to withdraw the same.
(ii) On such deposit, the order passed by the Judicial First Class Magistrate Court, Njarakkal in M.C.No.17 of 2016 dated 7.7.2018 shall stand set aside. The learned Magistrate shall give an opportunity to the first respondent to cross examine PW1 and also to adduce further evidence, if any.
(iii) The learned Magistrate shall dispose of M.C.No
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