Crl.R.C.No.347 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.No.347 of 2021 &
Crl.M.P.Nos.6018, 6019 & 6507 of 2021
V.Gopinath ... Petitioner
Vs.
K.Hemalatha ... Respondent
PRAYER: Criminal Revision Case filed under 397 r/w 401 of Cr.P.C. to set aside
the Judgment dated 30.01.2019 made in C.A.No.237 of 2017, on the file of the
Court of V Additional Sessions Court, Chennai, modifying the order dated
19.06.2017 made in DVMC.No.104 of 2017, on the file of the Court of Additional
Mahila Metropolitan Magistrate, Allikulam Complex, Egmore, Chennai.
For Petitioner : Mr.N.Sivakumar
For Respondent : Mr.S.Suresh
1/12
https://www.mhc.tn.gov.in/judis/
Crl.R.C.No.347 of 2021
ORDER
This Criminal Revision is filed by the petitioner/husband against the order passed by the learned V Additional Sessions Court, Chennai, dated 30.01.2019 made in C.A.No.237 of 2017, modifying the order passed by the learned Additional Mahila Metropolitan Magistrate, Allikulam Complex, Egmore, Chennai, dated 19.06.2017 in DVMC.No.104 of 2017.
2. Initially, the respondent/wife filed a Domestic Violence complaint against the petitioner/husband and two others, [father and sister of the petitioner/husband], to the Social Welfare Officer, Chennai and after conducting an enquiry, the Social Welfare Officer has filed a report to the learned Additional Mahila Metropolitan Magistrate, Allikulam Complex, Egmore, Chennai, and the learned Metropolitan Magistrate, took cognizance of the complaint and numbered the petition as D.V.M.C.No.104 of 2017. The learned Metropolitan Magistrate, after enquiry, allowed the petition, by restraining the petitioner/husband and two others not to commit any domestic violence to the respondent/wife, and directed the petitioner/husband to pay maintenance of Rs.2,000/- per month from the date of petition till May 2017 and Rs.5,000/- 2/12 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.347 of 2021 from June 2017 onwards. The learned Magistrate also directed the petitioner/husband to return of sridhana articles of the respondent/wife and further directed the petitioner/husband to pay the compensation of Rs.50,000/- and directed the father and sister of the petitioner/husband to pay Rs.10,000/- as compensation to the respondent/wife within a period of one month from the date of order. Aggrieved by the order passed by the learned Magistrate, the petitioner/husband and two others have filed an Appeal before the learned V Additional Sessions Judge, Chennai in Crl.A.No.237 of 2017. The learned Judge, after hearing the arguments advanced by the learned counsel on either side, set aside the order passed by the learned Magistrate with reference to the Protection Order and Compensation order and confirmed the order with reference to the maintenance order and return of sridhana properties, and quantum of monthly maintenance granted by the trial Court payable from June 2017 was modified and the petitioner/husband was directed to pay Rs.3,000/- perm month to the respondent/wife on or before 5th day of every calendar month from June 2017 and the pendentie-lite maintenance payable from the date of petition till May 2017 and the mode of compliance ordered by the trial Court was confirmed.
3/12 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.347 of 2021
3. Challenging the abovesaid Judgment, the husband/petitioner has filed the present revision before this Court.
4. The learned counsel for the petitioner/husband would submit that in the petition in H.M.O.P.No.91 of 2013, filed by the petitioner/husband before the Sub Court, Ponneri, the learned Judge directed the respondent/wife to undergo medical examination, pursuant to the order made in I.A.No.99 of 2015, and however, the respondent/wife refused to undergo medical test and therefore, the learned Sub Judge, Ponneri, drawn adverse inference against the respondent/wife and dissolved the marriage by Judgment and Decree dated 05.07.2017. Against the said Judgment of Sub Court, Ponneri, the respondent/wife filed Civil Miscellaneous Appeal in C.M.A.No.4 of 2018 before the Principal District and Sessions Judge, Tiruvallur, and the learned Judge, after hearing same, dismissed the Appeal and there against, the respondent/wife has not filed any Appeal. Therefore, the marriage between the petitioner/husband and the respondent/wife was dissolved by the competent Court and even in the H.M.O.P.No.91 of 2013 filed by the petitioner/husband, the respondent/wife was examined as R.W.1 and during 4/12 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.347 of 2021 cross-examination, she herself admitted that before the marriage, the operation undergone by her had not been informed to the petitioner/husband. Both the Courts below failed to appreciate the fact that the respondent/wife is ineligible to claim relief under the Protection of Women from Domestic Violence Act, 2005 on account of suppression of material fact and the marriage itself void marriage. The Courts below, without any basis, and no evidence ordered maintenance, which is legally unsustainable. Though the lower appellate Court held that the respondent/wife is of unsound mind by the competent Court and the award of Rs.50,000/- to be paid by the petitioner and Rs.10,000/- by the second and third respondent in DVC Proceedings is erroneous, the award of maintenance to a sum of Rs.3,000/- per month to the respondent/wife, as ordered by the appellate Court is also erroneous. Once it is found that there is no domestic violence, the respondent wife voluntarily left the matrimonial home living separately, she is not entitled to any maintenance from the petitioner/husband. Therefore, the orders of the Courts below are liable to be set aside and the revision is to be allowed.
