Kerala High Court
Deji M. Thomas vs Vidya P. George on 13 November, 2024
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Crl.Rev.Pet. Nos.335 & 336 of 2020
2024:KER:84968
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2024/22ND KARTHIKA, 1946
CRL.REV.PET NO. 335 OF 2020
AGAINST THE COMMON JUDGMENT DATED 12.12.2019 IN CRA NO.100
OF 2017 SESSIONS COURT, KALPETTA, WAYANAD AGAINST THE ORDER DATED
07.11.2017 IN MC NO.43 OF 2016 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -II, SULTHANBATHERY
REVISION PETITIONER/APPELLANT/RESPONDENT NO.1:
DEJI M. THOMAS,
AGED 46 YEARS
S/O.THOMAS, MUNDEMPILLIL (H),
RSAC ROAD, VYTTILLA (PO), KOCHI.
BY ADVS.
O.V.MANIPRASAD
SRI.JOSE ANTONY
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 VIDYA P. GEORGE,
AGED 39, D/O.GEORGE, POOKKATTU (H),
PADICHIRA P.O., PULPALLY,
PADICHIRA VILLAGE, S.BATHERY TALUK,
WAYANAD DISTRICT, PIN - 673 579.
2 THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SMT.CELINE JOSEPH
ADV.SRI. SANAL.P. RAJ-PP
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Crl.Rev.Pet. Nos.335 & 336 of 2020
2024:KER:84968
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 13.11.2024, ALONG WITH CRL.REV.PET.336/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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Crl.Rev.Pet. Nos.335 & 336 of 2020
2024:KER:84968
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2024/22ND KARTHIKA, 1946
CRL.REV.PET NO. 336 OF 2020
AGAINST THE COMMON JUDGMENT DATED 12.12.2019 IN CRA NO.101
OF 2017 OF THE SESSIONS COURT , KALPETTA, WAYANAD AND AGAINST THE
ORDER DATED 07.11.2017 IN MC NO.43 OF 2016 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -II, SULTHANBATHERY
REVISION PETITIONER/1ST RESPONDENT/1ST RESPONDENT:
DEJI M. THOMAS
AGED 46 YEARS
S/O. THOMAS, MUNDEMPILLIL (H),
RSAC ROAD, VYTTILA P. O., KOCHI.
BY ADVS.
O.V.MANIPRASAD
SRI.JOSE ANTONY
RESPONDENTS/APPELLANT AND RESPONDENTS 2 TO 5/PETITIONER AND
RESPONDENTS 2, 3 AND 4 & STATE:
1 VIDYA P. GEORGE
AGED 39 YEARS
D/O. GEORGE POOKKATTU (H),
PADICHIRA P. O., PULPALLY,
PADICHIRA VILLAGE, S. BATHERY TALUK,
WAYANAD DISTRICT, PIN - 673 579.
2 MARY THOMAS
W/O. THOMAS, MUNDOPPILLI HOUSE,
R.S.A.C. ROAD, VYTILA POST, KOCHI,
PIN - 682 019.
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Crl.Rev.Pet. Nos.335 & 336 of 2020
2024:KER:84968
3 DETTI ROY
AGED 50 YEARS
W/O. ROY, EACHMUKKU,
PUTHUMANA (H), KAKKANAD,
KOCHI - 682 030.
4 GLEN ROY
AGED 26 YEARS
S/O. ROY, EACHMUKKU,
PUTHUMANA (H), KAKKANAD,
KOCHI - 682 030.
5 THE STATE KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SMT.CELINE JOSEPH
ADV.SRI. SANAL.P. RAJ-PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 13.11.2024, ALONG WITH CRL.REV.PET.335/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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Crl.Rev.Pet. Nos.335 & 336 of 2020
2024:KER:84968
P.G. AJITHKUMAR, J.
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Crl.Rev.Pet.Nos.335 & 336 of 2020
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Dated this the 13th day of November, 2024
ORDER
The petitioner is the husband of the 1st respondent. M.C.
No.43 of 2016 was filed by the 1st respondent before the Judicial
Magistrate of the First Class-II, Sulthanbatheri. The petitioner
was ordered to pay an amount of Rs.10,000/- as maintenance to
the 1st respondent and her child. Although the 1st respondent
sought several other reliefs, the learned Magistrate declined.
Appeals were preferred by both sides. The Sessions Court,
Kalpetta, dismissed the appeal filed by the petitioner and allowed
in part the appeal filed by the 1st respondent. The order of
maintenance was confirmed, but the finding of the learned
Magistrate concerning domestic violence was reversed.
