T.Ponmani vs Velusamy
2022 Latest Caselaw 16717 Mad

                                                                               Crl.R.C.No.984 of 2018


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 20.10.2022

                                                        CORAM:

                             THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                               Crl.R.C.No.984 of 2018
                                            and Crl.M.P.No.11488 of 2018

                T.Ponmani                                                      ...Petitioner

                                                         -Vs-

                1.Velusamy
                2.Dhavamani
                3.Sivakumar
                4.V.Kavitha                                               ... Respondents
                Prayer: Criminal Revision case filed under Section 397 r/w Section 401 of
                Code of Criminal Procedure, 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.

                                       For Petitioner    : Mr.S.Kalyanaraman

                                       For Respondents : Mr.B.Vasudevan


                                                     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

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Crl.R.C.No.984 of 2018

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 https://www.mhc.tn.gov.in/judis

Crl.R.C.No.984 of 2018

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 https://www.mhc.tn.gov.in/judis

Crl.R.C.No.984 of 2018

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 Magistrate shall take into consideration any domestic incident report

received from the Protection Officer. In the case on hand, no complaint has been

lodged before the Protection Officer and no domestic incident report was

received by the trial Court.

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Crl.R.C.No.984 of 2018

7. That apart, the trial Court conducted a detailed enquiry and passed

order. In fact, the petitioner examined PWs1 to 3 and marked Exs.P1 to P10.

The respondents examined DW1 and DW2 and marked Exs.R1 to R6 as

exhibits. The Appellate Court committed patent error in setting aside the order

passed by the trial Court.

8. In so far as, the period under Section 12(5) of Domestic Violence Act,

2005, is concerned, to dispose the application, a period of 60 days is stipulated.

Though, the Act provided 60 days, it does not bar the trial Court to dispose the

matter even after a period of 60 days. The intention of legislature is to keep

equal remedy for the aggrieved person and as such, the Act fixed time for

disposal of review application filed under the Domestic Violence Act, disposed

within a period of 60 days. Now the trial Court completed the trial and passed

order. Therefore, after passing an order it cannot be set aside on the ground that

it should be complied within a period of six days. Therefore, on both the

grounds, the Appellate Court committed very serious error in allowing the

appeal. In so far as, the right of residence is concerned, the petitioner and her

minor daughter are entitled to get a relief of right of residence in the address

given by the petitioner though, the partition suit is pending between the https://www.mhc.tn.gov.in/judis

Crl.R.C.No.984 of 2018

petitioner and the respondents.

9. Further, the petitioner and her minor daughter are entitled for monthly

maintenance from the respondents one to three. Admittedly, the respondents

one and two are her father-in-law and mother-in-law. After demise of her

husband, the petitioner filed a petition seeking relief under Section 18 to 22.

The monthly maintenance is provided under Section 20 of the Domestic

Violence Act. Accordingly, any aggrieved person can seek relief as against the

respondents as provided under Sections 18 to 22. The respondents means any

adult male person who is , or has been, in a domestic relationship with the

aggrieved person and against whom the aggrieved person has sought any relief

under this Act. The domestic relationship means the relationship between two

persons who live or have, at any point of time, lived together in a shared

household, when they are related by consanguinity, marriage, or through a

relationship in the name of marriage, adoption or are family members living

together as a joint family. Therefore, the petitioner, being an aggrieved person,

can seek relief as monthly maintenance only as against her husband.

10. Admittedly, the petitioner sought for maintenance from her in laws.

That apart, the respondents one and two are the persons who never received any https://www.mhc.tn.gov.in/judis

Crl.R.C.No.984 of 2018

terminal benefits or any family pension of their deceased son. Therefore, the

petitioner and her daughter are not entitled for any monthly maintenance from

the respondents one and two herein.

11. Accordingly, the Criminal Revision case is partly allowed. The

respondents are restrained from indulging in any hindrance in the peaceful right

of residence of the petitioner in the given address. Consequently, connected

miscellaneous petition is closed.

20.10.2022

Index : Yes/No Speaking/Non Speaking order ata

To

G.K.ILANTHIRAIYAN. J,

ata

1. The Principal Sessions Judge, Namakkal.

2. The Judicial Magistrate, Paramathi.

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Crl.R.C.No.984 of 2018

Crl.R.C.No.984 of 2018

20.10.2022

https://www.mhc.tn.gov.in/judis