5/12 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.347 of 2021
5. The learned counsel for the respondent/wife would submit that in the DVAC Proceedings, the learned Additional Mahila Metropolitan Magistrate, Allikulam Complex, Egmore, Chennai, granted relief to the respondent/wife under Sections 18, 19, 19(8) and 20 and 22 of the Protection of Women from Domestic Violence Act, 2005. However, in the appeal filed by the petitioner/husband, the learned V Additional Sessions Judge, Chennai, and partly allowed the appeal with reference to the protection order and compensation order and partly dismissed with reference to the maintenance order and return of sridhana properties, and directed the petitioner/husband to pay a sum of Rs.3,000/- per month to the respondent/wife. Though the respondent/wife has not challenged the above order, the respondent/wife is entitled to get maintenance of a sum of Rs.3,000/- as per the order passed by the appellate Court. Hence, the learned counsel for respondent/wife prays for dismissal of the revision.
6. Heard the learned counsel for the petitioner and the learned counsel for the respondent and perused the materials placed on record. 6/12 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.347 of 2021
7. The marriage between the petitioner and the respondent is admitted and they lived together for five months and the respondent/wife left the matrimonial home and living separately also admitted. According to the petitioner, when the appellate Court negatived all other reliefs such as compensation relief except to return of jewels and the maintenance, the appellate Court failed to consider the economic status of the petitioner and the status of the respondent and in the absence of the material evidence, ought not to have fixed the quantum of maintenance Rs.3,000/-.
8. According to the respondent/wife, though the learned Magistrate awarded all the relief and same was challenged by the petitioner/husband and the other respondents in C.A.No.237 of 2017, the learned V Additional Sessions Judge, partly allowed with reference to the protection order and compensation order and partly dismissed with reference to the maintenance order and return of sridhana properties order, and directed the petitioner/husband to pay a sum of Rs.3,000/- per month to the respondent/wife.
7/12 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.347 of 2021
9. Though the learned counsel for the petitioner would submit that there is no domestic violence as alleged by the respondent/wife, the respondent herself left the matrimonial home, living separately and competent Family Court dissolved the marriage between the petitioner and the respondent, however, it is to be noted that both the Courts below found that there is a domestic violence against the respondent and she is now living separately.
10. According to the learned counsel for the petitioner the marriage between the petitioner/husband and the respondent/wife was dissolved by the competent Court and even in the H.M.O.P.No.91 of 2013, the respondent/wife admitted during cross examination that before the marriage, the operation undergone by her not been informed to the petitioner/husband. It is to be noted that though the petitioner / husband took a stand before the learned Sessions Judge about the mental stability of the respondent/wife to lead normal life, the learned V Additional Sessions Judge, rightly held that there was no allegation of concealment of health condition of the respondent/wife from the petitioner/husband and two others before marriage and only after knowing everything on the respondent's health and mental condition, the marriage was arranged by elders of both side.
8/12 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.347 of 2021
11. It is to be further noted that the appeal filed by the respondent/wife against the decree of divorce, was also dismissed and is not disputed. The wife is entitled for maintenance only when she is unable to maintain herself and if the husband despite having sufficient means, neglected or refused to maintain her wife. However, the revision petitioner/husband has not produced any document to show that his wife was getting sufficient income to maintain her. In the case on hand, the petitioner is working in Bank and as per Ex.P4, the petitioner/husband's net salary was Rs.11,500/- and though the appellate Court, has ordered maintenance of a Rs.2,000/- per month from the date of petition till May 2017 and Rs.5,000/- from June 2017 onwards, the appellate Court, modified the said amount to Rs.3,000/- per month from June 2017 and the pendente-lite maintenance payable from the date of petition till May 2017, and hence, the said amount cannot be stated as excessive.
12. It is settled legal principles that an act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the petitioner/husband from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act. 9/12 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.347 of 2021
13. While exercising the reivisional jurisdiction, this Court need not sit in the armchair of the appellate Court and re-appreciate the entire evidence and while deciding revision case, this Court has to see whether any perversity is found in appreciating the evidence, whereas in this case, this Court does not find any perversity in the decision made by the appellate Court, modifying the order passed by the lower Court. Therefore, this Court finds that there is no merit in the revision, and there is no ground to interfere with the judgment of the Courts below.
14. In the result, the Criminal Revision Petition is dismissed. Consequently, connected miscellaneous petitions are closed.
28.06.2021
Speaking Order / Non-speaking order
Index : Yes / No.
Internet : Yes.
rns
10/12
https://www.mhc.tn.gov.in/judis/
Crl.R.C.No.347 of 2021
To
1.The V Additional Sessions Court, Chennai,
2.The Additional Mahila Metropolitan Magistrate, Allikulam Complex, Egmore, Chennai.
11/12 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.347 of 2021 P.VELMURUGAN, J.
rns Crl.R.C.No.347 of 2021 & Crl.M.P.Nos.6018, 6019 & 6507 of 2021 28.06.2021 12/12 https://www.mhc.tn.gov.in/judis/