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2011 DIGILAW 1070 (KER)

Preceline George v. State of Kerala

2011-10-24

S.S.SATHEESACHANDRAN

body2011
Judgment : 1. Revision is by the respondent in a proceeding under Section 12 of the Protection of Women from Domestic Violence Act {for short “the Act”} on the file of the Judicial Magistrate of the First Class- I, Ernakulam. The petitioner in the aforesaid proceedings, the 2nd respondent herein, claimed various reliefs under the aforesaid Act, alleging that the revision petitioner, a doctor by profession, who married her on 07.06.2009, committed domestic violence on various counts entitling her to the reliefs canvassed. All the reliefs claimed by her in the petition, except the claim for maintenance were turned down by the learned magistrate. The claim for maintenance raised by her was allowed in part, directing the revision petitioner to pay her a sum of Rs.3,500/- per month from the date of the petition. The order of the magistrate awarding maintenance as aforesaid was challenged in appeal, but that was turned down by the learned Additional Sessions Judge, (Ad hoc-II), Ernakulam. Feeling aggrieved, the respondent in the MC proceedings has preferred this revision. 2. Notice given, petitioner/claimant in the MC has entered appearance. Parties are hereinafter referred to as the revision petitioner and the claimant. I heard the counsel on both sides. 3. The order passed in favour of the claimant awarding her maintenance at the rate as fixed above by the magistrate as confirmed by the learned Sessions Judge in appeal is assailed by the learned counsel for the revision petitioner as unsustainable in law and facts. There are no specific pleadings in the petition filed under Section 12 of the Act by the claimant as regards the monetary claim raised towards maintenance, which had been allowed by the two courts below, is the submission of the counsel, stressing upon that Form II provided under the Rules of the aforesaid Act mandate of furnishing of specific particulars of the monetary claims. If only such particulars are furnished, then alone, the opposite party can meet the claims raised thereof, and otherwise it would cause prejudice to him, is the submission of the counsel to contend that allowing of the claim for maintenance without there being specific particulars furnished in the application has resulted in serious prejudice to the revision petitioner and also miscarriage of justice. It is further contended by the counsel that where the imputations and allegations made as regards ‘domestic violence’ against the revision petitioner to seek prohibitory and protective orders and also compensation as enjoined by the Act, had been turned down by both the courts, the awarding of maintenance, a monetary claim, in favour of the claimant was patently improper and cannot be sustained at all. Even in her petition, the claimant has stated that she is a teacher and when that be so she could be reasonably expected to get sufficient income from her vocation and, thus, disentitled to claim any maintenance from the revision petitioner, is the submission of the counsel, to contend that both the courts below have not examined the claim for maintenance despite such a specific admission made as to her employment as aforesaid. Interim maintenance awarded in the proceedings ex parte had been reversed by this court upholding the challenge raised thereto by the revision petitioner by way of a writ petition is also highlighted by the counsel among other grounds as aforesaid to contend that there was total misappreciation of the facts and circumstances by the both the courts below in awarding maintenance to the claimant. 4. On the other hand, the learned counsel appearing for the claimant would submit that the admission made in the petition was only to the effect that she was a teacher at the time of her marriage, but, later, she had resigned the job to have cohabitation with her husband, the revision petitioner. Both the courts below after meticulously considering the materials produced have rightly and correctly upheld her claim for maintenance finding that the revision petitioner is liable to provide her maintenance, but, of a lesser sum than what was claimed by her, according to the counsel. The concurrent finding entered by the courts below to award such claim does not warrant any interference in exercise of revisional jurisdiction, is the submission of the counsel. 5. The concurrent finding entered by the courts below to award such claim does not warrant any interference in exercise of revisional jurisdiction, is the submission of the counsel. 5. Going through the judgments rendered by the learned magistrate and the learned Sessions Judge in appeal, I find, though there is serious dispute between the parties as regards the consummation of marriage, fairly and correctly, taking note of the limited scope of exercising revisional jurisdiction and also the pendency of the proceedings over that dispute before the Family Court between the parties, both sides did not advance any arguments over such vexed question. The question to be considered on the basis of the challenges raised by the revision petitioner is whether there is any illegality or impropriety in the awarding of maintenance to the claimant from the revision petitioner. There was no specific pleading for the monetary relief of maintenance in the application filed by the claimant, the challenge raised by the counsel with reference to Form No.III under the Rules filing the application under Section 12 of the Act, is not of any significance. Section 12 of the Act clearly spells out that proceedings under the Act can be initiated in respect of a domestic violence on the basis of an application not only from the aggrieved person, but even from a protection officer or any other person on behalf of the aggrieved person. It is not the form that has to be looked into in determining the reliefs canvassed under the Act, but as to whether the allegations set out in such application make out a case for commencement of a proceeding under the Act, which is intended to prevent domestic violence. No prejudice has been caused to the revision petitioner in meeting the claim of maintenance is borne out in the case where it is conceded that the interim maintenance awarded ex parte, on his challenge, had been set aside by this court. He knew that a claim for maintenance is made by the claimant in the proceedings and that he has to meet such a claim in the proceedings. Form II provided under the Rules of the Act would also unmistakably reveal that only certain particulars are to be stated as regards the claim raised and no specific pleading with respect to any monetary claim as