ORDER

This Criminal Revision case has been filed to set aside the judgment dated 11.06.2018 in C.A.No.36 of 2017 on the file of the Principal Sessions Judge, Namakkal, and restore the orders passed by the learned Magistrate dated

16.06.2017 in D.V.C.No.4 of 2016 on the file of the Judicial Magistrate, Paramathi.

2. This Revision has been filed as against the judgment dated 11.06.2018 passed in C.A.No.36 of 2017 on the file of the Principal Sessions Judge, Namakkal, thereby setting aside the judgment passed in D.V.C.No.4 of 2016 on the file of the Judicial Magistrate, Paramathi, thereby ordered right of residence and monthly maintenance of Rs.5,000/- payable by the respondents.

3. The case of the prosecution is that the petitioner got married with one Kumar, who is son of the first respondent herein, on 24.10.2004 and due to their wedlock they gave birth to a female child. Unfortunately, on 11.10.2015, her husband died due to cardiac arrest. At the time of his death, he was working in Raaga Oil Mill and receiving a sum of Rs.5,000/- as monthly salary. During their marriage, the petitioner's family had presented 50 sovereigns of golden jewels and two wheeler along with household articles. The petitioner also made allegations as against her deceased husband that while he was alive for demand of money she was driven out from her matrimonial home and after negotiations, they joined together. After demise of her husband, the petitioner along with her minor child were living in her husband's house. However, the respondents prevented them from residing there and she driven out from the matrimonial home. Hence the complaint. Further, the petitioner also initiated suits for partition in respect of the subject property and along with other property owned by the respondents herein, which is pending.

4. She, in order to prove her case, examined PW1 to PW3 and marked Exs.P1 to P10 and on the side of the respondents they were examined DW1 and DW2 and marked Exs.R1 to R6 as exhibits.

5. On perusal of oral and documentary evidence, the trial Court ordered monthly maintenance of Rs.5000/- each to the petitioner and her minor daughter by the respondents one and two and the respondents were restrained from interfering with the peaceful possession and enjoyment of the petitioner in the residence. The respondents were preventing the right of residence of the petitioner and the respondents are directed to not to disallow the petitioner to reside there. Aggrieved by the same the respondents preferred an appeal and the same was allowed and the fining of the trial Court stood restored for two reasons (i) the provision under Section 12(1) of Domestic Violence Act, 2005, is clear that only after getting Domestic Incident Report from the Protection Officer, the trial Court shall pass any order, and in the case on hand, no reference has been made to the Protection Officer and no domestic incident report has been received by the Magistrate from the Protection Officer, and (ii) as per the provision under Section 12(5) of Domestic Violence Act, 2005, it is clear that the application made under sub-section (1) shall be disposed within a period of sixty days from the date of its first hearing. But in the case on hand, it was disposed of only after one year. Therefore, the Appellate Court set aside the order passed by the trial Court and allowed the appeal.

6. The provision under Section 12(1) of Domestic Violence Act, 2005, says that an aggrieved person can file an application before the Magistrate seeking relief as contemplated under Section 18 to 22 provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report issued by him from the Protection Officer or the service provider. Therefore, it does not mandates the Magistrate only after getting the domestic incident report, the Magistrate shall pass order. While passing any order under such application submitted by the aggrieved person, the Magis