Madras High Court
Arunachalam @ Arun vs Ambika on 5 August, 2021
Crl.R.C.No.38 of 2021
and Crl.M.P.No.466 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.08.2021
CORAM:
THE HON'BLE Mr. JUSTICE P.VELMURUGAN
Criminal Revision Case No.38 of 2021
and
Crl.M.P.No.466 of 2021
1.Arunachalam @ Arun
2.A.R.Muthiah
3.M.Adaikammai ... Petitioners
Versus
1.Ambika
2.Minor Hasini
D/o.Arunachalam ... Respondents
Criminal Revision Case filed under Section 397 r/w 401 Criminal
Procedure Code, to call for the records relating to the order dated 27.02.2020
in Crl.Appeal No.118 of 2019 and setting aside the same and confirm the
order dated 12.2.2019 in M.C.No.21 of 2014 on the file the learned XXIII
Metropolitan Magistrate, Saidapet.
For Petitioners : Mr.AR.L.Sundaresan
for M/s.AL.Ganthimathi
For Respondents : Mrs.Sudharshana Sundar
for Ms.D.Kamatchi
Page 1 of 8
https://www.mhc.tn.gov.in/judis/
Crl.R.C.No.38 of 2021
and Crl.M.P.No.466 of 2021
ORDER
The Criminal Revision Case has been filed against the order dated
27.02.2020 passed in Crl.Appeal No.118 of 2019 by the learned V Additional
Sessions Judge, Chennai.
2.The revision petitioners herein are husband and in-laws of the first
respondent/wife. The first respondent/wife initially filed a Domestic Violence
Act case before the learned XXIII Metropolitan Magistrate, Saidapet and the
same was taken on file in M.C.No.21 of 2014. During the pendency of the
said case, the first petitioner/husband filed a petition for divorce in
H.M.O.P.No.247 of 2013 before the Family Court, Madurai, subsequently, the
same was transferred to Family Court, Chennai and is pending in
H.M.O.P.No.3014 of 2014. The learned Metropolitan Magistrate, after
enquiry, passed an order directing the 1st petitioner/husband to return all
Sridhana properties including gold jewels, silver articles and other household
articles and also to pay a sum of Rs.10,000/- per month as maintenance to the
2nd respondent/minor daughter on 5th day of every English Calendar month.
Aggrieved over the said order, the respondents herein filed an appeal in
Crl.A.No.118 of 2019 before the learned V Additional Sessions Judge,
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Crl.R.C.No.38 of 2021
and Crl.M.P.No.466 of 2021
Chennai. The learned Sessions Judge, after hearing the arguments advanced
on either side, set aside the order of trial Court and allowed the appeal and
remanded back the case to the trial Court for fresh trial, after giving
opportunity to both the parties to let in further evidence on their side, if
required. Challenging the said judgment, the petitioners are before this Court
by way of Criminal Revision Case.
3.Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the
petitioners would submit that after completion of full-fledged trial, the
learned Metropolitan Magistrate passed the order on merits, however,
challenging the said order, the respondents herein filed an appeal before the
learned V Additional Sessions Judge, Chennai. The appellate Court is a fact
finding Court, which has to necessarily re-appreciate the entire evidence on
record and has to pass orders on merits, whereas, the appellate Court simply
remanded back the case to the trial Court for fresh trial. It is not the case of
the petitioners or the respondents that without providing opportunity, the
learned Magistrate passed an exparte order without any materials. However,
the appellate Court without re-appreciating the entire materials, simply set
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Crl.R.C.No.38 of 2021
and Crl.M.P.No.466 of 2021
aside the order and remanded back to the trial Court for fresh consideration,
which warrants interference of this Court.
4.Mrs.Sudharshana Sundar, learned counsel appearing for the
respondents fairly conceded that there is no denial of sufficient opportunity
by the learned Magistrate, however, she seeks interim maintenance. Further,
the relationship between the parties and paternity of the child was not in
dispute. Therefore, interim maintenance should be ordered to the 2nd
respondent/minor daughter.
5.Heard the learned Senior Counsel appearing for the petitioners and
the learned counsel for the respondents and also perused the materials
available on record.
6.On a perusal of the order dated 12.2.2019 in M.C.No.21 of 2014, it
reveals that during trial, the learned Magistrate dealt with the complaint filed
by the first respondent/wife in Domestic Violence Act Case in M.C.No.21 of
2014, in which, the first respondent/wife herself was examined as P.W.1 and
https://www.mhc.tn.gov.in/judis/
Crl.R.C.No.38 of 2021
and Crl.M.P.No.466 of 2021
Protection Officer was examined as P.W.2. On the side of the respondents, 11
documents were marked as Ex.P.1 to Ex.P11. On the side of the defence, no
oral evidence was examined and six documents were marked as Ex.D1 to
Ex.D6. After trial, the learned Metropolitan Magistrate passed the order
directing the 1st petitioner/husband to return all Sridhana properties including
gold jewels, silver articles and other household articles and also to pay a sum
of Rs.10,000/- per month as maintenance to the 2nd respondent/minor
daughter on 5th day of every English Calendar month. Aggrieved over the said
order, the respondents herein filed the appeal in Crl.A.No.118 of 2019 before
the learned V Additional Sessions Judge, Chennai. The learned Sessions
Judge, while disposing the appeal, remanded back to the case to the trial
Court for fresh trial.
7.It is a settled proposition of law that the Court cannot insist the
parties to enter into witness box and let in evidence. In the present case, the
respondent/wife entered into the witness box and examined herself as P.W.1.
However, the appellate Court failed to appreciate the evidence and simply set
aside order of the learned XXIII Metropolitan Magistrate and remanded back
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Crl.R.C.No.38 of 2021
and Crl.M.P.No.466 of 2021
to the trial Court for fresh trial. It is not the case of the petitioners or
respondents that in appeal, opportunity was not given to the petitioners herein
by the trial Court to let in evidence.
8.Under these circumstances, this Court finds that there is a perversity
in the judgment passed by the learned V Additional Sessions Judge, Chennai.
Therefore, the judgment of the Appellate Court is set aside and the matter is
remanded back to the learned V Additional Sessions Judge, Chennai, for fresh
consideration and also directed to dispose of the appeal on merits and in
accordance with law.
9.With the above directions, this Criminal Revision Case is disposed
of. Consequently, connected miscellaneous petition is closed.
05.08.2021
Index : Yes/No
Speaking Order/Non Speaking Order
ms
https://www.mhc.tn.gov.in/judis/
Crl.R.C.No.38 of 2021
and Crl.M.P.No.466 of 2021
To
1.The XXIII Metropolitan Magistrate,
Saidapet, Chennai.
2.The V Additional Sessions Judge,
Chennai.
https://www.mhc.tn.gov.in/judis/
Crl.R.C.No.38 of 2021
and Crl.M.P.No.466 of 2021
P.VELMURUGAN, J.
ms
Crl.R.C.No.38 of 2021
and Crl.M.P.No.466 of 2021
05.08.2021
https://www.mhc.tn.gov.in/judis/