Aggrieved by the said appellate judgment, this revision petition
has been filed invoking the provisions of Sections 397 and 401 of
the Code of Criminal Procedure, 1973.
2. Heard the learned counsel for the petitioner, the
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learned counsel for the 1st respondent and the learned Public
Prosecutor.
3. The marital relationship between the petitioner and
the 1st respondent is not in dispute. The 1st respondent is now
living separate. They have a child, now aged 9 years. Various
instances of domestic violence were alleged in the petition filed
by the 1st respondent under Section 12 of the Protection of
Women from Domestic Violence Act, 2005, before the learned
Magistrate. The Magistrate did not enter a finding that the
petitioner committed domestic violence, but ordered the
petitioner to pay maintenance to the 1st respondent and child.
The Appellate Court, after re-appreciating the evidence, took the
view that the acts and attitude of the petitioner towards the 1 st
respondent amounted to harassment and cruelty. That followed
the finding that the petitioner had committed domestic violence.
Further holding that the petitioner having sufficient means
refused to pay maintenance to the 1st respondent and the child,
ordered him to pay maintenance. The quantum of maintenance
fixed by the learned Magistrate was not interfered with.
Rs.10,000/- is the amount of maintenance.
Crl.Rev.Pet. Nos.335 & 336 of 2020
2024:KER:84968
4. The learned counsel for the petitioner assails the
findings of the Appellate Court that the petitioner treated the 1 st
respondent cruelly and therefore there occurred domestic
violence. It is urged that the finding is unsupported by any
evidence. Only because the 1st respondent refused to join his
company, he was continued to live separately. Therefore, the
learned counsel seeks to set aside the finding that the petitioner
had committed domestic violence.
5. The relief granted by the trial court as well as the
Appellate Court is only to pay maintenance. When both courts
declined reliefs of protection order, residence order and other
monetary reliefs, a finding as to whether the petitioner
committed domestic violence except about economic abuse is
unwarranted. Economic abuse as defined in Section 3 of the Act
takes in its fold deprivation of any financial resource to which the
aggrieved person is entitled under any law. The definition makes
it clear that denial of maintenance also is an instance of
economic abuse coming within the domestic violence. If the
petitioner denied maintenance the 1st respondent and the child
are entitled that amounts to domestic violence and that finding
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alone is enough for the purpose of deciding this case. Therefore,
findings in the appellate judgment that there was domestic
violence of other kinds is vacated.
6. When the marital relationship is subsisting and the 1st
respondent and the child are living separately without being
maintained by the petitioner, his obligation to pay maintenance is
indisputable, unless it is shown that the 1st respondent has
sufficient means to maintain herself. The definite contention of
the 1st respondent is that she is unemployed and does not have
any income. She has to maintain the child also. The petitioner
did not assert the objection filed before the learned Magistrate
that the 1st respondent is employed. There is also no averment
that the 1st respondent has sources of income. Therefore, the 1st
respondent has entitlement to get maintenance from the
petitioner.
7. While the 1st respondent asserted that the petitioner
has been drawing a salary of Rs.60,000/-, he denied that fact.
He however admitted he is drawing a monthly salary of
Rs.26,500/-. Of course, he did not choose to produce any
documents showing his salary. He deposed before the court that
Crl.Rev.Pet. Nos.335 & 336 of 2020
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the salary is being credited with his bank account. Despite
availability of such documents, the 1st respondent did not take
steps to bring such documents before the court in order to prove
the monthly salary of the petitioner. Therefore, the evidence
available on record is only the oral versions of PW1-the 1st
respondent and RW1-the petitioner. We can only go by the
version of RW1 since he is the person having direct knowledge
about that fact.
8. Taking the income of the petitioner as Rs.26,500/-,
can the amount of maintenance fixed by the courts below as
Rs.10,000/-be said to be exorbitant? What are the requirements
of the 1st respondent and the child are not in evidence. So, a
prudent approach has to had to assess the amount of
maintenance entitled by the 1st respondent and the child. Taking
into account the standard of living as it is seen from the oral
testimonies of PW1 and RW1 and also the salary, the petitioner is
drawing. I am of the view that Rs.9,000/- (Rs.5,000/- to the 1st
respondent and Rs.4,000/- to the child) shall be the amount of
maintenance.
Accordingly, these revision petitions are disposed of
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directing the petitioner to pay a monthly maintenance at the rate
of Rs.5,000/- to the 1st respondent and Rs.4,000/- to the child
from the date of filing of M.C. No.43 of 2016.
Sd/-
P.G. AJITHKUMAR
JUDGE
SMF