such is warranted from the applicant. Form II provided under the Rules of the Act would also unmistakably reveal that only certain particulars are to be stated as regards the claim raised and no specific pleading with respect to any monetary claim as such is warranted from the applicant. When a claim by way of monetary relief is sought against the opposite party proceeded against, naturally, it can be decided only on the basis of the materials produced in the case. The revision petitioner, the opposite party in the proceedings perfectly knew that the applicant/claimant has raised a monetary claim of maintenance, apart from other reliefs in relation to the domestic violence imputed against him. The fulcrum of her claim of maintenance was based on her case that she has no employment, as and when the application was filed, though she was a teacher earlier, and, the revision petitioner, as a doctor, is getting emoluments of Rs.20,000/- per month. In a proceeding under Section 12 of the Act, having regard to the form on which the application thereof has to be filed and also the laudable objective behind the Act, which is enacted to prevent domestic violence, the applicant is not expected, nor is there any need for her to specifically plead as to her inability to maintain and also the neglect of the opposite party to provide her maintenance. Among other reliefs provided under the Act, the aggrieved person covered by the Act can seek the monetary relief including maintenance from the opposite party, if she is entitled thereto. Her claim of maintenance, if so made, has to be determined on the proved facts of the case, of course, having regard to the fundamental principles applicable in awarding maintenance. The challenge canvassed by the counsel that there was no pleading to sustain a claim for maintenance, which was canvassed as one among the reliefs in the proceedings and, so the order awarding maintenance was improper, has no merit at all. 6. The arguments raised by the counsel that when all the other claims raised in relation to domestic violence under the Act had been turned down, the awarding of maintenance as a monetary relief to the claimant was one without jurisdiction and, therefore, unsustainable, is not correct. Domestic violence defined under Section 3 of the Act, among others, takes in economic abuse also. Domestic violence defined under Section 3 of the Act, among others, takes in economic abuse also. The definition of ‘economic abuse’ under sub-clause (4) of Explanation I clearly and unequivocally demonstrate the entitlement of the aggrieved person to claim maintenance from the opposite party. Even if the other reliefs canvassed in relation to the domestic violence imputed against the opposite party, are not established by the materials placed, and thus not allowable, that does not deprive the aggrieved person in the proceeding under the Act to claim maintenance from the opposite party, if she is entitled thereto and such a claim has been canvassed with the other reliefs in the other proceedings. So much so, protective order and compensation claimed under the proceedings by the claimant have been negatived on the proved facts and circumstances involved in the case by the materials tendered is no ground to hold that the claim made by her for maintenance from the opposite party (revision petitioner) when she is entitled thereto should have been turned down. Section 20 of the Act which empowers the magistrate to grant monetary reliefs while disposing of an application would also indicate that even where a claim of maintenance had already been granted under Section 125 of the Code or any other law for the time being in force, a further order awarding maintenance to the aggrieved person as well as her children, as a monetary relief, can be granted but only that the monetary relief granted under that Section, including maintenance, shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. No doubt, if there is already an order of maintenance in favour of the aggrieved person, that also should be taken into account in determining the monetary relief, if any, granted under the proceeding having regard to the aforesaid parameters specified. So much so, monetary relief by way of maintenance cannot be granted when other reliefs canvassed in the proceedings imputing domestic violence against the opposite party are turned down, the challenge raised to impeach the order awarding maintenance to the claimant, has no basis or merit at all. 7. The learned magistrate has taken note that the claimant is not having any job, though she was previously a teacher, and that the opposite party (revision petitioner) does not have a case that she is employed. 7. The learned magistrate has taken note that the claimant is not having any job, though she was previously a teacher, and that the opposite party (revision petitioner) does not have a case that she is employed. He has not raised any such contention in his objections is also taken note of. The challenge, however, made was that the claimant did not produce any material to show that she has resigned her job as a teacher. The evidence of the claimant on that score was found acceptable and reliable to the learned magistrate. If at all she has not resigned her job, the revision petitioner could have produced some supporting material thereof. She has stated in her petition that she is a teacher, at the most, would only indicate that her profession is teaching. The question is whether she was employed at the time or during the enquiry. On the materials placed, it was found that she was unemployed and also that she suffered from certain ailments requiring medical treatment. Taking note of the status of the parties, the income potentiality of the revision petitioner employed as a doctor having monthly emoluments of Rs.20,000/-, the magistrate has directed him to pay Rs.3,500/- as maintenance to the claimant. The learned Sessions Judge, after reappraisal of the evidence found that she is entitled to claim maintenance from the opposite party, and the claim for maintenance fixed, having regard to the status of the parties, is just and reasonable. I do not find any impropriety, leave alone any illegality, in the concurrent finding entered by both the courts below upholding the claim for maintenance by the claimant and also the quantification of the sum awarded thereof. In case there is any change of circumstance, on account of the claimant getting any employment, or otherwise getting assets generating reasonable income for her livelihood, no doubt, the revision petitioner can seek alteration of the order awarding maintenance as provided under sub – section (2) of Section 25 of the Act. Revision lacks merits, and it is dismissed.